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FATHER JAMES MAMALIS v. ATLAS VAN LINES (06/24/87)

filed: June 24, 1987.

FATHER JAMES MAMALIS
v.
ATLAS VAN LINES, INC. MCCLAIN MOVING CO. APPEAL OF ATLAS VAN LINES, INC.



Appeal from the Order entered February 7, 1986 in the Court of Common Pleas of Philadelphia County, Civil No. 4441 August Term, 1978

COUNSEL

Charles J. Bogdanoff, Philadelphia, for appellant.

Kenneth S. Siegel, Philadelphia, for appellee.

McEwen, Montemuro and Roberts, JJ.*fn*

Author: Roberts

[ 364 Pa. Super. Page 362]

The issue in this appeal is whether an agent and its vicariously liable principal are "joint tortfeasors" within the meaning of the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. § 8321 et seq. Under the Act "joint tortfeasors" are "two or more persons jointly or severally liable in tort for the same injury to persons or property," § 8322. Release of one joint tortfeasor does not discharge other joint tortfeasors unless the release so provides, § 8326. Because we believe that the Legislature intended to keep separate the vicarious liability of a principal from the joint liability of concurrent tortfeasors, we conclude that a vicariously liable principal and agent are not "joint tortfeasors" under the Act. Release of the agent thus precludes further recovery against the principal. We vacate the order and reverse the judgment.

Acting under the apparent authority of Atlas Van Lines ("Atlas"),*fn1 McClain Moving Company ("McClain") contracted

[ 364 Pa. Super. Page 363]

    with Father James Mamalis to ship his personal belongings from Philadelphia to Fairview, New Jersey. McClain loaded Mamalis' property onto a van, then removed the van to its place of business for delivery the following day. That evening the van caught fire, destroying most of Mamalis' possessions.

Mamalis brought actions in replevin and trespass against McClain and Atlas Van Lines to recover for the damage resulting from the fire. The complaint against Atlas alleged that Atlas was liable through the conduct of its agents, and included a count in assumpsit alleging that Atlas, through its agents, violated its carriage contract.

Three years after the actions were brought, Mamalis settled his claim against McClain for $25,000, and released it from further liability. The written release agreement purported to preserve Father Mamalis' claim against Atlas and provided that "the amount of damages which Mamalis may recover from the other tortfeasors shall be reduced by the pro rata share of the consideration paid under this release." Shortly thereafter, McClain filed for bankruptcy. Atlas then moved for summary judgment, contending that the release of the agent McClain extinguished the entire claim and discharged its liability as principal. It renewed its motion before trial, and again on motion for directed verdict. The trial court disagreed and submitted the case to the jury, which returned a verdict for Mamalis in the amount of $84,402.70.

Appellant once again renewed his claim on motion for post-trial relief. See Pa.R.Civ.P., Rule 227.1. Relying primarily on Bausewine v. Norristown Herald Inc., 351 Pa. 634, 41 A.2d 736 (1945), the trial court held that principal and agent are severally liable and thus fall within the Uniform Act's definition of "joint tortfeasor." Since release of one joint tortfeasor does not discharge others under the Act, ...


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