Haber v. Monroe County Vocational-Technical School

442 A.2d 292, 296 Pa. Super. 54, 1982 Pa. Super. LEXIS 3519
CourtSuperior Court of Pennsylvania
DecidedFebruary 26, 1982
DocketNo. 2721
StatusPublished
Cited by4 cases

This text of 442 A.2d 292 (Haber v. Monroe County Vocational-Technical School) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haber v. Monroe County Vocational-Technical School, 442 A.2d 292, 296 Pa. Super. 54, 1982 Pa. Super. LEXIS 3519 (Pa. Ct. App. 1982).

Opinion

SHERTZ, Judge:

This appeal is from an Order granting the motion of Appellee, Warren Balderston Company, to be dropped as a party pursuant to Rule 2232(b), Pa.R.Civ.P. Appellants contend that the lower court improperly granted the motion in that it considered facts which were not of record.1 We agree with this contention and therefore reverse.

Appellant, Nicholas J. Haber,2 (hereinafter minor Appellant) was injured while assisting in the operation of a tilting arbor saw owned by Monroe County Vocational Technical School (School). At the time, minor Appellant was a CETA employee working at the School. As a result of this injury, the instant action was commenced against several defendants, including Appellee. The complaint included, inter alia, separate counts in assumpsit and trespass, alleging breach of warranty, negligence and strict liability on the part of Appellee as the seller of the machine which injured minor Appellant.

Without filing any pleading, Appellee moved to be dropped as a party defendant pursuant to Rule 2232(b), Pa.R.Civ.P. which provides:

Joinder of unnecessary parties is not ground for dismissal of an action. After notice to all other parties, a party may be dropped by order of the court whenever he has been misjoined or no claim for relief is asserted against him in the action by any other party.

The court below, treating Appellee’s motion as a petition,3 issued a Rule thereon directing Appellants to show cause [57]*57why Appellee should not be dropped as a party defendant. Appellants filed a sworn answer to Appellee’s petition, denying the allegations therein. Appellee then ordered the case for argument on petition and answer.4 Following argument, the lower court granted Appellee’s petition. We conclude that, in so doing, the court erred in that Appellee made no showing that it had been misjoined and the record, properly read, clearly reflects that Appellants have asserted a claim for relief against Appellee.

As to the first basis for dropping a party, as specified by Rule 2232(b), i.e. misjoinder, a misjoinder objection rests on the premise that parties have been improperly joined. Bell v. Beneficial Consumer Discount Company, 241 Pa.Super.Ct. 192, 203, 360 A.2d at 681, 687 (1976). Thus, it has been said:

A misjoinder of parties is distinct from a defect of parties and means an excess of parties. An objection that there is a misjoinder of parties is an objection that persons have been made parties of record to the action who are neither proper nor necessary parties thereto. The term “multifarious” is sometimes used in connection with objections to joinder of parties . . .

59 Am.Jur.2d, Parties § 273. We note that Appellee does not contend that it was “misjoined” in the foregoing sense. Consequently, for Appellee to prevail in its efforts to be dropped as a party pursuant to Rule 2232(b), it must establish the alternative ground set forth therein, i.e. that no claim for relief is asserted against it in Appellants’ complaint.

[58]*58In essence, Appellee invoked the Rule on the ground that it cannot be held liable to Appellants because, on December 7, 1971, when the arbor saw in question was sold to the School, Appellant was not yet in existence. Appellee, in its unverified petition, asserts that “it is not properly joined” because another corporation, W. B. School Sales, which at the time of the sale of the saw bore the name Warren Balderston Company and which subsequently sold a portion of its assets and said corporate name to Appellee, actually sold the saw to the school and was therefore the proper defendant. Appellee attached to its petition an unexemplified copy of a New Jersey Certificate of Incorporation, a copy of an Agreement of Sale of Part of Business, and an unexemplified copy of a New Jersey Certificate of Amendment to the aforementioned Certificate of Incorporation. Appellee’s petition does not assert that it is not named as a party defendant. Rather, the first paragraph of the petition states: “The Warren Balderston Company (the ‘new’ company) ... has been named as a party defendant.” (emphasis added). Moreover, and most significantly, Appellee’s petition is silent as to whether a “claim for relief is asserted against (it) in the action by (Appellants)”.

In granting Appellee’s petition, the court below accepted as true, and relied upon, the facts set forth in the petition and the attachments thereto,5 despite the denial thereof in Appellant’s' answer to the petition. In so doing the court erred in two significant respects. First, it failed to [59]*59comply with the requirements of Rule 209(b), Pa.R.Civ.P. See footnote 4, supra. Second, inasmuch as the record does not contain any notes of testimony, nor any other indication that evidence of the foregoing facts was offered, nor any indication, indeed, that any hearing was held, we are compelled to conclude that the court, improperly, took judicial notice of the Agreement of Sale attached to Appellee’s petition.

Judicial notice, in the consideration of a Rule 2232(b) petition, as in the case of a demurrer, should be severely limited. In deciding questions arising under the pertinent provision of the Rule in question, the limited function of the court is to consider whether a cause of action is alleged against the moving party. See 59 Am.Jur.2d, Parties, § 278. In light of this limited function, a court “should refrain from noticing any fact which is not literally indisputable and which the parties could not reasonably raise in further pleadings or on argument at trial.” Clouser v. Shamokin Packing Company, 240 Pa. Super.Ct. 268, 275, 361 A.2d 836, 841 (1976).

Applying the foregoing principles in the instant case, we shall assume arguendo that, despite the strictures of Rule 209(b), the court below could, permissibly, take judicial notice of the Certificate of Incorporation and the Amendment thereto.6 However, these documents, in pertinent part, merely establish the incorporation, in New Jersey, on December 15, 1971, of E. & W. Sales Corporation with its initial office at 2659 Nottingham Way, Trenton, New Jersey,7 [60]*60which corporation, on December 22, 1971, amended its Certificate of Incorporation to reflect a change in the corporate name to “Warren Balderston Co.” These documents do not establish, nor do they even suggest, the following “findings,” apparently made by the court, as reflected in its Opinion, See footnote 5, supra: (a) that there ever existed another Warren Balderston Company; (b) that it was “the ‘Old Company’ ”; (c) that the old company sold the machine in question; (d) that on December 22, 1971, the old company sold its non-school business and the use of its corporate name to the E. & W. Sales Corporation; (e) that E. & W. “acquired” the name Warren Balderston Company; (f) that the old company changed its name to W. B. School Sales Company; and (g) that Appellee is the “new” Warren Balderston Company. The court could discern these “findings” only from the third of the documents attached to Appellee’s petition, the Agreement of Sale.

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Haber v. MONROE CTY. VO.-TECH. SCH.
442 A.2d 292 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
442 A.2d 292, 296 Pa. Super. 54, 1982 Pa. Super. LEXIS 3519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haber-v-monroe-county-vocational-technical-school-pasuperct-1982.