Bolf v. Pennsylvania National Mutual Casualty Insurance

9 Pa. D. & C.3d 125, 1978 Pa. Dist. & Cnty. Dec. LEXIS 87
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedNovember 1, 1978
Docketno. G.D. 76-5906
StatusPublished

This text of 9 Pa. D. & C.3d 125 (Bolf v. Pennsylvania National Mutual Casualty Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolf v. Pennsylvania National Mutual Casualty Insurance, 9 Pa. D. & C.3d 125, 1978 Pa. Dist. & Cnty. Dec. LEXIS 87 (Pa. Super. Ct. 1978).

Opinion

WETTICK, J.,

Plaintiffs property was destroyed by fire and plaintiff filed this suit against Pennsylvania National Mutual Casualty Insurance Company (Pennsylvania Insurance), claiming a loss compensable under an insurance policy issued by Pennsylvania Insurance to plaintiff. Pennsylvania Insurance denies liability on several grounds, including plaintiffs failure to file a proof of loss within 60 days and to file a suit within one year after loss in accordance with policy requirements. In subsequent pleadings, plaintiff contends that Pennsylvania Insurance waived these requirements.

Pennsylvania Insurance seeks to join two attorneys who were allegedly retained to represent plaintiff in his claim for damages under the insurance policy within one year following the loss. In its proposed third party complaint, Pennsylvania Insurance alleges that these attorneys’ malpractice was the cause of plaintiffs failure to comply with policy requirements. The proposed additional defendants oppose Pennsylvania Insurance’s petition for late joinder on the ground that the joinder is outside the scope of Pa.R.C.P. 2252.

[127]*127Pa.R.C.P. 2252(a), which governs the right to join additional defendants, reads as follows:

“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 hable over to him on the cause of action declared upon by the plaintiff or jointly or severally hable thereon with him, or who may be hable 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 plaintiffs cause of action is based.”

In the present case, Pennsylvania Insurance alleges that the proposed additional defendants are alone hable to plaintiff. Thus we must determine whether the proposed additional defendants “may be alone hable ... on the cause of action declared upon by the plaintiff’ within the meaning of Pa.R.C.P. 2252.

This provision of Pa.R.C.P. 2252 has been broadly construed by our appellate courts. In the case of Incollingo v. Ewing, 444 Pa. 263, 290, 282 A. 2d 206 (1971), the Supreme Court, in holding that a druggist against whom damages were sought for allegedly filling a prescription contrary to the instructions of the prescribing physician could join the drug manufacturer on allegations that the manufacturer did not properly warn physicians and druggists about the dangers of the drug, stated:

“It is true that ‘the cause of action declared upon’ by the plaintiff in this case was not the same as that set forth in the third party complaint: the negligent [128]*128filling of a prescription by a druggist is not the same cause of action as the negligent failure by the drug manufacturer to give adequate warning to the druggist or the prescribing doctors. . . . The phrase ‘cause of action declared upon’ as used in the rule may not be taken too literally. So long as the additional defendant’s alleged liability is related to the original claim which plaintiff asserts against the original defendant, the third party complaint is within bounds. We think that is the case here: the asserted failure of the manufacturer of the drug to warn the prescribing doctors and the druggist of its dangers is sufficiently related to plaintiffs original charge that the druggist negligently dispensed the drug to be within the ambit of third party procedure.” 282 A. 2d at 221.

Also see Harker v. Farmers Trust Company, 248 Pa. Superior Ct. 427, 430, 375 A. 2d 171 (1977), where the Superior Court said:

“Rule 2252 is remedial in nature, designed to facilitate the adjudication in a single action of the rights of all parties growing out of a single situation. The objective of the Rule is to avoid multiplicity of suits, thereby saving time and money for both litigants and the courts. In view of its objectives, it has been held that the Rule should be liberally construed and ‘the cause of action declared upon by the plaintiff broadly interpreted: [citations omitted]. It is said in Goodrich-Amram, supra, [8 GoodrichAmrarn 2d §2252(a):6] that ‘this broad construction of “causes of action declared upon by plaintiff ’ has been uniformly observed.’” 375 A. 2d at 173.

In the present case, the harm which is the subject of plaintiffs complaint is that he did not receive [129]*129payments under his insurance policy for fire damage to his property. In his complaint, plaintiff alleges that Pennsylvania Insurance is the cause of this harm. Pennsylvania Insurance, through its proposed joinder, seeks to place the responsibility for this harm solely on the attorneys who represented plaintiff. And because Pennsylvania Insurance’s third party complaint seeks only to place the cause of the harm which is the subject of plaintiffs action on a third party, this is a joinder “on the cause of action declared upon” within the meaning of Pa.R C.P. 2252.

In Harker v. Farmers Trust Company, supra, the trustee in bankruptcy for the bankrupt corporation sued a bank for losses sustained by the bank’s alleged wrongful repossession and sale of the corporation’s assets. The bank sought to join the president/owner of the corporation on the ground that the repossession occurred because the corporation was in a fading condition and about to close due to mismanagement by the president/owner. The Superior Court ruled that joinder was permissible because the cause of action declared upon by plaintiff was the damage suffered by the corporation from the repossession and sale of its pledged equipment and the allegations that it was the owner/president — and not the bank — that caused this to occur “place the dispute within the parameters of Rule 2252(a) and particularly its first and second subdivisions.” 375 A. 2d at 173.

In Galdo v. First Pennsylvania Bank, 250 Pa. Superior Ct. 385, 378 A. 2d 990 (1977), corporate debenture holders sued the trustee of the debentures on the ground that the trustee breached its contractual and fiduciary obligations by allowing [130]*130the corporation to liquidate its assets without notifying debenture holders of the liquidation in violation of the terms of the indenture, thereby causing the debentures to become worthless. The trustee sought to join the former president and former treasurer of the corporation on the ground that they caused the debentures to become worthless by concealing the corporation’s financial condition and mismanaging the corporation. The Superior Court held that joinder was proper because “[t]he actual harm to the plaintiffs was that the debentures were caused to become worthless” and therefore additional defendant’s “alleged liability is related to the original claim which the plaintiffs asserted against the appellant [trustee] and therefore appellee [additional defendant] was properly joined.” 378 A. 2d at 993.

Also see Incollingo v. Ewing, supra, and Extrudo Film Corp. v. Beck Electric Construction, Inc., 220 Pa. Superior Ct. 164, 286 A. 2d 687 (1971).

We recognize that there are several cases in which courts have not permitted a claim against an attorney to be joined with other claims. In Schladensky v. Ellis, 442 Pa. 471, 275 A.

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Related

Schladensky v. Ellis
275 A.2d 663 (Supreme Court of Pennsylvania, 1971)
Incollingo v. EWING
282 A.2d 206 (Supreme Court of Pennsylvania, 1971)
Harker v. Farmers Trust Co.
375 A.2d 171 (Superior Court of Pennsylvania, 1977)
Galdo v. First Pennsylvania Bank N.A.
378 A.2d 990 (Superior Court of Pennsylvania, 1977)
Incollingo v. Ewing
282 A.2d 206 (Supreme Court of Pennsylvania, 1971)
Extrudo Film Corp. v. Beck Electric Construction, Inc.
286 A.2d 687 (Superior Court of Pennsylvania, 1971)
American Metal Fabricators Co. v. Goldman
323 A.2d 891 (Superior Court of Pennsylvania, 1974)

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Bluebook (online)
9 Pa. D. & C.3d 125, 1978 Pa. Dist. & Cnty. Dec. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolf-v-pennsylvania-national-mutual-casualty-insurance-pactcomplallegh-1978.