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HomeMy WebLinkAbout1994-5926 Civil LISA M. MORGAN and BARBARA McK. MUMMA, TRUSTEES, on behalf of the MARITAL TRUST of ROBERT M. : MUMMA, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC., and McCLURE COMPANY, trading as McCLURE MECHANICAL SERVICES, a registered: fictitious name, DEFENDANTS 94-5926 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT BY DEFENDANT. McCLURE COMPANY TRADING AS McCLURE MECHANICAL SERVICES. ON THE CROSS-CLAIMS OF DEFENDANTS. PETROLEUM PRODUCTS EQUIPMENT COMPANY AND CARLOS R. LEFFLER. INC. BEFORE BAYLEY. J. AND HESS. J. OPINION AND ORDER OF COURT Bayley, J., September 12, 2006:-- Plaintiffs, Lisa Morgan and Barbara McK. Mumma, Trustees, on behalf of the Marital Trust of Robert M. Mumma, own a commercial office complex at 1041 Mumma Road, Wormleysburg, Cumberland County. In March, 1990, defendant, McClure Company, trading as McClure Mechanical Services, performed work on product lines connecting an underground storage tank on the property. In October, 1990, defendant Petroleum Products Equipment Company performed work on the product lines, and in 94-5926 CIVIL TERM March, 1991, Petroleum Products and defendant, Carlos R. Leffler, Inc., installed a new underground storage tank on the property. On October 14, 1994, plaintiffs filed a writ of summons against Petroleum Products Equipment Company and Carlos R. Leffler, Inc. (CRL). On May 11,1995, plaintiff filed a writ of summons against McClure Company trading as McClure Mechanical Services. A complaint was filed on March 20, 1996, and an amended complaint was filed on August 21, 1996. In their amended complaint, plaintiffs seek damages on allegations of defective work and lack of full performance by all defendants at the Mumma Road property in counts for: (1) breach of contract, (2) negligence, and (3) violation of the Storage Tank and Spill Prevention Act. 1 Petroleum Products and CRL filed an answer with new matter to the amended complaint in which, pursuant to Pa. Rule of Civil Procedure 2252(d), they pled cross-claims against McClure for: (1) contribution, (2) indemnification, and (3) joint and several liability. On June 30, 2004, based on the statute of limitations, summary judgment was granted to McClure on all three counts against it in plaintiffs' amended complaint. On March 25, 2005, Petroleum Products and CRL were granted summary judgment on plaintiffs' counts against them for negligence and violation of the Storage Tank and Spill Prevention Act, but denied summary judgment on the counts against them for breach of contract. McClure now seeks summary judgment on those cross-claims. The issues were briefed and argued on July 12, 2006. -2- 94-5926 CIVIL TERM I. CONTRIBUTION The cross-claims pled by Petroleum Products and CRL against McClure for contribution or indemnity arise only if plaintiffs obtain a judgment against McClure in tort. See Mattia v. Sears, Roebuck & Company, 366 Pa. Super. 504 (1987), and Hughes v. Pron, 286 Pa. Super. 419 (1981). Thus, the statute of limitations is not at issue. The Uniform Contribution Among Tort-feasers Act, 42 Pa.C.S. Section 8321 et seq., defines "joint tort-feasers" in Section 8322 as "two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." In Mattia, the Superior Court of Pennsylvania stated: . . . the equitable obligation of contribution may be asserted where: (1) the parties combine to produce the Plaintiff's injury; (2) the parties are each liable in tort to the Plaintiff; and (3) a tortfeasor has discharged the common liability by paying more than his pro rata share. (Emphasis added. ) Plaintiffs herein do not have any remaining tort claims against any of the defendants. Their only claims are against Petroleum Products and CRL for breach of contract. Therefore, Petroleum Products and CRL cannot recover contribution from McClure even if plaintiffs obtain a judgment against them for breach of contract. II. INDEMNIFICATION In Builders Supply Company v. McCabe, 366 Pa. 322 (1951), the Supreme Court of Pennsylvania stated: 1 35 P.S. 6021.101 et seq. -3- 94-5926 CIVIL TERM 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 inures 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. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence, a doctrine which, indeed is not recognized by the common law. In the case sub judice, the evidence is that the work performed at the Mumma Road property by McClure under contract with plaintiffs occurred many months before the separate work performed at the property by Petroleum Products and CRL under contract with plaintiffs. There was no relationship between McClure and Petroleum Products and CRL regarding the contractual work they separately performed for plaintiffs. Thus, there is no legal basis for imposing secondary liability by way of indemnification against McClure for any breach of the contractual work performed on the property by Petroleum Products and CRL. III. JOINT AND SEVERAL LIABILITY Joint and several liability is not a separate cause of action. It is a legal concept used to apportion liability when two or more people are found liable to a plaintiff. In Neal v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa. Super. 2005), the Superior Court of Pennsylvania stated that the following provisions in the Restatement (Second) of Torts, for imposing joint and several liability have been adopted into the jurisprudence of Pennsylvania: -4- 94-5926 CIVIL TERM (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes. Restatement (Second) of Torts S 433A. If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive. Restatement (Second) of Torts S 879. There is no tort claim left against McClure, Petroleum Products and CRL. Neither counsel nor this court have found a contract case where joint and several liability was applied except where the plaintiff and all of the defendants were parties to the same contract. For example, these were the facts in Yadusky v. Shugars, 301 Pa. 99 (1930), where the Supreme Court of Pennsylvania, citing Mintz v. Tri-County Nat. Gas Co., 259 Pa. 277 (1918), stated: The question whether a contractual promise, made by two or more persons, is joint, several, or joint and several, depends upon the intention of the parties as evidenced by the language employed in the agreement under consideration, the general rule being that, in the absence of an apparent intent to the contrary, such promises are presumed to be joint, and not several or joint and several. In the present case, the work performed by McClure under contract to plaintiffs, for which the statute of limitations has run, occurred months before the work was performed under contract by Petroleum Products and CRL for plaintiffs. Plaintiffs' contract with McClure was separate and distinct from its contract with Petroleum -5- 94-5926 CIVIL TERM Products and CRL. Therefore, McClure cannot be jointly or severally liable for any breach by Petroleum Products and CRL of their contract with plaintiffs. Because, as a matter of law, there can be no liability imposed against McClure on the cross-claims of Petroleum Products and CRL, the following order is entered. ORDER OF COURT AND NOW, this day of September, 2006, the cross-claims of defendants, Petroleum Products Equipment Company and Carlos R. Leffler, Inc., against defendant McClure Company trading as McClure Mechanical Services, ARE DISMISSED. By the Court, Edgar B. Bayley, J. Andrew L. Swope, Esquire For Lisa M. Morgan, Barbara McK. Mumma, Trustees, on behalf of the Marital Trust of Robert M. Mumma Lisa J. Trembly, Esquire For Petroleum Products Equipment Company and Carlos R. Leffler, Inc. Dennis J. Bonetti, Esquire For McClure Company trading as McClure Mechanical Services :sal -6-