The opinion of the court was delivered by: KALODNER
This suit arises out of a collision between two automobiles -- one operated by the defendant, and the other by the thirdparty defendant. The accident occurred in Berks County, Eastern District of Pennsylvania. The plaintiff, a resident of Michigan, was a passenger in the automobile of the third-party defendant, also a resident of Michigan. The defendant is a resident of Berks County, Pennsylvania.
Following plaintiff's institution of suit against the defendant in this District to recover damages for his alleged injuries, the defendant filed an answer to the complaint, and also filed a petition, under Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c,
for leave to serve a summons and complaint upon the third-party defendant. Leave was granted, the summons and complaint were duly filed, and the Marshal of this district made a Return of Service upon the third-party defendant which shows that he, the Marshal, sent by registered mail (return receipt requested) to the Secretary of Revenue, Harrisburg, Pennsylvania, a true and attested copy of the writ, together with the copy of the complaint, for service on the third-party defendant. The return registry receipt is attached to the writ. Further, the Marshal in the same manner sent a copy of the writ and the complaint (of the defendant) to the third-party defendant, and the latter's Return registry receipt is also attached to the writ.
The third-party defendant filed an answer, containing inter alia four defenses not upon the merits. The defendant now moves to strike those defenses from the Answer.They will be discussed in sequence.
The first defense is: "The Third Party Complaint fails to state a cause of action against the third party defendant upon which relief can be granted in favor of the plaintiff or the third-party plaintiff."
In making this defense the third-party defendant relies upon Satink v. Holland Township et al., D.C., 31 F.Supp. 229, which ruled that the added party should be dropped from the case, when all that the defendant does is tender to the plaintiff a party wholly and exclusively liable to the plaintiff, and the latter refuses to press a claim against such added party. That situation does not exist here. It is to be noted that the defendant's complaint in paragraph 12 asserts that the third-party defendant "* * * is, or may be, liable to the defendant, or third-party plaintiff, or to the plaintiff for all, or part of, plaintiff's claim against the defendant, or thirdparty plaintiff." Under such circumstances it may be that in the ultimate outcome of this suit a joint tort may be established against the defendant and third-party defendant, with a consequent liability over from the latter to the former if the former were compelled to pay the entire verdict. The case cited by the third-party defendant is not, therefore, controlling.
As was stated by Alexander Holtzoff, Special Assistant to the Attorney General of the United States, in his admirable work, "New Federal Procedure and the Courts":
"Rule 14 of the new Federal Rules of Civil Procedure makes third-party practice an inherent part of Federal civil procedure. Its purpose is to permit a defendant to bring in a third party who is liable on the same claim or who is subject to a liability arising out of the claim on which the suit is based. * * *
"The scope of third-party practice under the new Rules is exceedingly broad. It may be invoked against a party who is liable to the defendant for all or a part of the plaintiff's claim, as, for instance, in a case in which the third party is liable for contribution or indemnification or as an insurer of the defendant's liability." Page 47.
The third-party defendant's contention, that a joint tort cannot be established in this case because the plaintiff has not asserted any claim against the added defendant, is without merit. The defense should be stricken.
The second defense is as follows: "The third-party complaint improperly seeks to join as an additional defendant a citizen of the same state as the plaintiff, to wit, Michigan, contrary to the jurisdictional limits of this Court."
This defense is also without merit: Bossard v. McGwinn, D.C., 27 F.Supp. 412; Kravas v. Great Atlantic & Pacific Tea Company, D.C., 28 F.Supp. 66; Crum v. Appalachian Electric Power Company, D.C., 27 F.Supp. 138. The third-party defendant concedes in his brief that this jurisdictional question has been ruled adversely to his position in the decisions, but asserts the defense, nevertheless, in the event some appellate court reverses those decisions. They have not been reversed and my views of the law coincide with those expressed therein.
The next defense is as follows: "The Court does not have jurisdiction either of the claim against or the person of the third-party defendant."
This jurisdictional question is similar to the "second defense" previously discussed, and must be ruled adversely ...