
    Bianco v. Pepe et ux.
    
      F. Carano, for plaintiff.
    
      Ned Stein, for defendants.
    February 21, 1949.
   Winnet, J.,

Plaintiff has filed preliminary objections to the counterclaim of defendants. The suit is for a balance due on an oral contract for alterations and repairs. The answer denies that defendants entered into any oral contract with plaintiff, and incorporates by reference the new matter and counterclaim which set out that the oral contract for the repairs was made not by defendants but by one, Joseph Pepe, and that the repairs were improperly made, resulting in damages of $273, for which a finding is asked.

Counsel for defendants justifies this unusual pleading under Rule 1020(c) of the Pennsylvania Rules of Civil Procedure, which authorizes defenses in the alternative. He argues that defendants deny ever having entered into an oral contract with plaintiff, but if this fact is found against them, then as an alternative, they want to be in a position to counterclaim for the damage done by plaintiff.

The preliminary objections must be sustained. The alternative defense and the counterclaim defendants are asserting, are not theirs but that of Joseph Pepe. A counterclaim is a right of action which defendant being sued may assert against a plaintiff if it arises out of the same transaction. It cannot from its very nature be asserted by a defendant on behalf of someone else.

The Rules of Civil Procedure are adequate to protect defendants from the real fear which they have in an ultimate finding that the oral contract was made with them, as plaintiff asserts, and not with Joseph Pepe, as they assert. Pa. R. C. P. 2252 gives a defendant the right to join any additional defendant who may be alone liable on the cause of action declared upon. Since defendants have alleged that they did not enter into the contract, and have stated that Joseph Pepe is the one liable, he should be joined as an additional defendant. Additional defendant Joseph Pepe will then have the opportunity in this very suit to assert any claim he may have against plaintiff. Pa. R. C. P. 2255(6) provides that an additional defendant may file a counterclaim against plaintiff. The only restriction as to a counterclaim is provided for by Pa. R. C. P. 2256 (b) which limits a counterclaim to the transaction or occurrence out of which the original cause of action arose. Obviously additional defendant’s counterclaim will comply with this rule as the entire suit is concerned with the repairs at premises 2403 S. 61st Street, in the City of Philadelphia.

The preliminary objections are sustained. Leave is given to defendants, within 20 days to file an amended answer and to issue a praecipe for a writ to join Joseph Pepe as an additional defendant.  