United States National Bank in Johnstown v. H & D Leasing, Inc.

HESTER, Judge,

dissenting:

I dissent for the reasons set forth in my dissenting opinion in Eads v. Smith, 276 Pa.Super. 129, 419 A.2d 129 (1980). In Eads I was of the opinion that the court’s reliance on the holding in Szemanski v. Vulcan Materials Company, 272 Pa.Super. 240, 415 A.2d 92 (1979) was misplaced. I there stated:

I have reviewed the majority opinion and the case of Szemanski (supra) upon which the majority so heavily relies. I conclude, however, that the majority’s reliance upon Szemanski is misplaced and I therefore would affirm the order of the lower court.
The additional defendant joined in Szemanski, pursuant to Pa.R.C.P. 2252(a), was a party who allegedly agreed, as *427part of a construction contract, to indemnify the original defendant against loss on the cause of action complained of by plaintiff in his original complaint.
There is no doubt that amended Rule 2252(a) has expanded the parameter whereby joinder of additional defendants is permissible. Joinder is now permitted “if the proposed additional defendant may be (1) alone liable to the plaintiff on the cause of action declared upon by the plaintiff, (2) liable over to the defendant in regard to such cause of action, (3) jointly or severally liable with the defendant to the plaintiff on such cause of action, or (4) liable to the defendant on any cause of action which he may have against the additional defendant arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.
However, there are restrictions; [A]n additional defendant cannot be joined on the basis of a claim wholly unrelated to the claim of the plaintiff against the defendant .. . [jjoinder remains improper if based upon a completely extraneous cause of action, not related to the occurrences or transactions upon which the plaintiff’s cause of action is based.” Goodrich-Amram 2d, Vol. 8, § 2252(a): 5, p. 36.
In Szemanski, the court permitted the joinder of an express indemnitor on the theory that the original defendant’s cause of action against it, although not the same cause of action as alleged by plaintiff against the original defendant, is related to it. The court in Szemanski, apparently concluded that there existed a close enough nexus between plaintiff’s cause of action against original defendant and the original defendant’s related cause of action against the additional defendant to permit the joinder.

In Szemanski, supra, Vulcan, the original defendant, and United Industrial Maintenance, the additional defendant, entered into a contract whereby United agreed to make certain repairs to a crane owned by Vulcan. As part of that *428same contract, United agreed to indemnify Vulcan against all claims which might arise out of the performance of the contract. There, the additional defendant’s indemnity obligation was part and parcel of the original undertaking. In Szemanski, we held at 415 A.2d 95: “The 1969 amendment was intended to modernize additional defendant practice. The language of the amended rule is broad enough to permit the joinder of express indemnitors.” We further stated there: “In the instant case, defendant sought to join as an additional defendant a party who was not an insurer but who is alleged to have agreed as part of a construction contract to indemnify defendant against loss on the cause of action pleaded by plaintiff; we hold that such a joinder is permitted by Pa.R.C.P. 2252(a).” (Emphasis added). The additional defendant assumed that contingent liability as part of the original undertaking between the parties.

Our holding in Szemanski, permitting the joinder of an express indemnitor was improperly extended by the Eads Court to include an insurance agent. Eads sued Smith for injuries resulting from Smith’s negligent operation of a motor vehicle. Smith attempted to join Oaten, his insurance agent, as an additional defendant. The majority of this court held that: “defendant’s cause of action against additional defendant arises, at least, in part, from the same occurrence upon which the plaintiff’s cause of action is based.” This reasoning is beyond comprehension. The facts upon which the plaintiff’s cause of action in Eads was structured, was that the defendant, while operating his motor vehicle, struck the plaintiff while he was riding his bicycle, causing serious injuries. The facts upon which the defendant’s causé of action against the additional defendant was structured, was that the additional defendant failed to provide insurance coverage for defendant’s motor vehicle when allegedly instructed to do so by defendant. One cause of action has nothing to do with the other. They are in no manner related.

In the instant case, it cannot be argued that the proposed additional defendant may be alone liable to the plaintiff-*429bank for the original defendant’s failure to meet its obligation; nor can it be argued that the additional defendant may be liable over to the original defendant, or jointly or severally liable with the original defendant to the plaintiff-bank, or liable to the original defendant on any cause of action which the original defendant may have against the proposed additional defendant which arises out of the transaction or occurrence, or series of transactions or occurrences upon which the plaintiff’s cause of action is founded.

In my judgment, the defendant’s claim against the proposed additional defendant is wholly unrelated to the plaintiff-bank’s claim for monies due and owing.

I would, therefore, affirm the order of the court below disallowing the joinder of the additional defendant.