Clineff v. Rubash

• Decision Date: 26 February 1937
• Docket Number: 415-1936
• Citation: 126 Pa.Super. 82,190 A. 543
• Parties: Clineff v. Rubash et al. (Goldsmith, Appellant)
• Court: Pennsylvania Superior Court

190 A. 543

126 Pa.Super. 82

Clineff v. Rubash et al. (Goldsmith, Appellant)

No. 415-1936

Superior Court of Pennsylvania

February 26, 1937

Argued December 10, 1936

Appeal from order of C. P. Delaware Co., June T., 1935, No. 1003, in case of Agnes Clineff v. Stephen Rubash et al. and Margaret Cameron Goldsmith, additional defendant.

Trespass.

The facts are stated in the opinion of the Superior Court.

Writ of scire facias issued to join additional defendant. Judgment entered against additional defendant for want of an appearance. Verdict and judgment entered in favor of plaintiff and against defendant. Motion by additional defendant to quash writ of scire facias dismissed, opinion by Broomall, J. Additional defendant appealed.

Error assigned was decree dismissing motion to quash writ of scire facias.

Order refusing to quash writ affirmed but default judgment directed to be stricken off.

R. Paul Lessy, with him John R. K. Scott and William T. Connor, for appellant.

Paul Lane Ives, with him J. Borton Weeks, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Parker, J.

This appeal involves questions of procedure arising under the Act of April 10, 1929, providing for a writ of scire facias to bring additional defendants upon the record.

Agnes Clineff, who was a passenger in an automobile driven by Margaret Cameron Goldsmith, brought an action in trespass against Nicholas Rubash and Stephen Rubash, the driver of another automobile, to recover damages for injuries suffered as a result of a collision between the two cars alleged to have resulted from the negligence of the defendants. Stephen Rubash appeared to the action and filed a praecipe for a scire facias to bring Margaret Cameron Goldsmith, a nonresident of Pennsylvania, upon the record. The scire facias was issued and served.

On January 7, 1936, the prothonotary, on the praecipe of the attorney for the two original defendants directed to that officer, entered a judgment by default against Margaret Goldsmith, the additional defendant, for want of an appearance. On February 2, 1936, a jury was called and sworn as to the original defendants and also as to the additional defendant. Plaintiff objected to the jury being sworn as to Margaret Goldsmith. The lower court, in an opinion filed, stated that as judgment had been entered against the additional defendant for want of an appearance the question of her liability was not submitted to the jury. The court directed a nonsuit as to the defendant Nicholas Rubash and he disappears from the controversy. The jury found a verdict for plaintiff against the defendant Stephen Rubash but failed to render any verdict with respect to the issue between plaintiff and Margaret Goldsmith or between the original defendants and the additional defendant.

On February 7, 1936, Margaret Goldsmith appeared de bene esse and moved to quash the writ of scire facias. On February 10 1936, judgment was entered on the verdict. The same day the judgment was paid by Stephen Rubash and marked to the use of Stephen Rubash. On June 26, 1936, the court below entered an order refusing to quash the writ of scire facias.

The appellant attacks the writ on the ground of duplicity. The praecipe alleged that Margaret Goldsmith "is alone liable or is liable over to the 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." This was followed by a statement of the reasons for such liability set forth in ten paragraphs, consisting of a detailed account of the facts surrounding the collision of the two cars from the viewpoint of original defendant. The writ of scire facias recited the allegations contained in the praecipe.

We are of the opinion that the appellant is not entitled to have the writ quashed on the ground of duplicity. The Act of April 10, 1929, P. L. 479, authorized the bringing into the action of an additional defendant, alleged by the original defendant to be liable over to him for the cause of action declared on, or jointly or severally liable therefor with him, and by amendment of June 22, 1931, P. L. 663, § 2 (also amended by Act of May 18, 1933, P. L. 807; 12 PS 141), there was added to the class that might be brought in those alleged by original defendant to be alone liable. These amendments also provided that plaintiff might in the same action have a verdict against the added defendant whether liable alone or jointly with original defendant. Speaking of this legislation, Mr. Justice Maxey, in Majewski v. Lempka, 321 Pa. 369, 374, 183 A. 777, said: "The legislation is remedial and is intended to avoid multiplicity of suits. The original defendant is given the opportunity of bringing in other interested parties to the end that their liability, if any, may be determined at the same time the original defendant's liability is adjudicated."

This legislation, intended to avoid a multiplicity of suits, necessarily gives rise to situations where not only may there be presented to one jury an issue between plaintiff and defendants and also an issue between the respective defendants, but the jury may be required to determine whether the liability of the respective defendants to the plaintiff is sole or joint and several. Defendants are entitled not only to have determined their respective liability to the plaintiff, but also to have an adjudication as to whether either is solely liable or whether they are jointly liable. This is a necessary result of the creation of a new issue or issues in addition to that made by the original pleadings. The situation we meet here is the result of the fact that the claims of plaintiff and each of the defendants are each contrary to the others.

It would defeat the primary purpose of this legislation to apply the strict rules of common law pleading. The statute expressly provides that the practice shall be in accord with equitable principles rather than according to the common law, "that is, it must be just and fair from the standpoint of equity and good conscience": First Nat. Bank v. Baird, 300 Pa. 92, 102, 150 A. 165. We have a concrete illustration of such construction in the Majewski case cited above. There it was alleged in the scire facias that the added defendant was solely liable to plaintiff, but it was held that a verdict holding the original and added defendants jointly liable to plaintiff was proper. In that case the conflict arose by reason of the divergent viewpoints of plaintiff and each defendant. Consequently we see no objection to an averment in the pleading in the alternative where it is intended to meet a situation created by the difference in the claims of the plaintiff as to the defendants and the defendants as to each other. In other words, we do no more than approve a pleading which will meet a situation which can not be predicted when the pleading is filed. We are of the opinion that the practice adopted in the case we are considering was not only permissible but proper. The original defendant was not required to expose himself to the hazard of a jury's finding contrary to his own claim. See Yellow Cab Co., v. Graham, 61 F.2d 666.

The appellant relied largely upon a statement in a per curiam opinion of the Supreme Court in Bowers v. Gladstein, 317 Pa. 520, 178 A. 44. A quashing of the writ in that case was sustained primarily for the reason that the Act of June 24, 1895, P. L. 236, required suits for injury done to the person not resulting in death...