Shapiro v. Philadelphia

• Decision Date: 03 February 1932
• Docket Number: 118
• Citation: Shapiro v. Philadelphia, 306 Pa. 216, 159 A. 29 (Pa. 1932)
• Parties: Shapiro v. Philadelphia (Appellant) et al
• Court: Pennsylvania Supreme Court

159 A. 29

306 Pa. 216

Shapiro v. Philadelphia (Appellant) et al

No. 118

Supreme Court of Pennsylvania

February 3, 1932

Argued January 14, 1932

Appeal, No. 118, Jan. T., 1932, by City of Philadelphia, from order of C.P. No. 3, Phila. Co., Sept. T., 1929, No. 12265 quashing writ of scire facias, in case of Meyer Shapiro v City of Philadelphia and Philadelphia Rapid Transit Company and Philadelphia Rapid Transit Company, additional defendant. Affirmed.

Trespass for injuries.

Rule to quash writ of sci. fa. Before FERGUSON, P.J., and MACNEILLE, J.

The opinion of the Supreme Court states the facts.

Rule absolute. City of Philadelphia appealed.

Error assigned was order, quoting record.

The order of the court below is affirmed.

Israel K. Levy, with him G. Coe Farrier, Assistant City Solicitor, and Augustus Trask Ashton, City Solicitor, for appellant. -- In an action of trespass against two defendants jointly, one of them may issue a writ of scire facias against the other under the provisions of the Additional Defendants' Act of April 10, 1929, P.L. 479, as amended, for the purpose of creating an issue between them on the question of indemnity: Stone v. Phila., 302 Pa. 340; Bailey v. Lavine, 302 Pa. 273.

A verdict in a joint suit cannot determine the question of primary responsibility: Reimel v. Trust Co., 304 Pa. 121.

The purpose of the Act of April 10, 1929, P.L. 479, was to permit the raising of an issue between the two defendants in this case by scire facias proceedings, although the additional defendant may already be a party defendant: Eddystone Boro. School Dist. v. Lewis, 101 Pa.Super. 583; Vinnacombe v. Phila., 297 Pa. 564.

The pendency of a joint suit against two defendants should not bar the issuance of a writ of scire facias by one defendant against the other: Phila. v. Reading Co., 295 Pa. 183.

The writ of scire facias in the instant case was sued out on June 3, 1931, and the Act of 1931 went into effect on September 1, 1931. The question, therefore, arises: What effect, if any, has this amending act upon pending litigation? It is undoubtedly procedural in its nature, and hence "it is applied, as of course, to litigation existing at the time of its passage": Vinnacombe v. Phila., 297 Pa. 564; Bailey v. Lavine, 302 Pa. 273.

Chester N. Farr, Jr., with him Bernard J. O'Connell, for appellee. -- This court has already defined the meaning of the term "additional defendants" in the Sci. Fa. Act in the case of First Nat. Bank of Pittsburgh v. Baird, 300 Pa. 92, 97.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.

OPINION

MR. JUSTICE SIMPSON:

This is a suit against the City of Philadelphia and the Philadelphia Rapid Transit Company, to recover damages for the alleged joint negligence of the two defendants. After both defendants appeared to the action, the city issued a scire facias under the Act of April 10, 1929, P.L. 479, to bring the transit company upon the record as an "additional defendant." The court below quashed the writ, because it could not understand how one who was already a defendant could be an "additional defendant," or "third party," as we defined those words in First Nat. Bank of Pittsburgh v. Baird, 300 Pa. 92, 97. The manifest purpose of the act is to enable defendants who have been sued, to bring upon the record as "additional defendants" those not already there, who are alleged to be liable to those who are; the procedure in establishing this liability is not specified in the statute, but is wisely left to be worked out by the judiciary. In doing this, however, we cannot so extend the language of the act as to make one an "additional defendant," who is not and cannot be "additional" to the defendants already there. As the only complaint made against the court below is that it refused to permit this impossible thing, we must, of course, affirm its order.

Nor can we see any of the dire calamities which counsel for the city fear will result from an affirmance of the order. We said in First Nat. Bank of Pittsburgh v. Baird, 300 Pa. 92, 101, when speaking of this statute: "In all civil litigation, the trial courts, at least to the extent that they are not inhibited by statute, have the power to control the procedure so as to attain 'justice without sale, denial or delay.' It may be said, generally speaking, that, in the absence of applicable legislation, this control is limited only by the constitutional requirements of the right of trial by jury, and the litigant's right to a full and fair hearing before judgment is entered against him." We also said in Vinnacombe v. Phila., 297 Pa. 564, 569: "The act is a remedial one. Its purpose is to avoid a multiplicity of suits. . . . Hence the statute is to be liberally construed to advance the legislative purpose." It follows that if the situation which arises in a given case is not within the strict letter of the act, but is within its spirit and intention, the court should so direct the procedure that the legislative purpose may be enforced, so far as this can properly be done. If this rule is applied to the instant case, all or nearly all of appellant's imagined difficulties will wholly disappear.

It is true that plaintiff may attempt to discontinue the action so far as concerns the transit company, but, if he does, it will be the duty of the court below, if moved thereto by the city to do one of two things: either to strike off the discontinuance, or to give the city a sufficient time to issue a scire facias under the Act of 1929, supra, against the transit company, which will then be an "additional defendant," and to put the case at issue under that statute. This is required because otherwise the...