United States District Court, E.D. Pennsylvania
KILBRIDE INVESTMENTS LIMITED, BUSYSTORE LIMITED IN LIQUIDATION, and BERGFELD CO. LIMITED, Plaintiffs,
CUSHMAN & WAKEFIELD OF PENNSYLVANIA, INC., and COZEN O'CONNOR, P.C., Defendants, and CUSHMAN & WAKEFIELD OF PENNSYLVANIA, INC., Third Party Plaintiff,
CHAIM ZEV LEIFER, HASKEL KISH and JFK BLVD. ACQUISITION G.P., LLC, Third Party Defendants.
a fraud case in which Kilbride Investments Limited, Busystore
Limited in Liquidation, and Bergfeld Co. Limited
(collectively, “plaintiffs”), allege that
defendants, Cushman & Wakefield of Pennsylvania, Inc.
(“C&W”), Blank Rome LLP (“Blank
Rome”),  and Cozen O'Connor, P.C.
(“Cozen”), induced them into investing at least
$27 million in a real-estate development project, the River
City Property (“River City” or “the
Property”), in Philadelphia, Pennsylvania, by
fraudulently misrepresenting applicable zoning restrictions,
the feasibility of the project, and the valuation of the real
estate. Plaintiffs' Amended Complaint asserts one count
against defendant C&W-a count for fraudulent
misrepresentation-and two counts against Blank Rome and
Cozen-counts for civil conspiracy to commit fraud and aiding
and abetting fraud brought under a theory of respondeat
superior based on the conduct of Charles Naselsky, an
attorney who worked sequentially at Cozen and Blank Rome. Am.
Compl. 28-31. Naselsky is not a party to this case.
facts are set forth in detail in the Court's Memoranda
dated February 16, 2018, (Document No. 185) and April 25,
2018, (Document No. 205). The Court will not repeat the
factual history in this memorandum except as necessary to
explain its decision.
17, 2018, upon settlement of plaintiffs' claims against
Blank Rome, Blank Rome was dismissed from this action with
prejudice. C&W and Cozen remain as defendants. The Order
dismissing Blank Rome was the product of language negotiated
by counsel for all parties. (Document No. 210). Now,
plaintiffs and Cozen have entered into a Settlement Agreement
and Mutual Release (“Settlement Agreement”).
According to plaintiffs, “the language of the release
between Plaintiffs and Cozen differ[s] from that between
Plaintiffs and Blank Rome in that it does not concede joint
tortfeasor status.” Pl. Mot. 5.
before the Court is Plaintiffs' Motion to Voluntary
Dismiss Defendant Cozen O'Connor, P.C. Pursuant to Rule
41(a)(2) and For Entry of Final Judgment Pursuant to Rule
54(b) (Document No. 241, filed May 17, 2019). Plaintiffs'
motion seeks Cozen's dismissal with prejudice. Pl. Mot.
1. Cozen joined plaintiffs' motion and requests that the
Court rule as a matter of law that Cozen is not a joint
tortfeasor with C&W (Document No. 243, filed May 24,
2019). C&W responded in partial opposition to the motion
and Cozen's joinder, arguing that C&W is
“entitled to an offset for the amount of Cozen's
settlement against any verdict rendered against it”
(Document No. 244, filed June 7, 2019). C&W Partial Opp.
3. Blank Rome filed a response and plaintiffs, Cozen, and
C&W filed replies and a surreply, respectively (Document
Nos. 245, 246, 247, 252, filed on June 14, 17, & 25,
2019). Plaintiffs' motion is now ripe for decision.
of the Federal Rules of Civil Procedure governs voluntary and
involuntary dismissals. For voluntary dismissals, a plaintiff
is permitted to dismiss an opposing party either before an
answer or a summary judgment motion is served or on the
stipulation of all parties. See Fed. R. Civ. P.
41(a); Citizens Sav. Ass'n v. Franciscus, 120
F.R.D. 22, 24 (M.D. Pa. 1988). In this case, because
plaintiffs' motion to voluntarily dismiss was filed after
the completion of discovery, the “action may be
dismissed at the plaintiff's request only by court order,
on terms that the court considers proper.” Fed.R.Civ.P.
motion for voluntary dismissal under Rule 41(a)(2) lies
within the sound discretion of the district court.
Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir. 1974).
“The purpose of the grant of discretion under Rule
41(a)(2) is primarily to prevent voluntary dismissals which
unfairly affect the other side, and to permit the imposition
of curative conditions to avoid such prejudice.”
Carroll v. E-One, Inc., No. 15-0562, 2016 WL
4702145, at *2 (E.D. Pa. Sept. 8, 2016). “The courts
have adopted a ‘liberal policy' with respect to
Rule 41 motions for voluntary dismissal. Ordinarily, such
motions ‘should be allowed unless defendant will suffer
some prejudice other than the mere prospect of a second
lawsuit.'” Exeter Twp. v. Franckowiak, No.
17-2709, 2018 WL 1010626, at *2 (E.D. Pa. Feb. 22, 2018)
(quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d
829, 863 (3d Cir. 1990)).
opposes, in part, plaintiffs' motion for voluntary
dismissal, with prejudice, of defendant Cozen. Although
C&W “does not oppose Cozen's dismissal from
this action or the entry of the dismissal as a separate
judgment, ” C&W argues that it will be legally
prejudiced by Cozen's dismissal if they are precluded
from receiving a pro rata reduction of any verdict against
them based on Cozen's settlement pursuant to the
Pennsylvania Uniform Contribution Among Joint Tortfeasors Act
(“UCATA”) 42 Pa. Cons. Stat. §§
8321-27. C&W Partial Opp. 3. C&W argues
that they are entitled to UCATA's pro-rata reduction
because Cozen and C&W are “joint tortfeasors”
under the Act. Id.
and Cozen argue that Cozen cannot be considered a joint
tortfeasor with C&W because (1) Cozen, allegedly a
vicariously liable party, cannot be considered a joint
tortfeasor with C&W, allegedly a primarily liable party,
and an intentional tortfeasor; (2) even if Cozen and C&W
could be considered joint tortfeasors as a matter of law, the
evidence in this case does not support a finding of joint
tortfeasor status; and (3) C&W has waived its right to
pursue a claim of contribution against Cozen under UCATA by
failing to file a cross-claim in this action and/or by
failing to join Naselsky as a third party defendant. Pl. Mot.
8-24. The Court considers each argument in turn.
Can an Intentional Tortfeasor and a Vicariously Liable Party
be Joint Tortfeasors under UCATA?
and Cozen argue that the present issue is “novel”
because (1) C&W is allegedly an intentional tortfeasor,
and (2) C&W is allegedly a primarily liable party while
Cozen is allegedly secondarily liable under a theory of
respondeat superior. Pl. Mot. 16. The Court
concludes that neither factor bars joint tortfeasor status.
Can an Intentional Tortfeasor Seek Contribution under
defines joint tortfeasors broadly as “two or more
persons jointly or severally liable in tort for the same
injury to persons or property.” See 42 Pa.
Cons. Stat. § 8322. Although intentional tortfeasors
were not entitled to contribution at common law, a number of
recent cases have concluded that UCATA's broad language
presents no such restriction. Compare Britt v. May
Dep't Stores Co., No. 94-3112, 1994 WL 585930, at *3
(E.D. Pa. Oct. 14, 1994), with Euro Motorcars Germantown
Inc. v. Manheim Remarketing, Inc., No. 13-7614, 2015 WL
798969, at *10 (E.D. Pa. Feb. 25, 2015).
Euro Motorcars Germantown Inc. v. Manheim Remarketing
Inc., after conducting a thorough analysis of UCATA and
its interpretation in Pennsylvania courts, the court
concluded that “[g]iven [UCATA's] language and
history, . . . Pennsylvania appellate courts would . . . hold
that the contribution statute permits a contribution remedy
for intentional tortfeasors.” 2015 WL 798969, at *10.
The Euro Motorcars court based its holding, in part,
on a Pennsylvania Superior Court strict liability case,
Svetz for Svetz v. Land Tool Co., 513 A.2d 403 (Pa.
Super. Ct. 1986). In Svetz the Superior Court
determined that a strictly liable party could recover from a
negligent tortfeasor because “[t]he statutory language
does not limit the right of contribution to tortfeasors who
have been guilty of negligence. Contribution is available
whenever two or more persons are jointly or severally liable
in tort, irrespective of the theory by which tort liability
is imposed.” Euro Motorcars, 2015 WL 798969,
at *8 (citing Svetz, 513 A.2d 403).
holding in Euro Motorcars was subsequently endorsed
by Impala Platinum Holdings Ltd. v. A-1
Specialized Servs. & Supplies, Inc., No. 16-1343,
2017 WL 2840352, at *10 (E.D. Pa. June 30, 2017) (“[W]e
need look no further than the plain language of the statute,
which neither ‘expressly limit[s] its applicability to
torts based on negligence' nor in any other way
constrains the statute's reach.” (quoting
Alexander v. Hargrove, No. 93-5510, 1994 WL 444728,
at *4 (E.D. Pa. Aug. 16, 1994)). The Court agrees with the
reasoning in Euro Motorcars and concludes that
C&W's claimed status as an intentional tortfeasor is
not a bar to contribution.
Can a Primarily Liable Party Seek Contribution From a