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WILLIAM E. RIKER v. BERNARD V. DIGIACOMO AND COUNTY MONTGOMERY. APPEAL BERNARD V. DIGIACOMO (07/01/83)

filed: July 1, 1983.

WILLIAM E. RIKER, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF WILLIAM E. RIKER, JR. AND DENISE K. RIKER, MINORS,
v.
BERNARD V. DIGIACOMO AND COUNTY OF MONTGOMERY. APPEAL OF BERNARD V. DIGIACOMO



No. 698 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 78-18503.

COUNSEL

Bernard V. DiGiacomo, Norristown, appellant, in propria persona.

Margaret Mary Maguire, Norristown, for appellee.

Cercone, President Judge, and Cavanaugh and Wieand, JJ.

Author: Cavanaugh

[ 315 Pa. Super. Page 426]

The issue on appeal is the propriety of the trial court's order sustaining preliminary objections and dismissing a complaint which sought to join the County of Montgomery as an additional defendant. Appellant DiGiacomo is an attorney. He was sued by William E. Riker individually and as parent and natural guardian of his minor children William E. Riker, Jr. and Denise K. Riker. Attorney DiGiacomo had acted as counsel in an adoption proceeding wherein Riker's two children had, with Riker's consent, been adopted by his friends Joseph and Anna Mae Avery. A final decree in that matter was entered. Thereafter problems arose with respect to the Averys' care of the children. Riker then sought to regain custody of his children and, after a hearing, was successful in having the court vacate the decree which had terminated his parental rights and enter an order restoring custody to him.

Riker's suit against DiGiacomo claimed that the attorney had failed to properly advise him of all the ramifications of the adoption proceedings, and that as a result he had to undergo certain expenses to regain custody of his children. The complaint also sought damages for mental and psychological ills associated with the consequent experience. In a separate count, Riker, as parent and natural guardian of the children, sought damages for their emotional trauma caused by the attorney's alleged neglect. After some further pleading, not here pertinent, DiGiacomo filed the present second amended complaint against the County of Montgomery. In it appellant complained that the County, through its Child Welfare Service, contested Riker's attempt to have the adoption order vacated and to regain custody of the children, and that it was the agency which was responsible for removing the children from the custody of the adopting parents, and resisting return of the children to Riker. Appellant concluded by claiming that the County

[ 315 Pa. Super. Page 427]

    was liable "solely or jointly and severally liable or liable over to the defendant" for damages. The court sustained preliminary objections to this complaint on the ground that it failed to state a cause of action.

Our inquiry is guided by a liberal precept. If there exists any doubt as to whether the averments of the complaint would permit recovery if ultimately proven, the preliminary objection should not be sustained. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); King v. U.S. Steel Corporation, 432 Pa. 140, 247 A.2d 563 (1968); Eckrich v. DiNardo, 283 Pa. Super. 84, 423 A.2d 727 (1980); McClimans v. Barrett, 276 Pa. Super. 557, 419 A.2d 598 (1980); Wells v. Pittsburgh Board of Public Education, 31 Pa. Commw. 1, 374 A.2d 1009 (1977). Approached from this standpoint we think the lower court too narrowly read the complaint when it found that the appellant's allegations failed to set forth a cause of action upon which relief could be granted. The rule governing the right to join additional defendants is Pa.R.C.P. 2252(a):

(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 joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.

The rule provides for joinder by a party of an additional defendant under a variety of theories including: one who may be (1) alone liable or (2) liable over to him or (3) jointly or severally liable with him on the cause of action declared by the plaintiff or (4) liable to the joining party on a cause of action arising out of the transaction(s) forming the basis of the plaintiff's complaint. The trial court found that ...


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