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ANA LUISA CASTILLO VDA PERDOMO AND ISABEL CASTILLO BELLO v. ROGER CONSTRUCTION COMPANY (05/02/77)

argued: May 2, 1977.

ANA LUISA CASTILLO VDA PERDOMO AND ISABEL CASTILLO BELLO, ADMINISTRATRICES, INHERITORS AND SURVIVING NEXT OF KIN OF THE ESTATES OF DR. ROMULO TERRERO, DECEASED AND HILDA CASTILLO VDA TERRERO, DECEASED, AVENIDA MARQUIS DEL TORO, QUINTA ANA LUISA, SAN BERNADINO, CARACAS, VENEZUELA AND EDWARD R. MURPHY, ADMINISTRATOR OF THE ESTATE OF DR. ROMULO TERRERO, DECEASED AND HILDA CASTILLO VDA TERRERO, DECEASED, 1122 SOUTH PARK AVENUE, HADDON HEIGHTS, NEW JERSEY
v.
ROGER CONSTRUCTION COMPANY, 1575 WEST STREET ROAD, WARMINSTER, PENNSYLVANIA AND DAVID FRIEDMAN AND EDITH FRIEDMAN, 520 MOREDON ROAD, HUNTINGDON VALLEY, PENNSYLVANIA AND DEVON STRATFORD CO. C/O DEVON STRATFORD APTS., SUGARTOWN RD. AND LANCASTER AVENUE, DEVON, PENNSYLVANIA AND NEWTON EAST CO., CEBER COMPANY, SAMPSON DEVELOPMENT CO., HUNTER REALTY CO., MAPLE EAST COMPANY, C/O DAVID FRIEDMAN AND EDITH FRIEDMAN, 520 MOREDON ROAD, HUNTINGDON VALLEY, PENNSYLVANIA AND ZENITH AUTOMATIC CONTROLS, INC., 830 W. 40TH STREET, CHICAGO, ILLINOIS AND LOUIS D'ANJOLELL, INDIVIDUALLY & T/A LOUIS D'ANJOLELL PLUMBING & HEATING, STATE ROAD & ROLLING ROAD, SPRINGFIELD, DELAWARE COUNTY, PENNSYLVANIA AND MARIS EQUIP. CO. MORRIS EQUIPMENT COMPANY, 3858 PULASKI STREET, PHILADELPHIA, PENNSYLVANIA AND PHILADELPHIA, PENNSYLVANIA AND ROSE ELECTRIC COMPANY, 5038 GERMANTOWN AVENUE, PHILADELPHIA, PENNSYLVANIA AND UGITE GAS, INC., 4200 ARAMINGO STREET, PHILADELPHIA, PENNSYLVANIA AND MAIN LINE CONSTRUCTION CO., INC., 2701 COBBS CREEK DRIVE, ARDMORE, PENNSYLVANIA AND ANTHONY S. BOHEM, A/K/A TONY BOHEM, A/K/A BOHEM ELECTRICAL CONTRACTORS, MANOA PARK APARTMENTS, MANOA, PENNSYLVANIA AND ADELE JARVIS, A/K/A MRS. ADAIR C. JARVIS, 400 SOUTH GLENDALE ROAD, HAVERTOWN, PENNSYLVANIA AND EDWARD FERNBERGER, 536 MOREDON ROAD, HUNTINGDON VALLEY, PENNSYLVANIA AND JOHN DOE #1, ARCHITECT AND JOHN DOE #2, LANDSCAPE CONTRACTOR AND/OR GRADING CONTRACTOR V. KOHLER CO. (3RD-PTY DEFT.) DAVID T. FRIEDMAN AND EDITH FRIEDMAN, INDIVIDUALLY AS HUSBAND AND WIFE AND ROGER CONSTRUCTION COMPANY, AND EDWARD FERNBERGER, APPELLANTS, (D.C. CIVIL NO. 71-1877) ROMELIA ALDREY DESANZ, ADMINISTRATRIX OF THE ESTATES OF IRIS ROMELIA O'BRIEN DETERRERO, ROMULO ANTONIO TERRERO O'BRIEN AND IRIS MARGARITA TERRERO O'BRIEN, DECEASED, AND ROMELIA ALDREY DESANZ IN HER CAPACITY AS SOLE INHERITOR AND SURVIVING NEXT OF KIN OF IRIS ROMELIA O'BRIEN DETERRERO, ROMULO ANTONIO TERRERO O'BRIEN AND IRIS MARGARITA TERRERO O'BRIEN, DECEASED V. ROGER CONSTRUCTION CO., DAVID FRIEDMAN AND EDITH FRIEDMAN, DEVON STRATFORD CO. C/O DEVON STRATFORD APTS., NEWTOWN EAST CO., CEBER COMPANY, SAMPSON DEVELOPMENT CO., HUNTER REALTY CO., MAPLE EAST COMPANY, C/O DAVID FRIEDMAN AND EDITH FRIEDMAN, ZENITH AUTOMATIC CONTROLS, INC., LOUIS D'ANJOLLEL PLUMBING & HEATING, MORRIS EQUIPMENT CO., ROSE ELECTRIC CO., UGITE GAS, INC., MAIN LINE CONSTRUCTION CO., INC., ANTHONY S. BOHEM A/K/A TONY BOHEM A/K/A BOHEM ELECTRICAL CONTRACTORS, ADELE JARVIS A/K/A MRS. ADAIR C. JARVIS, EDWARD FERNBERGER, JOHN DOE #1, ARCHITECT, AND JOHN DOE #2, LANDSCAPER V. KOHLER CO. (3RD-PTY DEFT.) DAVID T. FRIEDMAN AND EDITH FRIEDMAN, INDIVIDUALLY AS HUSBAND AND WIFE AND ROGER CONSTRUCTION COMPANY, AND EDWARD FERNBERGER, APPELLANTS, (D.C. CIVIL NO. 71-1878)



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Gibbons and Hunter, Circuit Judges, and Caleb R. Layton,*fn* District Judge.

Author: Gibbons

GIBBONS, Circuit Judge.

In this diversity appeal we revisit the Pennsylvania joint tortfeasor release issues which concerned us in Mazer v. Security Insurance Group, 507 F.2d 1338 (3d Cir. 1975) (en banc)(Mazer III) and Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). Because we conclude that the District Court misapplied the Pennsylvania law set forth in those cases and in relevant Pennsylvania court decisions, we reverse.

I.

On August 1, 1970, Dr. Romulo Terrero, his wife, two children, and his mother, died in their apartment at the Manoa Park Apartments in Haverford Township, Pennsylvania, as a result of the inhalation of carbon monoxide fumes. The fumes were emitted from the exhaust pipe of a gas-powered emergency electrical generator serving the apartments. The generator was activated automatically when an electrical storm caused a power failure in the area. It should have, but did not, shut off when power was restored, and continued to operate until its fuel supply was depleted. The exhaust pipe should have been vented to the outside of the building, but the vent was covered with earth, and the discharged carbon monoxide accumulated in the building, causing the death of the sleeping Terrero family. The administrators of the decedents brought suit:

(1) against the "Friedman interests:"

(a) Mrs. Edith Friedman, the owner of the apartments; (b) Roger Construction Company, which built them; (c) David Friedman , a principal in Roger Construction Company; and (d) Edward Fernberger, construction superintendent for Roger Construction Company in the erection of the building.

(2) against the "subcontractor interests:"

(a) Anthony S. Bohem, an electrical contractor; (b) Louis D'Anjollel, a plumbing and heating contractor; (c) Main Line Construction Company, Inc., which performed grading and filling at the site; (d) Zenith Automatic Controls, which manufactured the allegedly malfunctioning shut-off switch; and (e) Maris Equipment Company and Rose Electric Company, suppliers of the switch and generator.

Various of the defendants filed a third party complaint against Kohler Company, the manufacturer of the generator. The Friedman interests filed a crossclaim for contribution and indemnity against the other defendants. The plaintiffs' theory of liability was that the apartments were negligently constructed and maintained, and that various components of the emergency generator system were defective and unreasonably dangerous.

II.

In June 1974, after the pleadings were closed and discovery completed, the insurance carriers for the Friedman interests reached a settlement with the plaintiffs in which for the payment of $500,000.00 the plaintiffs discharged all claims against them. As a part of the settlement the plaintiffs executed a joint tortfeasor release, as quoted in the margin,*fn1 which described the accident and the pending lawsuit, and provided: (a) that the payment is made only on behalf of those defendants among the Friedman interests later shown to have been liable for the deaths; (b) that if other persons are later shown to be liable, the release inures to their benefit to the extent of their relative pro rata share of the common liability; (c) that the plaintiffs would satisfy any liability of the Friedman interests for contribution to other persons; and (d) the Friedman interests reserve the right to seek contribution from other persons who may have been negligent to the extent that the $500,000 payment exceeds the pro rata share of liability of persons in that group on whose behalf it was made.

This partial settlement left pending the plaintiffs' claims against the subcontractor interests, the claims of those interests against Kohler Company, and the Friedman interests' crossclaims for contribution and indemnity. Thereafter, in settlement negotiations in which counsel for the Friedman interests were not participants, the plaintiffs and the remaining defendants reached a settlement in which plaintiffs executed a general release running to all ...


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