No. 2022 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Philadelphia county, Civil Action-Law, Entered June 9, 1978, at No. 5822 October Term, 1977
Charles W. Craven, Philadelphia, for appellant.
Roger Wood, Philadelphia, for appellee.
Wieand, Robinson and Louik, JJ.*fn* This decision was reached following the death of Robinson, J.
[ 274 Pa. Super. Page 531]
The instant case has its roots in a death case brought by Stanley and Pearl Potempa in September, 1969 against Wasserman, their son's employer, Schindler (plaintiff in the instant case), as seller of a piece of equipment alleged to have caused their son's death, and Raymond (defendant in the instant case) as designer and manufacturer of the equipment. As a result of preliminary objections filed in that case, Potempa's Complaint against Raymond was dismissed on September 20, 1973, with an order that the dismissal was "WITHOUT PREJUDICE TO THE PROPER AND TIMELY JOINDER OF THE RAYMOND CORP. BY PETITION OF A DEFENDANT." No such joinder was attempted for nearly three years and when Schindler attempted to join Raymond, preliminary objections to such joinder were sustained.
Following such action in the Potempa case, on October 28, 1977, appellant filed a Complaint in Trespass and Assumpsit "for full and complete indemnity of any verdict and/or settlement resulting in the Potempa litigation together with all costs, expenses and counsel fees in the defense of that litigation as prosecution of this litigation". Appellee filed preliminary objections asserting, inter alia, that the Complaint for indemnity failed to state a cause of action for which relief could be granted in that it was premature. The court sustained appellee's preliminary objections from which Order this appeal was taken.
It is appellant's position that while the right of an indemnitee to obtain a recovery from an indemnitor does not arise until the indemnitee has sustained a loss attributable to the indemnitor, the indemnitee still has a right to assert a claim before it has paid a judgment or settlement.
Besides being a somewhat questionable argument in terms of its logic, it is expressly refuted by the appellate Court's definition of indemnification.
[ 274 Pa. Super. Page 532]
Builder's Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951), p. 370 states:
"The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who without fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial ...