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MONG v. HERSHBERGER. (12/12/62)

December 12, 1962

MONG, APPELLANT,
v.
HERSHBERGER.



Appeal, No. 299, April T., 1962, from judgment of Court of Common Pleas of Armstrong County, dec. t., 1961, No. 283, in case of John Mong v. Earl J. Hershberger. Judgment reversed.

COUNSEL

J. D. Loesch, with him Edward J. Steiner, and Lund and Loesch, for appealed.

Richard S. Graff, with him E. E. Ashe, and Ashe & Ashe, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodsinde, J., absent).

Author: Montgomery

[ 200 Pa. Super. Page 69]

OPINION BY MONTGOMERY, J.

In Daugherty v. Hershberger, 386 Pa. 367, 126 A.2d 730, the plaintiff, who had been injured in an automobile accident, secured verdicts totaling $11,720.99 against Hershberger and Mong, the two parties to the present appeal. However, Mong had previously entered into a settlement of the claims and paid the plaintiffs $13,000 for his release of liability therefrom; and such releases were executed. A comparison of the several items making up the total of the releases and the total verdicts are set forth in the report of said case at pages 370-371. The releases of Mong provided that he was released from all liability and that the claims against all other tort-feasors were reduced to the extent of Mong's pro rata share, which constituted a fifty per cent reduction since there were but two parties responsible for the accident.

In entering judgment on the verdicts, the plaintiffs sought to have the court charge Hershberger with one half of the verdict, or $5,860.50, as prescribed by the releases, irrespective of the amounts paid by Mong in settlement. However, the Supreme Court held that Hershberger was entitled to credit on his pro rata share of the verdicts for everything Mong had paid in excess of his share of same. This reduced the total of Hershberger's obligations to $1,839.26, for which amount

[ 200 Pa. Super. Page 70]

    judgments were directed by the Supreme Court on the several verdicts, thus giving credit to Hershberger for $4,021.23 on his pro rata share of same.

We now have before us an appeal by Mong from the entry of judgment on the pleadings in favor of Hershberger in an action of assumpsit by Mong against Hershberger for $4,021.23 claimed by Mong by way of contribution. This represents the difference between fifty per cent of the verdicts, or $5,860.50, and the amount of the judgments directed in the case of Daugherty v. Hershberger aforesaid, or $1,839.26 (one cent lost through dropping of fraction in calculations). However, it represents only part of the total amount Mong paid above his fifty per cent of the verdicts. The total excess was $7,139.50, the claimants benefiting from the additional payments of $3,618.26, making their total recovery $14,839.25 instead of $11,720.99, the amount of the verdicts. In three instances the amount of the settlement was two or more times the verdicts.

Section 2 of the Uniform Contribution Among Tortfeasors Act, Act of July 19, 1951, P.L. 1130, 12 P.S. 2083, declares that "contribution exists among joint tort-feasors" but provides that "A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof;". (Emphasis supplied) Appellant has fully met the second condition, since he has paid more than his pro rata share of some of the verdicts. However, a further provision of section 2 provides that "A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not ...


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