Appeals from order of Court of Common Pleas of Clearfield County, Nov. T., 1962, No. 576, in case of James Kitchen v. Borough of Grampian, original defendant, and Gust and Marie Chelgren, additional defendants, and Ward and Faith McDonald, additional defendants.
William U. Smith, with him Smith, Smith & Work, for appellant.
Carl A. Belin, Jr., with him Belin & Belin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.
James Kitchen was injured when he fell on a sidewalk in the Borough of Grampian at a point in front of privately owned property. Kitchen filed a suit in
trespass against the Borough, and the Borough brought in as additional defendants Ward McDonald and Gust Chelgren. It developed at the trial that the McDonald property was owned by Ward and Faith McDonald and the Chelgren property by Gust Chelgren and his wife, Marie. The defendant moved to amend to include the other mentioned persons as party defendants. The amendment was allowed. After the trial which resulted in a verdict for the plaintiff against the Borough and both Chelgrens, the Chelgrens moved for a new trial.*fn* The lower court granted the new trial, giving reasons.
The reasons assigned by the trial court for a new trial are unfair to itself. The court says that it "is constrained to indict itself as having erred" in two instances. Neither one deserves the self-criticism imposed.
The first auto-censure is in allowing amendment of the defendant's original complaint. In cases of this kind the involved municipality has a right of indemnification against the property owner. This right ripens into a litigable reality when a judgment is entered against the municipality. The municipality, therefore, is not bound by the expiration of the statute of limitation applicable to the injured plaintiff. In Carlin v. Pennsylvania Power & Light Co., 363 Pa. 543, we said (p. 545): ". . . Where the statute of limitations bars a suit directly against an alleged tortfeasor, he may not be joined as an additional defendant in an action for the tort on an allegation that he is alone liable: Zachrel, Admrx. v. Universal Oil Products Company et al., 355 Pa. 324 (1946). However, the rule is different where the defendant claims and submits facts in the complaint which indicate that the additional defendant is liable over to him, or jointly liable.
"'The fact that the statute of limitations will bar the plaintiff from a direct recovery against the additional defendant can have no effect on the defendant's right to enforce his claim of contribution or indemnity. The cause of action owned by the plaintiff is distinct from the cause of action arising out of the duty of the additional defendant to indemnify the defendant.' Goodrich-Amram Rules of Civil Procedure, Comments on Rule 2252 (a)-9."
The case of Saracina v. Cotoia, 417 Pa. 80, cited by the lower court is not apposite. There, the amendment was not allowed because the plaintiff attempted to bring in for primary liability, after ...