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DICKSON ET AL. v. LEWANDOWSKI (ET AL. (06/21/74)

decided: June 21, 1974.

DICKSON ET AL.
v.
LEWANDOWSKI (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1970, No. 2410, in case of Donald Dickson, William Ludwig and Anthony DeBernardo v. Anthony Lewandowski, Defendant, and Michael Rodman, Additional Defendant.

COUNSEL

J. Baroffini, with him Thomas F. Weis, for appellant.

M. L. Shields, with him Theodore T. Blair and C. Donald Gates, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 228 Pa. Super. Page 58]

This is an appeal by an additional defendant from the lower court's judgment in a negligence action for personal injuries. It is the appellant's contention that the judgment of the court should have been against the original defendant, with judgment over against the appellant in favor of the original defendant for an amount paid by the original defendant in excess of his pro rata share of the verdict. The appellees, plaintiffs below, contend that the judgment of the court against both defendants in favor of the appellees should be affirmed.

On June 14, 1973, the record in this case was remanded by us for clarification and completion. Dickson v. Lewandowski, 224 Pa. Superior Ct. 285, 307 A.2d 392 (1973). In response to the remand, the lower court had a meeting with counsel and took the testimony of two of the attorneys. The court then forwarded to us a transcript of the meeting, a copy of the complaint

[ 228 Pa. Super. Page 59]

    joining appellant as an additional defendant,*fn1 and a copy of a letter forwarding such complaint to the attorney for the additional defendant.

Although the record below has never been completed, we are able to piece together the facts and procedure from the information submitted by the lower court sufficiently to make a decision.

On June 22, 1968, plaintiffs suffered personal injuries while riding in a car driven by the appellant which collided with one driven by the original defendant. Plaintiffs filed a complaint in trespass on June 8, 1970, against the original defendant who was duly served. Sometime after the 2-year statute of limitations*fn2 had run, defendant mailed a complaint against the additional defendant (the appellant) to his counsel. That complaint alleged facts attributing negligence to the additional defendant and claimed that additional defendant was solely liable to plaintiffs, or jointly liable with the defendant, or liable over to the defendant. Such complaint was apparently mailed on or about September 5, 1970.*fn3 On September 18, 1970, the additional defendant answered the complaint against himself and asserted as new matter that any claims of the plaintiffs against him were barred by the applicable 2-year statute of limitations. The answer was endorsed with a notice to plead and service of same was accepted by counsel for the defendant. No reply was filed.

In April of 1972, the jury in the case found that the legal responsibility for the collision was that of both the original defendant and the appellant, and determined damages. Following denial of appellant's motions for judgment notwithstanding the verdict and for a new trial, judgment was entered on ...


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