No. 2029 October Term, 1978, Appeal from Order of the Court of Common Pleas of Bucks County, dated June 27, 1978, sustaining preliminary objections filed on behalf of additional defendants Bray Brothers, Inc., William Spencer Erwin Associates, Inc. and Joseph G. Park., at No.-77-0935-04-1.
Gerald A. Inglesby, Philadelphia, for appellant.
Charles H. Dorsett, Jr., Doylestown, submitted a brief on behalf of Township of Upper Makefield, appellee.
Albert S. Shaw, Philadelphia, did not file a brief for Benjamin Franklin Federal, appellee.
Frederick T. Bebbington, Yardley, for Bray Brothers, appellee.
Van der Voort, Hester and Wieand, JJ.
[ 271 Pa. Super. Page 400]
This appeal was taken from an order which dismissed "with prejudice" the joinder of additional defendants. We modify and affirm.
The Township of Upper Makefield (the Township) and Mt. Eyre Development Corp. (Mt. Eyre) were parties to a contract which required Mt. Eyre to complete roads and other municipal improvements in a subdivision known as Mt. Eyre Manor. To insure completion in accordance with Township regulations and specifications, Mt. Eyre was required to
[ 271 Pa. Super. Page 401]
deposit in escrow with Benjamin Franklin Federal Savings and Loan Association (the Association) the sum of $257,615.47. The terms of the escrow agreement, dated December 12, 1972, authorized the Association to release monies, upon written approval by the Township, as work was completed. Pursuant to written approvals by the Township, the Association released to Mt. Eyre, as work progressed, sums totaling $209,414.13. By December 16, 1976, it had become apparent to the Township that the streets had not been completed satisfactorily. The Township, therefore, demanded payment of the escrow balance of $48,201.34. The Association, it was then disclosed, had previously released the balance of the escrow fund to Mt. Eyre.
The Township commenced an action in assumpsit against the Association, alleging breach of the escrow agreement. The Association joined Mt. Eyre as an additional defendant alleging that Mt. Eyre had been the recipient of the unauthorized payment and that if the required improvements had not been completed properly, Mt. Eyre was liable to the Township or liable over to the Association. Preliminary objections to the joinder of Mt. Eyre were dismissed. Mt. Eyre then filed complaints joining as additional defendants the contractor who did the road construction work, Bray Brothers; the engineer who designed the roads, William Spencer Erwin Associates, Inc.; and the Township's engineer, Joseph G. Park. In its complaint against the additional defendants, Mt. Eyre alleged that it had claimed the escrow balance upon the assurance of the additional defendants that the roads in Mt. Eyre Manor had been satisfactorily completed and that if they had not been so completed this failure was due to negligence or breach of warranty by one or more of the additional defendants. Preliminary objections filed by the additional defendants were sustained by the lower court, which dismissed Mt. Eyre's complaint "with prejudice". Mt. Eyre has appealed.
Although the order of the trial court purported to sustain preliminary objections in the nature of a demurrer and dismissed appellant's ...