and the plaintiff. Similarly, it is logical that no privity need exist between the defendant and the third-party defendant, because no duty of care runs between those parties.
Main Hurdman's second argument is that Dorwart Andrew has not sufficiently pleaded a claim upon which Dorwart Andrew and it are jointly liable or a claim upon which it is primarily liable while Dorwart Andrew is only secondarily liable.
The question that this argument presents is whether Dorwart Andrew's third-party complaint states a claim for contribution or indemnity.
Main Hurdman argues that Dorwart Andrew's third-party complaint fails to set forth any joint undertakings or conduct and, therefore, that the complaint fails to state a claim for contribution. Under Pennsylvania law a right of contribution arises only between joint tortfeasors. Lasprogata v. Qualls, 263 Pa. Super. 174, 178 n.2, 397 A.2d 803, 805 n.2 (1979). Contribution requires that each joint tortfeasor pay his or her pro rata share of the plaintiff's loss. A section of the Pennsylvania Uniform Contribution Among Tortfeasors Act defines joint tortfeasors as "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." 42 Pa. C.S. § 8322. Two actors are joint tortfeasors if their conduct "causes a single harm which cannot be apportioned . . . even though [the actors] may have acted independently." Capone v. Donovan, 332 Pa. Super. 185, 189, 480 A.2d 1249, 1251 (1984) (citing Restatement [Second] of Torts § 879 ). In Lasprogata, supra, the court defined joint tortfeasor by noting that "'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. [A joint tort occurs] where two or more persons owe to another the same duty and by their common neglect such other is injured. . . .'" 263 Pa. Super. at 179 n.4, 397 A.2d at 805 n.4 (quoting Black's Law Dictionary, 4th ed.  at 973, 1661). In determining whether parties are separate or joint tortfeasors, Pennsylvania courts consider several factors, including:
the identity of a cause of action against each of two or more defendants; the existence of a common or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential, responsibility of the defendants for the same injuria as distinguished from damnum.
Voyles v. Corwin, 295 Pa. Super. 126, 130-31, 441 A.2d 381, 383 (1982) (citing Prosser, Law of Torts, § 46 n.2 [4th ed. 1971]). It has also been stated that a joint tort is not committed if the "acts of the [wrongdoers] 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." Lasprogata, supra, 263 Pa. Super. at 179, 397 A.2d at 805; see also Rabatin v. Columbus Lines, Inc., 790 F.2d 22, slip op. at 7 (3d Cir. 1986) (stating that actors may be joint tortfeasors because they could have guarded against each other's conduct or because their acts combined to produce a single indivisible harm).
Applying the Pennsylvania law outlined above, I find that Dorwart Andrew's third-party complaint states a claim for contribution against Main Hurdman. A review of the relevant factors makes it clear that, contrary to what Main Hurdman argues, an allegation of joint undertaking or conduct is not needed to state a claim for contribution. Rather, a claim for contribution may be stated even though the parties acted independently. The facts pleaded in the third-party complaint suggest that Main Hurdman and Dorwart Andrew acted independently. Those facts also indicate, however, particularly when read in conjunction with Pennine's amended complaint, that the parties may have breached a common duty and united in causing a single, indivisible injury to Pennine. The alleged acts are close in time, and similar evidence might support an action against both Main Hurdman and Dorwart Andrew. Furthermore, each actor may have had the opportunity to guard against the other's negligence. Therefore, certain of the allegations in the third-party complaint, if proven, could establish that Main Hurdman and Dorwart Andrew are joint tortfeasors. In reaching my holding, I am mindful of the standard for reviewing a motion to dismiss under Rule 12(b)(6) and of the liberal policy of the Federal Rules of Civil Procedure concerning notice pleading. See Fed. R. Civ. P. 8.
Main Hurdman also argues that Dorwart Andrew's third-party complaint fails to allege that Dorwart is secondarily liable on a claim for which Main Hurdman is primarily liable and, thus, fails to state a claim for indemnity. Under Pennsylvania law, "indemnity is available only from those who are primarily liable to those who are merely secondarily or vicariously liable." TVSM, Inc. v. Alexander & Alexander, Inc., 583 F. Supp. 1089, 1091 (E.D. Pa. 1984) (citing Burch v. Sears, 320 Pa. Super. 444, 457, 467 A.2d 615, 622 ). Indemnity, if applicable, would shift the entire liability for plaintiff's loss from defendant Dorwart Andrew to third-party defendant Main Hurdman. Indemnity is "a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable." Builders Supply Co. v. McCabe, 366 Pa. 322, 325, 77 A.2d 368, 370 (1951). Indemnity is typically appropriate, for example, in cases in which an employer is held liable for an employee's tortious acts. In determining whether liability is primary or secondary, courts focus on such factors as active or passive negligence and knowledge of or opportunity to discover or prevent the harm. See id. at 325-28, 77 A.2d at 370-72. Under Pennsylvania law, indemnity is not available if the indemnitee is actively negligent. DiPietro v. City of Philadelphia, 344 Pa. Super. 191, 195-96, 496 A.2d 407, 409-10 (1985).
I hold that the facts stated in Dorwart Andrew's third-party complaint do not suffice to state a claim for indemnity. Dorwart Andrew has alleged no contractual relationship or other legal obligation between it and Main Hurdman. The facts pleaded do not appear to be analogous to the typical indemnity situation. Nor has Dorwart Andrew brought to my attention any case involving facts similar to those pleaded here in which the court permitted a claim for indemnity. The negligence for which Dorwart Andrew is allegedly liable -- a failure to discover an overvaluation in Dutchmaid's inventory -- is passive in nature. The negligence for which Main Hurdman is allegedly liable, however, is also passive. Therefore, the active-passive distinction is not particularly helpful here in determining which party is primarily liable. A review of the facts set forth in the third-party complaint and in Pennine's amended complaint does not reveal that Main Hurdman is primarily liable while Dorwart Andrew is only secondarily or constructively liable.
Main Hurdman's final argument is that Dorwart Andrew's third-party complaint improperly avers that Main Hurdman is solely liable to plaintiff Pennine and, accordingly, that the third-party complaint is improper under Federal Rule of Civil Procedure 14. Rule 14(a) provides, in relevant part:
[A] defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon 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. (Emphasis added.)
Paragraph 12 of Dorwart Andrew's amended complaint states, in part, that Main Hurdman is "solely liable to Pennine. . . ." It is well established that Rule 14 does not permit a defendant "to implead a third party claimed to be solely liable to the plaintiff." Barab v. Menford, 98 F.R.D. 455, 456 (E.D. Pa. 1983); see also Millard v. Municipal Sewer Authority of Lower Makefield, 442 F.2d 539, 541 (3d Cir. 1971); Hartford, supra, slip op. at 7. Therefore, I will grant Main Hurdman's motion to dismiss Dorwart Andrew's claim that Main Hurdman is solely liable to Pennine. An appropriate order follows.
AND NOW, this 8th day of July, 1986, upon consideration of the motion of third-party defendants KMG Main Hurdman and James R. Nace to dismiss Count I of the third-party complaint, the response of defendants Dorwart Andrew & Company and W. Scott Stoner, and third-party defendants' reply thereto, IT IS HEREBY ORDERED that:
1. The motion is DENIED in regard to defendants' claim for contribution.
2. The motion is GRANTED in regard to defendants' claim for indemnity, which claim is DISMISSED with prejudice.
3. The motion is GRANTED in regard to defendants' claim that third-party defendants are solely liable to plaintiff, which claim is DISMISSED without prejudice.
Edward N. Cahn, J.