220 Pa. Super. 164 | Pa. Super. Ct. | 1971
Opinion by
The Extrudo Film Corporation (“Extrudo”) entered into a contract with Beck Electric Construction, Inc. (“Beck”) for the installation of a transformer station. While the transformer was being energized after installation, the transformer failed, causing damage to Extrudo. Extrudo brought an action of assumpsit against Beck and in an amended complaint alleged that the damage to the transformer was caused by Beck’s breach of the installation contract.
In its answer, Beck denied that it had violated its contract and set out in new matter that Extrudo’s loss was due to alleged defects in the transformer sold to Beck by the General Electric Company. Beck thereupon filed a third party complaint to bring General Electric in as an additional defendant. General Electric filed a preliminary objection to Beck’s complaint, pursuant to Pennsylvania Rule of Civil Procedure 1017(b), asserting that it could not be joined because there would be a misjoinder of causes of action. The lower court sustained General Electric’s preliminary objection and ordered that plaintiff Extrudo proceed solely against Beck. This appeal by Beck followed. The sole issue on appeal is whether the lower court’s failure to permit the joinder of General Electric as an additional defendant was proper.
Pennsylvania Rule of Civil Procedure 2252 provides that “In any action the defendant . . . may, as the joining party, join as an additional defendant any person
Beck alleges that the joinder of General Electric was proper under the amended Rule 2252(a). The -plaintiffs cause of action is based on the failure of the transformer to function properly and such failure could either result from improper installation of the transformer or a manufacturer’s defect in the transformer. In either event, the “occurrence,” which is the failure of the transformer to properly perform, is the basis of plaintiff’s cause of action. Joinder, therefore of General Electric should have been proper.
The lower court, however, in refusing such joinder stated that “where plaintiff sues in assumpsit and defendant seeks to join an additional defendant, joinder has been refused in cases where the contractual duty owed by the additional defendant is due only to the defendant and also in cases where the contractual duty owed by the additional defendant is due only to plaintiff.” Citing Marple Township v. Mar-Ann Holding Co., 404 Pa. 487, 172 A. 2d 804 (1961) , and Josal, Inc. v. Feinberg, 195 Pa. Superior Ct. 646, 171 A. 2d 830 (1961).
The lower court also , added that “Rule 2252(a) requires that (the liability of a properly joined additional defendant) must be on the cause of action declared
Brandywine, however, has been effectively nullified by the 1969 amendment to the Rule. The amendment allows joinder where the party to be joined may be liable to the joining party separately on an independent cause of action which arose out of the same transaction (s) or occurrence (s) as the plaintiffs original cause of action. Hence, in the instant case, where the sole question is which party was responsible for the defect in performance of the installed machinery, the court below should have considered the liabilities of all parties in the transaction, unrestricted by the statement of the cause of action by the plaintiff in his complaint.
This was summarized by the “Commentary to the .1969 Amendments” in 3 Goodrich-Amram, Standard
In the instant case, therefore, joinder under the amended Rule 2252(a) was proper, and the lower court was in error in sustaining the preliminary objection of appellee.
The order of the lower court is vacated and the case is remanded for proceedings consistent with this opinion.