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December 30, 1980


The opinion of the court was delivered by: HANNUM


This case involves a product liability personal injury claim wherein a jury awarded the plaintiff the amount of $ 395,000.00 in damages. On May 15, 1979, however, the Court granted the defendants' Motion For Judgment N.O.V. and thereafter an appeal was taken. During the pendency of the appeal, one (1) of the original defendants, Goodyear Tire & Rubber Company (hereinafter "Goodyear"), negotiated and entered into a settlement with the plaintiff wherein a joint tortfeasor release was executed. A non-party, *fn1" Geneva Metal Wheels Company (hereinafter "Geneva"), was also apparently involved in settlement discussions and additionally enjoyed the benefits of a release executed in its favor. The Court of Appeals for the Third Circuit reversed and remanded the case for the reinstatement of the jury's verdict on May 2, 1980. Upon reinstatement of the verdict, the Court was eventually requested to resolve an issue concerning the status of Sears and Goodyear; i. e., whether they were joint tortfeasors or were primarily and secondarily liable, respectively. After the issues were briefed in the context of a defendant's Motion For Judgment N.O.V., the Court held that the two (2) companies were joint tortfeasors at the time of judgment and, thus, the defendant's motion was denied. Sochanski v. Sears, Roebuck & Company, 504 F. Supp. 182 (E.D.Pa.1980). This decision has been appealed and the defendant has been permitted to post a supersedeas bond in an unspecified amount. Presently before the Court are two (2) applications, considered as made in the alternative, concerning bond procedures and bond amounts.

 When the plaintiff was originally contesting whether the defendant Sears should be permitted to post a supersedeas bond at all, an alternative was proposed wherein the plaintiff would post a bond in the amount of judgment payable to the defendant Sears in the event its appeal was successful thus permitting the plaintiff to execute on the judgment. *fn2" The Court rejects the plaintiff's position because it is obviously beyond the comprehension of F.R.Civ.P. 62 which provides in pertinent part as follows:


(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. (Emphasis added).

 The clear language of the rule makes cognizable the posting of a supersedeas bond by only a party taking an appeal "the appellant." Courts have consistently recognized this manifested intent of the rule when enunciating the principle that the procedure envisions maintenance of the status quo. See generally Teleflex Industrial Products, Inc. v. Brunswick, 294 F. Supp. 256 (E.D.Pa.1968). The only viable deviation from this perceived mandate would occur when an appeal is either spurious or dilatory. In that event, permission to post a supersedeas bond would be denied at the onset. Although the Court will not divulge any opinion concerning the merits of the appeal, a conclusion that it is neither spurious nor dilatory is warranted.

 The denial of the plaintiff's first application requires the Court to proceed to the merits of the second or alternative application in which a unique issue is presented. The issue arises from a peculiar set of factual circumstances that essentially makes it incumbent upon the Court to decide whether or when a party may be characterized a joint tortfeasor as it relates to the ultimate satisfaction of a judgment. *fn3" The number of original parties which may be considered joint tortfeasors is extremely important to the final resolution of this case as well as to the resolution concerning the proper amount of the supersedeas bond.

 For purposes of this case, a joint tortfeasor "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." Uniform Contribution Among Tort-feasors Act, Pa.Cons.Stat.Ann. tit. 42, § 8321 (Purdon 1980). In the present case, the following occurred procedurally. The plaintiff's Complaint named Sears and Goodyear as original defendants. Thereafter, Sears filed a Third-Party Complaint against Geneva. The eventual trial was bifurcated and a jury returned a verdict finding Sears, Goodyear and Geneva liable. On April 14, 1978, the trial resumed for consideration of the damages portion of the case. Additionally and most importantly, Sears withdrew its Third-Party Complaint against Geneva. *fn4" A judgment in the amount of $ 395,000.00 was ultimately recorded against Goodyear and Sears. The question thus presented forefront is whether the withdrawal of a claim against a third party already declared liable (but before judgment) permits the characterization of that party as a joint tortfeasor. For the reasons that follow, the Court holds that such a characterization is proper. *fn5"

 In Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), the Pennsylvania Supreme Court was confronted with the issue whether an additional defendant was entitled to be eliminated from trial before it was determined whether she was a joint tortfeasor. The additional defendant had argued that a release was executed in her behalf as consideration for settlement and thus that the plaintiff no longer had an assertable claim. The original defendant, however, contended that the additional defendant should be retained in the case until the jury could determine joint tortfeasor status via a liability verdict. The Supreme Court held that a definite interest vested with the original defendant as respects a determination of joint tortfeasor status inasmuch as his ultimate payment of damages would be guided by a pro rata assessment. See also Hanrahan v. McClatchy, 384 F. Supp. 16, 18 n.1 (E.D.Pa.1974); Dice v. Marsolino, 14 Pa. D. & C. 2d 457 (Pa.C.P.Fay.1958). By analogous application to the present case, a party may be determined to be a joint tortfeasor through a verdict of liability notwithstanding the fact that it was not considered in the determination of the amount of damages. In Davis and its progeny, the elimination from consideration in arriving at an amount of damages only occurred as a result of the execution of a release before trial. In the present case, the elimination occurred as a result of the withdrawal of the Third-Party Complaint against Geneva. The Court thus determines that Geneva is a joint tort-feasor along with Sears and Goodyear.

 The determination of the existence of three (3) joint tortfeasors specially guides the Court's assessment of an eventual damages payment plan. For the present, it also aids the Court in its determination of the proper amount of the supersedeas bond. On November 3, 1980, Sears posted a $ 237,000.00 bond in favor of the plaintiff which reflects approximately one-half of the verdict, plus interest. The Court finds this amount entirely sufficient but unnecessarily excessive.

 The Uniform Contribution Among Tort-feasors Act, Pa.Cons.Stat.Ann. tit. 42, § 8326 (Purdon 1980), provides:


A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid. (Emphasis added).

 According to the statute, Sears would thus be liable to the plaintiff for the amount of the verdict less $ 100,000.00 paid in settlement by Goodyear and Geneva or its one-third pro rata share of the verdict, whichever is less. The Court is cognizant that had the language of the Joint Tort Feasor Release provided otherwise, Sears may have been liable to the plaintiff for the amount of the verdict, less $ 100,000.00 paid in settlement by Goodyear and Geneva. Sears would have thus had to institute a separate action for contribution against Goodyear and Geneva for the balance of each of their one-third pro rata shares. *fn6" See, e.g., Nationwide Mutual Insurance Company v. Philadelphia Electric Company, 443 F. Supp. 1140 (E.D.Pa.1977). In the present case, the clear language of the settlement manifests the intent that the $ 100,000.00 paid by Goodyear and Geneva was in settlement for a release from liability for each of their one-third pro rata shares. *fn7" Inasmuch as Sears' one-third pro rata share is far less than the amount of judgment less $ 100,000.00 paid in settlement by Goodyear and Geneva, the amount mathematically determined from the former schedule is the extent of its liability to the plaintiff for damages. See Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960).

 An appropriate Order will be entered.

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