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SWARTZ v. SUNDERLAND. (06/15/60)


June 15, 1960


Appeal, No. 29, March T., 1960, from judgment of Court of Common Pleas of Mifflin County, Aug. T., 1958, No. 358. in case of Milton Swartz v. Steward M. Sunderland. Judgment affirmed.


Robert Siegel, with him Siegel and Siegel, for appellant.

Albert Houck, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Gunther

[ 192 Pa. Super. Page 466]


This appeal involves the interpretation of the Uniform Contribution Among Tortfeasors Act of 1951, July 29, P.L. 1130, 12 P.S. 2082.

On April 22, 1957, an accident occurred on U.S. Highway Route 22 in Oliver Township, Mifflin County, involving appellant, Milton Swartz, and Burnice H.

[ 192 Pa. Super. Page 467]

Stauffer. Appellant was driving a Buick automobile in an easterly direction on said highway when he collided with a Chevrolet station wagon, traveling in a westerly direction, owned by the BKW Coach Line, Inc., and operated by Mrs. Stauffer, in which Harold F. Stauffer was riding as a guest passenger. Appellee, Steward M. Sunderland, allegedly was traveling in a westerly direction and was passing the station wagon. In order to avoid a head-on collision, appellant was compelled to apply his brakes which caused his vehicle to cross over to the westbound lane and collide with the station wagon. As a result of the collision, both the station wagon and appellant's car were damaged. Appellant's damage to his automobile is not here involved. The station wagon repairs amounted to $949.48 and the sum of $200.00 was expended by BKW Coach Lines, Inc., for towing and loss of use. In addition, both Burnice H. Stauffer and Harold F. Stauffer sustained severe personal injuries.

Appellant alleged that the damages were caused as the direct and proximate cause of the carelessness of appellee. It was also alleged that the Stauffers claimed appellant to have been the negligent party and that appellant claimed that both he and appellee were joint tort-feasors. On October 28, 1957, without any suit having been filed for the recovery of the damages, appellant discharged the alleged common liability of himself and appellee by paying Burnice H. Stauffer and Harold F. Stauffer $1,001.50, and by paying to BKW Coach Line, Inc., $1,049.48. Releases were obtained from said parties in favor of both appellant and appellee.

On August 1, 1958, appellant filed a suit in assumpsit against appellee to recover contribution of one-half of the amount paid for the two releases obtained, basing his claim under the Uniform Contribution Among

[ 192 Pa. Super. Page 468]

Tortfeasors Act, supra. Appellee filed preliminary objections to the complaint, denying the right to bring such an action in assumpsit because the liability of neither appellant nor appellee for the tort and damages was ever adjudicated. The court below, after argument, sustained the preliminary objections and entered a decree in favor of appellee. From this adjudication the present appeal was filed.

Appellant contends here that under the Uniform Contribution Among Joint Tortfeasors Act, supra, he had a right of action for contribution, regardless of the formal entry of suit by the injured parties or the recovery of a verdict or judgment by them against either appellant or appellee. It is contended that the liability of the respective parties in this appeal could have been adjudicated in the assumpsit action.

The question to be resolved, therefore, is whether contribution may be sought by a party who voluntarily paid and entered into a settlement with the injured third parties who have released both joint tort-feasors for damages when no suit was entered or judgment recovered by such third parties?

The appellate decisions in Pennsylvania uniformly indicate that in order for a tort-feasor to seek contribution against a joint tort-feasor by a separate suit in assumpsit, the basis for such action must be predicated on liability for the wrong established by a judgment: Horbach's Administrators v. Elder, 18 Pa. 33; Armstrong County v. Clarion County, 66 Pa. 218; Goldman et al. v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231; Maio v. Fahs, 339 Pa. 180, 14 A.2d 105; Trerotola v. Philadelphia et al., 346 Pa. 222, 29 A.2d 788; Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 41 A.2d 736; Smith v. Petaccio, 384 Pa. 74, 119 A.2d 797; Pasquinelli v. Reed et al., 174 Pa. Superior Ct. 566, 102 A.2d 219. Even the statute of limitations

[ 192 Pa. Super. Page 469]

    does not begin to run on the claim for contribution against a joint tort-feasor until liability attaches by judgment. Rudman v. City of Scranton, 114 Pa. Superior Ct. 148, 173 A. 892; Ashley v. Lehigh & Wilkes-Barre Coal Company, 232 Pa. 425, 81 A. 442.


Decree affirmed.


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