The opinion
Dissenting Opinion by
Montgomery, J.:
In my opinion, the complaint in replevin filed by the plaintiffs-appellants in this case shows that the plaintiff-appellant, Robinson, not only had title, but that he also had the right of immediate possession in accordance with the rule of International Electronics Company v. N.S.T. Metal Products Company, Inc., 370 Pa. 213 , 88 A. 2d 40 (1952). Although Robinson has not asked for delivery of the goods to himself in the complaint, his joinder in the demand for delivery to Oil & Air Pollution Controls, Inc., is tantamount to an assertion of his own underlying title and right to possession. That demand is consistent Avith the rule under the Uniform Commercial Code, Act of April 6, 1953, P. L. 3, 12A P.S. §2-401(2), Avhich provides that, unless otherAvise agreed between the vendor and vendee, title to the goods does not pass until delivery of the goods to the vendee. I have found no admission by Robinson either in the pleadings or the briefs on *263 this appeal that title to the goods had passed to Oil & Air Pollution Controls, Inc. Under the circumstances of this ease, particularly since it does not appear that title had passed from Robinson, Robinson had the right of possession of the goods. Therefore, I believe that Robinson is a proper party plaintiff in this action.
I would also permit Oil & Air Pollution Controls, Inc., to remain a party plaintiff in this action. I would allow its joinder as plaintiff under Pa. R.C.P. 2326 et seq., relating to intervention. Defendant cannot be harmed by the intervention; rather, it would be to its advantage to have both parties present in the action so that it can be protected from delivery of the goods to a party not having title to the goods or the right of possession thereof.
I would reverse the order of the lower court and direct that this action proceed to trial.
Therefore, I respectfully dissent.
Jacobs and Cercone, JJ., join in this dissenting opinion.