Martinelli v. Mulloy
| Decision Date | 11 December 1972 |
| Citation | 299 A.2d 19,223 Pa.Super. 130 |
| Parties | Marie Belfiglio MARTINELLI, Appellee, v. Sandra S. Fry MULLOY, Appellant, and Rose Christaldi. |
| Court | Pennsylvania Superior Court |
Schroeder, Jenkins & Raymond, Richard L Raymond, Media, for appellant.
Anthony Raffo, Upper Darby, Francis Sbandi Media, for appellee.
Before WRIGHT, P.J., and WATKINS, JACOBS HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.
Appellant Sandra Fry Mulloy and Rose Christaldi were sued as defendants in an action brought by Marie Belfiglio Martinelli to recover for injuries sustained in a 1966 collision of automobiles driven by Mulloy and Christaldi. [1] Immediately after the case was called to trial in 1970 by Judge Paul R. Sand of the Court of Common Pleas of Delaware County, but prior to the selection of a jury, counsel for plaintiff Martinelli moved orally in chambers to discontinue the suit against Christaldi. He claimed that evidence obtained in discovery indicated that the negligence of appellant alone caused the injuries sued upon. After hearing a summation of deposition testimony in chambers, the trial judge granted the discontinuance against Christaldi over objections of counsel of appellant and his request for additional time in which to join the former co-defendant Christaldi as an additional defendant. The jury trial, with appellant as the sole defendant, resulted in a verdict against appellant in the amount of $75,000. [2] Appellant appeals from the denial of her motion for a new trial, contending that the granting of the discontinuance without allowing her to join the dropped party as an additional defendant was a violation of the Rules of Civil Procedure as well as an abuse of discretion by the trial judge.
Rule 229 of the Pennsylvania Rules of Civil Procedure provides for a discontinuance as 'the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.' A discontinuance may be entered as to less than all defendants but not 'without leave of court after notice to all parties.' Pa.R.C.P. 229(b). [3] Decisions as to the granting of such requests for discontinuances rest in the discretion of the trial judge and can be reviewed only as to the abuse of that discretion. See Brown v. T. W. Phillips Gas and Oil Co., 365 Pa. 155, 74 A.2d 105 (1950); Pesta v. Barron, 185 Pa.Super. 323, 138 A.2d 690 (1958). A discontinuance, however, may be stricken off '. . . in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.' Pa.R.C.P. 229(c).
Although the striking of the discontinuance would thus require appellant to show actual prejudice or the substantial denial of rights, [4] there is an additional factor present here which requires the granting of a new trial. When counsel for appellee Martinelli moved for a discontinuance against one of the defendants, counsel for appellant, surprised at the motion, responded:
What counsel for appellant thus sought was merely that to which she was entitled as a matter of right. [5] Rule 2252(a) of the Rules of Civil Procedure provides:
'In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.'
In construing these rules in light of the circumstances of this case, we are mindful of their overriding purpose: 'The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. . . .' Pa.R.C.P. 126. This thrust is particularly applicable to controversies involving rules governing third- party procedure. Procedural rules in such cases are to be construed to accomplish the purpose of '(avoiding) multiplicity of suits by adjudicating in one suit the rights and liabilities of all the parties to a single transaction which constitutes the cause of action . . ..' Wnek v. Boyle, 374 Pa. 27, 32, 96 A.2d 857, 859 (1953); Rau v. Manko, 341 Pa. 17, 23, 17 A.2d 422 (1941); Vinnacombe v. Philadelphia, 297 Pa. 564, 147 A. 826 (1929).
Rule 2252(a) governing the joinder of additional defendants should be given a 'broad interpretation', not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution. See Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970).
It is true that in order to join an additional defendant the original defendant must allege facts sufficient to support his claim against that additional party, [6] Rau v. Manko, supra; Pa.R.C.P. 2252(b), and give notice to the party to be joined. See Pa.R.C.P. 2252(b)--(d). The effect of the trial judge's action here, however, was to deny appellant the opportunity to so plead altogether. This is not a case in which the joining party's averments in themselves preclude the possibility of the liability of the party to be joined. Compare Zachrel v. Universal Oil Products, 355 Pa. 324, 49 A.2d 704 (1946). Indeed, the collision of two automobiles is an event peculiarly susceptible to joint negligence and should clearly come under the broad purview of the rules allowing joinder of parties. See Wnek v. Boyle, supra.
That appellant's request...
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