January 2, 1962
AMERICAN DREDGING COMPANY, APPELLANT.
Appeal, No. 499, Jan. T., 1961, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1960, No. 208, in case of John Jenkins et al. v. American Dredging Company, William Dentino and City of Philadelphia. Order affirmed.
Perry S. Bechtle, with him Thomas E. Comber, Jr., John J. Runzer, and Pepper, Hamilton & Scheetz, for appellant.
James L. Stern, Deputy City Solicitor, with him John M. McNally, Jr., Assistant City Solicitor, Levy Anderson, First Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellee.
Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.
[ 406 Pa. Page 146]
OPINION BY MR. JUSTICE COHEN
The lower court here properly sustained the preliminary objections by the defendant-appellee, City of Philadelphia (City), to the complaint of the defendant-appellant, American Dredging Company (Company), wherein the Company seeks to join the City as an additional defendant.*fn1
The City contends that the Company is primarily liable for the plaintiffs' injuries and, therefore, cannot join the City as an additional defendant since it is, at most, secondarily liable.
Under Pa. R.C.P. 2252(a), the defendant may join a party as an additional defendant only if the party he seeks to join is alone liable to the plaintiff, is liable over to the defendant, or is jointly or severally liable with the defendant.
The lower court's determination, based on the relationship of the parties as herein established by the pleadings, that the City's liability is secondary to that of the Company is correct,*fn2 and the latter cannot join
[ 406 Pa. Page 147]
the City as an additional defendant under Rule 2252.*fn3
We wish to point out, however, the decision here governs only the right of joinder in the present case, and does not determine the propriety of a possible future action by the appellant for contribution. If new facts appear that indicate that the City is not secondarily liable but is in pari delicto, i.e., a joint tortfeasor, the appellant can adequately preserve its rights by an action for contribution against the City. The distinctions between the right of indemnity existing between parties having differing degrees of liability, and the right of contribution existing between joint tortfeasors were succinctly set forth by former Chief Justice HORACE STERN in Builders Supply Company v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). We consider it unnecessary to elaborate upon that discussion.