Appeal from order of Court of Common Pleas of Northumberland County, May T., 1967, No. 990, in case of Extrudo Film Corporation v. Beck Electric Construction, Inc.
Carl Rice, for appellant.
Howard G. Stutzman, and Lipkin, Stutzman, Marshall & Bohorad, for appellee.
Joseph A. McKenna, with him Chester C. Corse, and Williamson, Friedberg & Jones, for additional defendant, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.
[ 220 Pa. Super. Page 165]
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
[ 220 Pa. Super. Page 166]
whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based." The portion of the rule that is given emphasis above was added by amendment which became effective September 1, 1969. Prior to that time, Rule 2252(a) simply read as indicated by the unemphasized portion of the rule quoted above.
Beck alleges that the joinder of General Electric was proper under the amended Rule 2252(a). The plaintiff's 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., ...