The opinion of the court was delivered by: GOURLEY
These are actions based on negligence in which a collision occurred between two automobiles in the State of West Virginia. No complexities as to the circumstances exist, with the usual issues for jury determination being confined to who was at fault.
Plaintiffs are citizens of the State of West Virginia and defendant is a citizen of the State of Pennsylvania. No question exists as to venue or jurisdiction of the court.
The operator and guests of one vehicle have joined in one complaint actions against the representative of the estate of the deceased operator of the other vehicle: Civil Action No. 14694.
The fiduciary or representative of the estate of the deceased operator is the same person as the defendant sued individually as the owner of the vehicle operated by the deceased.
As to the actions of B and C, guests in car of A, against D and E, the defendant in each proceeding has caused to be brought upon the record as third-party defendant A, the operator of the other vehicle.
The first matter for determination is:
Motion of third-party defendant to dismiss the action against him based on the legal thesis that he cannot be liable by way of contribution until after a judgment has been rendered under the law of West Virginia where the accident occurred.
The question on the motion to dismiss resolves itself into the following:
May a resident of West Virginia, in a West Virginia cause of action, who elects to file his suit in Pennsylvania, be joined as a third-party defendant where such joinder is not recognized by the law of West Virginia but is allowed in the jurisdiction where the action is instituted?
The third-party defendant relies upon Baltimore & O.R. Co. v. Saunders, 4 Cir., 159 F.2d 481, denying joinder of a third-party defendant except in the event of a finding of a joint tort and a payment by one of the defendants. This federal decision was interpreting West Virginia law.
There can be no doubt that the substantive law of West Virginia allows for contribution between joint tort feasors, but a limitation is invoked on such right by preliminarily requiring a finding of a joint tort and the entry of a joint judgment. It is not disputed that West Virginia allows an injured automobile passenger to sue both motorists, and should the jury find that the passenger's injuries were occasioned by the negligence of both drivers, the right for contribution exists. However, if the passenger chooses to sue only one of the drivers, a bar exists in West Virginia which prevents said driver from joining the other driver as an additional defendant.
It is well settled that in actions brought in the United States Court procedural matters are determined by the law of the state in which the district court sits. Rule 17(b), Fed.R.Civ.Proc., 28 U.S.C.; Underwood v. Maloney, 3 Cir., 256 F.2d 334; Byrd v. Blue Ridge Rural Electric Co-op., 356 U.S. 525, 78 S. Ct. 893, 2 L. Ed. 2d 953. It is my considered judgment that the bar restricting the joinder of a third-party defendant until the claim has been reduced to judgment is procedural.
Since the preliminary matter is procedural in character, it would have no application to the present case where the suit is entered in the Federal Court for the Western District of Pennsylvania, and the procedural law of Pennsylvania ...