Geary v. English , 2 Pa. D. & C.3d 241 ( 1977 )

BRADLEY, P. J.,

Plaintiffs axe suing for the return of a security deposit on a real estate transaction which was never consummated. Plaintiffs have sued defendant partnership and two individuals who were allegedly members in the partnership

One of these two individuals (defendant Harold J. Barr) has filed an application to drop a misjoined party from the record, citing Pa. R.C.P. 2232(b). Essentially applicant argues that he was not in fact a partner during the events in question, and he is, therefore, not liable to plaintiffs. The court must now rule on this application.

The court finds that the application seeks a remedy which is inappropriate in the present circumstances. The application raises factual issues which cannot be determined conclusively from the face of the record. Although applicant has attached copies of a partnership dissolution agreement and a fictitious name registry which both support its position, these documents do not necessarily preclude applicant’s liability in this action.

Applicant must raise his defense by way of an answer to plaintiffs’ complaint. After the issues are framed in pleadings, any factual questions which remain can be determined at trial or in appropriate pretrial proceedings.

It is therefore

ORDERED

This April 5, 1977 that defendant Harold J. Barr’s application to drop a misjoined party be, and hereby is, denied.