No. 7 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Cambria County at No. 1977-4308
William G. Barbin, Johnstown, for appellants.
David R. Lovette, Johnstown, for U. S. Nat. Bank, appellee.
R. Thomas Strayer, Johnstown, for Buettner, appellees.
Hester, Popovich and Montgomery, JJ. Hester, J., files a dissenting opinion.
[ 299 Pa. Super. Page 423]
The instant appeal arises from a lower court Order which granted a Motion for Summary Judgment and dismissed a Complaint filed by the Defendant against the Additional Defendants. The action originally arose as a result of the
[ 299 Pa. Super. Page 424]
failure by the Defendants to repay a loan to the Plaintiff Bank. The loan had been used to finance the purchase of a truck on June 8, 1977 by the Defendants, Chester and Helen E. Daniels and their family enterprise, H&D Leasing, Inc. The truck was destroyed in the tragic flood which struck Johnstown on July 20, 1977, and the Defendants thereafter sought to collect on insurance coverage they believed existed on the truck. They were informed by their insurance agents that no such coverage had been placed on the vehicle. When sued by the Bank on the loan, the Defendants therefore initiated a Complaint to join the insurance agents as Additional Defendants. The Defendants claimed that, through their employees, the Additional Defendants had assured the Defendants prior to the flood that appropriate insurance -- so-called "comprehensive" coverage -- would be issued to cover the truck in question.
The Additional Defendants filed Preliminary Objections to the Complaint which had been filed against them. These Preliminary Objections were considered by Cambria County President Judge Clifton McWilliams, who dismissed them by an Order dated March 9, 1979. In an Opinion, Judge McWilliams explained that it was his conclusion that the insurance agents could be joined as additional defendants based upon Pa.R.C.P. 2252(a), which provides:
(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joining party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.
Discovery, including the taking of depositions, was subsequently completed by the parties. Of particular significance, we note that Defendant Helen E. Daniels testified in a deposition that ...