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JOHN NECHWEDOWICH v. GREAT ATLANTIC AND PACIFIC TEA COMPANY (05/28/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 28, 1982.

JOHN NECHWEDOWICH, APPELLEE,
v.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., APPELLANT, V. KEYSTONE TRUCKING CORPORATION, APPELLEE

No. 685 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Lackawana County at 343 September Term, 1977.

COUNSEL

Joseph A. Murphy, Scranton, for appellant.

Charles F. Wilson, Scranton, for Nechwedowich, appellee.

Michael Donohue, Scranton, for Keystone, appellee.

Cavanaugh, McEwen and Beck, JJ.

Author: Cavanaugh

[ 300 Pa. Super. Page 153]

In this case an indemnity agreement had been entered into between The Great Atlantic and Pacific Tea Company, Inc., (referred to hereafter as A & P) the appellant, and Keystone Trucking Corporation, the appellee herein. The agreement provided among other things that "carrier [Keystone Trucking Corporation] agrees . . . except for cargo, to indemnify and hold harmless the A & P against all loss, cost, damage or liability of any kind or nature arising or growing out of or occurring in the performance of this contract."

The plaintiff in the court below, John Nechwedowich, was a truck driver employed by Keystone Trucking Company who was injured in June, 1975, while unloading cargo in the area of the A & P store in Nanticoke. As a result of the injuries suffered by the plaintiff he filed a complaint against A & P alleging that he was injured when he was using a metal plate supplied by A & P to bridge the gap between the truck and the loading platform onto which the truck driver was attempting to unload produce. The injuries occurred when the metal plate fell to the ground.*fn1 After Nechwedowich

[ 300 Pa. Super. Page 154]

    commenced the action in trespass against A & P that company filed a complaint as original defendant against Keystone Trucking Corporation as additional defendant. The basis of joinging Keystone was the indemnity agreement entered into between A & P and Keystone on August 8, 1974, and referred to above. The A & P alleged that Keystone was solely liable on the basis of the indemnity agreement. Keystone filed a motion for judgment on the pleadings and the complaint of A & P as original defendant against Keystone as additional defendant was dismissed. A & P has appealed from this order.

The sole question for our determination is whether a defendant in a trespass action may join as an additional defendant an employer of the plaintiff who has agreed with the defendant to imdemnify the defendant "against all loss, cost, damage or liability of any kind or nature arising or growing out of or occurring in the performance of this contract." The court below dismissed the complaint against the additional defendant on the grounds that an additional defendant cannot be joined solely on the basis of an agreement to indemnify an original defendant. In this respect, the court below erred. This case is controlled by Szemanski v. Vulcan Materials Company, 272 Pa. Super. 240, 415 A.2d 92 (1979). In that case the plaintiff was employed by United and he was doing repair work on a crane owned by Vulcan and located on Vulcan's premises. Vulcan was sued in

[ 300 Pa. Super. Page 155]

    trespass and attempted to join the employer (United) as an additional defendant on the basis of an indemnity agreement between Vulcan and United in which United agreed to indemnify Vulcan against "all losses and all claims, demands, payments, suits, actions, recoveries and judgments . . . arising out of any act or omission" of United, or "arising out of the use, occupancy or possession of premises of Vulcan" by United. The complaint alleged that United was liable over to Vulcan under the terms of the indemnity agreement. This court held that the defendant properly sought to join as an additional defendant the plaintiff's employer who had agreed to indemnify the defendant against loss on the cause of action pleaded by the plaintiff. This court relied on Pa.R.C.P. 2252(a)*fn2 and stated at 272 Pa. Super. 244, 245, 415 A.2d 94:

When Pa.R.C.P. 2252(a) is given a broad interpretation, it seems clear that defendant's cause of action against an indemnitor, although not the same cause of action alleged by the plaintiff, is related to it. Without the occurrence or transaction which brings about defendant's liability to plaintiff, there can be no obligation upon the additional defendant to indemnify defendant. Therefore, it can be said with assurance that defendant's cause of action against the additional defendant arises, at least in part, from the same occurrence upon which the plaintiff's cause of action is based.

The indemnity agreement in the Szemanski case and our own is similar. In our opinion the court below erred in

[ 300 Pa. Super. Page 156]

    dismissing the complaint against Keystone Trucking Corporation as an additional defendant.*fn3

Order reversed.


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