General Felt Industries, Inc. v. Penn-Dion Corp.
| Decision Date | 23 February 1981 |
| Docket Number | 1975 |
| Citation | 17 Pa. D. & C.3d 757 |
| Parties | General Felt Industries, Inc. v. Penn-Dion Corporation |
| Court | Pennsylvania Commonwealth Court |
July term, 1979.
Motion to reconsider preliminary objections to third party complaint.
Frederick E. Smith, Jr., for defendant.
Richard W. Hopkins, for defendant.
Plaintiffs herein commenced this action on July 13, 1979 seeking recovery for damages sustained when their goods stored in defendant Penn-Dion Corp.'s (hereafter Penn-Dion) warehouse were destroyed as a result of said defendant's negligence. A fire had destroyed Penn Dion Corp.'s warehouse located at 969 North 2nd Street, Philadelphia, Pa.
At the time of this fire there was, in force, an insurance contract with the additional defendant Eagle Star Insurance Company of America. The policy provided liability coverage as follows:
" The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigations and settlement in any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exonerated by payment of judgments or settlements."
The policy further provided an exclusion as to property in the care, custody or control of the insured as follows:
Defendant Eagle maintained that it was under no duty to defend as plaintiffs' goods destroyed in the fire were in Penn-Dion's " care, custody and control" thereby excluding them from coverage under the aforementioned exclusion provision. Subsequently Penn-Dion Corp. joined Eagle as an additional defendant in this action by writ of summons on August 25, 1980 and served Eagle with a complaint on October 14, 1980. Thereafter, Eagle filed preliminary objections to its joinder as an additional defendant. These preliminary objections asserted that Eagle, as a general liability insurance carrier, was neither directly or indirectly culpably involved in the underlying incident giving rise to plaintiffs' tort action nor jointly or severally liable with Penn-Dion.
By order of this court dated December 22, 1980 Eagle's preliminary objections were dismissed and leave was granted to file an answer to Penn-Dion's complaint within 20 days.
Presently, Eagle has asked this court to reconsider its original order since it believes our decision " sanctioned a radical departure from past practice in the Commonwealth with regard to the joinder of additional defendants." With this contention, this court cannot agree.
Prior to its amendment in 1969, Pa.R.C.P. 2252(a) allowed joinder of a party as an additional defendant who was liable " on the cause of action declared upon by the plaintiff." Under this rule, the decisions uniformly held that an express indemnitor could not be joined as an additional defendant in an action of trespass. The indemnitor's liability, if any, was dependent upon an express contract and, therefore, was distinct from the cause asserted by plaintiff against defendant. See Nichols v. American Casualty Co. of Reading, 418 Pa. 119, 209 A.2d 855 (1965); Lloyd v. Victory Carriers, Inc., 402 Pa. 484, 167 A.2d 689 (1960); Wampler v. F. C. Haab Co., Inc., 401 Pa. 178, 162 A.2d 389 (1960). See, also, Greller v. Hortter Building Corporation, 198 Pa.Super 32, 179 A.2d 666 (1962).
In 1969 Pa.R.C.P. 2252(a) was amended and now permits joinder in the following situations:
" (a) 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."
This amended rule has expanded the right of joinder to include the situation where a defendant wishes to assert against an additional defendant a cause of action which, although not the same cause of action alleged by plaintiff, is based upon or related to the same transaction or occurrence upon which plaintiff's cause of action is based: Szemanski v. Vulcan Materials Co., 272 Pa.Super 240, 415 A.2d 92 (1979).
In 8 Goodrich-Amram 2d § 2252(a):8. 1, it is suggested that under this new rule " almost unlimited joinder is permitted where the claims arise out of the same factual background...." Its purpose is to avoid multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence or series of transactions and occurrences which gave rise to plaintiff's action: American Metal Fabricators Co. v. Goldman, 227 Pa.Super 284, 323 A.2d 891 (1974); General State Authority v. Coleman Cable & Wire Co., 32 Pa.Cmwlth. 117, 377 A.2d 1291 (1977). To achieve this purpose, the amended Rule 2252(a) is to be given a broad interpretation: Free v. Lebowitz, 463 Pa. 387, 344 A.2d 886 (1975); Harker v. Farmers Trust Co., 248 Pa.Super 427, 375 A.2d 171 (1977).
In two recent opinions, our Superior Court addressed itself to the far-reaching effects of amended Pa.R.C.P. 2252(a).
In one Szemanski v. Vulcan Materials Co., supra, plaintiff filed a complaint in trespass alleging that he had been injured as a result of defendant's negligence. Defendant therein attempted to join United Maintenance, Inc. as an additional defendant, alleging that because United had agreed in a written contract to indemnify defendant, United either was solely liable to plaintiff or jointly liable with defendant. The court in permitting the joinder stated at 272 Pa.Super 240, 415 A.2d 92:...
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