THE COURTS
PART I. GENERAL
[231 PA. CODE CH. 2250]
Proposed Amendment of Rule 2253 Governing Joinder of an Additional Defendant; Proposed Recommendation No. 188
[33 Pa.B. 5175] The Civil Procedural Rules Committee proposes that Rule of Civil Procedure 2253 governing the joinder of an additional defendant be amended by adding new subdivisions (b) and (c) as set forth in the recommendation. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.
All communications in reference to the proposed recommendation should be sent not later than November 14, 2003 to:
Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
or E-Mail to
civilrules@pacourts.usThe Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 2250. JOINDER OF ADDITIONAL DEFENDANTS Rule 2253. Time for Filing Praecipe or Complaint.
(a) Except as provided by Rule 1041.1(e), neither a praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by complaint, shall be filed by the original defendant or an additional defendant later than sixty 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] or by the written consent of all existing parties filed with the court.
* * * * * (b) A party on motion may seek leave of court to join an additional defendant after the sixty-day period prescribed by subdivision (a).
(1) If the plaintiff opposes the motion, the court may permit the joinder upon a determination that
(i) the joinder is based on proper grounds,
(ii) a reasonable excuse exists for the delay in commencing joinder proceedings, and
(iii) the original plaintiff will not be prejudiced by the late joinder.
(2) If an existing party to the action other than the plaintiff opposes the motion, the court may permit the joinder upon a determination that
(i) the joinder is based on proper grounds, and
(ii) the party objecting to the joinder will not be prejudiced thereby.
(3) If the court grants a motion to join a person not previously a party as an additional defendant, the person so joined may object to the court order permitting the joinder by filing preliminary objections asserting prejudice.
Offical Note: The preliminary objections should include any other ground applicable under Rule 1028.
(c) The complaint joining the additional defendant shall be filed within twenty days after the filing of a written consent executed by all parties or notice of the order permitting joinder or within such other time as the court shall fix.
Explanatory Comment Rule of Civil Procedure 2253 governs the time for the joinder of additional defendants. The rule permits late joinder if ''allowed by the court upon cause shown'' but does not define the requirement. The present recommendation proposes to add a new subdivision clarifying the practice and setting forth the burdens of the parties with respect to establishing cause for late joinder.
The recommendation proposes to designate the present rule as subdivision (a). The rule is revised in two respects. First, the words ''upon cause shown'' are deleted. The requirements for the allowance of a request for late joinder will be set forth in new subdivision (b). Second, there is added language allowing late joinder ''by the written consent of all existing parties filed with the court.'' The court need not become involved if all parties agree to the late joinder.
New subdivision (b) provides the procedure for the late joinder of an additional defendant by the court. Subparagraphs (1) through (3) govern the procedure when the party objecting to the late joinder is the plaintiff, another existing party to the action, or a person joined who was not previously a party.
New subdivision (b)(1) provides a three-prong test for late joinder when it is the plaintiff who is objecting to the proposed joinder. The second prong of the test, the necessity to establish that ''a reasonable excuse exists for the delay in commencing joinder proceedings,'' is required under subdivision (b)(1)(ii) only when the plaintiff is making the objection.
Subdivision (b)(2) sets forth a two-prong test when another existing party objects to the joinder, i.e., the existence of proper grounds for the joinder and the absence of prejudice to the objecting party. This two-prong test is also applicable under subdivision (b)(3) to an objection by a person joined who was not previously a party. However, subdivision (b)(3) makes reference to only one prong of the test and provides for the person not formerly a party to raise the ground of prejudice through preliminary objections. The second prong of the test, absence of proper grounds for the joinder, is already a basis for preliminary objections under Rule 1028.
New subparagraph (c) requires the prompt filing of the pleading joining an additional defendant.
By the Civil Procedural Rules Committee
R. STANTON WETTICK, Jr.,
Chair
[Pa.B. Doc. No. 03-2021. Filed for public inspection October 17, 2003, 9:00 a.m.]
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