Sirianni v. Nugent Bros., Inc.

Decision Date19 March 1986
Citation506 A.2d 868,509 Pa. 564
PartiesRichard V. SIRIANNI, Individually and as Administrator of the Estates of Nancy Landis Sirianni a/k/a, Nancy L. Sirianni and Baby Boy Sirianni, a/k/a Luca Landis Sirianni, v. NUGENT BROS., INC. City of Philadelphia and Paul Rimmeir and Carmen Fichera. Appeal of CITY OF PHILADELPHIA.
CourtPennsylvania Supreme Court

Joseph R. Livesey, Philadelphia, for Nugent Bros., Inc.

Stephen R. Bolden, Philadelphia, for Sirianni.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

This appeal is from an order of the Superior Court affirming an order of the Court of Common Pleas of Philadelphia which denied a request for indemnity made by the appellant.

This case arose out of an accident which occurred on August 11, 1977. On that day, an employee of Nugent Brothers, acting pursuant to a demolition contract entered into between the City of Philadelphia and Nugent Brothers, Inc., caused a brick wall to crash into the home of Mr. & Mrs. Richard V. Sirianni. The accident took the life of Nancy Sirianni and her unborn child, and decimated the life of the survivor, Richard V. Sirianni.

As a result of this tragic accident Mr. Sirianni instituted suit against Nugent Brothers, Inc., as the contractor; Paul Rimmeir as the owner of the premises from which the brick wall fell; Carmen Fichera as the nominal tenant of the premises from which the brick wall fell; and the City of Philadelphia, who was responsible for hiring Nugent Brothers to perform the demolition. The case was tried before a jury panel, presided over by the Honorable Lawrence Prattis of the Court of Common Pleas of Philadelphia. Prior to return of the verdict by the jury, Mr. Sirianni executed joint tortfeasors releases in favor of the City for 500,000 dollars, and Nugent Brothers for 300,000 dollars. Nevertheless, both defendants remained parties to the action for purposes of determining contribution and indemnity amongst the defendants.

The jury returned a verdict in favor of the plaintiff in an amount in excess of 1.3 million dollars. On the issue of negligence the jury apportioned the defendants' comparative negligence as follows:

                Nugent Brothers, Inc.... 50%
                City of Philadelphia ... 25%
                Paul Rimmeir ........... 25%
                Carmen Fichera ......... 0%
                

The jury also found that neither the City's actions nor the actions of Nugent Brothers constituted a superseding or intervening cause such as would have absolved Paul Rimmeir of the consequences of his negligence.

Post-trial motions were filed by the City seeking indemnity against Nugent Brothers and against Paul Rimmeir. Rimmeir also sought indemnity against Nugent Brothers, as well as against the City. These motions were denied by the trial court, a decision which the Superior Court affirmed. Thereafter, the City sought permission to appeal the Superior Court's decision affecting their claim of indemnity against Paul Rimmeir. 1 Upon petition we granted allocatur. We now affirm the order of the Superior Court.

The issue presented in this case is whether a defendant, found by a jury to have been equally negligent as another defendant, can obtain common law indemnity against that defendant.

The underlying facts, as adduced at trial, establish the following. At the time of the accident appellee, Paul Rimmeir, owned a dilapidated property which adjoined the Sirianni residence. In March, 1977, Rimmeir rented the property to Carmen Fichera under a lease purchase agreement. In accord with this agreement Fichera was permitted to demolish the property. Fichera attempted to tear down the structure, but proceeded in an extremely dangerous manner. Eventually, Fichera abandoned his efforts, leaving the property structurally unsound, but still in the possession of Rimmeir. Thereafter, Rimmeir was advised by a city building inspector that the property constituted an imminent danger and that it would have to be immediately demolished. The City listed the property for emergency demolition and solicited telephone bids from contractors on their emergency demolition list. As a result of this process Nugent Brothers was awarded the bid. This award was made despite the fact that Nugent Brothers did not have proper insurance coverage, and had previously been removed from the Philadelphia Redevelopment Authority's list of approved demolition experts. In addition, there was evidence at trial that Nugent Brothers did not have the necessary qualifications to be on the emergency list at all. Nevertheless, on August 11, 1977, Nugent Brothers began the demolition work, and, but for a cursory visit by a city employee who was to determine when the contractor had begun, the project was permitted to proceed without the presence of a city inspector. The contractor proceeded in a dangerously unprofessional manner, ramming a front end loader into the wall adjoining the Sirianni property, thereby causing the accident.

The City now seeks to argue that despite the facts that they negligently chose a contractor, and negligently permitted that same contractor to proceed without supervision, that somehow the primary liability for this tragedy should rest with the owner of the premises who, though he did allow the premises to deteriorate, had no part in choosing the catalyst who transformed this "accident waiting to happen" into a catastrophe.

In applying the law of indemnity to the facts of this case the Superior Court concluded that "[b]ecause those facts establish the active fault of both parties seeking indemnity, we hold that neither is entitled to indemnity." Sirianni v. Nugent Brothers, 331 Pa.Super. 145, 152, 480 A.2d 285, 289 (1984). The City, in bringing this appeal, has myopically latched on to the use of the phrase "active fault" to argue that the court below decided this case on the basis of an outdated theory, i.e., the "active/passive" test formulated and later abandoned by the courts of New York State. See Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972). We disagree with this characterization.

As the Superior Court correctly noted, the concept of common law indemnity in Pennsylvania was summarized by this Court in the case of Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). There this Court, speaking through Mr. Justice Horace Stern, described the right of indemnity thusly:

The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable....

Id. at 325, 77 A.2d at 370 (emphasis in original).

Although some legal commentators have suggested...

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