Stokes v. Loyal Order of Moose Lodge 696

466 A.2d 1341, 502 Pa. 460, 1983 Pa. LEXIS 693
CourtSupreme Court of Pennsylvania
DecidedOctober 21, 1983
DocketNo. 69 W.D. Appeal Dkt. 1982
StatusPublished
Cited by24 cases

This text of 466 A.2d 1341 (Stokes v. Loyal Order of Moose Lodge 696) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stokes v. Loyal Order of Moose Lodge 696, 466 A.2d 1341, 502 Pa. 460, 1983 Pa. LEXIS 693 (Pa. 1983).

Opinion

OPINION

ZAPPALA, Justice.

Plaintiffs, Jacqueline H. and Robert Stokes filed a complaint in trespass in the Court of Common Pleas of Allegheny County against defendant, Loyal Order of Moose Lodge # 696, appellee here. Plaintiffs alleged that Jacqueline H. Stokes was injured on March 15, 1980, when a folding chair she was sitting on at appellee’s premises collapsed. Appellee filed a complaint to join General Accident Fire and Life Assurance Corporation, Ltd., appellant here, and the James W. Doncaster Agency, Inc. Appellee claims that General Accident breached an insurance policy by refusing either to defend appellee in the action by plaintiffs or to agree to indemnify appellee for any liability; that General Accident is liable for the negligence of its agent, Doncaster, in failing to obtain or renew an insurance policy; and that General Accident is estopped from denying coverage because of Doncaster’s conduct. The additional defendants filed preliminary objections, claiming that the complaint against them was not properly joined with plaintiffs’ complaint. The Court of Common Pleas sustained the preliminary objections. The Superior Court 302 Pa.Super. 256, 448 A.2d 624 reversed. We granted a Petition for Allowance of Appeal filed by General Accident.

The issue is whether appellee’s complaint against appellant may be joined with plaintiffs’ suit against appellee. Joinder of additional defendants is governed by Rule of Civil Procedure 2252(a). In its previous version, the rule provided that

In any action the defendant or any additional defendant may file as of course a praecipe for a writ or a complaint to join as an additional defendant any person not a party [463]*463to the action who may be alone liable or liable over to him on the cause of action declared upon or jointly or severally liable thereon with him.

Effective September 1, 1969, the rule was amended to its present form and now 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 liable or liable over to him on the cause of action declared upon the plaintiff or jointly or severally liable thereon with him, or who may be liable 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 plaintiff’s cause of action is based.

The effect of the amendment was to allow joinder of causes of action other than that asserted by plaintiff against defendant provided that they arise out of the same transaction or occurrence or series thereof. The effect of the change is illustrated by our decisions. In Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), we applied the unamended version of the rule. The case arose out of the death of a minor allegedly due to the wrongful administration of a drug. The original defendant was the pharmacist who supplied the drug. He joined as additional defendants two physicians who prescribed the drug and the manufacturer of the drug, which allegedly failed to give proper warnings of the drug’s dangerous effects. We held that the joinder was proper. The complaint to join the additional defendants was based on the same cause of action as the complaint against the original defendant, i.e. the death of decedent following the administration of the drug.

Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967) illustrates a contrasting situation. Plaintiffs sued defendant for damage resulting from his car striking their house. The original defendant was not entitled to join as an additional defendant another party whose car struck plaintiffs’ house. The striking of the house by each car constituted a separate [464]*464incident that gave rise to a distinct cause of action. The additional defendant did not cause any of the damage alleged in the complaint against the original defendant. See 427 Pa. at 356, 235 A.2d at 155 (Concurring Opinion of Justice Roberts).

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. The owner and financing agency sued the contractor’s surety on a performance bond. The surety filed a complaint to join as an additional defendant an architect who allegedly issued certificates of completion for work not performed or inefficiently performed. We held that joinder was improper because the complaint against the architect stated a different cause from the one stated in the complaint against the surety.

Under the amended version of the rule, it is not a necessary condition for joinder that the complaint to join the additional defendant be based on the same cause of action as the complaint against the original defendant. This is illustrated by Free v. Lebowitz, 463 Pa. 387, 344 A.2d 886 (1975). Plaintiffs there sued to recover for damage to their property caused by a change in a natural water course during the construction of a building. It was proper to join additional defendants on a complaint alleging not only that additional defendants were liable for the damage to plaintiffs’ property but also that they were liable for damage to original defendants’ property caused from the diversion of the water course.. We held that the purpose of the amended rule is to allow causes of action arising out of the same occurrence to be tried together. The complaints of damage to plaintiffs’ and original defendants’ property stated different causes of action although arising out of the same occurrence, i.e. the building construction leading to the diversion of the water course.

Prior to the amendment of Rule 2252(a), we took the position that an obligation to indemnify was not a proper basis for joining an additional defendant in an action based [465]*465on the underlying liability. In Lloyd v. Victory Carriers, Inc., 402 Pa. 484, 167 A.2d 689 (1960), a longshoreman brought an action in trespass against a ship owner to recover for personal injuries caused by the ship owner’s alleged breach of duty under federal maritime law. We found it improper to join as an additional defendant the stevedore who employed the longshoreman and was contractually obligated to indemnify the ship owner. We held that the complaint based on the indemnity contract stated a cause of action distinct from that stated in plaintiff’s complaint in trespass. We have also held that evidence as to whether a defendant in a liability action is insured is irrelevant on the question of liability and the introduction of such evidence may be a basis for declaring a mistrial because of its prejudicial nature. Nicholson v. Garris, 418 Pa. 146, 210 A.2d 164 (1965).

We have not ruled on the propriety of joinder of an indemnitor or insurer under the current version of Rule 2252(a).

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Bluebook (online)
466 A.2d 1341, 502 Pa. 460, 1983 Pa. LEXIS 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stokes-v-loyal-order-of-moose-lodge-696-pa-1983.