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filed: April 25, 1988.


Appeal from the Judgment entered January 2, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 85-2238.


Jack L. Cherkin, Pittsburgh, for appellant.

In-grid S.M. Lundberg, Pittsburgh, for appellee.

Brosky, Del Sole and Hoffman, JJ.

Author: Hoffman

[ 374 Pa. Super. Page 15]

This appeal is from an order granting a motion for summary judgment in favor of defendant-appellee and against plaintiff-appellant. Appellant contends that the lower court erred in determining that its cause of action for contribution was barred by the applicable statute of limitations.

[ 374 Pa. Super. Page 16]

We disagree and, accordingly, affirm the lower court's order.

On February 5, 1985, appellant commenced this action against appellee seeking statutory contribution in the amount of $28,732.59 arising from an earlier lawsuit. Anthony Pietrzyk, appellee's employee, was seriously injured in a work-related accident which occurred on November 11, 1971. Pietrzyk then filed a lawsuit against Phillips Construction Co., who was the subcontractor on the work site and insured by appellant. Phillips Construction Company joined appellee as an additional defendant in the action.*fn1 Following a jury trial, appellant and appellee were found jointly and severally liable and Pietrzyk was awarded $125,000.00 in damages. On October 14, 1977, appellant paid $91,231.59 of the verdict, representing the difference between the verdict and the $33,768.41 worth of workmen's

[ 374 Pa. Super. Page 17]

    compensation benefits already received by Pietrzyk. The docket reflected that the verdict was marked "satisfied and costs paid."

There was no further action taken on this case until February 21, 1984, when Pietrzyk filed a petition to reinstate his rights pursuant to the Worker's Compensation Act,*fn2 77 Pa.S.A. §§ 1-601. Appellee settled the claim and agreed to pay Pietrzyk 40% of his weekly benefits to be applied towards his pro rata share of counsel fees. Appellant then initiated this contribution action against appellee seeking to recover the undisposed 60% of Pietrzyk's weekly compensation benefits, which amounts to $36.00 per week, until $28,731.59 is recovered or the compensation payments are terminated. Upon receiving cross-motions for summary judgment, the lower court granted appellee's motion and concluded that appellant's action for contribution was barred by the statute of limitations governing assumpsit actions. This appeal followed.

Appellant initially contends that the summary judgment was improper because its cause of action was not barred by the statute of limitations. Appellant alleges that appellee's unauthorized suspension of compensation payments to Pietrzyk tolled the statute of limitations until 1984 when the compensation payments resumed. Appellant contends further that each weekly compensation payment constitutes an installment and with each installment a new and separate cause of action is created. Appellant reasons that because a new cause of action accrues with each compensation payment, a new limitation period attaches to each payment.

A motion for summary judgment is properly granted "in cases where the right is clear and free of doubt." Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986). Pennsylvania Rule of Civil Procedure 1035(b), allows for the grant of summary judgment only when there is no genuine issue of material fact and the moving party is entitled to a

[ 374 Pa. Super. Page 18]

    judgment as a matter of law. As we stated in Morgan v. Johns-Manville Corp., 354 Pa. Superior Ct. 58, 61, 511 A.2d 184, 186 (1986):

When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the nonmoving party, Helinek v. Helinek, 337 Pa. Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa. Superior Ct. 39, 48, 489 A.2d 828, 833 (1985).

In Pennsylvania, it is well-established that an action for contribution is based on equitable principles and sounds in contract rather than tort law. See, e.g., Matter of Reading Co., 404 F.Supp. 1249, 1251 (E.D.Pa.1975). Under the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. §§ 8321-27, Pennsylvania law provides for a right of contribution among joint tortfeasors if: (1) two or more persons are found jointly and severally liable in tort and (2) if one of the tortfeasors has paid more than his or her pro rata share of the common liability. Id. See also Mattia v. Sears Roebuck & Co., 366 Pa. Superior Ct. 504, 507, 531 A.2d 789, 791 (1987). A joint tortfeasor has the option of pursuing his or her right for contribution either by maintaining a separate and independent action or by having the plaintiff's judgment marked to the use of the party seeking contribution. Puller v. Puller, 380 Pa. 219, 220 n. 1, 110 A.2d 175, 176 n. 1 (1955) (designating plaintiff's judgment allows joint tortfeasor to recover, via subrogation, from other tortfeasors). A joint tortfeasor's right to contribution is distinct from the original action. Hughes v. Pron, 286 Pa. Superior Ct. 419, 426, 429 A.2d 9, 12 (1983). Because of this distinction, the statute of limitations on a contribution action begins to run only when a judgment is entered in favor of the plaintiff in the original action. Id.; Goodrich-Amram 2d 2252(a):9.

The statute of limitations for a contribution action is statutorily governed by 42 Pa.C.S.A. § 5527, which provides that a six year period applies to all civil actions which

[ 374 Pa. Super. Page 19]

    are not subject to another limitation specified by statute. Because a contribution action is not specifically named within a particular limitations statute, the applicable statute of limitations is § 5527. See 42 Pa.C.S.A. § 5527. Accordingly, in an action for contribution, the applicable limitation period is six years commencing from the entry of judgment against the joint tortfeasors. Id.; see also Kim v. Michigan Ladder Co., 208 F.Supp. 298, 301-02 (W.D.Pa.1962); Hughes v. Pron, supra.

Here, appellant contends that the statute of limitations has not run on its contribution action because of the resurgence of the weekly compensation benefits. Appellant concedes that the applicable statute of limitations for the instant case is six years. Appellant's Brief at 12. Appellant alleges, however, that the limitation period was tolled for seven years. The right of contribution is an exclusive matter between joint tortfeasors and is not effected by the inability of the original plaintiff to obtain relief from his or her employer under the Worker's Compensation Act. Kim v. Michigan Ladder Co., supra. The receipt of compensation benefits by Pietrzyk does not toll the statute of limitations because Pietrzyk's ability to collect does not effect the separate and independent cause of action that appellant has brought against appellee. Thus, appellant's contribution action is distinct from Pietrzyk's claims for benefits under the Worker's Compensation Act. See Hughes v. Pron, supra. Accordingly, appellant's claim that the payment of weekly compensation benefits gives rise to a series of new causes of action and periods of limitations is without merit. We, therefore, set aside any further consideration of the effect of the Worker's Compensation Act upon appellant's right to pursue an independent action for contribution.

We must next address whether the applicable statute of limitations has run on appellant's contribution claim. It is first necessary to establish when appellant's contribution claim arose. An adverse judgment was entered against appellant and appellee on September 15, 1977. Because the statute of limitations on a contribution action begins to run

[ 374 Pa. Super. Page 20]

    once judgment is entered against the joint tortfeasors, appellant's right to sue for contribution began on September 15, 1977. See Hughes v. Pron, supra. An action for contribution has a six year statute of limitations. See 42 Pa.C.S.A. § 5527; Kim v. Michigan Ladder Co., supra. Thus, the statute of limitations on appellant's claim had run as of September 15, 1983. Therefore, appellant's action that commenced on February 5, 1985, was effectively barred by the six year limitation period. Accordingly, because no genuine issues of material fact remain to be decided and appellant's action was clearly brought outside the applicable statute of limitations, we affirm the order of the lower court granting appellee's motion for summary judgment.*fn3




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