a right of indemnity, absent here.' (Emphasis partially supplied)
Federal Rule of Civil Procedure 14(a) provides in part:
'* * * a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. * * *'
The defendant, third-party plaintiff, has attached to its motion a copy of its proposed third-party complaint which substantially follows the approved Form 22-A in most respects. The plaintiff objects to Burke's prayer for relief which 'demands judgment by way of contribution against the third-party defendants -- for all sums that may be adjudged against this defendant Burke's Excavating, Inc., in favor of the plaintiffs.'
The plaintiffs contend that 'contribution' of 'all sums' really states an indemnity claim while under the facts of this action no legal relation exists between the parents and Burke's which would give rise to an indemnity right. At most, it is argued, Burke's only has a proportionate right against the parents based upon a common liability as joint tort-feasors.
It seems clear that the thrust of Burke's complaint is directed toward obtaining contribution from the parents of any judgment rendered against the defendant. Pennsylvania law permits contribution among joint tort-feasors and such an impleader is proper. In Keller Crescent Printing and Engraving Co. v. Rosen, 135 F.Supp. 22, 24 (W.D.Pa.1955), our late colleague, Judge McIlvaine, stated:
'Inasmuch as an impleader is authorized to bring in a third party who would necessarily be liable over to the defendant for all or any part of the plaintiff's recovery by way of contribution, 1 Barron and Holtzoff, Federal Practice and Procedure § 426, the third party defendants', Turner and Pittsburgh Forbes', motion to vacate the order and to strike the third party complaint will be denied.' (Emphasis supplied)
However, the plaintiffs argue that no right of contribution will exist if the parents, who are sole beneficiaries under the Wrongful Death Act, are found to be contributorily negligent. Their negligence would preclude any recovery and eliminate any right of contribution from anyone. Minkin v. Minkin, 336 Pa. 49, 7 A.2d 461 (1939).
While this is true under the Wrongful Death Act such a result will not occur in the Survival Actions brought by the Administrators for the benefit of the decedents' estates. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); also see Burns v. Goldberg, 210 F.2d 646 (3 Cir. 1954). Any negligence on the part of the sole beneficiaries under the Wrongful Death Act will not affect the recovery accruing to the decedents' estates under the Survival Act. Fisher v. Dye, supra.
Claims under Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act are separate and distinct actions, although tried together they require separate verdicts and judgments. 12 Pa.Stat.Ann. §§ 1601, 1602, 20 Pa.Stat.Ann. §§ 320.601, 320.603; Martin v. Swift, 258 F.2d 797 (3 Cir. 1958).
There exists the possibility of a recovery by the estates in the Survival Actions against Burke's and a common question of fact that the parents may be joint tort-feasors with Burke's in both actions, even though Burke's right to contribution would only accrue in the Survival Action.
Therefore, for the above-stated reasons, we grant the original defendant's motion.