*1 evidence upon exists sufficient It that there is apparent finding publication a could base which a of constitutionally pro- the bounds beyond extends question to support is therefore sufficient journalism, tected or reckless falsehood. knowing finding the court below was summary judgment This trial. order the matter to I reverse and would improper. PRICE, J., in this join JACOBS, Judge, President opinion.
HEYL & INC.
v. Eichleay COMPANY, Corporation and JOHN HARRISON Sargent Company. Electric COMPANY, Pennsylvania JOHN HARRISON Appellant, Corporation, v. PATTERSON, INC., Corporation
HEYL &
v. Sargent Company. Electric EICHLEAY CORPORATION and Pennsylvania. Superior Court of 14, 1977. Nov. Submitted Dec. 1978. Decided *2 Wood, at A. No. 537. Pittsburgh, appellant James nor brief for appellant No submitted appearance at No. 537. appellee at No. and S, at No. 552. Grigsby, Pittsburgh, appellee, Robert JACOBS, WATKINS, President Judge, Before HOFFMAN, CERCONE, PRICE, VAN der VOORT SPAETH, JJ. VOORT, Judge:
VAN der a fairly complicated The instant case involves factual *3 as Two have appeals as well a one. procedural situation review, however, both their been consolidated for our have of by case initiated the wife and administratrix origins in a who killed in the the of Lewis M. Webb while estate Electric As as Sargent Company. briefly of the employ facts the of history without omission salient possible the are as follows: appeals to its Light Company
The an effort Duquesne improve a contract with the Webster operations entered into Stone & Stone) (hereinafter referred as Engineering Company agent its for the was to act as construction Stone whereby at unloading barges of a for coal from a location facility as Acting Duquesne Light’s known the Cheswick Plant. as Patterson, contract & agent Heyl entered into a with Stone Inc., as Heyl) whereby Heyl agreed referred to (hereinafter the in turn facility. Heyl the undertake construction with subcontractors for the into various agreements materials, and labor. One of purposes supplies, of obtaining (herein- the the John Harrison Company subcontractors was and Harrison) to as which was to construct after referred be on a crane high sell a which was to situated cabin barge docking unloading the facilities and overlooking Eichleay Corpora- also contracted with the equipment. (hereinafter tion referred to as to erect certain Eichleay) the equipment Sargent in and about the cabin and with (hereinafter Sargent) Electric referred to as to do Company the the cabin. M. wiring of Lewis Webb was an employee and in the course of duties Sargent company his cabin. working agreement Pursuant between Heyl and Harrison and in with the for keeping specifications job Stone, which were approved adopted and Harri- by son was to installed have inch one-quarter plywood covering Instead, all openings in the cabin. Harrison installed one- cabin, eighth inch While pressboard. working Webb went an through opening falling considerable distance to a coal barge beneath the cabin. He was dead pronounced at the scene by physician. 3, 1970,
On April Elsie M. Webb filed an in trespass action against and arising Harrison out of Eichleay damages the death of her husband. filed complaint join Harrison and Heyl, Sargent Stone as additional defendants. Sargent filed its answer and new In its subsequently matter. new matter Sargent asserted the affirmative defense of an em- ployer whose is liability limited Work- Pennsylvania men’s Compensation law. filed its and answer new matter wherein it denied liability set forth affirmative- matter, ly, under new the defense statutory employer well as other defenses against respective The parties. Harrison, affirmative defenses Eichleay Sargent averred parties agreed that each these to indemnify Heyl any liability have to the and/or may plaintiff *4 parties other to the answer proceeding. By reply to the and new matter of denied indemnifi- Heyl, Sargent liability for cation to reply filed its to answer and Heyl. Eichleay Heyl’s new matter wherein that Heyl it denied was entitled to and either or indemnification that it was jointly severally liable to person. nothing with other There is any disclose to replied record to that Harrison ever Heyl’s new Heyl’s matter and the averments of new consequently matter must as as affects Harrison be taken correct. but trial and judge jury, went to before
The Webb case were conducted negotiations settlement prior conclusion judge. of the trial with the assistance between all counsel was entered negotiations agreement an a result of these As Eichleay Harrison and and defendants into between plaintiff and Pursuant Stone. Sargent additional defendants and $30,000,Eichleay was to contribute Harrison agreement $15,000 was to contribute and Stone to contribute claim for and future $15,000. past waived Sargent the Workmen’s paid who party interest as subrogation was aware paid no but money, benefits. Compensation did not to the object settlement and negotiations it which also termi- against the proceedings termination Harrison, Ei- for indemnification nated its claim petition approval Plaintiff filed a Sargent. chleay resulted in an order eventually which the settlement 17, 1972 1972, the order of amending July dated October follows: as 1972, the within to-wit, July 17th NOW, day this
AND hereby is ordered presented, been having petition Webb, Administratrix of the Estate Elsie M. decreed that Webb, deceased, hereby and is authorized be of Lewis M. captioned the within case. and settle to execute releases below, firm of the retained law set forth Upon payment as & will see distri- McArdle, McVay Paletta McLaughlin, bution follows: McArdle, McLaughlin, McVay
To Paletta & y¡% $20,000 Counsel Fees the Survival Act Under M. for reimbursement of To Elsie Webb 3,000 expenses $ funeral Wrongful Death Act Under the Webb, surviving wife To Elsie M. $20,000 Wrongful Act Death under appointed for the To a Guardian be Webb, minor, and the of Malinda Estate Wrongful daughter dependent under the $17,000 Act Death $60,000 Total
By the Court Judge *5 9, 1972, November Harrison filed a complaint against On counts; which contained two the first for indemnifica- Heyl tion and the second for contribution. Harrison subsequently claim sought abandoned its for indemnification and contri- $15,000 Heyl; bution in the amount of from one-half amount Harrison in settlement of the Webb paid by case. filed an answer Heyl denying liability its for contribution and asserted under new matter that Harrison abandoned its claim when it to settle with the voluntarily agreed Webb Heyl estate. also asserted Harrison abandoned its claim when it negotiations entered into the being apprised of the claims and the respective potential liabilities of the parties and that as a statutory employer discharged it was from any liability payments (Sar- because of made employer gent) of Webb. Heyl also filed a complaint join as additional defendants and Eichleay Sargent on the theory that both are liable to it and for contribution as a indemnify joint tortfeasor. 2, 1973, January
On commenced an action in Stone tres- pass assumpsit against and Heyl alleging count one that Heyl by agreement written that it promised would hold against Stone harmless and all any liabilities and it would be absolutely responsible arising all liabilities out of any accidents. It was also agreed that would defend Heyl brought suit upon Stone notice to defend such timely a suit. The second count of the complaint Stone was in trespass and that alleged Heyl negligent and that negligence because this as well as the conduct of Stone was under a Heyl duty it. filed a indemnify join Harrison, complaint Sargent and as addi- Eichleay tional defendants therein that alleging entitled to indemnification in accordance agreement with a contractual and/or event it was held liable on the grounds negligence that would be entitled to contribution from as joint defendants tortfeasors. answer to Heyl’s Stone’s complaint it denied in new liability raised matter affirmative defense of waiver right of contribution by Stone because Stone failed to assert it as a claim in the settlement, case, Stone consented Stone
Webb *6 defenses such statutory employer. certain failed to assert filed the appropriate pleadings defendants The additional the cases of and Stone were Hey-1 petition by and on was the plaintiffs A selected and consolidated for trial. of the Upon completion cases. respective their presented granted motions the court entertained cases plaintiffs’ The plaintiffs the two cases. compulsory for non-suit which compulsory to non-suits filed motions remove the court and this followed. appeal were denied by motions of its that the motion opinion The below stated in court First, that Harrison reasons. was denied for two Harrison it as well as evidence to show that produce any failed to proxi- joint negligence whose Heyl were tortfeasors Secondly, of Lewis M. Webb. that mate cause of the death into in the Webb case by Harrison the settlement be- asserting against Heyl from a claim estopped Harrison to the instant lawsuit were parties parties all to the cause were respective positions wherein the claims and Webb suit for removal of the respect With to the motion presented. Stone, three the lower court cited compulsory non-suit First, produce any Stone failed to denying it. reasons joint were tortfeasors whose and Heyl evidence that Stone cause of the death of Webb. negligence proximate was the was not entitled to indemnification Secondly, Stone produce contract with inasmuch as failed to under its obligated that it was under the law evidence establish its was that payment to Webb and therefore payment make settlement lastly, voluntary a volunteer. And Stone’s now asserting it from claim estopped the claim of Webb Heyl. against consider whether or not
Initially, appellants we must an action for contribution prevented initiating are from where all parties a settlement in suit entering after into The lower parties original to the suit. the instant suit were of the the case opinion it was that court stated Overbrook, Inc. v. in Barson’s and our decision by controlled 467 (1974). 324 A.2d Pa.Super. Corp., Arce Sales Barson’s, defendant, original Barson’s, two joined addi defendants, fish, suppliers tional in suit smoked institut ed several people eating who became ill after at fish Barson’s restaurant. A negotiated settlement was between plaintiffs and the three defendants. Following negotiations each defendant contributed funds settle the case. Barson’s did not reserve any rights proceed against the two additional defendants at the time of the settlement. Subsequent settle, to the of the orders to entry discontinue suit, and end the Barson’s instituted suit the two additional defendants contribution indemnification. On an appeal granting from order a motion by defendants for judgment on the we held that the pleadings, issues *7 of the liability respective parties had been previously litigat the ed and settlement acted as a bar to any proceed further case, In the of ings. great instant deal the in proceeding the lower court concerned the into reading the record of the of testimony certain witnesses who in the appeared original law Webb suit. This testimony introduced by the appellants to establish the the liability parties. of respective This was in necessary order of the bring parties all the instant appeal within the of the purview Uniform Contribu among Therefore, tion Tortfeasors Act. it is apparent the relative parties liabilities of the had been settled i. previous litigation, e. the Webb law suit. In being consist decisions, ent with our earlier we hold that appellants are estopped raising from a claim for contribution the pro decision, below. ceeding support In further of its the lower court held that the of the granting non-suits compulsory proper because failed to make appellants prima out a facie case Heyl’s liability.
The law governing granting a non-suit has been well settled in Pennsylvania for some time. Paul v. Brothers, Inc., 92, Hess 226 Pa.Super. 94-95, 65, 312 A.2d 66 (1973) we stated: appeal
On from a compulsory nonsuit the plaintiff must be given the benefit of every fact and every reasonable inference of evidence, fact from the arising whether direct
158 circumstantial, conflicts and all must be resolved
or
543,
Ferrebee,
v.
366 Pa.
79
McDonald
favor.
plaintiff’s
may be entered
compulsory
A
nonsuit
(1951).
A.2d 232
where the facts and circumstances lead
in a clear case
only
v.
Briggs,
conclusion. McNett
but one
unerringly
(1970).
322,
To justify complete there is a of his case that plaintiff’s statement maintain the action. sufficient to legally absence evidence case, then it is the prima facie presents If the plaintiff pass credibility per- on function of Fady evidence. v. Danielson plaintiff’s suasiveness of the 33, (1973). In- Construction, 224 302 A.2d Pa.Super. whether or question we confronted with the stantly, are presented support- facie cases appellants prima not the have claims for contribution. ing respective their Penn has been codified in right The of contribution Joint Tort among Contribution sylvania under Uniform 2083, 1130, 2, 12 Act, 1951, P.L. P.S. July feasors § § where it states: joint tort- among of contribution- exists
(1) right The feasors; a money tortfeasor is not entitled to (2) joint A he has dis- by payment for contribution until judgment his paid or has more than liability the common charged thereof; (3) joint A tortfeasor who enters rata pro share *8 is entitled to injured person with the not into a settlement joint tortfeasor whose from another recover contribution extinguished by is not the injured person to the liability settlement. “two or joint tortfeasors as: 2082 of the Act defines
Section in the same severally or liable tort for persons jointly more has judgment whether or not or persons property, to injury Therefore, in of them.” all or some been recovered for to recover on a claim contribu- appellant either order for. jointly establish that necessary appellee it is that it tion the death of Lewis Webb. The liable in tort for severally or the burden neither met appellant lower concluded that court liability the of Heyl. of proof establishing a review the thorough After record and tran below, court we script agree from the must that the appel produce failed evidence to lants to sufficient indicate Heyl’s presented The evidence established that one- liability. eighth-inch was installed in the cabin constructed pressboard by Sargent rather as one-quarter-inch plywood than re contract, the However, under the which quired contract. evidence, glass was introduced into stated that was not to be installed in the cabin time of delivery, at the but instead one-quarter-inch plywood was to be installed covering all “protection for openings during against weather shipment testimony and vandalism.” There was no that whatsoever of pressboard the substitution had causal plywood Furthermore, connection with the death of Lewis Webb. there was a that complete lack evidence negli manner so gent as have caused the proximately death of Webb. Although was proffered by appellants provide that had of the duty employees respective companies safe conditions, with working ap Stone, pellants, both Harrison and failed to establish that Heyl did not provide proper conditions. It is within the province of a to draw reasonable inferences from the evidence, however, McNett v. Briggs, supra; it is clearly error to allow them to at guess an element as essential causal connection in a negligence case. This is exactly what appellants would have had jurors had do the cases been presented them their deliberation.
On the basis we foregoing opinion affirm order of the lower appellants’ court denying motions to remove the compulsory non-suit. J.,
SPAETH, filed a concurring opinion. WATKINS, former HOFFMAN, J., President Judge, participate did not or the consideration decision of this case.
SPAETH, Judge, concurring: I agree with the that appellants failed make majority prima facie showing appellee’s acts or omissions con *9 death, and that were there they Webb’s
tributed to Lewis the from under appellee to contribution not entitled fore However, Act.* Tortfeasors Among Contribution Uniform and Web dispose does not Stone majority’s holding the contractual claim Corporation’s ster Engineering that under appeal trial and on argued at Stone appellee. with appel in its contract contained indemnity provision payments it for lee, indemnify any obliged appellee negli of its own on account made to Webb’s administratrix contractor or general as negligence appellee or the gence, Therefore, to determine order any subcontractor. properly nonsuit was compulsory whether claim, this we must consider regards against Stone finding to. a- support whether the evidence was sufficient Stone, contractor, the general that the either negligence death. subcontractor contributed Webb’s or follows. at trial on this issue are as The facts adduced contractor on a construc- general hired as the appellee Stone from the “operator’s ordered an cab” Appellee tion project. The order form for the Company. purchase John Harrison plywood that Harrison was to install “Vi" thick specified cab during cab for openings protection shipment over all to the Harrison, however, and vandalism.” against weather the cab was erect- Eventually, instead. pressboard used Vis" Webb, site, an ed at the construction and Lewis on crane cab, through fell working electrician who was Webb’s covering openings one of the the cab. pressboard not present that the did pressboard co-workers testified workers, workers, and that all the includ- peril hidden to the Webb, pressure. it would not withstand much ing knew that testified that in his belief Project Safety Engineer Stone’s Moreover, safety regulations. had with all complied Stone Engineer had been in the though Project Safety even accident, and at that time had cab before only days pressboard plywood, to note the substitution of failed that he should have testimony indicating there was no deed, no testimony there was known of substitution. * 1951, 1130, 2, July 2083. § P.L. P.S. § Act
161 of would pressboard the installation instead of plywood that accident, existed on duty or that there prevented have cab securely to close the part openings anyone’s workers. safety of not that could have I do believe on these facts negligence that death was caused found Webb’s with construction The substi- project. connected anyone may have been breach pressboard by tution Harrison that prove with but Stone failed appellee; its contract and that this negligence, negligence this breach constituted addition, not death. Stone did show caused Webb’s regards its worker it or breached appellee duty either on proper nonsuit therefore Stone’s safety. Compulsory indemnity contractual claim. I compulsory proper,
Because I believe that nonsuit not whether were under appellants estopped have considered Overbrook, Arce Corp., Inc. v. 227 Pa.Su- Barson’s Sales 309, (1974). A.2d 467 per. A.2d 1365 Pennsylvania v.
COMMONWEALTH Terry RUSSELL, Appellant.
Superior Pennsylvania. Court 14,
Argued April 1978.
Decided Dec. 1978.