THE COURTS
Title 231--RULES OF CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CHS. 4, 1000, 1700 AND 2250]
Amendment of Rules Governing Joinder of Additional Defendants; Proposed Recommendation No. 218
[36 Pa.B. 5971]
[Saturday, September 30, 2006]The Civil Procedural Rules Committee proposes that the rules of civil procedure governing the joinder of additional defendants be amended as set forth herein. 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 9, 2006 to:
Harold K. Don, Jr., Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
or E-Mail to
civil.rules@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 400. SERVICE OF ORIGINAL PROCESS
SERVICE UPON PARTICULAR PARTIES Rule 425. Additional Defendants.
(a) Original process shall be served upon an additional defendant who is not already a party to the action in the same manner as if he or she were an original defendant. [Copies of all pleadings filed in the action shall be served with the complaint against the additional defendant.] The joining party, upon request, shall furnish copies of all or specified pleadings filed in the action.
Official Note: [Prior pleadings must be served with the complaint whether the complaint is original process served upon the additional defendant or a pleading served under Rule 440.]
See Rule 213(b) for the right of an additional defendant to move for a severance and Rule 1006(d) for the right to move for a change of venue.
(b) The defendant or additional defendant shall serve a copy of his complaint upon every prior party [but need not attach copies of any pleadings previously filed in the action].
CHAPTER 1000. ACTIONS
Subchapter A. CIVIL ACTION
PLEADINGS Rule 1017. Pleadings Allowed.
(a) Except as provided by Rule 1041.1, the pleadings in an action are limited to
(1) a complaint[,] and an answer thereto,
Official Note: The term ''complaint'' includes a complaint to join an additional defendant.
(2) a reply if the answer contains new matter [or], a counterclaim or a cross-claim,
(3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter,
(4) a preliminary objection and [an answer] a response thereto.
* * * * * Rule 1031. Counterclaim.
(a) The defendant may set forth in the answer under the heading ''Counterclaim'' any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing the answer.
Official Note: See Rule 2256 governing counterclaims in an action involving an additional defendant.
See Rule 213(a) and (b) governing consolidation and severance of causes of action.
* * * * * Rule 1031.1. Cross-claim.
Any party may set forth in the answer or reply under the heading ''Cross-claim'' a cause of action against any other party to the action that the other party may be
(1) solely liable on the underlying cause of action or
Official Note: The term ''underlying cause of action'' refers to the cause of action set forth in the plaintiff's complaint or the defendant's counterclaim.
(2) liable to or with the cross-claimant on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action is based.
Official Note: Subparagraph (2) permits a cross-claimant to raise a claim that another party is liable over to the cross-claimant or jointly and severally liable with the cross-claimant.
The right to assert a cross-claim in a class action is limited by Rule 1706.1 to the grounds set forth in that rule.
CHAPTER 1700. CLASS ACTIONS Rule 1706.1. Joinder of Additional Defendants. Cross-Claims.
Any defendant or additional defendant may only join as an additional defendant any person[, whether or] not a party to the action, or may assert a cross-claim against another party to the action, who may be
(1) solely liable on the plaintiff's cause of action[;], or
* * * * * Official Note: [The three bases of joinder provided by this rule are identical to the bases of joinder provided by Rule 2252(a)(1) through (3) governing the joinder of additional defendants generally.]
The right of joinder under Rule 1706.1 of an additional defendant based upon liability ''on the plaintiff's cause of action'' is not as broad as the right under Rule 2251(b) governing the joinder of additional defendants generally
Similarly, the right of cross-claim under this rule is not as broad as the right under Rule 1031.1 governing cross-claims generally.
CHAPTER 2250. JOINDER OF ADDITIONAL DEFENDANTS Rule 2252. Right to Join Additional Defendants.
(a) Except as provided by Rule 1706.1, any [defendant or additional defendant] party may join as an additional defendant any person [whether or] not a party to the action who may be
(1) solely liable on the [plaintiff's] underlying cause of action, or
Official Note: The term ''underlying cause of action'' refers to the cause of action set forth in the plaintiff's complaint or the defendant's counterclaim.
(2) [liable over to the joining party on the plaintiff's cause of action, or] Rescinded.
(3) [jointly or severally liable with the joining party on the plaintiff's cause of action, or] Rescinded.
(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the [plaintiff's] underlying cause of action is based.
Official Note: Paragraph (4) permits a joining party to join an additional defendant who may be liable over to the claimant or jointly and severally liable with the joining party.
The joinder of an additional defendant in a class action is limited by Rule 1706.1 to the grounds set forth in [subparagraphs (1) to (3)] that rule.
(b) [If the person sought to be joined is not a party to the action the] The joining party may file as of course a praecipe for a writ or a complaint.
(1) If the joinder is by writ, the joining party shall file a complaint within twenty days from the filing of the praecipe for the writ. If the joining party fails to file the complaint within the required time, [the plaintiff or the additional defendant joined] any other party may seek a rule to file the complaint and an eventual judgment of non pros in the manner provided by Rule 1037(a) for failure to file a complaint.
* * * * * (d) [If the person sought to be joined is a party, the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint, assert in the answer as new matter that such party is alone liable to the plaintiff or liable over to the joining party or jointly or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor. The case shall proceed thereafter as if such party had been joined by a writ or a complaint] Rescinded.
Official Note: See Rule 1031.1 governing cross-claim for the procedure to assert a claim against a person already a party to an action.
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
(1) sixty days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof, or
(2) the time for filing his or her answer,
whichever is later, unless such filing is allowed by order of the court or by the written consent of all parties approved by and filed with the court. The praecipe for a writ to join an additional defendant or the complaint joining the additional defendant shall be filed within twenty days after notice of the court order or the court approval of the written consent or within such other time as the court shall fix.
* * * * * Rule 2255. Procedure.
* * * * * [(b) No pleadings shall be filed between the additional defendant and any party other than the one joining the additional defendant except that the additional defendant may file a counterclaim against the plaintiff.] Rescinded.
* * * * *
Explanatory Comment In the spring of 2006, the Civil Procedural Rules Committee published for comment Recommendation No. 208 which, inter alia, proposed to add notes to Rules 2252(d) and 2255(b) governing joinder of additional defendants to make clear that Rule 2255(b) does not bar the assertion of a cross-claim between parties to an action. The sense of the comments received to the publication was that the rules remained antiquated and that the matter was of sufficient importance to be included in the text of the rules rather than in notes. The Committee has revised the proposal in light of these comments.
The present recommendation proposes the following revisions:
I. Cross-claim
Rule 2252 governing joinder of an additional defendant was amended in 1969 by adding subdivision (d) providing that ''If the person sought to be joined is a party, the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint,'' assert the claim in the answer as new matter. This amendment was described in the commentary to the 1969 amendments to Rule 2252 as ''the equivalent of the cross-claim between two defendants under the federal rules.'' However, the term ''cross-claim'' did not appear in the rules.
The present recommendation proposes that the assertion of a claim by one party against another party be a matter of pleading rather than joinder of parties. The claim is to be pleaded as a cross-claim under proposed new Rule 1031.1. The claims which may be asserted in a cross-claim are identical to those which serve as bases for joining an additional defendant under revised Rule 2252(a) discussed below.
II. Joinder of Additional Defendants
1. The recommendation proposes that Rule 2252(a) be amended to limit the rules governing joinder of additional defendants to the joinder of persons not already parties to an action:
. . . any [defendant or additional defendant] party may join as an additional defendant any person [, whether or] not a party to the action . . .2. The joinder may be effected by ''any party,'' not simply the defendant or additional defendant as under the present rule. This revision acknowledges that a plaintiff may join an additional defendant in his or her capacity as defendant on a counterclaim. In light of this revision, subparagraphs (a)(1) and (4) describing the bases for joining an additional defendant refer to the ''underlying cause of action'': rather than the ''plaintiff's cause of action.'' A new note explains the term ''underlying cause of action'' as referring to ''the cause of action set forth in the plaintiff's complaint or the defendant's counterclaim.''
3. Subdivision (a)(2) and (3) setting forth liability over and joint or several liability as bases for joining an additional defendant are to be deleted as they are subsumed in subdivision (a)(4) which provides for joinder of a person who is
(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the [plaintiff's] underlying cause of action is based.A note explains that this provision includes the joinder of a person as ''an additional defendant who may be liable over to the claimant or jointly and severally liable with the joining party.''
4. Current Rule 2255(b) prohibiting the filing of pleadings between an additional defendant and ''any party other than the one joining the additional defendant'' is to be rescinded.
5. The time for joinder of an additional defendant without leave of court under present Rule 2253(a) is ''sixty days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof.'' It frequently occurs, however, that if a defendant has filed preliminary objections, he or she is not in a position to join an additional defendant within the sixty-day time period. In addition, if an additional defendant is joined just prior to the end of the sixty-day period, that additional defendant may have no opportunity to timely join another additional defendant as the sixty-day period may have expired. Consequently, it is proposed that Rule 2253(a) be amended to provide that an additional defendant may be joined without leave of court within the existing sixty-day period provided by the present rule or within ''the time for filing his or her answer,'' whichever is longer. This revision will allow the joining party to join an additional defendant without leave of court either after disposition of preliminary objections or after expiration of the sixty-day period but, in either case, within the time for filing his or her answer.
III. Conforming Amendments
Rule 420 governing service upon an additional defendant is revised to delete the burdensome requirement that the joining party serve with the complaint copies of all pleadings in the action. Rather, ''[t]he joining party, upon request, shall furnish copies of all or specified pleadings filed in the action.''
Rule 1017 governing pleadings allowed is revised to provide a numerical list of pleadings which may be filed. The revised rule in subdivision (a)(2) and (3) includes a reference to the cross-claim proposed under new Rule 1031.1.
The note to Rule 1031(a) governing counterclaims is revised by adding a paragraph cross-referring to Rule 2256 relating to counterclaims in an action involving an additional defendant.
Rule 1706.1 governing joinder of an additional defendant in a class action is revised to permit a party to assert a cross-claim against another party to the action on the grounds limited by that rule.
By the Civil Procedural Rules Committee
R. STANTON WETTICK, Jr.,
Chair
[Pa.B. Doc. No. 06-1901. Filed for public inspection September 29, 2006, 9:00 a.m.]
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