Trinity Area School Dist. v. Dickson

• Decision Date: 27 March 1973
• Citation: 223 Pa.Super. 546,302 A.2d 481
• Parties: TRINITY AREA SCHOOL DISTRICT and State Public School Building Authority v. C. Garey DICKSON, Original Defendant, v. BAKER & COOMBS, INC., a corporation, et al. TRINITY AREA SCHOOL DISTRICT and State Public School Building Authority v. C. Garey DICKSON and William L. Kubic, Original Defendants, v. E. Clifford EBERT et al.
• Court: Pennsylvania Superior Court

Page 481

302 A.2d 481

223 Pa.Super. 546

TRINITY AREA SCHOOL DISTRICT and State Public School Building Authority v. C. Garey DICKSON, Original Defendant, v. BAKER & COOMBS, INC., a corporation, et al.

TRINITY AREA SCHOOL DISTRICT and State Public School Building Authority v. C. Garey DICKSON and William L. Kubic, Original Defendants, v. E. Clifford EBERT et al.

Superior Court of Pennsylvania.

March 27, 1973.

Application for Allocator Denied Sept. 14, 1973.

Thomas F. Weis, Weis & Weis, Pittsburgh, for appellant in Nos. 209 and 210.

Harry J. Zimmer, Pittsburgh, for appellant in Nos. 215 and 216.

John Solomon, Samuel L. Rodgers, I. C. Bloom, Robert L. Ceisler, William C. Hart, H. Gilmore Schmidt, Reed B. Day, William C. Porter, William D. Phillips, Washington, George J. Modrak, Canonsburg, for appellee in No. 209.

John Solomon, I. C. Bloom, William C. Porter, Samuel L. Rodgers, Washington, George J. Modrak, Canonsburg, for appellee in No. 210.

Thomas F. Weis, W. Arch Irvin, Jr., Andrew C. Van Gorder, Pittsburgh, Samuel L. Rodgers, Robert L. Ceisler, Washington, John L. Laubach, Preston J. McDonnell, Pittsburgh, H. Gilmore Schmidt, John Solomon, Washington, George J. Modrak Canonsburg, James W. Evans, Harrisburg, for appellee in No. 215.

Thomas F. Weis, W. Arch Irvin, Jr., Pittsburgh, Samuel L. Rodgers, John Solomon, Washington, James W. Evans, Harrisburg, for appellee in No. 216.

HOFFMAN, Judge:

Appellants, C. Garey Dickson and Baker and Coombs, Inc., contend that the trial court erred in refusing to join seven additional defendants. Moreover, Baker and Coombs, the only additional defendant joined by the court, alleges that the lower court erred in joining Baker and Coombs as an additional defendant.

Appellant Dickson contracted with the Trinity Area School District (hereinafter Trinity) on March 9, 1960 and agreed to provide Trinity with the architectural services needed in the construction of additions and alterations to an existing Junior-Senior High School. In February of 1965, an earth embankment involved in the project collapsed injuring the project. Trinity instituted two civil actions, one in assumpsit and one in trespass, to secure compensation for the damages. In the assumpsit action, Trinity averred that Dickson's breach of the contract caused the damage to the project. In the trespass action, Trinity charged that Dickson and William L. Kubic, an engineer employed by and working in conjunction with Dickson, were negligent in performing their duties in conjunction with the Trinity-Dickson contract.

In the assumpsit action, Dickson filed a motion pursuant to Rule 2252(a) of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix, ¹ requesting the joinder of three additional defendants: William Kubic, Ebert and Park, professional engineers, and Baker and Coombs, a general contractor. Kubic and the firm of Ebert and Park agreed to perform services for appellant Dickson in conjunction with the Trinity school project. Baker and Coombs had contracted with Trinity to serve as the general contractor in the construction of the additions and alteration to the Junior-Senior High School. Additional defendant Baker and Coombs then proceeded under Rule 2252(a) to seek the joinder of Windyhill Construction Co. Inc. (hereinafter Windyhill) as an additional defendant. Windyhill had contractual obligations to perform for Baker and Coombs with respect to the Trinity project.

In the trespass action, appellant Dickson filed a motion to join Baker and Coombs, Ebert and Park, Windyhill, Raymond Concrete Pile Division of Raymond International Incorporated, McCall's Plumbing and Heating Company, A. C. Ackenheil and Associates Incorporated, H-M Construction Company, and Ralph Grundlach d/b/a Scenic Landscape Service as additional defendants. All the additional defendants other than Baker and Coombs executed contracts to perform services for Dickson in connection with the Trinity project.

The trial court dismissed the complaints to join all the additional defendants other than Baker and Coombs. The court reasoned:

'It seems clear than under 2252, as amended, joinder of any one of these additional defendants would be proper (assuming, of course, that all of the other rules of pleading had been followed). But to say that joinder is now permissible does not answer the problem created here. The architect is seeking, not to join one or two additional defendants, but 8 of them. It is obvious that he is attempting to reach 'everyone in sight', and bring them all into one lawsuit. The question is whether we should permit this.

'In this respect, we must not overlook the guidelines set forth in Rule of Civil Procedure 213(b). It provides as follows: 'The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or any separate issue, or of any number of causes of action, claims, counter-claims, set-offs, cross-suits, or issues.'

'We think that Rules 213(b) and 2252(a) must be read together. Given the power to sever and the power to join, and using these to control the trial of issues, it would seem foolish to permit all the joinders now, only to sever them again at trial time. From the standpoint of trial preparation alone, this would not be fair to the parties. We can appreciate the desire to adjudicate all the rights of all the parties in a single action. On the other hand, we cannot impose on a jury a situation so complex that it would be almost (impossible) to solve.

'This is exactly what the attempted joinder in this case would accomplish, and given our authority to control the course, scope and direction of this litigation, we will not permit it.

'We do not feel, however, that what we have said precludes the joinder of Baker & Coombs, Inc., the general contractor. Its preliminary objections are in the nature of a demurrer and an assertion of misjoinder of causes of action. It is clear that Pa.R.C.P. 2252, as amended, answers the misjoinder argument. Insofar as the demurrer is concerned, we think that a legal duty has been spelled out in Dickson's amended complaint, and that the allegations of negligence are sufficiently particular . . .. We think a jury can and should be permitted to determine in the first instance whether, if there was a breach of duty, it was that of the architect of the project (Dickson), and/or that of the general contractor (Baker & Coombs, Inc.). These are the persons with whom the plaintiffs primarily dealt. Following such determination, the claims against the other additional defendants may be adjudicated in due course.'

In both the trespass and assumpsit action, the suits were instituted February 10, 1967 by the issuance of summonses. Pennsylvania Rule of Civil Procedure number 152 provides that whenever a rule is amended 'the new provisions shall be construed only from the date when the amendment became effective.' Thus, procedural rule amendments do not apply to actions at law instituted prior to the effective date of the amendment; procedural rights are determined by the law in force when the action is initiated. Sussman v. Yaffee, 443 Pa. 12, 15, 275 A.2d 364 (1971); Schladensky v. Ellis, 442 Pa. 471, 474--475, 275 A.2d 663 (1971); Kilian v. Allegheny Co. Dis., 409 Pa. 344, 350--351, 185 A.2d 517 (1962). Consequently, the right to join additional defendants herein is governed by Rule 2252(a) as it read on February 10, 1967 (See footnote 1). Amendment to Rule 2252 went into effect on September 1, 1969 and, therefore, has no bearing in the instant cases. ²

Pa.R.C.P. No. 2252, 12 P.S. Appendix, (as it read February 10, 1967) permits the joinder of a person not a party to the action where he may alone be liable or liable over on the cause of action declared upon in the original suit. Individuals who may be liable on an unrelated cause of action may not be joined. Steele v. Sheppard, 402 Pa. 33, 165 A.2d 666 (1960). Further, it is the cause of action actually declared upon that controls the right of joinder and not another cause of action which the plaintiff might have declared upon.' Altoona Central Bank...