No. 1520 April Term, 1978 Appeal from the Order in the Court of Common Pleas of Washington County, Civil Action, No. 28 June Term, 1978.
Anthony J. Seneca, Washington, for appellants.
Stephen T. McCloskey, Washington, for appellee.
Price, Hester and Cavanaugh, JJ.
[ 283 Pa. Super. Page 87]
This is an appeal from an order sustaining preliminary objections to the complaint of defendant-appellants, Dennis and Kathleen DiNardo, to join Stanley Beck Realty as an additional defendant in an action of trespass.
Appellants owned a residence located at 148 Washington Street in Cokeburg, Washington County. Scott and Deborah Eckrich, husband and wife, purchased the residence after visiting it with appellants' real estate agent, Stanley Beck Realty [hereinafter Realty]. The agent was the only party with whom Mr. and Mrs. Eckrich had direct dealing prior to the sale. After they concluded settlement of the property, Mr. and Mrs. Eckrich discovered certain defects in the foundation which had caused the newer portion of the house to separate from the main dwelling unit. The Eckrichs then instituted the present action against the appellants, seeking damages in trespass for fraudulent or negligent misrepresentation in the inducement of the contract.
Appellants answered the original complaint and thereupon filed a complaint to join Realty as an additional defendant. In their complaint, appellants alleged that Realty was solely liable to the plaintiffs or, in the alternative, jointly and severally liable with them on the plaintiffs' cause of action. The appellants averred both in their complaint and their answer that 1) they had no knowledge of any defects in the foundation, and 2) they apprised Realty at the time it
[ 283 Pa. Super. Page 88]
undertook to represent them of all pertinent information concerning the property.
Realty subsequently filed preliminary objections alleging that appellants' complaint for joinder failed to state a cause of action. The Court of Common Pleas of Washington County agreed that joinder of Realty as an additional defendant was improper and, accordingly, sustained its preliminary objections seeking dismissal of appellants' complaint.*fn1 We disagree and reverse the order entered below.
The right to join an additional defendant in Pennsylvania is governed by Pa.R.C.P. 2252. This rule authorizes joinder of a defendant by an original defendant only if the party he seeks to join is solely liable to the plaintiff, liable over to the defendant on the plaintiff's action, jointly and severally liable with the original defendant, or liable to the defendant on a separate cause of action which arises out of the same facts on which the plaintiff's cause of action is based. It follows that joinder is improper if none of the foregoing enumerated bases of liability exists. Accordingly, the sole issue for our consideration is whether, under the substantive law, there exists a right in favor of appellants sufficient to support their allegations of sole or joint liability.
Realty contends that it could only be held secondarily liable since no facts were averred by the appellants to establish grounds upon which it could be held liable due to its own acts or omissions.*fn2 Pennsylvania's appellate courts have held that if an original defendant is ...