American Metal Fabricators Co. v. Goldman

• Decision Date: 03 April 1974
• Citation: 323 A.2d 891,227 Pa.Super. 284
• Parties: AMERICAN METAL FABRICATORS COMPANY v. William L. GOLDMAN and Robert J. Hastings, Defendants, Appellants, Jacob S. Richman et al., Additional Defendants.
• Court: Pennsylvania Superior Court

323 A.2d 891

227 Pa.Super. 284

AMERICAN METAL FABRICATORS COMPANY v. William L. GOLDMAN and Robert J. Hastings, Defendants, Appellants, Jacob S. Richman et al., Additional Defendants.

Superior Court of Pennsylvania.

April 3, 1974.

Murray S. Levin, Philadelphia, with him James Paul Dornberger, and Pepper, Hamilton & Scheetz Philadelphia, for appellants.

Edward J. Marcantonio, Philadelphia, with him Swartz, Campbell &amp Detweiler, Philadelphia, for appellees.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN CERCONE and SPAETH, JJ.

CERCONE Judge:

We have here an appeal from the dismissal of a complaint filed against additional party defendants. The order granting preliminary objections and dismissing the additional party complaint is final and appealable: Brandywine Area Joint School Authority v. VanCor, Inc., 426 Pa. 448, 233 A.2d 240 (1967).

Plaintiff brought this action in assumpsit and trespass against its attorneys, William L. Goldman and Robert J. Hastings, the defendants, to recover damages which allegedly resulted from the defendants' failure to apprise plaintiff of a defect in the title to land in Bristol Township, Bucks County, which was purchased by plaintiff. This failure of defendants allegedly took place during the negotiation and settlement period preceding this land purchase. It is the contention of the plaintiff that these two defendants negligently failed to discover that a prior violation of Section 302 of the Bristol Township Land Subdivision Ordinance of 1956 created a cloud on the plaintiff's title to the land, and that because of this defect in the title, plaintiff was forced to suspend its manufacturing operations on the purchased land.

Defendants joined the sellers of the land, Delaware Valley Packing Company (D.V.P.C.) and Julian Gancarz (Gancarz), as additional defendants alleging that if the plaintiff was damaged, the negligence of the additional defendants in violating the ordinance and not notifying the plaintiff or the defendants caused the harm. The defendant maintain that as a result of this negligence, D.V.P.C. and Gancarz are either solely liable to the plaintiff or liable over to the defendants or jointly and severally liable with defendants to the plaintiff. D.V.P.C. and Gancarz filed preliminary objections alleging that defendants' complaint failed to state a cause of action and that a general release ^[1] granted to D.V.P.C. and Gancarz by the plaintiff purchaser necessitated the striking of the complaint as to them.

The lower court erred in applying Rule 2229(b), 12 P.S. Appendix, as a basis for its order. Rule 2229(b) of the Pa.Rules of Civil Procedure deals with the permissive joinder of defendants by the Plaintiff. It has no application where the defendant is seeking to join an additional defendant. However the result reached by the lower court was correct under another rule of the Pennsylvania Rules of Civil Procedure. The right of an original defendant to join additional defendants is covered by Rule 2252(a) of the Pa.Rules of Civil Procedure: Goodrich-Amram, Standard Pa. Practice, §§ 2252 and 2252(a). Therefore, the lower court should have based its decision on an application of the tenets of Rule 2252(a) rather than Rule 2229(b).

Prior to 1969 Rule 2252(a) of the Pa.Rules of Civil Procedure allowed joinder of only those individuals who were not parties to the action and whose liability was based upon the same cause of action as that declared in the original suit: See, e.g. Altoona Central Bank v. American Casualty, 415 Pa. 39, 202 A.2d 29 (1964). Effective September 1, 1969 the Rule was amended so as to be more in keeping with the general purpose of third party procedure, that purpose being the avoidance of multiple law suits by the settling of all rights of all the parties in claims arising from the event upon which the plaintiff has sued: Rau v. Manko, 341 Pa. 17, 17 A.2d 422 (1941); Municipal Authority v. Chicago Bridge & Iron Co., 54 D. & C.2d 691 (C.P. Mifflin County, 1971); Crawshaw v. American Legion Home Assn., 32 D. & C.2d 167 (C.P. Cumberland County, 1963). The present Rule 2252(a) 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 plaintiffs' cause of action is based.'

The question of whether the liability of D.V.P.C. and Gancarz which is averred in the original defendant's complaint arises from 'the cause of action declared upon by the plaintiff' is controlled by Schladensky v. Ellis, 442 Pa. 471, 275 A.2d 663 (1971). In that case the plaintiffs were injured while employed by General Electric when a hydraulic lift manufactured by Lift-O-Loft Corp. and distributed by Mobile Industrial Equipment Corp. malfunctioned. The plaintiffs retained the defendant as their attorney, who told them that he would institute suits against both the manufacturer and distributor. When the attorney failed to do so the plaintiffs brought a malpractice suit for the loss suffered as a result of the attorney's 'negligent failure to bring timely suit.' Thereupon the attorney sought to join the manufacturer and distributor averring that their negligence and breach of warranties, express and implied, rendered the additional defendants liable for the injuries. The lower court sustained the preliminary objections of the additional defendants, and the plaintiff appealed. The Supreme Court therein construed the phrase 'cause of action declared on by the plaintiff' to require that the two causes of action 'be related in substance to the complaint plead by the plaintiff and arise out of the same factual background.' Id. at 475, 275 A.2d at 665. See also Land Title Bank and Trust Co. v. Cheltenham National Bank, 362 Pa. 30, 66 A.2d 768 (1949). The Court, in affirming the lower court's order said: 'Herein the actions of the plaintiffs against (the attorney) are based upon his failure to exercise reasonable care and diligence in the use of his skill as an attorney, and in the application of his knowledge to his clients' cause. . . . The negligent conduct asserted by (the attorney) against the additional defendants cannot be equated with that which the plaintiffs assert against him.' Id. The Schladensky Case is virtually indistinguishable from the case at bar and precludes our construing Rule 2252(a) as permitting joinder of the additional defendant herein.

It is of course true that if the amended Rule 2252(a) is to have its desired effect if must be given a broad interpretation Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970); Municipal Authority v. Chicago Bridge & Iron Co., supra. As long as the additional defendants' alleged liability is related to the original claim asserted by the plaintiff against the original defendant, the third party complaint should be allowed even though it may not be on the same cause of action as that declared in the original suit: In Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Connors v. Arters Bros., Inc. 50 Pa.D. & C.2d 87 (C.P. Delaware County, 1970). However it would be fruitless in the instant case to grant the defendants leave to amend their third party complaint on remand in order that they may allege additional defendants' liability to them for the alleged mosrepresentations. While the 1969 amendment enlarges the kinds of causes of action which may be joined, it certainly does not eliminate the necessity of pleading a valid cause of...