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AMERICAN METAL FABRICATORS COMPANY v. GOLDMAN ET AL. (04/03/74)

decided: April 3, 1974.

AMERICAN METAL FABRICATORS COMPANY
v.
GOLDMAN ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 1347, in case of American Metal Fabricators Company v. William L. Goldman and Robert J. Hastings, Defendants, and Jacob S. Richman, Anthony Jardine, Delaware Valley Packing Company and Julian Gancarz, Additional Defendants.

COUNSEL

Murray S. Levin, with him James Paul Dornberger, and Pepper, Hamilton & Scheetz, for appellants.

Edward J. Marcantonio, with him Swartz, Campbell & Detweiler, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 227 Pa. Super. Page 285]

We have here an appeal from the dismissal of a complaint filed against additional party defendants. The order granting preliminary objections and dismissing the additional party complaint is final and appealable: Brandywine Area Joint School Authority v. Vancor, Inc., 426 Pa. 448 (1967).

Plaintiff brought this action in assumpsit and trespass against its attorneys, William L. Goldman and Robert J. Hastings, the defendants, to recover damages which allegedly resulted from the defendants' failure to apprise plaintiff of a defect in the title to land in Bristol Township, Bucks County, which was purchased by plaintiff. This failure of defendants allegedly

[ 227 Pa. Super. Page 286]

    took place during the negotiation and settlement period preceding this land purchase. It is the contention of the plaintiff that these two defendants negligently failed to discover that a prior violation of Section 302 of the Bristol Township Land Subdivision Ordinance of 1956 created a cloud on the plaintiff's title to the land, and that because of this defect in the title, plaintiff was forced to suspend its manufacturing operations on the purchased land.

Defendants joined the sellers of the land, Delaware Valley Packing Company (D.V.P.C.) and Julian Gancarz (Gancarz), as additional defendants alleging that if the plaintiff was damaged, the negligence of the additional defendants in violating the ordinance and not notifying the plaintiff or the defendants caused the harm. The defendants maintain that as a result of this negligence, D.V.P.C. and Gancarz are either solely liable to the plaintiff or liable over to the defendants or jointly and severally liable with defendants to the plaintiff. D.V.P.C. and Gancarz filed preliminary objections alleging that defendants' complaint failed to state a cause of action and that a general release*fn1 granted to D.V.P.C. and Gancarz by the plaintiff purchaser necessitated the striking of the complaint as to them.

The lower court erred in applying Rule 2229(b) as a basis for its order. Rule 2229(b) of the Pa. Rules of Civil Procedure deals with the permissive joinder of defendants by the plaintiff. It has no application

[ 227 Pa. Super. Page 287]

    where the defendant is seeking to join an additional defendant. However the result reached by the lower court was correct under another rule of the Pennsylvania Rules of Civil Procedure. The right of an original defendant to join additional defendants is covered by Rule 2252(a) of the Pa. R. C. P.: Goodrich-Amram, Standard Pa. Practice, §§ 2252 and 2252(a). Therefore, the lower court ...


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