United States District Court, E.D. Pennsylvania
May 25, 2004.
MYRNA MORALES, Plaintiff
ZINIZ, INCORPORATED, and ALLSTATE CONVEYOR SERVICE, INCORPORATED v. UINICCO SERVICE COMPANY
The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge
MEMORANDUM AND ORDER
Plaintiff Myrna Morales ("Plaintiff) filed this tort action against
Defendants Ziniz, Incorporated, ("Ziniz") and Allstate Conveyor Service
("Allstate") in the Philadelphia County Court of Common Pleas.
Subsequently, Allstate removed the case to federal court and filed a
Third Party Complaint against Unicco Service Company ("Unicco"),
incorrectly captioned as Uinicco Service Company. Before us now is
Unicco's Motion to Dismiss the complaint against it for failure to set
forth a valid cause of action. For the reasons stated below, we grant the
Motion in part and deny it in part.
Plaintiff was employed by Federal Express as a materials handler in a
warehouse in Bethlehem, PA. On or about December 20, 2001, Plaintiff was
injured when her hand became caught in the "pinch point" of the conveyor
system at the warehouse. The conveyor system was manufactured by Ziniz
and installed at the warehouse by Allstate. Unicco was responsible for maintaining the conveyor system.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a
claim in whole or in part "for failure to state a claim upon which relief
can be granted." In reviewing a motion to dismiss under Rule 12(b)(6),
the court must accept as true all the allegations set forth by the
non-moving party and must draw all reasonable inferences in favor
thereof. See Ford v. Schering-Plough Corp., 145 F.3d 601, 604
(3d Cir. 1998). Dismissal is proper only if the non-moving party can
prove no set of facts in support of her claims which would entitle them
to relief. Id.
Unicco argues first in its Motion to Dismiss that Allstate has
improperly attempted to implead it on the grounds that Unicco "is solely
liable to the Plaintiff." (Third-Party Complaint at ¶ 9.) Under
Federal Rule of Civil Procedure 14, "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 the third-party
plaintiff for all or part of the plaintiff's claim against the
third-party plaintiff." However, a third-party plaintiff may not implead
a third-party defendant who is or may be liable solely to the plaintiff.
See Millard v. Municipal Sewer Auth., 442 F.2d 539, 541 (3d
Cir. 1971). Allstate concedes this point in its reply memorandum. The
Motion to Dismiss is therefore granted in this regard and the language is
stricken from Allstate's complaint.
Next Unicco argues that it cannot be held strictly liable to Allstate
because it was not the manufacturer, and therefore not the guarantor, of
the conveyor system. See Salvador v. Atlantic Steel Boiler Co.,
457 Pa. 24, 32, 319 A.2d 903, 907 (1974). In addressing the issue of
strict liability, Unicco treats Allstate's complaint as derivative of
Plaintiff's complaint, which seeks recovery under the theories of strict
liability, negligence and breach of warranty. However, Allstate does not allege that Unicco is liable under a theory of
strict liability. Rather, it alleges only that "said injuries were due
solely to the negligence and carelessness of Additional Defendant,
Uinicco [sic.] Service Company." (All State Conveyor Service, Inc.'s,
Third-Party Compl. at ¶ 7.) Courts have held that a third-party
complaint need not allege the same theories of liability as the initial
complaint. See Wanta v. Powers, 478 F. Supp. 990, 993 (M.D.
Pa. 1979); Judd v. General Motors Corp., 65 F.R.D. 612, 614 (M.D.
Pa. 1974). Because Allstate does not allege that Unicco is strictly
liable for Plaintiff's injuries, and we need not find that it has by
virtue of the original complaint, we deny Unicco's Motion to Dismiss in
this regard as moot. Similarly, we need not address Unicco's argument
that it cannot be liable under a theory of breach of warranty because
Allstate does not make this allegation in its third-party complaint.
We consider now Unicco's argument that Allstate's negligence claim must
be dismissed on the grounds that Plaintiff does not allege that her
injuries were caused by improper maintenance of the conveyor system. As
stated above, a third-party complaint need not allege theories of
liability identical to those of the Plaintiff's complaint. Thus, in spite
of the fact that Plaintiff did not allege that negligent maintenance of
the conveyor belt was the cause of her injury, it is permissible for
Allstate to pursue that theory. Furthermore, we reject Unicco's argument
that it cannot be found negligent because it did not owe a duty to
Plaintiff or Allstate. As the party responsible for the maintenance of
the conveyor system, Unicco had a duty of reasonable care to third
parties who would come into contact with the conveyor system, such as the
Plaintiff. See Kirschbaum v. WRGSB, 243 F.3d 145, 154 (3d Cir.
2000). In the context of impleader, where the liability of the
third-party defendant may be dependant on the liability of the original
defendant to the plaintiff, whether the third-party defendant also owed a
duty to the third-party plaintiff would seem to be irrelevant. See United
Steel Workers of Am. v. Wean United, Inc., 101 F.R.D. 408 (W.D.
Pa. 1983). Thus we deny Unicco's Motion to Dismiss Allstate's negligence
claims against it.
Unicco's Motion to Dismiss is granted in part and denied in part. The
Motion is granted as to Allstate's allegation that Unicco is solely
liable to Plaintiff and the allegation is accordingly stricken from
Allstate's third-party complaint. However, Unicco's Motion to Dismiss as
to the theories of strict liability and breach of warranty is denied as
moot because Allstate has not alleged these theories in its complaint
against Unicco. Additionally, Unicco's Motion to Dismiss Allstate's
third-party negligence claims against it is denied because a third-party
plaintiff need not allege claims and theories identical to those alleged
by Plaintiff. Furthermore, we reject Unicco's argument that it cannot be
liable here because it did owe a duty of reasonable care to Plaintiff. An
appropriate order will follow.
AND NOW, this 25th day of May, 2004, upon consideration
of Third-Party Defendant Unicco Service Company's Motion to Dismiss
Defendant and Third-Party Plaintiff Allstate Conveyor Service,
Incorporated's Third-Party Complaint Against Unicco Service Company, and
Memorandum of Law in support thereof, filed on May 6, 2004; and Response
of Defendant Allstate Conveyor Service, Incorporated, to Motion to
Dismiss of Third-Party Defendant, Unicco Service Company, filed on May
20, 2004, it is hereby ORDERED that the Motion to Dismiss is granted in
part and denied in part as follows:
1) The Motion to Dismiss is granted as to the
allegations that Unicco is solely liable to
2) The Motion to Dismiss is DENIED in all other
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