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June 12, 1989


The opinion of the court was delivered by: POLLAK




 Presently before the court is third-party defendant Alphonso Robbins Africa's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment. In his motion, Africa contends that the City defendants' intentional "dropping [of] a bomb from a helicopter in a crowded urban environment" broke the chain of causation linking him to plaintiffs' injuries thus precluding a finding of liability against him. Africa Motion, at 6. Africa also contends that the City defendants have failed to allege any ground on which to connect him to a civil conspiracy with the City.

 I referred the motion to Magistrate William F. Hall, Jr., for the preparation of a Report and Recommendation. Magistrate Hall, finding that the City defendants' third-party complaint failed to state a claim either for contribution or indemnity, recommended that Africa's motion be granted. The City defendants subsequently filed objections to the Report.


 Plaintiffs, residents and owners of properties that were damaged or destroyed in the MOVE confrontation on May 13, 1985, brought suit against several City defendants for their role in the confrontation. On February 26, 1986, the City defendants filed a Third-Party Complaint against several MOVE members, including Alphonso Robbins Africa, seeking indemnity and/or contribution. *fn1" The City defendants' third-party complaint against Alphonso Africa rests in large part on statements Africa made in the course of his criminal trial in the Court of Common Pleas of Philadelphia County on May 7, 1985, six days prior to the MOVE confrontation. *fn2"

  On April 21, 1986, I granted the City defendants' motion to join Alphonso Africa to the action as a third-party defendant. In that Memorandum and Order, I rejected plaintiffs' contentions that the City defendants' complaint failed to link Africa to the acts complained of or that joinder of Africa would be improper under Fed. R. Civ. Proc. 14(a).


 The legal standards governing Africa's motion require this court to read the City's third-party complaint generously and to resolve doubts regarding the factual record in favor of the nonmoving party. See, e.g., Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987) (pleadings afforded all reasonable inferences in motion to dismiss); Lang v. New York Life Insurance Co., 721 F.2d 118, 119 (3d Cir. 1983) (on motion for summary judgment, evidence should be viewed in light most favorable to nonmoving party).

 Africa's first argument in his present motion -- that his liability, if any, is superseded by the City's actions -- rests on Restatement (Second) of Torts, section 448. Section 448 provides:


Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence


The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

 According to Africa, the City's decision to drop an explosive device on the MOVE residence, and the City's subsequent failure to contain the fire, constituted intentional torts or crimes. Moreover, he argues that those actions cannot plausibly be viewed as reasonably foreseeable consequences of his own actions. Thus, Africa contends that Restatement section 448 precludes a finding of liability against him as a matter of law.

 The City, on the other hand, maintains that Africa's efforts "to make 6221 Osage Avenue into a fortress -- with reinforced walls, internal fortifications, and a rooftop bunker" coupled with his involvement in provoking an armed confrontation with police, " certainly 'created and increased the foreseeable risk of harm' to everyone" surrounding the MOVE residence. City Objections, at 2 (emphasis in original).

 Africa's claim that the City's actions absolve him of liability rests on factual determinations that are not ripe for summary judgment. Neither Africa nor the City defendants have attached any evidentiary materials to support their respective positions. In fact, the only material outside of the pleadings that appears on the present record is Judge Lehrer's post-trial opinion from the Court of Common Pleas. His decision alone is certainly insufficient to resolve the parties' competing factual claims.

 Africa's second contention -- that the alleged civil conspiracy between Africa and others cannot reasonably be linked to the May 13, 1985 disaster -- also rests on factual determinations ill-suited for resolution on the present record. To the extent that Africa contends that the City's complaint is insufficiently pleaded, as Africa suggests somewhat indirectly in his brief, that position is foreclosed by my April 26, 1986 Memorandum and Order granting the City defendants' motion to join Africa as a third-party defendant. That Memorandum and Order reflects my view that the third-party complaint adequately links Africa to the events described in plaintiffs' original complaint:


The complaint states that Alphonso Africa 'was involved in a conspiracy by various members of MOVE . . . to cause the confrontation.' He is thus adequately linked to the events described in plaintiffs' complaint for purposes of joinder.

 Magistrate Hall recommended that Africa's motion be granted on the grounds that the City defendants' complaint sounds in indemnity rather than contribution, and that the City defendants have not stated an adequate indemnity claim. According to Magistrate Hall, "there are no allegations setting forth Mr. Africa's responsibility as a joint tortfeasor [which are] necessary to support a claim of contribution." Report at 8.

 In their objections, to which Africa has not responded, the City defendants contend that their third-party complaint adequately alleges that Africa is liable as a joint tortfeasor. *fn3" Accordingly, the City defendants maintain that the complaint sufficiently alerts Africa to their contribution claim.

 Although the City defendants' third-party complaint is somewhat lean, and suggests that Africa bears full responsibility for plaintiffs' loss, I believe it encompasses a claim of contribution. Under Pennsylvania law, a "claim for contribution may be stated even though the parties acted independently." Pennine Resources v. Dorwart Andrew & Co., 639 F. Supp. 1071, 1075 (E.D. Pa. 1986). All that need be alleged is that the parties "united in causing a single, indivisible injury" to the plaintiffs. Id. The City defendants' third-party complaint, read liberally, in consonance with Fed. R. Civ. Proc. 8, alleges that Africa's actions contributed to the May 13, 1985 confrontation between MOVE and the City and to the resultant damage to plaintiffs' property. In addition, the "WHEREFORE" clause of the complaint states that the "City Defendants pray that judgment be entered in their favor and against Alphonso Robbins Africa for indemnity and/or contribution." In such circumstances, the complaint gives minimally adequate notice of the City defendants' factual allegations and legal theory.

 In view of the bareness of the third-party complaint, though, as well as its ambiguity regarding the extent of Africa's liability, it seems prudent to require the City defendants to amend their pleading to reflect clearly and completely the legal bases on which they intend to proceed against the third-party defendant and the factual allegations in support thereof. *fn4"

 Accordingly, in an accompanying Order, I will deny Alphonso Africa's Motion to Dismiss/Motion for Summary Judgment and direct the City defendants to file, within twenty days of this Memorandum, an amended complaint.


 For the reasons stated in the accompanying Memorandum, Alphonso Africa's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment, is hereby DENIED; the City defendants' shall file within twenty days of this Order an Amended Complaint.

 JUNE 12, 1989

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