Kerry Coal Co. v. Beckwith Machinery Co.

ROWLEY, Judge:

This is an appeal by Robert Grieff (Grieff) from an order sustaining preliminary objections filed by E.F. Johnson Company (Johnson) and dismissing Johnson as an additional defendant. Johnson challenged its joinder on the ground that Grieff had not complied with Pa.R.C.P. 2253. For the reasons discussed below, we are in agreement with both the trial court and appellee, and accordingly affirm.

The facts of this case involve the sale and purchase of a Caterpillar Tractor and the damage done to the same as a result of a fire of unknown origin. The fire originated in the cab of the tractor while it was being operated on March 25, 1976, by an employee of the plaintiff, Kerry Coal Company (Kerry Coal). Kerry Coal instituted suit in September of 1977 to recover the damages it had sustained, alleging strict liability on the part of Beckwith Machinery Company (Beckwith) for selling and supplying the tractor in a defective and dangerous condition. Beckwith, in turn, joined Caterpillar Tractor Company, the manufacturer of the tractor, and Grieff as additional defendants. Beckwith joined Grieff claiming that a two-way radio which Grieff had sold to Kerry Coal, and which had been installed in the cab of the tractor prior to March 25, 1976, was in a defective condition and unreasonably dangerous at the time of installation. In response to Beckwith’s joinder, Grieff filed preliminary objections claiming lack of venue, and including therein a motion for a more specific pleading. Grieff’s preliminary objections were dismissed on January 31, 1979, and Grieff was directed to “plead over within thirty (30) days from the date” of the order. On February 20, 1979, Grieff, without leave of court, joined as additional defendants, Johnson, the manufacturer of the radio, and Leonard J. Schmader, the individual who had installed the radio in the tractor cab. Johnson filed preliminary objections in the nature of a motion to strike on the ground that Grieff’s joinder of Johnson as an additional defendant was not accomplished in conformity with the rules of civil procedure and was not timely filed under Pa.R.C.P. 2253. The trial court sustained Johnson’s preliminary objections, and this appeal followed.

Pa.R.C.P. 2253 provides as follows:

Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown. (Emphasis supplied)

On appeal Grieff contends that his joinder of Johnson was timely filed, and that he was not in violation of Pa.R.C.P. 2253. In support thereof, Grieff first argues that the trial court’s order of January 31, 1979, gave him the right to “plead over” which included the right to join additional defendants without leave of court. Grieff’s second argument is that the rule announced in Graham v. Greater Latrobe School District, 436 Pa. 440, 260 A.2d 731 (1970) is applicable and that, consequently, he had sixty days from the date his preliminary objections were overruled to join additional defendants without leave of court. Neither argument is persuasive.

The fact that the trial court granted Grieff the right to “plead over” cannot be construed as authorizing the joinder of additional defendants for “cause shown.” Grieff’s first argument, therefore, is without merit. As for Grieff’s second argument, the exception to Pa.R.C.P. 2253 carved out in Graham, supra, is not applicable to the facts of this case. Graham is only applicable when the preliminary objections are filed by the original defendant and, if successful, would result in the filing of an amended complaint by the plaintiff or in the action being dismissed. Compare Commercial Banking Corp. v. Culp, 297 Pa.Super. 344, 443 A.2d 1154 (1982) (original defendant’s filing of preliminary objections delayed running of sixty-day period for joinder of additional defendants until preliminary objections were ruled upon where such objections, if successful, would have terminated litigation as to a necessary party); Pennsylvania Gas & Water Company v. Lisbon Contractors, 288 Pa.Super. 267, 431 A.2d 1041 (1981) (original defendant’s filing of demurrer did not delay running of sixty-day period for joinder of additional defendants until preliminary objections were ruled upon where the demurrer, which challenged only one of two counts of the complaint, would not have terminated litigation even if successful). Grieff is not an original defendant. The exception found in Graham has never been extended to preliminary objections filed by additional defendants. We see no reason to extend it now. Grieff’s preliminary objections, even if successful, would not have resulted in the dismissal of the action or the filing of an amended complaint by the plaintiff. Because Graham sets forth an exception to the plain language of Pa.R.C.P. 2253, it should be strictly limited to the circumstances found therein. The procedural background required to implement the Graham exception is not present in this case.

Order affirmed.

POPOVICH, J., files a dissenting opinion.