Summary
In Altoona Central Bank Trust v. American Casualty Company of Reading, 415 Pa. 39, 202 A.2d 29 (1964), a contractor defaulted on a construction contract.
Summary of this case from Stokes v. Loyal Order of Moose Lodge # 696Opinion
April 24, 1964.
July 1, 1964.
Practice — Parties — Joinder — Additional defendant — Identity of cause of action declared upon by plaintiff — Pa. R.C.P. 2252(a).
Under Pa. R.C.P. 2252(a) (which provides that in any action the defendant may join as an additional defendant any person not a party to the action who may be alone liable or liable over to him on the cause of action declared upon) the cause of action as to which the original defendant may bring in an additional defendant must still be the cause of action declared on by the plaintiff in the action against the original defendant.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 87, Jan. T., 1964, from order of Court of Common Pleas of Blair County, March T., 1961, No. 202, in case of Altoona Central Bank and Trust Company and Donald G. Nelson v. The American Casualty Company of Reading, Advanced Building Systems, Inc., H. F. Hall et al. Order affirmed.
Assumpsit.
Order entered sustaining preliminary objection of additional defendant to complaint of original defendant, opinion by KLEPSER, P. J. Original defendant appealed.
Robert C. Haberstroh, for appellant.
Leo C. Mullen, for appellee.
A contractor defaulted on a construction contract. In this action, the owner and the financing agency sued the contractor's surety on the performance bond. The surety filed a third-party complaint to bring upon the record, as an additional defendant, the architect who allegedly issued certificates for work not performed in connection with the construction, or which had been inefficiently performed. The lower court sustained preliminary objections to this complaint from which order the surety appeals.
The action of the court below was correct. The architect was not a party to either the construction contract or the performance bond. The original action against the surety on the bond is not the same cause of action pleaded against the architect. Pa. R.C.P. No. 2252 permits the joinder of a person not a party to the action where he may alone be liable or liable over on the cause of action declared upon in the original suit. Individuals who may be liable on an unrelated cause of action may not be joined: Steele v. Sheppard, 402 Pa. 33, 165 A.2d 666 (1960). Further, it is the cause of action actually declared upon that controls the right of joinder and not another cause of action which the plaintiff might have declared upon.
The case of Prost v. Caldwell Store, Inc., 409 Pa. 421, 187 A.2d 273 (1963) is inapposite. Therein the right of joinder was not involved.
Order affirmed.