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MARPLE TOWNSHIP v. MAR-ANN HOLDING COMPANY (ET AL. (07/17/61)

July 17, 1961

MARPLE TOWNSHIP
v.
MAR-ANN HOLDING COMPANY (ET AL., APPELLANT).



Appeal, No. 205, Jan. T., 1961, from judgment of Court of Common Pleas of Delaware County, June T., 1959, No. 432, in case of Township of Marple v. Mar-Ann Holding Company et al. Judgment affirmed.

COUNSEL

Thomas J. Burke, with him Haws and Burke, for appellants.

George J. McConchie, with him John F. Cramp, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 404 Pa. Page 487]

OPINION BY MR. JUSTICE MUSMANNO.

The Township of Marple in Delaware County brought an action in assumpsit against Mar-Ann Holding

[ 404 Pa. Page 488]

Company (succeeded by Bridgmac, Inc.) as the result of an alleged defective paving and improving work done by the defendant in executing a contract entered into between plaintiff and Mar-Ann and assumed by Bridgmac. The defendant Bridgmac joined as additional defendants Nicholas A. Cardinale, Dominic Cardinale, and Frank Cardinale, individually and trading as Nicholas P. Cardinale & Co. (hereinafter referred to as Cardinale), asserting that Cardinale was at fault since it had entered into an oral contract with Bridgmac to do the work contracted for between Marple and Bridgmac. Cardinale then joined as further additional defendants Joseph DiFrancesco and George DiFrancesco, individually and trading as V. DiFrancesco & Sons (hereinafter referred to as DiFrancesco) claiming that whatever damages were suffered by the plaintiff were due to defective concrete supplied by DiFrancesco.

DiFrancesco opposed the joinder but, instead of filing preliminary objections, thus directly raising the question of improper joinder, filed an answer denying all the material allegations of Cardinale's complaint. He later, however, filed a motion for judgment on the pleadings. The motion was granted. Cardinale appealed.

The court below held the joinder to have violated Rule 2252(a) and dismissed Cardinale's action against DiFrancesco, without prejudice to the rights of Cardinale to institute a separate suit against DiFrancesco.

Rule 2252(a) of the Pennsylvania Rules of Civil Procedure provides: "In any action the defendant or any additional defendant may... 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 ...


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