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RESTIFO v. MCDONALD (05/24/67)

decided: May 24, 1967.

RESTIFO
v.
MCDONALD, APPELLANT



Appeal from judgment of Court of Common Pleas No. 8 of Philadelphia County, Sept. T., 1964, No. 4712, in case of Joseph V. Restifo, in his own right and as parent and natural guardian of Linda L. Restifo, Michael A. Restifo et al. v. Ellen A. McDonald, administratrix of estate of William McDonald, deceased, and Eleanor G. Restifo.

COUNSEL

Harry R. Nixon, with him Michael A. Foley, for appellant.

Leonard S. Wissow, with him Wissow and Odza, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 426 Pa. Page 7]

Joseph V. Restifo (erroneously named "John" in this appeal) and his wife Eleanor instituted an action of trespass on behalf of themselves and their minor children against the Estate of William McDonald, appellant, for personal injuries and property damages sustained in an automobile accident on August 20, 1963. McDonald's administratrix filed an answer and new matter joining the co-plaintiff, Eleanor Restifo, appellee, as an additional defendant with respect to the claims of her minor children on the theory that she was solely liable to the plaintiffs or liable for contribution.*fn1 In her reply, the appellee pleaded a written release given her by McDonald in return for $450. The court below sustained appellee's motion for judgment on the pleadings and this appeal followed.

In support of her position, Mrs. Restifo relies principally upon Polley v. Atlantic Refining Co., 417 Pa. 549, 207 A.2d 900 (1965),*fn2 where this Court on the authority of Killian v. Catanese, 375 Pa. 593, 101 A.2d 379 (1954), held that when A obtains a general release from B, B cannot join A as an additional defendant in a subsequent suit, arising out of the same cause of action, instituted against B by C.*fn3 We agree with

[ 426 Pa. Page 8]

Mrs. Restifo that unless, as requested by the appellant, these cases are overruled, the judgment of the trial court must be affirmed.

The release in the instant case, which was almost identical with the releases involved in Polley v. Atlantic Refining Co., supra, and Rimpa v. Bell, 413 Pa. 274, 196 A.2d 738 (1964), stated:

"Know All Men by These Presents, that I, William McDonald, 6411 North 21st Street, Philadelphia, Pa., for the sole consideration of Four Hundred fifty and no/100 ($450.00) dollars to me in hand paid by Joseph V. Restifo and Eleanor Restifo, of 6600 Ardleigh Street, Philadelphia, 19, Pa., the receipt whereof is hereby acknowledged, have released and discharged and by these presents, do for myself, my heirs, executors, administrators, successors and assigns release and forever discharge Joseph V. Restifo and Eleanor Restifo of and from all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature for or because of any matter or thing done, omitted or suffered to be done by said Joseph V. Restifo and Eleanor Restifo prior to and including the date hereof, and particularly on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 20th day of August, 1963 at or about 6:30 P.M. at or near the intersection of Briar Road and Washington Lane, Philadelphia, Pa."

Conceivably, as the Court did in the Killian-Polley line of cases, one could read this document as encompassing the right to seek contribution. However, our considered re-evaluation compels the conclusion that not only was the rationale of these cases unsound but that they are also incompatible with the rules of construction

[ 426 Pa. Page 9]

    governing releases. Therefore, to the extent that these cases are inconsistent with this opinion they are hereby overruled.

A long line of Pennsylvania cases has held that a release covers only those matters which may be fairly said to have been within the contemplation of the parties when the release was given. See, e.g., Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Brill's Estate, 337 Pa. 525, 12 A.2d 50 (1940); Flaccus v. Wood, 260 Pa. 161, 103 Atl. 549 (1918); Shepley v. Lytle, 6 Watts 500 (1837); General Mills, Inc. v. Snavely, 203 Pa. Superior Ct. 162, 199 A.2d 540 (1964); Cockcroft v. Metropolitan Life Ins. Co., 125 Pa. Superior Ct. 293, 189 Atl. 687 (1937). Accordingly, the general words of the release will not be construed so as to bar the enforcement of a claim which has not accrued at the date of the release. See Henry Shenk Co. v. Erie, 352 Pa. 481, 43 A.2d 99 (1945); Zurich General Acc. & Liab. Ins. Co. v. Klein, 181 Pa. Superior Ct. 48, 55-56, 121 A.2d 893, 896 (1956).

Cady v. Mitchell, 208 Pa. Superior Ct. 16, 220 A.2d 373 (1966), is a recent illustration of the rule mandating strict construction of a release so as to avoid the ever present possibility that the releasor may be overreached. Cf. Wenger v. Ziegler, supra; Henry Shenk Co. v. Erie, supra; compare Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 100, 204 A.2d 451, 453 (1964). In Cady, plaintiffs had given the defendant a general release for all claims arising out of an automobile accident, including "all unknown, unforeseen, unanticipated, and unsuspected injuries." The release was signed nine days after the accident; the consideration for it being the lowest estimate received by the plaintiffs for the repair of ...


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