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filed: February 18, 1983.


No. 440 Philadelphia, 1981, No. 441 Philadelphia, 1981, Appeals from the Orders of the Court of Common Pleas Delaware County, Civil Division, at Nos. 80-560 and 79-19469.


Kathleen M. Turezyn, Media, for appellants.

Arnold Justin Bennett, St. Davids, for appellees.

Spaeth, Rowley and Cirillo, JJ.

Author: Rowley

[ 310 Pa. Super. Page 468]

These are consolidated appeals from two separate orders of the Court of Common Pleas of Delaware County entered on January 23, 1981, in the above-captioned cases sustaining preliminary objections filed by Sears, Roebuck and Company (Sears) and dismissing Sears as an additional defendant in each of the actions. Both The Goodman Company (Goodman) and Granite Run Mall, Inc. (Granite) have filed appeals in their respective cases with this Court in response to those orders. The appeals filed by Goodman and Granite were consolidated for oral argument and are now before us for review. For the reasons found below, we affirm the trial court's order in the appeal brought by Goodman (appeal No. 440), and reverse the trial court's order in the appeal brought by Granite (appeal No. 441).

History of the Case

Kirk Hall, an employee of appellee Sears, slipped and fell on an icy parking lot at the Granite Run Mall (the Mall) in Delaware County on January 24, 1978. Sears was a tenant of the Mall and rented space for its store under the terms of a written lease entered into on February 11, 1972, with appellant Granite, a corporation and alleged nominal title holder of the shopping complex. Appellant Goodman, a sole proprietorship owned by Murray Goodman, purportedly operated the Mall on Granite's behalf. The precise relationship between Granite and Murray Goodman was never specifically stated in the pleadings, although Murray Goodman is consistently referred to as the "beneficial owner" of the Mall property said to be held in Granite's name.

[ 310 Pa. Super. Page 469]

On December 6, 1979, Kirk Hall filed the first of two complaints in trespass to recover damages for the injuries he allegedly sustained as a result of his January, 1978 fall. In his December 6, 1979 complaint, Hall averred that Goodman owned, maintained and had control over the parking lot adjacent to the Mall complex where he claimed he fell and was injured. In response to Hall's complaint, Goodman filed an answer in which it denied ownership, control or maintenance over the parking lot, and in turn averred that ownership of the property in question was held by Granite, with maintenance or control over the same being the responsibility of Granite or Hall's employer, Sears. After having filed its answer to Hall's complaint, Goodman then proceeded to file complaints to join as additional defendants Sears and Alfred Mestichelli, a snow removal contractor. Attached to Goodman's complaint against Sears as exhibits were Hall's complaint against Goodman and Goodman's answer to Hall's complaint.

In its complaint against Sears, Goodman alleged that Sears was obligated, under Paragraphs 25.2, 25.3 and 25.4 of its lease for space in the Mall with Granite, "to remove all snow and ice on" the premises where Hall fell. Goodman also alleged that Sears had agreed in that lease in Paragraphs 31.1, 31.2 and 31.3 to indemnify Granite against Hall's claims. Attached to Goodman's complaint was ostensibly that portion of the lease between Sears and Granite where those paragraphs appeared. In its prayer for relief found at the end of the complaint to join, Goodman made the following demand: "WHEREFORE, the Goodman Company, Inc. demands judgment against Sears Roebuck and Company for any sums which the Defendant, Granite Run Mall, Inc. may be forced to pay the Plaintiff." (emphasis added). Goodman worded its demand in this fashion even though Granite was not a defendant in the action begun on December 6, 1979, and even though Goodman was not a corporation and Goodman and Granite, by Goodman's

[ 310 Pa. Super. Page 470]

    own averment in its answer to Hall's complaint, were not the same entity.*fn1

In response to Goodman's complaint, Sears filed preliminary objections*fn2 in the nature of a demurrer pursuant to Pa.R.C.P. No. 1017(b)(4) alleging that it could not be joined in the December 6, 1979 action under a theory of indemnity since there was no written agreement between it and Goodman. Attached to a memorandum of law filed by Sears in support of its preliminary objections were those portions of the lease agreement between it and Granite which had not been attached to Goodman's complaint and which delineated the parties to the lease as comprising only Sears and Granite. Sears asserted in its preliminary objections that § 303 of the Pennsylvania Workmen's Compensation Act*fn3 prohibited joinder of an employer for indemnity in an action by an employee against a third party unless a written agreement expressly providing for such indemnity existed between the employer and the third party. Because no such agreement had been signed by Goodman and Sears, Sears maintained that it could not be joined as a matter of law in Hall's suit for damages against Goodman. Goodman subsequently filed an answer to Sears' preliminary objections averring that the mere fact that the lease contained

[ 310 Pa. Super. Page 471]

    only Granite and Sears' names was an inconsequential "technicality," and that Goodman was a known and intended third party beneficiary of that lease. The trial court sustained Sears' preliminary objections and dismissed Sears as an additional defendant ...

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