Appeal From Order Dated May 21, 1986, Court of Common Pleas, Civil Division, Philadelphia County No. 3711 March Term, 1981.
John J. Scroko, Philadelphia, for appellant.
David N. Bressler, Philadelphia, for appellee.
Cavanaugh, Olszewski and Tamilia, JJ.
[ 363 Pa. Super. Page 425]
In this case we must determine (1) whether the court below erred in allowing the joinder of Chelsea Title and Guaranty Co. as an additional defendant, and (2) whether, in the procedural stance of this particular case, judgment was properly entered against the additional defendant even if it were improperly joined as an additional defendant?
The case was originally commenced by Nicholas A. Samango against Vincent Pileggi, Jr. and Gabriel Berk, Esquire, who were the defendants below. The action was in trespass and assumpsit. The basis for the suit was an alleged breach of a written agreement of sale dated May 19, 1979, of a liquor license to Mr. Samango. The complaint alleged that Mr. Pileggi warranted in the agreement of sale that he was the sole and unconditional owner of a liquor license and further alleged that a sum of money was to be held in escrow by Mr. Berk and that the sum was not returned to Mr. Samango in accordance with the agreement. The trespass action complained that the defendants made false representations. Mr. Samango sought compensatory damages and also punitive damages in excess of $50,000.00 from the defendants.
Vincent Pileggi, Jr. filed a third party complaint against the Chelsea Title and Guaranty Company and Luigi's Restaurant Company, Inc. as additional defendants. The complaint against the additional defendants alleged, inter alia:
36. Furthermore, the additional defendants are liable to this defendant on the following cause of action which this defendant has against the additional defendants arising
[ 363 Pa. Super. Page 426]
out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.
37. On or about September 29, 1978, this defendant and additional defendant Luigi's Restaurant Company, Inc., entered into an Agreement of Sale, under which additional defendant Luigi's Restaurant Company, Inc., agreed to sell to this defendant, and this defendant agreed to purchase from the additional defendant, that certain plenary liquor license # 0102-33-143-001, issued to said additional defendant by the City of Atlantic City. A true and correct copy of said Agreement of Sale is attached hereto, made part hereof and marked Exhibit "C".
38. The closing under said Agreement of Sale took place on January 16, 1979 at the offices of additional defendant Chelsea Title and Guaranty Co.
39. At said settlement, this defendant and the additional defendants entered into a certain Escrow Agreement dated January 16, 1979, a true and correct copy of which is attached ...