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ALEX LAZAR AND LINDA LAZAR v. RUR INDUSTRIES (01/11/85)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 11, 1985.

ALEX LAZAR AND LINDA LAZAR, HIS WIFE
v.
RUR INDUSTRIES, INC., APPELLANT, V. THE UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, AND LOCAL 9051 OF THE UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, APPELLEES

No. 00220 Pittsburgh 1983, Appeal from the Judgment entered February 15, 1983, in the Court of Common Pleas of Erie County, Civil at No. 2359-A-1982.

COUNSEL

Thomas M. Lent, Erie, for appellant.

Richard T. Ruth, Erie, for LaZar, appellees.

Rudolph L. Milasich, Jr., Pittsburgh, for United Steelworkers, appellees.

Richard E. Gordon, Pittsburgh, for Local 9051, appellees.

Spaeth, President Judge, and Brosky and Olszewski, JJ. Spaeth, President Judge, concurs in the result.

Author: Olszewski

[ 337 Pa. Super. Page 447]

In this case, appellant RUR Industries, Inc., appeals the lower court's order dismissing its complaint against two additional defendants, the United Steelworkers and Local 9051 ("the unions"). After carefully examining the facts, the complaint and the law, we affirm the judgment.

The roots of this case are in a labor dispute between Local 9051 and RUR. Alex LaZar, a member of Local 9051 who was on picket duty, was injured in a melee at 1 a.m. August 27, 1981. He sued RUR for negligence, alleging

[ 337 Pa. Super. Page 448]

    that the company failed to disperse the mob of off-duty employees which attacked him, failed to post security guards to prevent such attacks and failed to control its employees. These acts and omissions, he alleged, constituted negligence and caused his injuries.*fn1

RUR denied his allegations and filed a complaint against the unions, charging that they had sanctioned an atmosphere of harassment, vandalism and violence such that "there was great susceptibility to the outbreak of violence."*fn2 RUR averred that the unions were solely liable for the injuries, or that the unions were liable in indemnity to RUR, or that the unions were jointly and severally liable with RUR.

The trial court, on appellees' preliminary objections in the nature of a demurrer, sustained the objections and dismissed the complaint against the unions, stating that it failed to state a cause of action. Appellant had failed to allege that the non-striking workers who had caused the injuries were acting under the direction of the additional defendants, or were acting as their agents; in the lower court's opinion, this omission was fatal.

When an appeal is from the sustaining of preliminary objections in the nature of a demurrer, the well-pleaded facts of the complaint are admitted, as well as any reasonable inferences that can be drawn from them. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). Therefore, we must assume that appellant's allegations

[ 337 Pa. Super. Page 449]

    are true. We now address whether those facts can support the company's claim that the unions are solely liable for the injuries; that the unions are liable in indemnity to the company if the company must pay damages; and that the unions are jointly and severally liable with the company for the injuries.

The company alleges that the unions are solely liable for the injuries because they created an atmosphere where "there was great susceptibility to the outbreak of violence." This is a novel theory of liability with potentially serious consequences for unions, and warrants careful attention.

The company complains that the unions were negligent because it was reasonably foreseeable that, by creating the atmosphere, injury to union members would result, and cites cases on incitement to riot in support. Before a cause of action is stated in negligence, there must be: (1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the injury, and (4) actual loss or damages to the interests of another. Morena v. South Hills Health System, 501 Pa. 634, 642 n. 5, 462 A.2d 680, 684 n. 5 (1983).

We agree with the lower court that there is no cause of action in negligence stated here. Assuming, as we must, that the unions created an atmosphere where "there was great susceptibility to the outbreak of violence," we hold that the unions had no duty to refrain from creating such an atmosphere.*fn3

[ 337 Pa. Super. Page 450]

Similarly, the unions cannot be liable on an indemnity theory. Indemnity requires that a secondary tortfeasor be liable or have paid damages for an injury for which he is not truly at fault. The liability must be imputed or constructive. Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969).

Here, we have already determined that the unions are not liable for the injury suffered. They cannot be liable to RUR in indemnity.

Finally, RUR alleges that the unions are jointly and severally liable with the company. Joint and several liability arises when there are joint tortfeasors. Joint tortfeasors exist where "two or more persons owe to any other the same duty and by their common neglect, such other is injured." Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979). Here, as we have stated, the unions had no duty and could not have had a common duty with the company; joint and several liability is not appropriate.

The judgment is affirmed.


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