Appeal, No. 13, April T., 1958, from order of Court of Common Pleas of Westmoreland County, April T., 1956, No. 326, in case of Michael A. Pesta, a minor, et al. v. Jack Barron et al. Order affirmed.
C. C. Walthour, Jr., with him Fred B. Trescher, and Kunkle & Trescher, for appellant.
H. Reginald Belden and George S. Goldstein, with them Paul M. Robinson and Max M. Bergad, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 324]
This is an appeal by Long Transportation Company, additional defendant in a trespass action, from the order of the Court of Common Pleas of Westmoreland County permitting the plaintiffs to voluntarily discontinue the action. Our review is to determine whether the court below abused its discretion. See Brown v. T.W. Phillips Gas and Oil Company, 365 Pa. 155, 159, 74 A.2d 105.
Plaintiffs brought an action in trespass on May 16, 1956, in the Court of Common Pleas of Westmoreland County, against Jack Barron the driver and Vernon Carpenter the owner of a tractor-trailer truck and the alleged employer of Barron, to recover damages for injuries sustained by Michael A. Pesta, a minor and passenger in an automobile which collided with the truck. Two days later plaintiffs instituted a similar action in the United States District Court for the Western District of Pennsylvania against the present appellant, Long Transportation Company, a foreign corporation. On June 1, 1956, appellant filed an appearance in the District Court, and on June 4, 1956, it filed an answer to the complaint in that court. Thereafter, on June 25, 1956, defendant Vernon Carpenter filed an answer to plaintiffs' complaint in the Court of Common Pleas of Westmoreland County,
[ 185 Pa. Super. Page 325]
denying agency, possession, and control; and on June 29, 1956, he filed a praecipe and complaint to join appellant as an additional defendant on the ground that appellant was either the sole or joint employer of the driver Barron and was therefore solely or jointly liable to plaintiffs. This was six weeks after plaintiffs had instituted suit in the District Court against appellant. On August 14, 1956, appellant filed preliminary objections to the joinder as additional defendant. It asserted that it could not be joined as an additional defendant in the action in Westmoreland County for the following reasons: (1) The Court of Common Pleas of Westmoreland County lacked jurisdiction over it as an additional defendant as Barron, the driver of the truck, was not its servant or employe at the time of the accident; (2) it was then a party to the action, being a defendant in a suit by plaintiffs in the District Court arising out of the same accident.
On March 16, 1957, plaintiffs presented a petition for leave to discontinue the action in the Court of Common Pleas of Westmoreland County in which counsel for the original defendants concurred. The petition averred that the suit was entered, without an investigation, in the Court of Common Pleas of Westmoreland County to safeguard the rights of minor plaintiff; that on learning of the relationship of Barron with appellant, a foreign corporation and interstate carrier, an action was brought two days later in the District Court; that the defendant Vernon Carpenter had filed an answer and joined appellant as an additional defendant on the ground that the latter was Barron's employer; that, in a companion case in the District Court brought by the administrator of an estate of another person killed in the same accident, appellant filed a motion to dismiss the complaint because the operator of the tractor-trailer truck was not its
[ 185 Pa. Super. Page 326]
agent; that the District Court dismissed this motion and ordered appellant to file an answer to the complaint; and that plaintiffs desired to discontinue the action in the Court of Common Pleas of Westmoreland County without prejudice to proceed with the action in the District Court. On March 16, 1957, the court below, after argument, made its order permitting plaintiffs to discontinue the action brought in that court. On March 22, 1957, the case was voluntarily discontinued in accordance with the order of the court filed March 16, 1957.*fn1 On May 2, 1957, appellant appealed from the order of the Court of Common Pleas of Westmoreland County permitting the discontinuance by plaintiffs. The appeal was taken to the Supreme Court and by it remitted to this ...