Judges Opinions, — January 4, 2023 15:52 — 0 Comments

Alan McIntyre, v. Weaber, Inc., d/b/a Choicewood, v. Elwood Staffing, Inc.

Alan McIntyre, v. Weaber, Inc., d/b/a Choicewood, v. Elwood Staffing, Inc.

 

Civil Action-Law-Employment-Temporary Placement-Permanent Hire-Criminal Background Check-Preliminary Objections-Specificity of Pleading-Affirmative Defenses-New Matter-Joinder of a Party-Proper Grounds-Reasonable Basis for Delay-Prejudice

 

Alan McIntyre (“Plaintiff”) alleges that his placement in a temporary position as a lumber handler with Weaber, Inc., d/b/a Choicewood (“Weaber”) by Elwood Staffing, Inc., (“Elwood”) was terminated and he was not hired as a permanent lumber handler by Weaber based upon the results of a criminal background check performed in violation of the Criminal History Record Information Act (“CHRIA”), 18 Pa.C.S. § 9101 et seq.  Weaber has filed a Motion for Leave to join Elwood Staffing as an additional defendant.  Plaintiff filed Preliminary Objections to Defendant’s New Matter on the basis that the allegations of affirmative defenses fail to set forth factual averments in support of the defenses

 

  1. Pa.R.C.P. Rule 1019(a) requires that the material facts upon which a cause of action or defense is based be stated in a concise and summary form.

 

  1. Pa.R.C.P. Rule 1030(a) provides that a party must set forth all affirmative defenses in a responsive pleading under the heading “New Matter” and may set forth as New Matter any other material facts that are not merely denials of the averments of the preceding pleading.

 

  1. A pleading not only must apprise the opposing party of the asserted claim, but it also must formulate the issues by summarizing the facts essential to support the claim.

 

  1. Averments of affirmative defenses in New Matter violate Rule 1019(a) when they merely are general, boilerplate allegations without any specific factual averments.

 

  1. While Rule 1019(a) does not require that great detail be provided, one must do more than list possible defenses by name.

 

  1. Weaber has failed to plead affirmative defenses with sufficient factual specificity where it fails to identify conduct on the part of Plaintiff that precludes his right to relief and fails to identify after acquired evidence alleged to have justified Plaintiff’s termination.

 

  1. In the event that discovery reveals the existence of an affirmative defense that previously had not been pled in New Matter, a defendant may seek court approval to amend the New Matter to assert the affirmative defense.

 

  1. Pa.R.C.P. Rule 2253 allows a joining party to join an additional defendant without leave of court if the joinder is accomplished within one (1) of two (2) timeframes, whichever is longer, including the sixty (60) day period after service upon the original defendant of plaintiff’s initial pleading or any amendment and the time for filing the joining party’s answer.

 

  1. The grant of leave to join an additional defendant beyond the time provided by the Rules of Civil Procedure involves an exercise of the court’s discretion.

 

  1. Joinder should be permitted liberally, as it obviates the necessity for a separate trial with attendant economies of time and expense and the prevention of inconsistent verdicts.

 

  1. When requesting belated joinder, the requesting party must show that the joinder is based upon proper grounds, some reasonable excuse exists for the delay in commencing joinder proceedings and the original plaintiff will not be prejudiced by the late joinder.

 

  1. Where Plaintiff has lodged no objection to the joinder of Elwood, the agreement appended to the Motion contains a provision indicating that Elwood may have to indemnify Weaber for improper conduct and the Motion requesting joinder was filed simultaneously with the Amended Answer with New Matter, the record establishes that joinder is based upon appropriate grounds, any delay was reasonable and Plaintiff will not be prejudiced.

 

L.C.C.C.P. No. 2020-01495, Opinion by John C. Tylwalk, President Judge, May 9, 2022.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

ALAN MCINTYRE,                                   :         NO. 2020-01495

Plaintiff                          :

:

  1. :

:

WEABER, INC., d/b/a CHOICEWOOD,     :

Defendant                       :

:

  1. :

:

ELWOOD STAFFING, INC.,            :

Additional Defendant     :

 

APPEARANCES:

 

STEVE T. MAHAN, ESQUIRE                FOR PLAINTIFF

WEISBERG CUMMINGS, PC

 

MAY MON POST, ESQUIRE                  FOR DEFENDANT

BUNKER & RAY

 

OPINION, TYLWALK, P.J., MAY 9, 2022.

 

Plaintiff commenced this action by filing a Complaint on December 23, 2020.  In the Complaint, Plaintiff explains that he had been placed in a temporary position as a lumber handler with Defendant Weaber, Inc. d/b/a ChoiceWood at its Titusville location by Elwood Staffing Services, Inc. (“Elwood”) He claims that his temporary placement was terminated and that he was not hired as a permanent lumber handler by Defendant based on the results of his criminal background check in violation of the Criminal History Record Information Act, 18 Pa.C.S.A. §9101 et seq. (“CHRIA”).

On February 3, 2021, Defendant’s employee filed an Answer to the Complaint without the knowledge of management and without consulting with counsel.  Thereafter, Defendant filed a Motion seeking leave of Court to file an Amended Answer to the Complaint.  On July 29, 2021, Defendant filed a Motion for Leave to Join Additional Defendant Elwood Staffing Services, Inc.  By Order dated September 22, 2021, we granted Defendant leave to file an Amended Answer.  Defendant filed the Amended Answer and New Matter and the Joinder Complaint on October 6, 2021.  Plaintiff has filed Preliminary Objections to Defendant’s New Matter.   These Preliminary Objections and Defendant’s Motion for Leave to Join Elwood are both before the Court for disposition.

Section 9125 of the CHRIA provides:

  • 9125. Use of records for employment

 

(a) General rule.–Whenever an employer is in receipt of information which is part of an employment applicant’s criminal history record information file, it may use that information for the purpose of deciding whether or not to hire the applicant, only in accordance with this section.

 

(b) Use of information.–Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.

 

(c) Notice.–The employer shall notify in writing the applicant if the decision not to hire the applicant is based in whole or in part on criminal history record information.

 

18 Pa.C.S.A. §9125.  Plaintiff requests an award of “all damages available under Section 9183 of … [the Act], including actual and real damages, exemplary and punitive damages, reasonable costs of litigation, attorneys’ fees, and any such other relief as this Honorable Court deems just and appropriate, which total amount exceeds the compulsory arbitration limits for Lebanon County.”  (Complaint, p. 4)

Section 9183 of the Act provides, in part:

  • 9183. Civil actions

 

(b) Action for damages.—

 

(1) Any person aggrieved by a violation of the provisions of this chapter or of the rules and regulations promulgated under this chapter, shall have the substantive right to bring an action for damages by reason of such violation in a court of competent jurisdiction.

 

(2) A person found by the court to have been aggrieved by a violation of this chapter or the rules or regulations promulgated under this chapter, shall be entitled to actual and real damages of not less than $100 for each violation and to reasonable costs of litigation and attorney’s fees. Exemplary and punitive damages of not less than $1,000 nor more than $10,000 shall be imposed for any violation of this chapter, or the rules or regulations adopted under this chapter, found to be willful.

 

18 Pa.C.S.A. § 9183(b)(1)-(2).

Plaintiff’s Preliminary Objections to Defendant’s New Matter

Rule 1019(a) requires that “the material facts upon which a cause of action or defense is based shall be stated in a concise and summary form.”  Pa.R.C.P. No. 1019(a).  Pa.R.C.P. No. 1030(a) provides that a party must set forth all affirmative defenses “in a responsive pleading under the heading ‘New Matter’ and “may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.”  Pa.R.C.P. No. 1030(a).  Rule 1028 provides, in part:

Rule 1028. Preliminary Objections

 

(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

 

(3) insufficient specificity in a pleading;

 

(4) legal insufficiency of a pleading (demurrer).

 

Pa.R.C.P. No. 1028(a)(3)(4).

 

Plaintiff objects to Paragraphs 9, 12, 15, 17 and 18 of Defendant’s New Matter on the basis of insufficient specificity under Rule 1028(a)(3) and (a)(4).  Plaintiff argues that in all of these Paragraphs, Defendant sets forth fact-based defenses but fails to plead any specific facts in support of these defenses.  He claims that he will be prejudiced if they are not stricken as Defendant will be able to claim “everything” as a defense and then engage in a fishing expedition through discovery to see if any of the defenses pled are applicable.  Defendant counters that the affirmative defenses set forth in its New Matter have been properly pled and that no further specificity is required.  Being mindful of the potential for waiver, Defendant further claims that it must preserve all of these possible defenses by raising them in its New Matter at this time.

The term “New Matter” (under which heading Rule 1030 requires affirmative defenses to be pled) “… has been defined as matter which, taking all the allegations of the complaint to be true, is nevertheless a defense to the action.” Sechler v. Ensign–Bickford Co., 322 Pa.Super. 162, 469 A.2d 233, 235 (1983). “New matter ignores what the adverse party has averred and adds new facts to the legal dispute on the theory that such new facts dispose of any claim or claims which the adverse party had asserted in his pleading.” Id. An affirmative defense is distinguished from a denial of facts which make up the plaintiff’s cause of action in that a defense will require the averment of facts extrinsic to the plaintiff’s claim for relief. Falcione v. Cornell School Dist., 383 Pa.Super. 623, 557 A.2d 425, 428 (1989).

 

Coldren v. Peterman, 763 A.2d 905, 908 (Pa. Super. 2000).

 

Paragraphs 9, 12 and 17 – Insufficient Factual Specificity of Pleading

Plaintiff contends that Paragraphs 9, 12 and 15 of Defendant’s New Matter should be stricken pursuant to Pa.R.C.P. No. 1028(a)(3).  Under Rule 1028(a)(3), a party may file preliminary objections when a pleading fails for insufficient specificity.  Pa.R.C.P. No. 1028(a)(3).  If a pleading lacks the requisite specificity, a party may seek a more definite statement or request to have it stricken.  Pa.R.C.P. No. 1028(a)(3).  “[A] pleading must not only apprise the opposing party of the asserted claim, ‘it must also formulate the issues by summarizing those facts essential to support the claim.” Core States Bank, N.A. v. Cutillo, 723 A.2d 1053, 1057 (Pa. Super. 1999) (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992)). Our Supreme Court has held that “the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Co. v. Appplebaum, 189 A.2d 253, 255 (Pa. 1963).

In Paragraph 9, Defendant asserts that “Plaintiff’s claims for relief are barred because his own actions or omissions caused or contributed to any alleged loss or injury.”  (Defendant’s New Matter at Para. 9)  Plaintiff complains that Defendant has failed to identify the behavior by which Plaintiff caused or contributed to his loss.  In Paragraph 12, Defendant asserts, in part, that “Plaintiff’s claims for back and front pay are barred to the extent that he would have been terminated based on ‘after acquired evidence.’”  (Defendant’s New Matter at Para. 12)  Plaintiff charges that Defendant has failed to plead facts sufficient to identify the ‘after acquired evidence’ referred to in this paragraph.  In Paragraph 17, Defendant alleges that “[b]ecause Plaintiff’s claim herein is frivolous, Defendant requests that the court award it reasonable attorney fees and all costs incurred as a result of this proceeding pursuant to 42 Pa.C.S.A. §2503(9).

Preliminary objections to affirmative defenses pled in new matter for lack of factual specificity have been sustained by various common pleas courts in Pennsylvania. See, Arens v. Remick, 2021 WL 1716324 (C.C.P. Lackawanna Cnty. 2021); Golden v. Grange Ins. Co., 2014 WL 136735 (C.C.P. Cumberland Cnty. 2014); Cooley v. Ross, 2014 WL 4966469 (C.C.P. Venango Cnty. 2014); Donegal Mutual Ins. Co. v. Stroker, 2010 WL 5571389 (C.C.P. Monroe Cnty. 2010); Lee v. Denner, 2005 WL 4257626 (C.C.P. Monroe Cnty. 2005); Allen v. Lipson, 1990 WL 313425 (C.C.P. Lycoming Cnty. 1990).

In Arens, the court ordered four affirmative defenses stricken from the Defendant’s new matter on the basis of insufficient specificity, explaining that:

Pennsylvania is a fact-pleading state, McShea v. City of Philadelphia, 606 Pa. 88, 96, 995 A.2d 334, 339 (2010), and pleadings must apprise the opposing party of the claim or defense being asserted and summarize the essential supporting facts. Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s Development Company, 625 Pa. 26, 46, 90 A.3d 682, 694 (2014). When considering objections raising insufficient specificity under Rule 1028(a)(3), the reviewing court must ascertain whether the facts alleged are sufficiently specific to enable the responding party to prepare a response to the claim or defense alleged. U. S. Bank v. Pautenis, 118 A.3d 386, 402 (Pa. Super. 2015); Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). While the pleading must “disclose material facts sufficient to notify the adverse party of the claims it will have to defend against…there is no requirement to plead the evidence upon which the pleader will rely to establish those facts.” Com. by Shapiro v. Golden Gate National Senior Care, LLC, 194 A.3d 1010, 1029 (Pa. 2018). In assessing whether particular paragraphs in a pleading satisfy this requirement, they must be read in context with all other allegations in the pleading to determine whether the opposing party has been provided adequate notice of the claim or defense. Estate of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 306 (Pa. Super. 2015).

 

The Pennsylvania Rules of Civil Procedure contain specific provisions governing pleadings in civil actions. See Pa.R.C.P. Nos. 1017-1034. Some of those provisions, such as Rule 1018.1 governing a “Notice to Defend” and Rule 1020(a) addressing the assertion of “more than one cause of action cognizable in a civil action against the same defendant,” are unique to a complaint, while other rules concerning denials, new matter, counterclaims, cross-claims, and waiver of defenses apply only to responsive pleadings. See Pa.R.C.P. 10291032. Many of the procedural rules regulate the form and substance of all types of pleadings, for example, the caption, the demand for relief, paragraphing, the verification, an endorsement, and any amendment. See Pa.R.C.P. 1018, 1021, 1022, 1024, 1025, 1033.

 

One such Rule of Procedure with general application is Rule 1019, entitled “Contents of Pleadings,” which contains an express provision that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a)(emphasis added). Defendants in civil litigation have asserted that Rule 1030(a), which concerns those affirmative defenses that must be raised in a responsive pleading, does not distinctly require supporting factual averments, but that argument has been rejected as contrary to the plain language of Rule 1019(a). See, e.g., Golden v. Grange Ins. Co., 2014 WL 1364735, at *4 (Cumberland Co. 2014) (“The language of Pa.R.C.P. 1019 is clear that material facts which are the basis for a defense shall be stated in a concise and summary form.”); Pergolini v. Lun, 2012 WL 8530896, at *7 n.6 (Phila. Co. 2012) (“Averments of affirmative defenses in new matter violate Rule 1019(a) when they are merely general, boilerplate allegations without any specific factual averments.”); Allen v. Lipson, 8 Pa. D. & C. 4th 390, 393 (Lyc. Co. 1990) (“While it is true that Rule 1030 does not require factual averments, it does not relieve the pleading party from complying with Rule 1019(a).”) (en banc). Instead, the trial courts in this Commonwealth have required greater specificity in support of any affirmative defenses that are raised in new matter. See Golden, supra (“[R]equiring that defendants aver the material facts that give rise to an affirmative defense is consistent with the Superior Court’s position in Coldren v. Peterman, 763 A.2d 905, 908 (Pa. Super. 2000)] that an affirmative defense ‘adds new facts’ and ‘will require the averment of facts extrinsic to the plaintiff’s claim for relief.’ ”); Lee v. Denner, 76 Pa. D. & C. 4th 181, 192 (Monroe Co. 2005) (“We find that plaintiffs are unable to adequately confirm or deny the allegations in defendant’s new matter without the benefit of further facts …. We therefore find that defendant’s new matter does not comply with the pleading requirements because the statement set forth in paragraph 35 is not sufficiently specific to set forth the grounds for defendant’s affirmative defense.”); Allen, supra (“Plaintiffs should have the same choice in dealing with factually unsupported allegations of defendants contained in new matter to minimize the chance that they will have to defend a surprise claim at trial. To hold otherwise would put the onus on plaintiffs to conduct extensive discovery to disprove a factually unsupported allegation rather than requiring the defendants who asserted the allegation to marshal the facts to support it.”).

 

2021 WL 1716324 at *3 (emphasis in original).

 

In Golden v. Grange Ins. Co, 2014 WL 1364735 (C.C.P. Cumberland Cnty. 2014), the court noted that various courts have applied the holding of Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) to objections to new matter in ultimately deciding that a defendant must plead the material facts upon which their affirmative defense is based.  Id. at *3, citing Donegal Mut. Ins. Co. v. Stroker, 15 Pa. D. & C.5th 245 (2010); Lee v. Deener, 76 Pa. D. & C.4th 181 (2005), Fitzgerald v. Kaguyutan, 18 Pa. D. & C.4th 1 (1993), Allen v. Lipson, 8 Pa. D. & C.4th 390 (1990), Rivera v. Arbor Place Inc., 4 Pa. D. & C.4th 44 (1989).  In ruling on the preliminary objections, the court explained:

The language of Pa.R.C.P. 1019 is clear that material facts which are the basis for a defense shall be stated in a concise and summary form. While the rule does not require great detail be provided, it seems obvious that one must do more than list possible defenses by name. Moreover, requiring that defendants aver the material facts that give rise to an affirmative defense is consistent with the Superior Court’s position in Coldren that an affirmative defense “adds new facts…” and “will require the averment of facts extrinsic to the plaintiff’s claim for relief.” Coldren, 763 A.2d at 908. Here, Grange has not provided a single fact that is the basis for any of the supposed defenses. Accordingly, paragraphs 39, 41, 43, 44, 47, 49, 50, 51, 57, and 59 of Grange’s New Matter will be stricken. However, because there may be a factual basis for one or more affirmative defenses, we will grant leave to amend. See Harley Davidson Motor Co., Inc. v. Hartman, 442 A.2d 284 (Pa. Super. 1982).

 

Golden v. Grange Ins. Co, 2014 WL 1364735 1364735 at *4.

 

After viewing Paragraphs 9 and 12 with reference to the remainder of Defendant’s Amended Answer and New Matter, we believe that Defendant has failed to plead these affirmative defenses with sufficient factual specificity.  In Paragraph 9, Defendant alludes to alleged conduct on the part of Plaintiff which would preclude his right to the relief sought in his Complaint.  However, Plaintiff is not alerted to any specific acts or even the nature of the alleged conduct.  In Paragraph 12, Defendant refers to “after acquired” evidence which would have justified Plaintiff’s termination.  Likewise, our examination of Defendant’s pleading does not reveal the nature or source of this “after acquired” evidence.  Defendant has failed to elaborate on how or why these defenses may be applicable and we believe Plaintiff is entitled to more specific facts to enable him to frame an answer thereto.  Thus, we will sustain Plaintiff’s Preliminary Objections to Paragraphs 9 and 12.

We believe that Defendant has pled sufficient facts to support Paragraph 17.  In that paragraph, Defendant asserts that Plaintiff’s claim is “frivolous” and requests the award of attorney fees and costs pursuant to 42 Pa.C.S.A. §2503(9).[1]   Frivolous is defined as “lacking an arguable basis in either law or fact.”  See,  Williams v. Syed, 782 A.2d 1090, 1096 (Pa. Commw. 2001), citing Robinson v. Pennsylvania Board of Probation and Parole, 525 Pa. 505, 582 A.2d 857 (1990) and Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Section 9125 of CHRIA deals with an employer’s consideration of an individual’s criminal history with regard to an application for employment.  In its pleading, Defendant asserts that the provisions of CHRIA are not applicable because Plaintiff was an employee of Elwood, rather than Defendant, and that Plaintiff’s temporary placement through Elwood was rightfully rejected by Defendant due to his criminal history.  Defendant further alleges that Plaintiff never actually submitted an application for employment with Defendant.  We believe these facts are sufficiently specific to allege that the provisions of CHRIA are inapplicable and that Plaintiff’s claims are therefore baseless “in law or fact.”  Thus, we will overrule this Preliminary Objection.

Legal Insufficiency (Demurrer)

Preliminary objections in the nature of a demurrer should be granted where the contested pleading is legally insufficient. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001) (citing Pa.R.C.P. 1028(a)(4) ). “Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (quoting Cardenas, 783 A.2d 317 at 321). All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. Id.

 

Cooper v. Church of St. Benedict, 954 A.2d 1216, 1218 (Pa. Super. 2008).

 

A preliminary objection under Rule 1028(a)(4) will be sustained only when “it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief.”  Little-Stepp v. Cancilla, 896 A.2d 647, 650 (Pa. Super. 2006).  The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.  Werner v. Plater-Zyberk, 799 A.2d 776  (Pa. Super.2002), appeal denied 806 A.2d 862, (Pa. 2002).

In Paragraph 15 of New Matter, Defendant alleges that “Plaintiff’s claims for damages are limited under the Act.”  (Defendant’s New Matter at Para. 15)  Plaintiff complains that Defendant fails to plead or specify what, if any, damages Plaintiff is requesting that are not authorized by the Act.

Pa.R.Civ.P. 1029(d) provides that “[a]verments in a pleading to which no responsive pleading is required shall be deemed to be denied.”

 

If a party’s new matter does not contain facts supporting an affirmative defense, but rather contains merely conclusions of law, no denial is required because such averments are deemed to be denied. Bowman v. Mattei, 309 Pa.Super. 486, 488–90, 455 A.2d 714, 716 (1983); Slaughter v. Gruntz, 227 Pa.Super. 164, 165–67, 323 A.2d 152, 153 (1974). Because such averments are deemed to be denied, they are, therefore, in issue, and no judgment may be entered based upon a party’s failure to respond to those averments. Slaughter, 227 Pa.Super. at 164, 323 A.2d at 152; Whelan v. Mack, 190 Pa.Super. 40, 41–43, 151 A.2d 797, 798 (1959). In evaluating whether an averment contained in a new matter requires a response, courts must consider whether the averments are fact-based or are merely conclusions of law.

 

1 West’s Pennsylvania Forms, Civil Procedure §28.0.

 

In Paragraph 15, Defendant merely states that Plaintiff’s claims for damages are limited to those made available for a violation of CHRIA under Section 9183.  This is a conclusion of law.  Because a conclusion of law in a pleading is deemed denied and requires no further elaboration under the rules of pleading, we will overrule this Preliminary Objection.

Paragraph 18 of Defendant’s New Matter states that “Defendant intends to rely on or assert such other defenses that may become available or apparent during the course of discovery in this case, and Defendant expressly reserves the right to amend this Amended Answer to assert any and all such defenses.”  (Defendant’s New Matter at Para. 18)  Plaintiff complains that this is a boilerplate, catch-all assertion which leaves open the possibility of every Defendant raising every possible defense and is without factual support in the pleadings.

If an affirmative defense (with the exceptions of assumption of the risk, comparative negligence and contributory negligence, which need not be pleaded), is not raised as New Matter, then it is waived. Pa.R.C.P. 1032(a); Koutroulelis v. Chelentis, 2019 WL 33883559 (Pa. Super. 2019), citing Bender’s Floor Covering Co. v. Gardner, 564 A.2d 518, 521 (Pa. Super. 1989).  Unlike counterclaims, affirmative defenses are compulsory and, if not timely pled, they cannot be raised later. Bender’s Floor Covering Co. v. Gardner, 387 Pa.Super. 531, 564 A.2d 518, 521 (1989). In the event that discovery reveals the existence of an affirmative defense which was not previously pled in new matter, the defendant may seek court approval to amend his new matter to assert that affirmative defense. See, Topper by Topper v. Kulp, 580 A.2d 794 (Pa Super. 1990).

In Paragraph 18, Defendant prospectively requests the Court to grant leave to amend its New Matter in the event another applicable affirmative defense is uncovered during discovery.   However, we cannot blindly grant Defendant the right to amend its New Matter without knowing the particulars of any possible request for amendment.    In the event that discovery reveals an unpled affirmative defense available to Defendant, it may request the right to amend its New Matter at that time.  We will therefore sustain this Preliminary Objection and direct that Paragraph 18 be stricken from Defendant’s New Matter.

Defendant’s Motion to Join Additional Defendant

Defendant has filed a Motion for Leave to Join Elwood as an Additional Defendant.[2]  In the Motion, Defendant alleges that it was Elwood, rather than Defendant, which made the hiring and firing decisions in connection with Plaintiff.  In addition, Defendant claims the existence of a written agreement between Elwood and Defendant, executed November 15, 2019, in which Elwood consents to joinder as a defendant in any action filed against Defendant.  (Exhibit “B” to Motion to Join Additional Defendant; Exhibit “F” to Joinder Complaint)  In the Joinder Complaint, Defendant asserts that Elwood is solely liable to Plaintiff or liable over by way of contribution and/or indemnification.

Pa.R.C.P. No. 2253 provides:

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 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 the joining party’s answer as established by Rule 1026, Rule 1028 or order of court,

 

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.

 

(b) Any party may object to a motion to join an additional defendant after the period prescribed by subdivision (a) on the ground that the party will be prejudiced by the late joinder. The plaintiff may also object to the late joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing joinder proceedings.

 

(c) A person not previously a party who is joined as an additional defendant may object to the joinder by filing preliminary objections asserting prejudice or any other ground set forth in Rule 1028.

 

Pa.R.C.P. No. 2253.  The Comment to Rule 2253 notes that:

Rule 2253(a) has been amended to allow a joining party to join an additional defendant without leave of court if the joinder is accomplished within one of two time frames, whichever is longer. The first time frame is the sixty-day period “after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof.” The second time frame is new and is the time for filing the joining party’s answer, whether that time is set forth under Rule 1026, Rule 1028 or an order of court.

 

Pa.R.C.P. No. 2253 – Explanatory Comment – 2007.

 

Defendant puts forth various reasons as excuses for its failure to join Elwood within sixty days of the filing of the Complaint in this matter, including the fact that its management was unaware of the filing of the Complaint prior to the filing of the response by its former employee, disruptions caused by a change of counsel, present counsel’s medical leave, and departure of members of counsel’s office personnel.  In addition, Defendant claims that it initially believed that Plaintiff had voluntarily resigned from his temporary position at its Titusville location, and points to the time involved in its pursuit of its Motion to Amend its Answer and in waiting for discovery which revealed that Elwood had actually performed the background check at issue in this litigation.

The grant of leave to join an additional defendant beyond the time provided by the rules of procedure involves an exercise of the court’s discretion.  Zakian v. Kiljestrand, 264 A.2d 638 (Pa. 1970).  Joinder should be liberally permitted, as it obviates the necessity for a separate trial, with attendant economies of time and expense and the prevention of inconsistent verdicts.  Lamoree v. Penn Central Transportation Co., 429 A.2d 80 (Pa. Super. 1980).  Joinder should be granted when it can simplify and expedite the disposition of matters involving numerous parties without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.  Kesscok v. Conestoga Insurance Co., 194 A.3d 1046, 1052 (Pa. Super. 2018).

When requesting the belated joinder of an additional defendant, a party must show (1) that joinder is based on proper grounds, (2) that some reasonable excuse exists for the delay in commencing joinder proceedings, and (3) that the original plaintiff will not be prejudiced by the late joinder.  Francisco v. Ford Motor Co., 593 A.2d 1277, 1278 (Pa. Super. 1991).  The length of the delay in joining an additional defendant is not, in and of itself, determinative of whether or not joinder should be allowed, rather, the length of the delay must be viewed in the context of the particular case.  Zakian, 264 A.2d at 642.

We first note that Plaintiff has lodged no objection to the joinder of Elwood with the Court.  In addition, the agreement appended to Defendant’s Motion contains a provision by which Elwood might have to indemnify Defendant for improper conduct.

We further note that the Joinder Complaint may be considered timely pursuant to Rule 2253(a)(2) as it was filed simultaneously with the Amended Answer and New Matter which was filed pursuant to the Order of Court issued on September 22, 2021.  Moreover, even if Rule 2253(a)(2) would be inapplicable, we believe that the circumstances of this case dictate that Defendant’s Motion should be granted.  First, it is clear that joinder is based on proper grounds and that Elwood should be joined as an additional defendant.  It appears that Elwood was at least responsible for Defendant’s placement at Defendant’s Titusville location.  Defendant alleges that Elwood conducted Plaintiff’s criminal background check and communicated with its former employee regarding the results of that check.  Since the agreement between Defendant and Elwood contains an indemnification provision, joinder in this litigation may preclude the necessity of a future lawsuit between those two entities.

We also believe that Defendant has shown reasonable grounds for the delay in joining Elwood.  After Defendant learned that its former employee filed the original Answer, it was required to file and await the Court’s decision on its Motion to Amend its Answer.  The Motion for Leave to file the Joinder Complaint was filed and listed for Argument during the time Defendant’s Motion to Amend Answer was pending.  Defendant filed the Joinder Complaint simultaneously with the Amended Answer and New Matter on October 6, 2021.  The difference between the time when joinder would have been due under Rule 2253 and Defendant filing the Motion was relatively minor and did not delay proceedings between Plaintiff and Defendant as it appears that discovery has been ongoing throughout these proceedings.

Finally, we find that no prejudice to Plaintiff will result from joinder of Elwood at this juncture.  This matter is still in the early stages of litigation and the trial of this matter will not be delayed.  Discovery is still in the preliminary stage and the addition of Elwood could benefit Plaintiff if it turns out that Elwood is liable for any of the claims.

For these reasons, we will grant Defendant’s Motion.

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

ALAN MCINTYRE,                                   :         NO. 2020-01495

Plaintiff                          :

:

  1. :

:

WEABER, INC., d/b/a CHOICEWOOD,     :

Defendant                       :

:

  1. :

:

ELWOOD STAFFING, INC.,            :

Additional Defendant     :

 

ORDER OF COURT

 

AND NOW, this 9th day of May, 2022, we issue the following Order of Court:

  1. Upon consideration of Plaintiff’s Preliminary Objections to Defendant’s New Matter, it is hereby Ordered that said Preliminary Objections are OVERRULED, in part, and SUSTAINED, in part, as follows:

(a).  The Preliminary Objection to Paragraph 9 of Defendant’s New Matter is SUSTAINED.

(b).  The Preliminary Objection to Paragraph 12 of Defendant’s New Matter is SUSTAINED.

(c).  The Preliminary Objection to Paragraph 15 of Defendant’s New Matter is OVERRULED.

(d).  The Preliminary Objection to Paragraph 17 of Defendant’s New Matter is OVERRULED.

(e).  The Preliminary Objection to Paragraph 18 of Defendant’s New Matter is SUSTAINED.  Paragraph 18 is stricken from the Complaint.

  1. Defendant is granted leave to file a Second Amended Answer and New Matter within thirty (30) days of this Order.
  2. Upon consideration of Defendant’s Motion for Leave to Join Additional Defendant Elwood Staffing Services, Inc., it is hereby Ordered that said Motion is GRANTED.
  3. The parties are directed to proceed in accordance with the Pennsylvania Rules of Civil Procedure.

BY THE COURT:

 

                                                          _____________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Steve T. Mahan, Esquire/Weisberg Cummings, PC/2704 Commerce Drive,

             Suite B/Harrisburg, PA  17103-1624

        May Mon Post, Esquire/Bunker & Ray/436 Walnut Street,

             WA01A/Philadelphia, PA  19106

        Ellwood Staffing, Inc./208 Floral Blvd./Morrisville, PA  19067

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

[1] This statutory provision entitles a participant in litigation to receive an award of reasonable counsel fees “because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.”  42 Pa.C.S.A. §2503(9).

 

[2] Plaintiff did not file a response or a Brief in opposition to this Motion.  However, Plaintiff’s non-concurrence is noted via a Certificate of Non-Concurrence attached to Defendant’s Motion.

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