Appeal, No. 129, Jan. T., 1960, from decree of Court of Common Pleas of Delaware County, March T., 1959, No. 159, in case of Marguerite V. Wampler v. F. C. Haab Co., Inc. et al. Decree affirmed; reargument refused August 22, 1960. Preliminary objections by additional defendants to complaint filed by original defendants. Opinion filed sustaining preliminary objections of additional defendants and dismissing complaint against additional defendants, and decree entered, opinion by DIGGINS, J. Original defendants appealed.
Robert K. Greenfield, with him Edward Greer, and Folz, Bard, Kamsler, Goodis & Greenfield, for appellants.
Edward H. Bryant, Jr., with him Joseph T. Labrum, Jr., for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN
This action in equity seeks to enjoin the defendants from further use of oil storage tanks and equipment allegedly belonging to plaintiff, constructed by plaintiff and her husband on land at that time owned by the additional defendants, which land was later conveyed in fee to one of the original defendants. The court below sustained preliminary objections, in the nature of a demurrer, to the third-party complaint by which the original defendants sought to join the additional defendants in the action. In effect, the court ruled the joinder was improper. The legal correctness of this order is challenged by this appeal.
The facts pleaded in the record may chronologically be summarized as follows: Plaintiff and her husband (since deceased) purchased land in Upper Darby Township, Delaware County. On land adjoining, owned by the additional defendants, plaintiffs constructed underground oil storage tanks and equipment
for use in conjunction with an oil and heating business which plaintiffs conducted for approximately five years. Subsequently, plaintiffs leased a portion of the land,*fn1 including this equipment, to one F. C. Haab, but this lease at all times relevant hereto, was no longer in effect, having lapsed prior to the time for which relief is here sought. Subsequently, the additional defendants conveyed in fee to one of the original defendants, F. C. Haab Co., Inc., land encompassing the tanks and equipment. The deed of conveyance made no specific reference to the oil tanks or equipment. It did, however, contain a special warranty in the usual form.*fn2
Plaintiff's cause of action is based upon the defendants' tortious or trespassory use of the equipment involved. Defendants' complaint against the additional defendants pleads sole liability or liability over. However, it is definitely one of express indemnity based on the clause of special warranty contained in the deed of conveyance between these particular parties. The plaintiff was not a party thereto. The facts pleaded in the third-party complaint do not set forth any basis constituting independent liability of the additional defendants to the plaintiff. No cause of action on behalf of the plaintiff directly against the additional defendants
is made out. Under Penna. Rules of Civil Procedure 2252(a), 12 P.S.Supp.p. 69, which now apply to equity actions: "In any action the defendant or any additional defendant may file as of course, a praecipe for a writ, or a complaint, to join as an additional defendant any person not a party to the action who may be alone liable or liable over to him on the cause of action declared upon or jointly or ...