The opinion of the court was delivered by: DITTER
Conrail contends that it is entitled to summary judgment on the third party action because neither contribution nor indemnification are available to an intentional tort-feasor. Dr. Naik counters by arguing that he and Conrail are joint tort-feasors and, therefore, he is entitled to either contribution pursuant to the Uniform Contribution Among Tort-feasors Act, 42 Pa. Cons. Stat. Ann. § 8324 (Purdon 1982), or to indemnification.
It is well settled under Pennsylvania law that contribution among joint tort-feasors is based upon equitable principles which preclude an intentional tort-feasor from obtaining contribution for his own willful wrongdoing. See Walters v. Hiab Hydraulics, Inc., 356 F. Supp. 1000, 1001-02 (M.D. Pa. 1973); Cage v. New York Central Railroad Co., 276 F. Supp. 778, 788-91 (W.D. Pa. 1967), aff'd per curiam, 386 F.2d 998 (3d Cir. 1967); Union Paving Co. v. Thomas, 9 F.R.D. 612, 613 (E.D. Pa. 1949); Restatement (Second) of Torts § 886A comment a (1979). Indemnity is likewise unavailable to an intentional tort-feasor because it would permit him to escape liability for his own deliberate acts. See Anderson v. Local Union No. 3, International Brotherhood of Electrical Workers, 582 F. Supp. 627, 631-33 (S.D. N.Y. 1984), aff'd, 751 F.2d 546 (2d Cir., 1984); Delano v. Ives, 40 F. Supp. 672, 674 (E.D. Pa. 1941); Embrey v. Borough of West Mifflin, 257 Pa. Super. 168, 390 A.2d 765, 774 (1978); Restatement (Second) of Torts § 886B comment a (1979). Consequently, assuming without deciding that Conrail and Dr. Naik are joint tort-feasors, Dr. Naik has no right to either contribution or indemnification against Conrail for any liability based upon plaintiff's allegations of intentional assault and battery on his part. Thus, Dr. Naik has nothing to gain from a judicial determination that he and Conrail are joint tort-feasors. It follows he is not entitled to join Conrail as a third party defendant. See Young v. Verson Allsteel Press Co., 524 F. Supp. 1147, 1148-50 (E.D. Pa. 1981) (citing Griffin v. United States, 500 F.2d 1059, 1071-73 (3d Cir. 1974)). Accordingly, summary judgment will be entered in Conrail's favor on the third party complaint.
Alternatively, Dr. Naik has moved for summary judgment on the complaint contending that plaintiff's prior release of Conrail also released him despite plaintiff's express reservation of claims "for any independent or intentional act or activities of Doctor Sudhir D. Naik." In support of his position, defendant contends that Conrail and he are not joint tort-feasors under the Uniform Contribution Among Tort-feasors Act and, therefore, are not governed by section 8326 which provides that the release of one joint tort-feasor does not discharge the other tort-feasors unless the release so provides. Instead, defendant argues, they are governed by the Pennsylvania common law rule providing that the release of a successive or concurrent tort-feasor effects the release of all tort-feasors, even though the release expressly states otherwise. See George v. Brehm, 246 F. Supp. 242, 246 (W.D. Pa. 1965) (citing Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937)).
In short, for the purpose of determining the effect of the release, defendant is a joint tort-feasor who, in any event, is not entitled to either contribution or indemnification because of his alleged intentional acts.
AND NOW, this 10th day of October, 1986, it is hereby ordered:
1. Defendant's motion for summary judgment is denied.
2. Third party defendant's motion for summary judgment is granted.
3. Judgment on the third party action is hereby entered in favor of ...