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December 4, 1958

Vera Mary LITTLE and Harry Little

The opinion of the court was delivered by: DUSEN

This case comes before the court on defendants' Motion to Dismiss this personal injury action arising out of an automobile accident in Virginia. The record, for the purposes of this motion, discloses this situation:

Plaintiff, a citizen and resident of New York, was driving his automobile in a northerly direction on Route 301 in Virginia. He was accompanied by one Daniel De Bono. Luther L. Waring, a citizen and resident of New York, now deceased, was driving south and collided almost head-on with plaintiff, even though plaintiff was nearly off the highway to his right trying to avoid Waring. Vera Mary Little, accompanied by her husband, Harry Little, defendants herein, both of whom are citizens and residents of Pennsylvania, was driving north behind plaintiff and, after the Bittner-Waring collision, collided with the rear of the car operated by plaintiff Bittner. As a result of these events, plaintiff sustained personal injuries and property damage. Plaintiff, for $ 9,000 received for his personal injuries and property damage, executed in New York to the Estate of Waring a document entitled 'General Release' (see Exhibit A attached to Document No. 3 in Clerk's file). This release expressly reserved plaintiff's right of action against the Littles. De Bono executed a similar release upon receipt of $ 7,500 from the Estate of Waring. De Bono then tried to sue plaintiff Bittner in New York, but his complaint was dismissed by the Supreme Court of New York on the ground that, under the law of Virginia, De Bono's release of Waring barred him from recovering from Bittner or any other tortfeasor, regardless of an expressed reservation of claim. Bittner, by a complaint filed April 7, 1958, now seeks to recover from the defendants Little. Defendants' motion to dismiss is grounded upon the law of Virginia, which, they contend, applies in the instant case since Virginia was the place of the accident.

 Since this action in tort is in this court by virtue of diversity jurisdiction, this court must act as a Pennsylvania court would in dealing with a suit for damages resulting from a tort occurring outside of Pennsylvania. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477; Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197, 199; Tomao v. A.P. DeSanno & Son, 3 Cir., 1954, 209 F.2d 544, 545; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908, 910. In a tort action, the Pennsylvania courts would refer to the law of the place of the wrong to determine the rights and liabilities of the parties. Builders Supply Co. v. McCabe, 1951, 366 Pa. 322, 77 A.2d 368, 24 A.L.R.2d 319; Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517; Sumner v. Brown, 1933, 312 Pa. 124, 167 A. 315; Restatement, Conflict of Laws, § 379. However, after exhaustive research, no Pennsylvania case has been found indicating a rule of reference as to the most important question in this case -- namely, what law governs the effect of a document in the nature of a release on the liability of a defendant in a tort action. *fn1" In the absence of exact precedent in Pennsylvania, 'other available data is to be considered.' Moyer v. Van-Dye-Way Corporation, 3 Cir., 1942, 126 F.2d 339, 340; also, Stentor Electric Mfg. Co. v. Klaxon Co., 3 Cir., 1942, 125 F.2d 820, 822.

 As stated in § 388 of the Restatement of Conflicts:

 'If there is a defense on the merits to the plaintiff's claim by the law of the place of wrong, no recovery can be had on the claim in another state.'

 Section 389 of the Restatement of Conflicts states that:

 'A liability to pay damages for a tort can be discharged or modified by the law of the state which created it.'

 Such law may be by way of common law principles, as well as by statute. *fn2" See Beale, Conflict of Laws, Vol. II (1935), § 389.1, pp. 1303-1304. The determination of extent of liability questions is referred by Pennsylvania courts to the law of the place of the wrong. *fn3" See Builders Supply Co. v. McCabe, supra. The undersigned concludes, therefore, that, under the above authorities, Pennsylvania appellate courts would refer to the law of the place of the wrong to determine the effect of a release arising out of such wrong on the defendant's liability. *fn4" Under Virginia law, the law of the place where the accident in question occurred, a release of one joint tortfeasor operates to release all joint tortfeasors, regardless of the fact that the release may specifically reserve all rights of action by the releasor against those joint tortfeasors not parties to the release. Shortt v. Hudson Supply & Equipment Co., 1950, 191 Va. 306, 60 S.E.2d 900. *fn5" Defendants' motion is, accordingly, granted. *fn6"

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