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MORALES v. ZINIZ

United States District Court, E.D. Pennsylvania


May 25, 2004.

MYRNA MORALES, Plaintiff
v.
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.

I. Facts

  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.

 III. Discussion

  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.

 IV. Conclusion

  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.

  ORDER

  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 Plaintiff;
2) The Motion to Dismiss is DENIED in all other respects.
20040525

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