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October 26, 1981

Roland YOUNG
VERSON ALLSTEEL PRESS COMPANY and Federal Pacific Electric Company

The opinion of the court was delivered by: DAVIS


In this diversity action, Verson Allsteel Press Company (hereinafter "Verson"), a co-defendant, has filed a motion in limine to be relieved of attendance at trial. Under its view, the Pennsylvania Comparative Negligence Statute, *fn1" does not require a settling co-defendant to be present at trial merely so that negligence may be apportioned among all alleged tortfeasors. *fn2"

 I. Introduction

 Verson executed a joint tortfeasor release with plaintiff, Roland Young (hereinafter "Young") on March 10, 1981. Verson's co-defendant, Federal Pacific Electric Company (hereinafter "Federal") was not a party to the settlement. Federal insists that Verson is required by Pennsylvania's Comparative Negligence Statute to attend trial.

 The release executed by Young and Verson, a so-called "Griffin" release, provides for a reduction in any judgment obtained by Young in an amount equal to any recovery that he might otherwise have received from Verson and for subtraction from any judgment against Federal the amount of the consideration paid by Verson to Young in settlement of the case.

 Young has also agreed to indemnify Verson and to hold it harmless for any loss or liability arising from any claim against it for contribution or indemnity by any alleged tortfeasor, including co-defendant Federal. However, notwithstanding the obvious financial benefit such a release provides, Federal alleges that without Verson's presence at trial Federal will be "unfairly prejudiced." Supplemental Brief for Defendant (Federal) at 1, 3, 5, and 7.

 II. The Pre-Comparative Negligence Rule

 The law in Pennsylvania before passage of comparative negligence can be summarized in a single rule. If one of the litigants could gain legal advantage thereby, *fn3" he reserved the right to retain a named defendant in the action and to ultimately show his tortfeasor status. Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956).

 In Davis, plaintiffs were the passengers in an automobile driven by Mary Richardson. Ms. Richardson was involved in an automobile accident with a car driven by Amos T. Miller. Plaintiffs sued Miller alleging his negligence as the proximate cause of their injuries. Miller filed a complaint joining Ms. Richardson as additional defendant, alleging the collision was due to her negligence and that, therefore, the jury might find her either alone liable or jointly liable with him. Ms. Richardson filed a motion for judgment on the pleadings, the effect of which would have been to relieve her of responsibility to attend trial. Prior to such motion, Ms. Richardson had executed releases with plaintiffs and a general release with co-defendant Miller.

 The court held that because Miller could benefit from a determination that Richardson was a joint tortfeasor, Richardson would be required to attend trial. Id. at 352, 123 A.2d at 424. This holding followed from the Pennsylvania rule *fn4" which permitted a tortfeasor to reduce any judgment found against him by the pro rata share of other settling tortfeasors. The court reasoned that Miller could not have sought contribution from Ms. Richardson unless she were adjudged a tortfeasor. *fn5" Id.

  The next significant development of the rule of Davis, supra, came in Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). The facts of Griffin are not complicated. Mary Griffin brought suit against the United States and Pfizer, Inc. for injuries sustained by her as a result of ingestion of Sabin oral live-virus polio vaccine. Mrs. Griffin executed a joint tortfeasor release in favor of Pfizer, Inc. in consideration of three hundred fifty thousand dollars ($ 350,000). After a non-jury trial in which the United States did not join Pfizer, Inc. as a co-defendant, a judgment in excess of two million dollars was awarded against the government. The district court, citing Davis, supra, held that since Pfizer, Inc. had not been joined, its tortfeasor status had not been judicially determined and, therefore, the government could not benefit from the terms of the joint tortfeasor's release between Pfizer, Inc. and plaintiff. Griffin v. United States, 353 F. Supp. 324, 328-29 (E.D.Pa.1973).

 The Third Circuit speaking through Judge Rosenn, reversed that portion of the district court's opinion which prevented the government from receiving the benefit of the "Pfizer-Griffin" release. The court, relying upon the specific language of the release, *fn6" found that the plaintiffs had waived the benefits of the Davis holding. The release which plaintiffs had executed with Pfizer had in effect conceded Pfizer's joint tortfeasor status. Id. at 1072. Therefore, the court reasoned that the Griffins could not now object to a reduction of their judgment against the United States to the extent of Pfizer's pro rata share. Id. Finally, the court continued by discussing what the effect of the release would have been on any attempt by the government to join Pfizer, Inc. as a party defendant.

Even if we construe the language as contemplating a requirement of Pfizer's joinder, however, had the United States attempted to join Pfizer, the latter, under the terms of the release, could have obtained a dismissal.

 Id. at 1072-73 (emphasis supplied). This conclusion was, of course, compelled by the logic of Davis. That is, because the tortfeasor status of Pfizer had already been conceded by plaintiff; defendant, United States, could no longer "benefit" by Pfizer's participation in the case and, ...

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