JENKINS v. AMERICAN DREDGING CO., 406 Pa. 145 (1962)

177 A.2d 451

Supreme Court of Pennsylvania.November 28, 1961.
January 2, 1962.

Practice — Parties — Defendants — Additional defendants — Joinder — Defendant secondarily liable — Pa. R.C.P. 2252.

Under Pa. R.C.P. 2252(a), in an action of trespass a defendant who is primarily liable for the plaintiff’s injuries cannot join as an additional defendant one who is secondarily liable.

Before BELL, C. J., JONES, COHEN, EAGEN and ALPERN, JJ.

Appeal, No. 499, Jan. T., 1961, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1960, No. 208, in case of John Jenkins et al. v. American Dredging Company, William Dentino and City of Philadelphia. Order affirmed.

Trespass for personal injuries.

Order entered sustaining additional defendant’s preliminary objection to defendant’s complaint and dismissing defendant’s complaint against additional defendant, opinion by SPORKIN, J. Defendant appealed.

Perry S. Bechtle, with him Thomas E. Comber, Jr., John J. Runzer, and Pepper, Hamilton Scheetz, for appellant.

James L. Stern, Deputy City Solicitor, with him John M. McNally, Jr., Assistant City Solicitor, Levy

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Anderson, First Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellee.

OPINION BY MR. JUSTICE COHEN, January 2, 1962:

The lower court here properly sustained the preliminary objections by the defendant-appellee, City of Philadelphia (City), to the complaint of the defendant-appellant, American Dredging Company (Company), wherein the Company seeks to join the City as an additional defendant.[1]

The City contends that the Company is primarily liable for the plaintiffs’ injuries and, therefore, cannot join the City as an additional defendant since it is, at most, secondarily liable.

Under Pa. R.C.P. 2252(a), the defendant may join a party as an additional defendant only if the party he seeks to join is alone liable to the plaintiff, is liable over to the defendant, or is jointly or severally liable with the defendant.

The lower court’s determination, based on the relationship of the parties as herein established by the pleadings, that the City’s liability is secondary to that of the Company is correct,[2] and the latter cannot join

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the City as an additional defendant under Rule 2252.[3]

We wish to point out, however, the decision here governs only the right of joinder in the present case, and does not determine the propriety of a possible future action by the appellant for contribution. If new facts appear that indicate that the City is not secondarily liable but is in pari delicto, i.e., a joint tort-feasor, the appellant can adequately preserve its rights by an action for contribution against the City. The distinctions between the right of indemnity existing between parties having differing degrees of liability, and the right of contribution existing between joint tortfeasors were succinctly set forth by former Chief Justice HORACE STERN i Builders Supply Company v. McCabe, 366 Pa. 322, 77 A.2d 368
(1951). We consider it unnecessary to elaborate upon that discussion.

Order affirmed.