147 A. 828 | Pa. | 1929
Lead Opinion
Argued October 1, 1929. Alleging that she had been injured by reason of a defect in a footway pavement in the City of Philadelphia, plaintiff and her husband sued the city to recover damages for the injury she had sustained. Claiming that the Act of April 10, 1929, P. L. 479, gave it the right to bring upon the record, as additional defendants, those who would be liable over to it if a recovery was had against it in that suit, the city filed two affidavits therein, one alleging that the owners of the property had failed to keep the pavement in repair, and hence were thus liable over; and the other alleging like facts and liability regarding the tenant in possession; and caused two writs of scire facias to be issued therein, one against each party. Each was duly served and entered an appearance. The court below refused to quash the writs of scire facias or to dismiss the proceedings as to either defendant, whereupon each prosecuted one of the present appeals.
The Act of 1929 is as follows:
"An Act to regulate procedure where a defendant desires to have joined as additional defendants persons whom he alleges are liable over to him, or jointly or severally liable with him, for the cause of action declared on.
"Section 1. Be it enacted, c., That any defendant, named in any action, may sue out, as of course, a writ of scire facias to bring upon the record as an additional defendant any other person alleged to be liable over to him for the cause of action declared on, or jointly or severally liable therefore with him, with the same force and effect as if such other had been originally sued, and such suit shall continue, both before and after judgment, according to equitable principles, although at common law, or under existing statutes, the plaintiff could not properly have joined all such parties as defendants."
As an owner, or tenant in possession, is primarily required to keep in repair the footway pavement in front *569
of the property owned or occupied by him, one or the other of these appellants may be liable over to the city for any recovery which may be had against it in the present suit: Phila. v. Reading Co.,
The only other objections which require consideration, are those which allege that the statute does not apply to actions of trespass, that it is prospective only, and that it violates article III, section 3, and article III, section 7, of the state Constitution. The statute says it applies to "any action," and this of course includes actions *570
of trespass. That it also says the "suit shall continue, both before and after judgment, according to equitable principles," is no more than to say that it is to proceed according to the long settled principles of Pennsylvania Jurisprudence (Laussatt on "Equity in Pennsylvania," 1st Annual Report of Penna. Bar Association, page 221; "Lawrence Lewis, Jr., on "The Courts of Pennsylvania in the 17th Century, Ibid., page 353; "Pennsylvania Jurisprudence," by HON. JOHN W. SIMONTON, Ibid., page 3; Waln v. Smith, 1 Phila. 362, per HARE, J.), the legislature evidently deeming it wise to so state, because plaintiff had no legal right to join "all such parties as defendants." Nor is the statute prospective only. It is procedural in its nature; hence "it is applied, as of course, to litigation existing at the time of its passage": Kille v. Reading Iron Works,
The act does not require that the manner in which the liability over to defendant arises, shall be set forth in the preliminary proceedings, leading up to the issuance of the scire facias, any more than this is required in the institution of an ordinary suit. It simply specifies that the original defendant shall allege that the additional defendants, sought to be added, are so liable. It will be *571 sufficient, therefore, if the original defendant files a praecipe for the writ in substantially the following form:
"(Caption of case.)
"To the Prothonotary of said Court:
"Issue a writ of scire facias in accordance with the provisions of the Act of April 10, 1929, P. L. 479, to bring upon the record, as additional defendant1 __________, whom defendant alleges is liable over to him [or jointly or severally liable with him, as the case may be] for the cause of action declared on in this case, to the extent of the whole [or a stated part, as the case may be] of the amount which may be recovered therein against him, for the reason that [here briefly state the reason why defendant claims that the additional defendant is thus liable2]. Returnable sec. reg.
*572"____________________ "Attorney for Defendant."
Upon this praecipe a writ may be issued in substantially the following form, this court having power, under section 3 of the Act of June 16, 1836, P. L. 784, 786, to devise and establish it:
"The Commonwealth of Pennsylvania,
"To the Sheriff of the County of
__________, Greeting: "Whereas, in a case pending in our Court of Common Pleas of said County of __________, as of __________ Term, No. __________, wherein __________ is plaintiff and __________ is defendant, the said plaintiff has brought suit to recover a judgment against said defendant for the cause of action set forth in the statement of claim therein, as by reference to said statement, attached to the copies of this writ, will fully and at large appear.
And whereas the defendant in said suit alleges that __________ is liable over to said defendant [or is jointly or severally liable with said defendant] for the cause of action declared on in said suit, for the whole [or a stated part] of any amount which may be recovered therein against said defendant, by reason of the fact that [here briefly set forth the reason alleged, substantially as set forth in the praecipe], and hence should be brought upon the record as additional defendant as provided by our Act of April 10, 1929, P. L. 479.
"Now, therefore, we command you that you make known to said __________ by service upon him of a copy of this writ and said statement of claim that he is required, within fifteen days after the receipt of such copies, to enter a written appearance, in person or by counsel, in the office of the prothonotary of our said Court at __________ and is also required, within said fifteen days, to file in said office an answer, under oath, admitting, or fully and specifically denying, with the reasons therefor, his liability over to said defendant [or his joint or several *573 liability with said defendant] for the whole [or a stated part] of any recovery which may be had against said defendant in said suit. And have you then and there this writ.
"Witness the Honorable __________ President Judge of our said Court, this __________ day of __________ A.D. 19__.
"____________________ "Prothonotary."
The issues raised by the scire facias and the proceedings following it, are between the two classes of defendants only, and are, in form and effect, in assumpsit (Phila. v. Reading Co.,
If, at the trial, the jury's verdict is in favor of the original defendant, they need go no further; but if they find in favor of plaintiff, they should also specify in their verdict (if there are issues then pending between the original and additional defendants), whether or not the latter, or any of them, are liable over to the original defendant, or jointly or severally liable with him, for the amount awarded to plaintiff, and the extent of such *574 liability, and the cause should thereafter proceed to final judgment as in other actions; the court having the right, however, to grant a new trial to, or to enter judgment non obstante veredicto in favor of, any one of the parties, without disturbing the other verdict in the case. Whenever the final judgment is in favor of the original defendant, the judgment against the additional defendants, if one has been entered, should be stricken off on motion; but if it is adverse to both the original and the additional defendants, plaintiff, upon receiving satisfaction from the original defendant, should mark the suit to the use of the latter, and the additional defendants will be liable to and execution may issue against them at his instance, for the proportion of the recovery adjudged to be payable by them, without any further proceedings being required to establish such liability.
In the instant case, defendant did not proceed exactly in the way hereinbefore provided, but since the additional defendants were duly served with the several writs of scire facias and have appeared to the action, by leave of court the writs may be amended and the additional defendants required to file affidavits of defense thereto, after which the case will proceed exactly as it would have done had the preliminary proceedings been conducted in the manner above set forth.
The orders of the court below are affirmed.
Concurrence Opinion
In this case, an action in trespass, I agree that the lower court should be affirmed. I am, however, not in accord with the majority opinion in holding this court is vested with authority under the provisions of the Act of June 16, 1836, P. L. 786, to prescribe, for the several courts of common pleas, rules and forms of writs for carrying into effect legislation generally and especially the Act of April 10, 1929, P. L. 479. I think section 3 of the Act of 1836 relied upon in the majority opinion is inapplicable to the present case and confers no such authority *575 upon this court, especially in view of section 21 of that act which gives to courts of common pleas "full power and authority to establish such rules for regulating the practice thereof respectively, and for expediting the determination of suits, causes and proceedings therein, as in their discretion they shall judge necessary and proper." Subsequent legislation preserves to courts of common pleas power to prescribe rules for practice and procedure, as indicated in the following late acts of assembly. The Act of May 14, 1915, P. L. 483, is entitled "an act relating to practice in the courts of common pleas in actions of assumpsit and trespass, except actions for libel and slander; prescribing the pleadings and procedure to be observed therein, and giving courts power to enforce its provisions." That act, by its terms a "Practice Act," is certainly sufficiently definite to cover this case and also in express terms repeals inconsistent legislation; further, the Act of May 24, 1878, P. L. 135, provides that courts of common pleas "shall have full power to make all necessary rules and regulations for the transaction of all business brought before them."
In view of the above legislation and the power vested in the common pleas, I would confine the opinion in this case to an affirmance of the court below, and eliminate all reference to the form of the sci. fa. and proceedings to be had under the Act of 1929, leaving the practice and procedure in cases of this character to the courts of common pleas where they properly belong. If the third section of the Act of 1836 ever did apply to questions similar to those now before us, which in my opinion is extremely doubtful, it has been superseded by more recent legislation. *576