Wnek v. Boyle

• Decision Date: 25 May 1953
• Citation: 96 A.2d 857,374 Pa. 27
• Parties: WNEK v. BOYLE et al.
• Court: Pennsylvania Supreme Court

96 A.2d 857

374 Pa. 27

WNEK v. BOYLE et al.

Supreme Court of Pennsylvania.

May 25, 1953

Action for injuries by passengers in automobile which collided with vehicle of defendant. The Court of Common Pleas, Delaware County, No. 453, September Term, 1949, dismissed defendant's amended complaint in which he sought to join driver of vehicle in which passengers were riding as an additional defendant, and defendant appealed. The Superior Court, Nos. 37 and 38 October Term, 1952, 172 Pa.Super. 222 92 A.2d 701, affirmed, and defendant appealed. The Supreme Court, Nos. 164 and 165, January Term, 1953, Stern, C. J held that although statute of limitations precluded defendant from joining as additional defendant, solely liable, driver of vehicle in which passengers were riding, defendant was entitled to join driver on plea of joint or several liability to establish right of contribution without admitting his own negligence.

Reversed and remanded with a procedendo.

Edward H. Bryant, Jr., Wendell E. Warner, Lutz Fronefield, Warner & Bryant, Media, for appellant.

Philip A. McMunigal, Jr., Geary & Rankin, Chester, for appellees.

Before STERN C. J., and STEARNE, JONES, BELL and CHIDSEY, JJ.

HORACE STERN, Chief Justice.

This case is scarcely to be taken as a model of expeditious and purposeful litigation. The accident which gave rise to it occurred on October 30, 1947, and now, nearly six years later, the parties have not even begun to try the case on its merits but are still enmeshed in mere procedural controversy.

The accident itself, a collision between two automobiles, was apparently not a serious one. The owner and operator of the damaged car, Edward J. Wnek, claims damages of $31 for expenses and $525 for alleged depreciation in the value of his automobile. Each of his two passengers, Vivian Livingston and Matthew J. Wnek, claims $1,500 for injuries sustained.

The plaintiffs, waiting until within two weeks of the expiration of the statute of limitations as to the personal injury claims, entered suit on October 14, 1949, against the operator of the other car, Charles J. Boyle.

This is what happened in the course of the proceedings during the remainder of the year 1949: On November 2, service of the writ was accepted by defendant. On November 21, plaintiffs filed their complaint. On December 16, defendant filed a petition for severance. On December 30, the court dismissed the petition.

This is what happened in the year 1950: On February 10, defendant filed a petition to set aside the order of December 30. On April 27, the court set aside that order and granted severance of Edward J. Wnek's action from that of the other plaintiffs. On May 5, defendant obtained a writ to join Edward J. Wnek as an additional defendant in the severed suit of Vivian Livingston and Matthew J. Wnek and filed a complaint against him. On June 19, the additional defendant answered, pleading in new matter the statute of limitations. On August 9, defendant replied to new matter. On October 27 the additional defendant filed a motion for judgment on the pleadings. On December 29, the court dismissed defendant's complaint.

This is what happened in the year 1951: On January 12, defendant petitioned to be allowed to file an amended complaint. On January 19, the court granted such permission and defendant filed the amended complaint. On February 7, the additional defendant filed an answer together with new matter again setting forth the statute of limitations. On April 9, the court dismissed the amended complaint. On May 2, a stipulation of counsel was filed agreeing to the filing of a second amended complaint and such complaint was thereupon filed. On May 22, the additional defendant filed an answer with new matter as before. On October 22, the court dismissed the second amended complaint. On November 13, the court entered orders in each of the two cases separately to the same effect. On November 14, appeals were taken by defendant to the Superior Court. Since then the case has been in the appellate courts, first in the Superior Court, which affirmed the judgment of the court below, Wnek v. Boyle, 172 Pa.Super. 222, 92 A.2d 701, and then in this court on allowance of an appeal for the purpose of bringing to a final determination the procedural question involved.

The sole issue in all these protracted proceedings is whether a defendant in a tort action, who is barred because of the statute of limitations from joining an additional defendant on the ground of sole liability, may preserve his right of contribution by pleading joint or several liability without alleging facts admitting his own liability to the plaintiff. It was the opinion of the Superior Court that such a plea, without the averment of such facts, could not be sustained.

When defendant in the present case filed, on May 5, 1950, his complaint against Edward J. Wnek as additional defendant, he could not bring him on the record on the ground of his being solely liable, because, the statute of limitations having run, the plaintiffs, Vivian Livingston and Matthew J. Wnek, could not recover against him. However, he would have the right to bring him on the record on a plea of joint or several liability, because, although the plaintiffs would not be able to enforce any judgment that might be recovered against him, the defendant might be able to establish against him a right of contribution. Shaull v. A. S. Beck New York Shoe Co., Inc., 369 Pa. 112, 115, 116, 85 A.2d 698, 701.

The collision between the two automobiles occurred at an intersection of two streets in Chester. In plaintiffs' complaint against defendant they asserted that it was due to defendant's negligence in that he operated his automobile at an excessive rate of speed, failed to have his car under proper and adequate control, and was guilty of other acts both of commission and omission. The amended complaint which defendant, in turn, filed against the additional defendant averred that plaintiffs, in their complaint, had charged that their injuries were caused solely by defendant's negligence; that he would serve a copy of their complaint upon the additional defendant; that he did not admit either in whole or in part the accuracy of their charges; that the additional defendant was negligent in the operation of his automobile in various...