City of Pittsburgh v. United States

• Citation: 359 F.2d 564
• Decision Date: 21 April 1966
• Docket Number: No. 15343.,15343.
• Parties: CITY OF PITTSBURGH, a Municipal Corporation v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

359 F.2d 564 (1966)

CITY OF PITTSBURGH, a Municipal Corporation v. UNITED STATES of America, Appellant.

No. 15343.

United States Court of Appeals Third Circuit.

Argued December 3, 1965.

Decided April 21, 1966.

Jack H. Weiner, U. S. Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Robert Engel, Asst. City Sol., Pittsburgh, Pa. (David Stahl, City Sol., Pittsburgh, Pa., on the brief), for appellee.

Before HASTIE, GANEY and FREEDMAN, Circuit Judges.

FREEDMAN, Circuit Judge.

The district court granted summary judgment against the United States as indemnitor in favor of the City of Pittsburgh, against whom a pedestrian had obtained a jury verdict in a tort action in the state court for the negligent maintenance of a sidewalk adjoining premises owned by the United States.

These circumstances at once present the critical problem whether a judgment obtained in a state court on a jury's verdict in a suit against the municipality is conclusive in the municipality's suit for indemnity from the property owner, where the property owner is the United States. For by the Federal Tort Claims Act Congress consented to suits against the United States for negligence with the express limitations that exclusive jurisdiction be in the district court (28 U.S.C. § 1346(b)) and that "any such action against the United States * * * shall be tried by the court without a jury * * *." (28 U.S.C. § 2402).

In the present case, a pedestrian who had fallen on the sidewalk of the Victory Building in Pittsburgh, which was owned and occupied by the United States, sued the City of Pittsburgh in the Court of Common Pleas of Allegheny County, Pennsylvania, for the recovery of damages for her injuries. The City of Pittsburgh gave notice to the United States of the suit and undertook to bring the United States upon the record as an additional defendant. The United States filed preliminary objections, in which it alleged that the courts of the Commonwealth of Pennsylvania had no jurisdiction over it. The City of Pittsburgh thereupon filed in the United States District Court for the Western District of Pennsylvania (Civil Action No. 61-352) a petition to remove the state court action. The district court denied the petition. Thereafter the Common Pleas Court sustained the preliminary objections of the United States and dropped the United States as an additional defendant, on the ground that it was immune and had not consented to the jurisdiction of the state court.

A year later the state court action between the injured pedestrian and the City of Pittsburgh was tried before a jury which returned a verdict in the amount of $1,100. on which judgment was entered on April 16, 1964. On June 3, 1964 the City of Pittsburgh paid the amount of the judgment with interest and record costs, which totaled $1,165.27, and the judgment was marked satisfied of record.

The City then brought the present action against the United States in the District Court. It recited the pedestrian's claim, the giving of due and timely notice to the United States of the date of the trial in the Court of Common Pleas after the failure of its efforts to remove the case to the district court and to join the United States as a third-party defendant in the state court, the jury's verdict, the judgment thereon, and its payment thereof. The City relied in its complaint on the Federal Tort Claims Act. The Act provides: "* * * The district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * personal injury * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." (28 U.S.C. § 1346 (b)). The City alleged that in the circumstances of this case, under Pennsylvania law a private person would be liable as an indemnitor to the City of Pittsburgh in the amount which it had paid in satisfaction of the judgment.

In its answer to the complaint the United States in effect denied negligence on its part, alleged that the pedestrian was guilty of contributory negligence, and that plaintiff, the City of Pittsburgh, failed to state a claim upon which relief could be granted.

The district court granted plaintiff's motion for summary judgment. It held that the United States as the adjoining property owner was primarily liable and therefore required to indemnify the City on the judgment which the injured party obtained against it. It held that the United States could not relitigate the questions of negligence or contributory negligence or the amount of the damages sustained by the injured pedestrian, because all these matters were concluded against the United States by the jury's verdict in the state court action. The court held that the requirement of the Federal Tort Claims Act that the liability of the United States and the amount thereof must be adjudicated by a federal court sitting without a jury was satisfied by its decision in which it directed judgment in favor of the City of Pittsburgh and against the United States by way of indemnity. City of Pittsburgh v. United States, 236 F.Supp. 809 (W.D. Pa.1965).

We believe the matter is not susceptible of so simple a solution.

Under Pennsylvania law the owner or tenant in possession of property has a primary obligation to keep the abutting sidewalk in repair, and the municipality is secondarily liable for its failure to perform its duty of policing the streets and seeing to it that the property owner performs his obligation. In cases where the injured pedestrian chose to sue the City rather than the property owner the Pennsylvania courts evolved the means by which the municipality when secondarily liable could make the judgment obtained against it conclusive on the property owner. They held that if the City, as the party secondarily liable, gave notice of the pending suit to the property owner, who was primarily liable, and thus afforded him the opportunity to participate in the defense, he would be bound by the judgment.¹ In 1929 Pennsylvania adopted its Scire Facias Act (Act of April 10, 1929, P.L. 479, (12 Purdon's Pa.Statutes Annot. § 141)), which for the first time authorized a defendant to bring on the record an additional defendant who is either alone liable or jointly liable with him to the plaintiff or liable over to him for any judgment obtained by the plaintiff.² In Vinnacombe v. Philadelphia, 297 Pa. 564, 147 A. 826 (1929), the Pennsylvania Supreme Court adapted the Act to effectuate the municipality's right of indemnity from the property owner in sidewalk cases. The court held that the City, which was defendant in a suit by a party injured by a defect in a sidewalk, could bring upon the record as additional defendants the property owner and the tenant in possession, who the City alleged had failed to keep the pavement in repair. Thereby a multiplicity of suits was avoided and the original defendant was saved from the possible harm of loss of evidence which might occur if it was compelled to await the end of the suit against it before proceeding against those who were primarily liable.³

In the present case the City gave notice to the United States in order to bind it as the primarily liable owner by the judgment which might follow in the pedestrian's suit against the City. The City then sought to invoke Pennsylvania's present third-party practice by bringing the United States in as liable over to it on any judgment which the pedestrian might obtain against it. This attempt, as we have seen, failed because the state court acknowledged its lack of jurisdiction over the United States.

Although at one time the doctrine of sovereign immunity had such vitality that a waiver of it was strictly construed (see United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)), the purpose of the Federal Tort Claims Act to permit those injured by the negligence of employees of the United States to recover damages to the same extent as if the United States were a private person expresses so strong a public policy that the statute has been deemed to be highly remedial and has received a liberal construction. United States v. Muniz, 374 U.S. 150, 165-166, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171 (1949). This overriding purpose, expressed in the statute, has provided the guide to the interpretation of the Act,⁴ and it has been applied in some circumstances where its literal language might have resulted in a restricted meaning. Thus, its language authorizes suits "on claims against the United States, for money, damages * * * for injury or loss of property, or personal injury or death * * * under circumstances where the United States, if a private person, would be liable to the claimant." Nevertheless the view has ultimately prevailed that the United States may be sued by a subrogee of the injured party,⁵ by an indemnitee who has paid the injured party's claim,⁶ and that it may be joined originally with other defendants as a joint tort-feasor,⁷ and may also be impleaded as a third-party defendant to enforce contribution against it as a joint tort-feasor.⁸ In such cases, the courts have worked out in a practical manner the requirement that an action against the United States must be determined by a federal judge without a jury. In the Yellow Cab case, supra, where the original and third-party actions were tried together by the district judge without a jury, the Government opposed the procedure on the ground that it would create problems in other cases where a...