Dolphin v. Dean

Reimel, J.,

In the instant case, plaintiff is suing two defendants. One of the defendants alleges that the second defendant is jointly liable or primarily liable, and the problem at issue is whether this defendant can so allege under the heading new matter.

If plaintiff was suing only one of the two defendants, the defendant sued could accomplish this by joining the second defendant as an additional defendant. Even though the rules do not specifically authorize the procedure employed in the instant case, there appears to be no reason for not permitting the defendant to accomplish the same result whether sued individually or sued in conjunction with a second defendant. In fact, this procedure was authorized in Berlo Vending Company v. Sealright Company, Inc., 88 D. & C. 401 (1954), which this court hereby follows.

There is also a preliminary objection requesting that the new matter be more specifically pleaded, but since the suit is in the nature of an equity accounting, it is the finding of the court that the pleading in question is sufficiently specific.

Therefore, the court enters the following

Order

And now, April 10, 1963, the preliminary objections to new matter are dismissed.