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WNEK ET AL. v. BOYLE ET AL. (12/05/52)

December 5, 1952

WNEK ET AL.
v.
BOYLE ET AL.



COUNSEL

Wendell E. Warner, E. H. Bryant, Jr. and Lutz, Fronefield, Warner & Bryant, Media, for appellant.

No book or appearance for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Arnold

[ 172 Pa. Super. Page 223]

ARNOLD, Judge.

These actions of trespass arose out of a collision between an automobile operated by the additional defendant, Edward J. Wnek, in which the plaintiffs were passengers, and a motor vehicle operated by the defendant, Charles J. Boyle.

The defendant sought to join Wnek as an additional defendant liable solely to the plaintiffs, but the original complaint was filed and the additional defendant sought to be joined more than two years after the plaintiffs' cause of action arose. Therefore there could be

[ 172 Pa. Super. Page 224]

    no joinder as to the additional defendant's sole liability that action being barred by the statute of limitations. Shaull v. A. S. Beck New York Shoe Co., Inc., 369 Pa. 112, 115, 85 A.2d 698.

The question here is whether the defendant's amended complaint averred facts sufficient to base a finding of joint or concurrent liability. It clearly did not do so. The defendant asked the court in his amended complaint to take judicial notice of the facts and law contained in the original complaint of the plaintiffs. The principal difficulty with this form of pleading is that nothing in the plaintiffs' complaint suggested any negligence on the part of the additional defendant. The defendant then averred that 'it is impossible to determine until the Plaintiffs' cases are tried, whether the said negligence of the Additional Defendant was either the sole cause or a major contributing cause of the collision * * * and of any injuries * * * sustained by the said Plaintiffs, and accordingly avers that the said negligence * * * was either the sole cause or a major contributing cause * * *'; and that he 'desires to protect his right of contribution in the event that * * * [defendant] be found to have been jointly or concurrently negligent with' additional defendant.

The lower court again dismissed defendant's complaint on the ground that he failed to aver facts upon which a finding of joint or concurrent liability might be based, i.e. did not state a cause of action. If properly pleaded, he does have such a right of joinder, for the statute of limitations begins to run on his right of contribution or indemnity only from the time judgment is entered. Moscon v. Philadelphia, 147 Pa. Super. 251, 256, 24 A.2d 30; Carlin v. Pennsylvania Power & Light Company, 363 Pa. 543, 70 A.2d 349. But it is necessary that the defendant aver facts in his complaint against the additional defendant,

[ 172 Pa. Super. Page 225]

    showing that the additional defendant is so liable, and, as we have said, if the facts averred establish only sole liability of the additional defendant to the plaintiffs, the defendant cannot sustain the joinder, since the suit by the plaintiffs ...


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