Cowan v. Mease

75 Pa. D. & C.2d 69, 1975 Pa. Dist. & Cnty. Dec. LEXIS 102

Opinion

ERB, J.,

This matter comes before the court on defendant’s motion to be dropped as a party in an assumpsit action under Pa.R.C.P. 2232(b).

Defendant was named in plaintiffs complaint as James Mease, t/a, Keystone Auto Sales. Paragraph (3) of plaintiffs complaint alleges:

“(3)—That the Defendant is James Mease who is an adult individual trading as and doing business as Keystone Auto Sales at 450 North George Street, York, York County, Pennsylvania.”

Judgment was taken by plaintiff when defendant failed to file an answer. Thirty-four days later, de fendant filed his motion to be dropped as a party on the basis that another individual was the principal trading as Keystone Auto Sales, and that defendant was merely an employe or an agent.

Defendant in this case has taken a novel position. He has asked to be dropped as a party-defendant where he is the only party-defendant. While there are appropriate procedures which may be followed in the instant situation where the wrong party is sued, Pa.R.C.P. 2232(b), which deals with the dropping of a party misjoined, is obviously not one of them.

Accordingly, we enter this

ORDER

And now, February 10, 1975, defendant’s motion to be dropped as a party is hereby denied.