Judges Opinions, — November 20, 2012 11:59 — 0 Comments

Sanger vs. Cortazzo No. 2010-01994


AND NOW, this 6th day of August, 2012, for reasons set forth in the attached opinion, the Defendant’s Motion for Leave to File a Complaint to Join Kaitlyn Bordlemay as an additional defendant is hereby GRANTED. The Complaint must be filed no later than twenty (20) days from the date of this Order.



John C. Tylwalk, P.J.


Tylwalk, P.J., August 6, 2012

Whether to grant the Defendant’s Motion for Leave to File a Complaint to Join another party is a close issue.  The Defendant’s attempted joinder is clearly late.  We suspect that it is late due to Defendant’s lack of diligence rather than the reasons stated.  However, as explained below, the complexities of this case militate towards granting the Defendant’s motion anyway.


On September 12, 2008, Joshua Sanger was seated on the trunk lid of a stationary vehicle operated by Kaitlyn Bordlemay (hereinafter “BORDLEMAY”).  While Joshua was seated, Scott Cortazzo (hereinafter “CORTAZZO”) was engaged in a verbal altercation with BORDLEMAY.  At some point during that altercation, BORDLEMAY sped-off in the car with Joshua on the trunk lid.  While the car was in motion, Joshua was propelled off the trunk lid.  He sustained fatal injuries when he struck the ground.

Paul Sanger and Michelle Sanger, as the administrators of Joshua Sanger’s estate (hereinafter “ESTATE”), settled out of court with BORDLEMAY.  ESTATE initiated this action on August 24, 2010 by filing a writ of summons against CORTAZZO.  After some pre-complaint discovery, ESTATE filed a Complaint on September 23, 2011.  Due to the settlement with BORDLEMAY, ESTATE did not include her as a defendant in this action.  CORTAZZO made a settlement offer to ESTATE on November 18, 2011.  ESTATE did not respond to that offer until it rejected it on March 7, 2012.  CORTAZZO subsequently filed an Answer to the Complaint on May 25, 2012 and moved for leave to join BORDLEMAY as an additional defendant four days later on May 29, 2012.


Ordinarily, a cross-claim by one defendant to join another defendant in a lawsuit must be filed within 60 days of the service upon the original defendant of the initial pleading or any amendment thereof.  Pa.R.C.P. 2253(a)(1).  The purpose of the rule is to ensure the expeditious resolution of multi-party lawsuits.  NPW Med. Ctr. of N.E. Penna., Inc. v. LS Design Group, P.C., 509 A.2d 1306, 1310 (Pa. Super. 1986).   Neither Rule 2253 nor the Supreme Court has defined sufficient cause for late joinder, but it has been suggested that a court should be guided by the objectives sought to be achieved by the additional defendant procedure.  Francisco v. Ford Motor Co., 593 A.2d 1277, 1278 (Pa. Super. 1991).  Whether there is sufficient cause to allow late joinder of an additional defendant is a matter within the sound discretion of the trial court.  Lawrence v. Meeker, 717 A.2d 1046, 1048 (Pa. Super. Ct. 1998).  The Superior Court, however, has said that, in addition to showing a proper grounds for joinder, a party requesting late joinder must show (1) some reasonable excuse for the delay and (2) that the original plaintiff will not be prejudiced by the late joinder.  Francisco, supra.  We will discuss each of these factors below.


A.  Joining BORDLEMAY is proper to determine whether CORTAZZO is entitled to a pro-rata reduction in any judgment against him. 

Joining BORDLEMAY as a defendant in this case is necessary to determine the portion of the damages that may be owed to ESTATE which are attributable to CORTAZZO’s actions.  Joinder of a settling joint tortfeasor as a defendant nunc pro tunc should be allowed for the purpose of determining the extent of a non-settling joint tortfeasor’s right, pursuant to the release given to the settling defendant, to a reduction in any verdict rendered against the non-settling defendant after trial.  Nat’l Liberty Life Ins. Co. v. Kling P’ship, 504 A.2d 1273 (Pa. Super. 1986).

This case closely parallels National Liberty Life Insurance Company, supra.  In National, a building owner brought an action against a group of contractors to recover damages arising from the faulty construction of a building.  The plaintiff filed a separate suit against an engineering firm whose actions also caused structural damage to the building.  No party to either action initially moved to consolidate them.  The case against the engineering firm settled in exchange for a pro-rata release.  When the contractors learned of the settlement in the case against the engineers, they sought to join the engineering firm as an additional defendant in their suit.  The trial court denied the contractors’ petition.  On an interlocutory appeal, the Pennsylvania Superior Court reversed and stated:

“We sympathize with the position of the distinguished trial judge in the instant case but believe that joinder nunc pro tunc of [the engineering firm] as an additional defendant for the sole purpose of determining whether [the contractors are] entitled to a pro-rata reduction in any judgment against [them] will best serve the interests of justice under the . . . circumstances . . . .”

Nat’l Liberty Life Ins. Co at 1279.

Liberty controls this dispute.  Just as for the separate cases in Liberty, the separate cases against CORTAZZO and BORDLEMAY arose out of the same damages to the same plaintiff.  Just as in the case against the engineers in Liberty, BORDLEMAY settled the case against her in exchange for a pro-rata release prior to the resolution of the sister case against CORTAZZO. Just like the contractors in Liberty, CORTAZZO has petitioned the Court for leave to join a settled joint tortfeasor for the purpose of determining whether he is entitled to a pro-rata reduction in any judgment against him.  Based upon the Superior Court’s decision in Liberty, we must afford him that opportunity.

B.  CORTAZZO’s delay in commencing the joinder proceedings would not ordinarily be excused by PLAINTIFF’s delay in replying to their settlement offer. 

“Where the joinder complaint against the additional defendant is filed more than 60 days after service of the complaint on the original defendant, the burden of demonstrating sufficient cause to allow the late joinder rests with the defendant, who must establish some reasonable justification for the delay.”  White v. Am. Honda Research of Am., 589 A.2d 764, 765-66 (Pa. Super. 1991).  Although the settlement of disputes is a laudable and favored objective, an attempt to settle the action out of court does not excuse late joinder of additional defendants where there is no reasonable nexus between a joining party’s efforts to settle with the plaintiff and its failure to timely commence joinder proceedings.  3 Standard Pennsylvania Practice 2d § 14:309; see Glabbatz v. Terminal Freight Handling Co., 563 A.2d 151 (Pa. Super. 1989).

CORTAZZO argues that ESTATE’s delay in responding to his settlement offer caused his delay in petitioning for BORDLEMAY’s joinder.  That argument is unavailing.  There is simply no reasonable nexus between CORTAZZO’s settlement efforts and his failure to file a timely joinder complaint.  See Glabbatz at 154.

We laud CORTAZZO’s attempt to negotiate a settlement.  We also acknowledge that ESTATE was far from prompt in replying to that settlement offer.  However, we see no reason why CORTAZZO could not have filed his Complaint to Join BORDLEMAY while the settlement offer was pending.


C.  The joinder of BORDLEMAY in the action will not substantially prejudice ESTATE or BORDLEMAY.

It is almost certain that this joinder will require a minor delay in resolving this case, as any joinder might.  However, in order to warrant denial of an extension of time for joinder, the prejudice to the plaintiff or the additional defendant resulting from the late joinder must rise to a greater level than the normal prejudice that would necessarily follow the joinder of a party in a lawsuit.  3 Standard Pennsylvania Practice 2d § 14:311; see e.g. Zakian v. Liljestrand, 264 A.2d 638 (Pa. 1970); Welch Foods, Inc. v. Bishopric Products Co., 385 A.2d 1007 (Pa. Super. 1978).  ESTATE opposes the joinder but has not voiced any particular reason why joining BORDLEMAY would prejudice it.

BORDLEMAY, for her part, has not even opposed the joinder.  She is unlikely to do so since her interests in the case will not be affected by the joinder due to her pro-rata release.  A release by the injured person of one joint tort-feasor relieves him from liability to make contribution to another tort-feasor if the release is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued and provides for a reduction to the extent of the pro rata share of the released tort-feasor of the injured person’s damages recoverable against all the other tort-feasors.  42 Pa.C.S.A. § 8327.  BORDLEMAY has already settled with ESTATE, and a judgment has not yet been entered against CORTAZZO.  Therefore, ESTATE gave BORDLEMAY her release before CORTAZZO obtained the right to secure a money judgment for contribution from BORDLEMAY.  Furthermore, the release ESTATE gave to BORDLEMAY contains a provision for a reduction to the extent of BORDLEMAY’s pro-rata share of ESTATE’s damages recoverable against all other join tort-feasors, including CORTAZZO.  The bottom line is that BORDLEMAY’s interest in the outcome of this case will not be affected by her joinder as a defendant.  Therefore, there is no prejudice against BORDLEMAY.


Whether to permit CORTAZZO leave to join BORDLEMAY is a close issue.  On one hand, the joinder is late.  Furthermore CORTAZZO’s excuse for the delay is weak.  On the other hand, this case is different from most other joint tortfeasor cases in that it involves joining a defendant who has already been granted a pro-rata release.  It will be nearly impossible to accurately determine the proportion of ESTATE’s damages attributable to CORTAZZO’s actions without examining them against BORDLEMAY’s actions.  Under these unique circumstances, we find that the interests of justice are best served by joining BORDLEMAY as a defendant nunc pro tunc.  CORTAZZO’s Motion for Leave to File a Complaint to Join BORDLEMAY as a defendant is hereby GRANTED.

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