No. 2721 Philadelphia, 1980, Appeal from the Order of November 3, 1980 of the Court of Common Pleas of the Forty-Third Judicial District, Monroe County Branch--Civil Action No. 497, October Term, 1979
Barry J. Cohen, Stroudsburg, for appellant.
Joseph F. Leeson, Bethlehem, for appellees.
McEwen, Montemuro and Shertz, JJ. McEwen, J., did not participate in the consideration or decision of this case. Decision was rendered prior to Shertz, J., leaving the bench of the Superior Court of Pennsylvania.
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This appeal is from an Order granting the motion of Appellee, Warren Balderston Company, to be dropped as a party pursuant to Rule 2232(b), Pa.R.Civ.P. Appellants contend that the lower court improperly granted the motion in that it considered facts which were not of record.*fn1 We agree with this contention and therefore reverse.
Appellant, Nicholas J. Haber,*fn2 (hereinafter minor Appellant) was injured while assisting in the operation of a tilting arbor saw owned by Monroe County Vocational Technical School (School). At the time, minor Appellant was a CETA employee working at the School. As a result of this injury, the instant action was commenced against several defendants, including Appellee. The complaint included, inter alia, separate counts in assumpsit and trespass, alleging breach of warranty, negligence and strict liability on the part of Appellee as the seller of the machine which injured minor Appellant.
Without filing any pleading, Appellee moved to be dropped as a party defendant pursuant to Rule 2232(b), Pa.R.Civ.P. which provides:
Joinder of unnecessary parties is not ground for dismissal of an action. After notice to all other parties, a party may be dropped by order of the court whenever he has been misjoined or no claim for relief is asserted against him in the action by any other party.
The court below, treating Appellee's motion as a petition,*fn3 issued a Rule thereon directing Appellants to show cause
[ 296 Pa. Super. Page 57]
why Appellee should not be dropped as a party defendant. Appellants filed a sworn answer to Appellee's petition, denying the allegations therein. Appellee then ordered the case for argument on petition and answer.*fn4 Following argument, the lower court granted Appellee's petition. We conclude that, in so doing, the court erred in that Appellee made no showing that it had been misjoined and the record, properly read, clearly reflects that Appellants have asserted a claim for relief against Appellee.
As to the first basis for dropping a party, as specified by Rule 2232(b), i.e. misjoinder, a misjoinder objection rests on the premise that parties have been improperly joined. Bell v. Beneficial Consumer Discount Company, 241 Pa. Super.Ct. ...