Snoparsky v. Baer
| Citation | 266 A.2d 707,439 Pa. 140 |
| Parties | Mindi B. SNOPARSKY, a minor, by her guardian, Norman Snoparsky, and Norman Snoparsky and Sylvia Snoparsky v. Sidney M. BAER and Laveer Godfrey Corporation, Appellants, Tulip Realty Co. of Pa., Inc. and Food Fair Stores, Inc., and P.B.S. Inc. andBerel Corporation, Defendants, and City of Philadelphia and U.S. Concrete Pipe Company and Walter E. Green, Inc., and Stephen Glasser and Patrick Kelly and Jack Myers and Michael Krum and MarkShapiro and Jay Blumer and Howard Kail and Robert Schwartz and Harry Levis andJosephCasciato and Brian Feller and Barry Norman, Additional Defendants. |
| Decision Date | 02 July 1970 |
| Court | United States State Supreme Court of Pennsylvania |
Dudley Hughes, Detweiler, Sherr & Hughes, Philadelphia, for appellants.
Howard M. Girsh, Leon A. Mankowski, Philadelphia, for appellee Jack myers.
Before BELL, C.J., and COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.
On May 2, 1968, minor plaintiff, Mindi Snoparsky, was injured when a stone struck her eye as she was playing with a group of children at a construction site. Her complaint alleges that seven or eight boys were engaged in a game of stone throwing and that one of them threw the stone which injured her. Named as defendants in the suit are the landowners and those engaged in the construction project; none of the children was made a party. Plaintiffs' cause of action in trespass, based upon Section 339 of the Restatement of Torts, 'Artificial Conditions Highly Dangerous to Trespassing Children,' alleges specifically that:
'* * * At the time aforesaid, on May 2, 1968, and for a long time prior thereto, the said defendants and each of them, had notice and knowledge, or should have had notice or knowledge, that the aforedescribed construction site and hill were attractive to children, that children in large numbers did come upon and play upon the said construction site and hill, and did use the same as a playground, and that the children did engage in stone-throwing and that said stone throwing was dangerous and likely to cause injury.'
Defendants Sidney Baer and Laveer Godfrey Corporation joined twelve named children as additional defendants. Their complaint against the additional defendants specifically alleged that:
'* * * The Complaint alleges in Paragraph 11 that the plaintiff's injuries were caused when one of a group of boys threw a stone which struck the minor plaintiff, Mindi B. Snoparsky.
'* * * If the accident happened as alleged in the plaintiffs' Complaint, it occurred because of the negligence, wanton negligence and recklessness of each and all of the additional defendants, Stephen Glasser, Patrick Kelly, Jack Myers, Michael Krum, Marck Shapiro, Jay Blumer, Howard Kail, Robert Schwartz, Harry Levis, Joseph Casciato, Brian Feller and Barry Norman, the aforesaid negligence, wanton negligence and recklessness consisting of
'(a) throwing the stone or other missile which struck and injured the minor plaintiff, Mindi B. Snoparsky and
'(b) by word and deed giving substantial assistance and encouragement to the person who threw the stone or other missile.'
One of the additional defendants, Jack Myers, preliminarily objected to the original defendants' complaint on the ground that it failed to state a cause of action against additional defendant in that it failed to state whether Jack Myers threw the stone or other missile which struck plaintiff. Myers also claims that there has been a misjoinder of causes of action.
The court sustained the preliminary objection in the nature of a demurrer, dismissing the complaint to join additional defendants, without leave to amend, on the grounds that the original defendants has failed to state a cause of action. With this decision we cannot agree.
The right to join an additional defendant is set forth in Pennsylvania Rule of Civil Procedure 2252(a), 12 P.S. Appendix:
'In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joining party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.'
In the instant case, the complaint to join the additional defendants is based on allegations that they may be...
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...all tortfeasors who are unable to exculpate themselves jointly and severally liable for the plaintiff's injury. Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707, 709 (1970). The Pennsylvania Supreme Court adopted the definition of alternative liability espoused by the Restatement (Second) of Wh......
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