Appeal, No. 283, March T., 1962, from judgment of Court of Common Pleas of Washington County, Feb. T., 1960, No. 206, in case of Margaret Prost and William Prost, her husband, v. The Caldwell Store, Inc., Anthony Pastura and George Popovic, individually and trading and doing business as Pastura & Popovic, and H. Kaplan Company. Judgment reversed.
Charles G. Sweet, for appellant.
Adolph L. Zeman, with him Robert L. Zeman, and Zeman and Zeman, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Mrs. Margaret Prost was injured when she slipped and fell in the terrazzo-paved entranceway to a department store in Washington, maintained and operated by Caldwell Store Incorporated. With her husband she brought a suit in trespass against the store company which brought in as additional defendants the H. Kaplan Company, general contractor, and the firm of Pastura and Popovic, subcontractors, which installed the terrazzo.
The Kaplan Company filed preliminary objections to the defendant's complaint, contending that Caldwell's claim against it, if any, could only be for breach of some contractual duty it might owe Caldwell and that, therefore, it could in no way be made answerable to the claim filed by the Prosts. The lower court sustained the preliminary objections and entered judgment in favor of Kaplan. Caldwell appealed.
The lower court held that according to the Pennsylvania Rules of Civil Procedure joinder is permissible "only in defense of plaintiff's claim and does not permit joinder so that defendant may make a claim against the additional defendant."
It is true that under Pa. R.C.P. 2252(a) the claim for liability over must relate to the cause of action declared on by the plaintiff and the original defendant may not assert a claim against an additional defendant which is entirely independent of the plaintiff's claim. This is so even though the latter claim may have arisen out of the same factual occurrence from which the plaintiff's cause of action arose. Thus, if the additional defendant's liability is to the original defendant exclusively and is based solely upon a contract between them, the additional defendant's liability does not relate to the "cause of action declared on" by the plaintiff in the original trespass complaint.
However, the decision of the court below is based on the erroneous assumption ...