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PITCAVAGE v. MASTERCRAFT BOAT CO.

September 23, 1985

THOMAS PITCAVAGE, SR., Administrator of the Estate of KAREN PITCAVAGE, Deceased; THOMAS PITCAVAGE, SR., Administrator of the Estate of THOMAS PITCAVAGE, JR., Deceased; MELISSA PITCAVAGE, a minor, by THOMAS PITCAVAGE, her parent and natural guardian and THOMAS PITCAVAGE, SR., Individually and in his own right, Plaintiffs
v.
MASTERCRAFT BOAT COMPANY, Defendant and Third-Party Plaintiff and BAJA BOAT COMPANY, INC., Defendant v. DENIS J. ABRAMOVAGE and MARK D. TURNER AND RALPH TURNER, Third-Party Defendants and Fourth-Party Plaintiffs v. LEONARD J. PALLIS, JR., Fourth-Party Defendant


William J. Nealon, Chief Judge.


The opinion of the court was delivered by: NEALON

Plaintiffs filed two (2) diversity actions against Defendants Mastercraft Boat Company ("Mastercraft") and Baja Boats, Inc. ("Baja") seeking to be compensated for injuries sustained when a Mastercraft boat allegedly struck a Baja boat. Jurisdiction is proper pursuant to 28 U.S.C. § 1332. The Mastercraft boat was owned by Ralph Turner and Mark D. Turner and operated by Denis J. Abramovage. The Baja boat was owned and operated by Leonard J. Pallis. In their complaint, plaintiffs seek recovery on theories of negligence, strict liability and breach of warranty. Defendant Mastercraft filed a third-party complaint pursuant to Fed.R.Civ.P. 14(a) against Ralph Turner, Mark D. Turner and Denis J. Abramovage on June 11, 1985. Mastercraft alleges that the third-party defendants negligently caused or contributed to the accident so as to be liable to Mastercraft for any or all sums which may be adjudged due to plaintiffs. Jurisdiction over this claim is proper pursuant to the court's ancillary jurisdiction. Presently before the court is plaintiffs' Motion to Strike the Third-Party Claim. Defendant Mastercraft has opposed the motion and the matter is now ripe for disposition. For the reasons set forth below, the motion will be denied.

 DISCUSSION

 Fed.R.Civ.P. 14(a) provides that a defendant may implead "a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." In order to utilize the procedure of Rule 14, a third-party plaintiff must demonstrate some substantive basis for its claim. Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D. Pa. 1983). Rule 14(a) is procedural and does not create any right to seek indemnification or contribution. Cook v. Cook, 559 F. Supp. 218 (E.D. Pa. 1983). The third-party plaintiff must allege that the third-party defendant is or may be liable to it for all or part of the plaintiff's claim against the third-party plaintiff. See Fed.R.Civ.P. 14(a). Impleader is not proper when the third-party plaintiff alleges only that the third-party defendant is solely liable to the plaintiff. See Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D. Pa. 1977).

 In their briefs, plaintiffs contend that Mastercraft is asserting that the third-party defendants are solely liable to plaintiffs. See Document 21 of Civil No. 85-0560 and Document 17 of Civil No. 85-0561. An examination of the third-party complaint, however, reveals that Mastercraft seeks contribution and/or indemnity from the third-party defendants. See Document 11 of Civil No. 85-0560 and Document 10 of Civil No. 85-0561. Therefore, Mastercraft asserts claims cognizable under Rule 14(a) if it may be entitled to contribution or indemnity from the third-party defendants. See O'Mara Enterprises, Inc. v. Mellon Bank, 101 F.R.D. 668 (W.D. Pa. 1983).

 Plaintiffs maintain that Mastercraft has no substantive basis to recover contribution or indemnification from the third-party defendants. In making this determination, the court, sitting in diversity, is bound to apply the law of Pennsylvania. *fn1" See Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Mastercraft's right to contribution from the third-party defendants depends on the determination of whether Mastercraft and the third-party defendants can be considered joint tortfeasors. See Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D. Pa. 1983).

 Pennsylvania law permits contribution among joint tortfeasors. See Pa. Cons. Stat. Ann. tit. 42, § 8324(a) (Purdon 1982). 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." Id. at § 8322. To be a joint tortfeasor, "the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury." Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803, 805 n.4, (1979). In the present case, plaintiff is claiming, inter alia, that Defendant Mastercraft caused plaintiff's injuries. Mastercraft, in turn, alleges that the third-party defendants contributed to or caused plaintiffs' injuries. Thus, Mastercraft maintains that the third-party defendants are liable to Mastercraft for all or part of the plaintiffs' claim.

 Plaintiffs rely on Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D. Pa. 1983), in support of their position. In Robbins, this court held that a manufacturer, against whom a claim based on the crashworthiness doctrine was made, could not join the driver of an automobile involved in the accident as a third-party defendant. In a footnote, however, this court stated:

 
We do not perceive the analysis of 'second collision' or 'enhanced injury' cases to track the legal lore surrounding concurrent tortfeasor actions which, in the concurrence's formulation, 'have combined contemporaneously to cause the injuries.' (citation omitted). 'Second collision' cases do not implicate 'clearly established double fault' for the same occurrence . . . . Analogies to concurrent actions combining to cause a single impact are simply not applicable.

 Id. at 40, n.3 citing Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976). The present case does not involve two "separate collisions." On the other hand, as Mastercraft contends, this case is more closely akin to the situation when two alleged tortfeasors combine contemporaneously to cause injury.

 The Pennsylvania Superior Court's decision in Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979), tends to support Mastercraft's position. In Lasprogata, the court held that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. More specifically, the court stated "the acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other's acts, and each breaching a different duty owed to the injured plaintiff." Id. at 179, 397 A.2d at 805. While it can be argued that the third-party defendants acted at different times, etc., Mastercraft is alleging that if it is liable, then the third-party defendants either acted together with it or contributed to causing plaintiff's injuries. See Lasprogata, supra. If the tortious conduct of two (2) or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently. See Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249 (1984).

 Plaintiffs assert that the third-party complaint should be stricken because it is based on a different legal theory than relied on by plaintiffs. For purposes of Rule 14, it is immaterial that the liability of the third party is not identical to or rests on a different theory than that underlying plaintiffs' claim. Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D. Pa. 1977); see also Crude Crew v. McGinnis & Associates, Inc., 572 F. Supp. 103 (E.D. Wis. 1983) (impleader proper; not necessary that claim alleged in third-party complaint be based on same theory as original complaint if both claims arise out of same occurrence). The precise issue before this court is whether under Pennsylvania law, a defendant who may be liable to a plaintiff on a strict liability theory would be entitled to contribution from additional defendants who may be found negligent, particularly when the alleged negligent defendant is a purchaser or user of a product which is later determined to be defective. *fn2"

 In Stewart v. Uniroyal, Inc., 72 Pa. D&C 2d 206 (Allegheny Co. 1975), aff'd per curiam, 238 Pa. Super. 726, 356 A.2d 821 (1976), the court relied on Chamberlain and permitted contribution between a § 402 tortfeasor and a negligent tortfeasor. In Stewart, the jury found that the defective product and the negligent defendants concurrently caused plaintiff's harm. Thus, the common liability between all defendants was affirmed. Id. Similarly, in Capuano v. Echo Bicycle Co., 27 Pa. D & C 3d 524 (Northampton Co. 1982), the court relied on Chamberlain3 and applied the Uniform Contribution Among Tortfeasors Act *fn4" ("UCATA") to determine the contribution rights between a strictly liable and a negligent defendant. The court reasoned that to refuse contribution in this type of case would be to give absolutely no effect to the UCATA. "The theory is that as between the two tortfeasors the contribution is not a recovery for the tort but the enforcement of an equitable duty to share liability for the wrong done." Id. at 528.

 In the present case, the third-party defendants may be liable to Mastercraft for contribution if it is later determined that the third-party defendants "contributed" to the accident. *fn5" It is not necessary that the third-party defendants be automatically liable for all or part of plaintiffs' claim. Impleader is proper if under some construction of facts which might be adduced at trial, recovery by the third-party plaintiff would be possible. See Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D. Pa. 1977).

 Finally, plaintiffs maintain that the third-party suit will prejudice plaintiffs' case against the original Defendant Mastercraft. *fn6" Plaintiffs contend that they should be able to proceed with their case without having a legal issue, which should not be considered by the jury, becoming a potential obstacle to recovery. See Document 38 of the Record. This argument fails for reasons already discussed. See n.5 supra at 847. The issue of the third-party defendants' negligence may bear on the causation question in plaintiffs' case, see Herman v. Welland Chemical, Ltd., 580 F. Supp. 823 (M.D. Pa. 1984), and, in any event, can be effectively separated from the legal issues in the main case by use of proper jury instructions. See Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979). Plaintiffs' interpretation of Rule 14(a) would require separate suits anytime different legal standards apply to the main case and the third-party suit. "Rule 14 should be liberally construed to effectuate its intended purpose of accomplishing in one proceeding the adjudication of the ...


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