The opinion of the court was delivered by: MUIR
On November 11, 1970, Plaintiff's decedent was electrocuted when the Hiab Model 177 speedloader with which he was erecting roof trusses came in contact with overhead electric wires owned by West Penn Power Company. The speedloader was sold in the United States by Hiab Hydraulics, Inc. (Hiab), to or through Ateco Equipment Company (ATECO), to Allensville Planing Mill, Inc. (Allensville), the decedent's employer. The accident occurred on the farm of James M. Houtz.
Plaintiff brought this survival action against Hiab and subsequently limited its theories of recovery to strict liability under Restatement Second of Torts, § 402A, and breach of warranty. Hiab petitioned the Court for leave to file a third-party complaint upon Allensville alleging negligence, and upon ATECO on a theory of strict liability. The Court granted the motion as to ATECO, and denied it as to Allensville. ATECO served a fourth-party complaint containing counts in negligence on fourth-party Defendants James M. Houtz and Allensville. Houtz served a fifth-party complaint containing counts in negligence on fifth-party Defendant West Penn Power Co., and a crossclaim against Allensville based upon negligence. The Court dismissed the fourth-party complaint against Allensville, but permitted the crossclaim against Allensville to remain in accordance with the usual practice on this point.
Before the Court at this time are motions by Houtz and West Penn Power Company to dismiss the complaints against them, and the motion of Allensville to dismiss the crossclaim against it.
As grounds for dismissal, all of the moving parties rely on Fenton v. McCrory, 47 F.R.D. 260 (W.D. Pa. 1969), which held that under Pennsylvania law, there is no right of contribution in favor of a party whose liability is imposed under the strict liability rule of Restatement Second of Torts, § 402A, from a party whose liability is based on negligence or want of due care. The parties opposing the various motions before the Court do not attempt to distinguish Fenton, for indeed, that case is clearly on point. However, they argue that the holding in Fenton is incorrect.
There are no Pennsylvania cases on the right to contribution under the circumstances presented by this case. The holding in Fenton was based upon a "prediction" as to the applicable Pennsylvania law. Federal courts applying Pennsylvania law have previously concluded that Pennsylvania courts would hold that a tortfeasor found guilty of wanton misconduct could not enforce a right of contribution against one specifically found guilty of simple negligence in the same accident. Cage v. New York Cent. R.R., 276 F. Supp. 778 (W.D. Pa. 1967), aff'd per curiam, 386 F.2d 998 (3d Cir. 1967). The Fenton court cited Cage for the proposition that in Pennsylvania no right of contribution exists between those whose liability is imposed on different grounds and thus extended Cage. Contrary to the court's prediction in Fenton, it is my prediction that the Supreme Court of Pennsylvania would adopt the principle that there exists a right of contribution in favor of one liable to a Plaintiff under the strict liability theory of § 402A from one liable to the same Plaintiff under a negligence theory.
It is appropriate to start with an examination of the Uniform Contribution Among Tortfeasors Act, 12 P.S. §§ 2082 et seq., adopted by Pennsylvania in 1951. The following provisions are relevant to the issue before the Court:
§ 2082. Joint Tortfeasors defined
For the purpose of this act, the term "joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.
§ 2083. Right of contribution
(1) The right of contribution exists among joint tortfeasors;
In commenting upon Section 2 of the Uniform Contribution Among Tortfeasors Act (12 P.S. § 2083), the Commissioner's Note at 9 Uniform Laws Annotated 235 states:
This Subsection creates the right of contribution among joint tortfeasors. It does not, in any way, qualify the creation of this right by conferring it to joint tortfeasors in any narrower sense than that indicated in Section 1 (12 P.S. § 2082). Nor does it confine contribution to merely negligent tortfeasors or to those in any other way inadvertently harming others. It permits contribution among all tortfeasors whom the injured person could hold liable jointly and severally for the same damage or injury to his person or property.
This sweeping rule on the right to contribution was somewhat narrowed by Section 1(c) of the 1955 Revised Uniform Contribution Among ...