No. 2376 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Luzerne County, Civil Action - Law at No. 2944 of 1978.
Charles E. Wasilefski, Harrisburg, for appellant.
Daniel G. Flannery, Wilkes-Barre, for Pennsylvania Gas, appellee.
Ralph J. Johnston, Jr., Wilkes-Barre, for Consor, appellee.
Joseph S. Falchek, Wilkes-Barre, for Plains, appellee.
Wickersham, Montemuro and Watkins, JJ.
[ 288 Pa. Super. Page 268]
This is an appeal from an Order by the court below, sustaining the preliminary objections of the additional defendants/appellees (Consor, Townsend and Associates and Plains Township Sewer Authority) and discharging them as parties. Appellees had challenged, under Pennsylvania Rules of Civil Procedure, Rule 2253, their joinder by the defendant/appellant (Lisbon Contractors, Inc.). For the reasons discussed below, we find that we agree with both the trial court and the appellees and, accordingly, we affirm.
On April 25, 1978, the plaintiff in the case below (Pennsylvania Gas and Water Co.) filed a two count complaint against the appellant herein. The first count was in trespass and alleged that appellant, who had contracted with appellee, Plains Township Sewer Authority, to install a sewer system, had negligently damaged some of the plaintiff's water and gas mains during said sewer installation. The second count, in assumpsit, was based on certain provisions of the contract between the appellant and appellee Sewer Authority, which were allegedly to the effect that appellant would be responsible for any damages to plaintiff's facilities.
On May 4, 1978, the appellant herein filed a preliminary objection in the nature of a demurrer to the second (assumpsit) count of the complaint. On October 4, 1978, the court below dismissed the defendant's demurrer. In the meantime, apparently due to statute of limitations problems, the appellant herein gave notice, by Writ of Summons dated
[ 288 Pa. Super. Page 269]
July 12, 1978, and named the appellees herein as additional defendants. These were received by appellees on July 17 and 18, 1978. On December 11, 1978, appellee, Sewer Authority, filed a preliminary objection to its joinder as additional defendant, based primarily on Pa.R.Civil P. 2253. On March 26, 1979, appellee, Consor, Townsend and Associates, filed similar preliminary objections. Both sets ...