National Specialty Insurance Company et al v. Tunkhannock Auto Mart, Inc.
MEMORANDUM (Order to follow as separate docket entry) re 11 MOTION to Amend/Correct 7 MOTION to Dismiss Pursuant to F.R.C.P. 12(b)(6) filed by Tunkhannock Auto Mart, Inc. Signed by Honorable A. Richard Caputo on 2/17/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATIONAL SPECIALTY INSURANCE
COMPANY, GEMINI INSURANCE
COMPANY, JWB LOGISTICS CORP.,
TMD LOGISTICS CORP., and T.B.
CHOYA EXPRESS, INC.
CIVIL ACTION NO. 3:16-CV-00268
TUNKHANNOCK AUTO MART, INC.,
Presently before the Court is an Amended Motion to Dismiss (Doc. 11) filed by
Defendant Tunkhannock Auto Mart, Inc. (“Tunkhannock”). In the instant action, Plaintiffs,
National Speciality Insurance Company (“National”), Gemini Insurance Company (“Gemini”),
JWB Logistics Corp. (“JWB”), TMD Logistics Corp. (“TMD”), and T.B. Choya Express, Inc.
(“TB Choya”), seek contribution from Tunkhannock for a payment made to settle a statecourt lawsuit. For the reasons that follow, Plaintiffs’ Complaint (Doc. 1) will be dismissed
without prejudice for failure to state a claim upon which relief can be granted.
The facts as alleged in Plaintiffs’ Complaint (Doc. 1) are as follows:
Plaintiffs’ seek contribution from Tunkhannock for a payment made to settle a
state-court lawsuit stemming from a motor vehicle accident that occurred on October 27,
2010. Around 11:37 p.m. on the night of the accident, non-party Thomas W. Punko, an
employee of Plaintiff JWB,1 was operating a tractor trailer while making a delivery to
Tunkhannock. Pursuant to his delivery instructions, Mr. Punko was required to pull into
Tunkhannock’s parking lot, turn around in the rear of the building, and pull out of the
parking lot in a forward facing position after making the delivery. However, at the time of
the delivery, Mr. Punko was unable to pull into Tunkhannock’s parking lot due to parked
automobiles, orange cones, and/or concrete barriers that Tunkhannock had placed in
the lot. As such, Mr. Punko was forced to back his tractor trailer into Tunkhannock’s lot
in order to make his delivery. While he was backing the tractor trailer into the lot, the
trailer blocked the center turn lane and north bound trav el lane of State Route 29. At this
time, non-party Jesse L. Prebola was driving a 1998 Buick Century Sedan traveling
northbound on State Route 29. Mr. Prebola struck Mr. Punko’s tractor trailer blocking his
lane of travel, causing Mr. Prebola to suffer permanent physical injuries.
Following the accident, non-party Deborah Prebola, as Plenary Temporary
Guardian of her son, Jesse Prebola, an incapacitated adult, f iled suit in the Court of
Common Pleas of Luzerne County (the “Prebola Action”). On October 24, 2012, Ms.
Prebola filed an amended complaint, dismissing various defendants and adding the
instant Defendant Tunkhannock as a defendant in the Prebola Action. The defendants
named in the amended complaint were the instant Plaintiffs JWB, TMD, and TB Choya,
Defendant Tunkhannock, and non-parties Mr. Punko; MFC Logistics, Inc.; Trucks on the
Run Inc., a/k/a On the Run Delivery; River Street Idealease, LLC; Chopper Express,
a/k/a Chopper 79; Chopper 79, LLC; Chopper 79 Log istics, LLC; Chopper Automotive,
LLC; Chopper Express, Inc.; Chopper DDS, Inc.; and Chopper Express Transportation.
(Ex. B, Doc. 7-2.)
It is unclear whether Plaintiffs’ maintain that Mr. Punko was an employee of
JWB. See infra note 4.
On April 16, 2013, the parties in the Prebola Action participated in a m ediation
which led to the full and final settlement of Prebola’s claims. At the mediation, all of the
defendants in the Prebola Action, through their insurers Plaintiffs National and Gemini,
contributed to the settlement amount accepted by Prebola, except for Tunkhannock and
its insurer, Zurich. On May 17, 2013, Prebola signed a Settlement and Release
Agreement under which Prebola received a settlement payment of $6,900,000.00 2 in
exchange for releasing all claims against all parties arising out of the accident. 3 (See
Settlement and Release Agreement §§ 1, 2, Doc. 1-2.). On June 7, 2013, Prebola
executed an Addendum to the Settlement and Release Agreement. The Addendum
states in part: “At the time of the Mediation it was fully contemplated by all parties and
Plaintiff National paid $1.9 million toward the settlement sum, and Plaintiff
Gemini paid $5.0 million toward the settlement sum. (Settlement and Release
Agreement § 2.)
The release executed by Prebola states in pertinent part:
The Plaintiffs [Prebolas], in consideration of the promises,
payments and other obligations as herein provided, fully
release and forever discharge the Defendants and Releasees
and all other persons, associations and corporations,
whether or not named herein . . . from any and all causes of
action, claims and demands of whatsoever kind on account
of all known and unknown injuries, losses and damages
sustained by the incapacitated Plaintiff, Jesse L. Prebola, as
a result of or arising from or in any way related to the
collision that occurred on October 27, 2010 on SR 29 in
Eaton Township, Wyoming County, Pennsylvania, which
collision was the subject of this action. The Plaintiffs do
understand and agree that the acceptance of all payments in
accordance with this Agreement are in full accord and
satisfaction of all claims arising out of the aforesaid
collision against the Defendants in the above-captioned
(Settlement and Release Agreement § 1.)
counsel in attendance that, while the claims of Plaintiffs were being settled, the rights of
the settling Defendants as against the non-settling Defendant Tuckhannock [sic] Auto
Mart for contribution and or indemnification were being preserved.” (Addendum ¶ 3, Doc.
1-3.) The settling defendants in the Prebola Action were covered under insurance
policies issued by instant Plaintiffs National and Gemini. The settlement proceeds were
paid out of these insurance policies.
On February 2, 2016, instant Plaintiffs National, Gemini, JWB, TMD, and TB
Choya filed this diversity suit, alleging Tunkhannock’s actions prohibited Mr. Punko from
pulling the tractor trailer into Tunkhannock’s parking lot and inhibited Mr. Punko’s ability
to turn the tractor trailer around in the back of the lot. As such, Plaintiffs’ contend that
Tunkhannock was negligent in failing to provide clear access to the parking lot, which
ultimately caused the accident. Plaintiffs seek contribution from Tunkhannock in
accordance with its proportionate share of liability in causing the accident. On June 3,
2016, Defendant filed an Amended Motion to Dismiss, raising multiple grounds for
dismissal, including that Plaintiffs’ Complaint fails to state a claim under Federal Rule of
Civil Procedure 12(b)(6). The Motion has been briefed and is ripe for review.
II. Legal Standard
Federal Rules of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited
to determining if a plaintiff is entitled to offer evidence in support of her claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
A pleading that states a claim for relief must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere
conclusory statements will not do; “a complaint must do more than allege the plaintiff's
entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. While
legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). As such, “[t]he
touchstone of the pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365
(3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to
raise a reasonable expectation that discovery will reveal evidence of’” each necessary
element. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d
223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly
authentic” documents when the plaintiff's claims are based on the documents and the
defendant has attached copies of the documents to the motion to dismiss. Pension
Benefit Guar. Corp., 998 F.2d at 1196. The Court need not assume that the plaintiff can
prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn
Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a com plaint's “‘bald
assertions’” or “‘legal conclusions,’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30
(3d Cir. 1997)).
Pennsylvania Uniform Contribution Among Tortfeasors Act
Under Pennsylvania law, contribution is only available among joint tortfeasors.
EQT Prod. Co. v. Terra Servs., LLC, 179 F. Supp. 3d 486, 493 (W .D. Pa. 2016). The
Pennsylvania Uniform Contribution Among Tortfeasors Act (“the Act”), 42 Pa. Cons.
Stat. Ann. §§ 8321-8327, defines joint tortfeasors 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.” Id. § 8322. Parties may be found
jointly liable for an injury “if their conduct ‘causes a single harm which cannot be
apportioned . . . even though [the actors] may have acted independently.’” Mattia v.
Sears, Roebuck & Co., 531 A.2d 789, 791 (Pa. Super. Ct. 1987) (quoting Capone v.
Donovan, 480 A.2d 1249, 1251 (Pa. Super. Ct. 1984)). “In other words, a party can
establish the joint tortfeasor relationship by showing either that both parties acted
together to commit the wrong, or that the parties' independent acts caused a sing le
injury.” Small Bus. Admin. v. Progress Bank, No. Civ.A. 03-3461, 2004 WL 2980412, at
*10 (E.D. Pa. Dec. 22, 2004). The burden is on the party seeking contribution to
establish a joint tortfeasor relationship. See id. (“Before seeking contribution, a party
must first establish that it and the defendant are joint tort-feasors.”).
In addition to demonstrating the existence of a joint tortfeasor relationship, a party
seeking contribution must further demonstrate that it is entitled to seek contribution
under the Act. When settlement occurs before the original plaintiff has proven his case
at trial, a settling tortfeasor may seek contribution from a non-settling party if the settling
tortfeasor: (1) demonstrates that he and the non-settling party are joint tortfeasors with
respect to the original plaintiff, (2) has discharged the common liability or paid more than
his pro rata share, and (3) has extinguished the liability of the non-settling party to the
original plaintiff by virtue of the settlement. Swartz v. Sunderland, 169 A.2d 289, 291
(Pa. 1961); see 42 Pa. Cons. Stat. Ann. § 8324; see also Nationwide Mut. Ins. Co. v.
Phila. Elec. Co., 443 F. Supp. 1140, 1143 (E.D. Pa. 1977); Mattia, 531 A.2d at 791
(explaining that when a party seeks contribution in a separate action against a purported
joint tortfeasor, it “must stand in the shoes of th[e] original plaintiff and prove that the
new defendant was a joint tortfeasor in that his tortious conduct also caused the harm at
issue”). Furthermore, the settling tortfeasor must also prove that the settlement figure
was reasonable. Nationwide Mut. Ins. Co., 443 F. Supp. at 1143.
“A joint tortfeasor’s right to contribution is distinct from the original action.” Pa.
Nat’l Mut. Cas. Ins. Co. v. Nicholson Constr. Co., 542 A.2d 123, 126 (Pa. Super. Ct.
1988). “The right of contribution is an equitable principle based on the understanding
that ‘as between the two tort-feasors [ ] contribution is not a recovery for the tort but the
enforcement of an equitable duty to share liability for the wrong done.’” Progress Bank,
2004 WL 2980412, at *10 (quoting Puller v. Puller, 110 A.2d 175, 177 (Pa. 1955)); see
also Matter of Reading Co., 404 F. Supp. 1249, 1251 (E.D. Pa. 1975) (no ting it is “well7
settled that in Pennsylvania recovery under the Uniform Contribution [Among
Tortfeasors] Act is a recovery in assumpsit or contract rather than in tort”). At bottom, the
Act recognizes that “[s]o long as the party seeking contribution has paid in excess of his
or her share of liability, it would be inequitable . . . to deny that party's right to
contribution from a second tortfeasor who also contributed to the plaintiff's injury.” Svetz
v. Land Tool Co., 513 A.2d 403, 407 (Pa. Super. Ct. 1986).
Tunkhannock’s Motion to Dismiss Under Rule 12(b)(6)
Tunkhannock seeks dismissal of Plaintiffs’ Complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). In support of its Motion, Tunkhannock
advances multiple grounds for dismissal, including the contention that the Complaint
fails to state Plaintiffs were negligent themselves in causing the accident or otherwise
identify Plaintiffs as joint tortfeasors. (Am. Mot. to Dismiss ¶ 41, Doc. 11; Br. in Supp. 6,
9, Doc. 15.) In response, Plaintiffs argue that an admission of liability is not required to
claim the status of a joint tortfeasor (Br. in Opp’n 4-7, Doc. 17), but they do not otherwise
respond to Tunkhannock’s assertion that the Complaint fails to allege Plaintiffs’ own
negligence or specify their status as joint tortfeasors along with Tunkhannock. Because
a necessary element of a contribution claim is that the contribution-seeking party is itself
liable in tort to the original plaintiff, and because Plaintiffs’ Complaint fails to allege facts
which satisfy this element, the Court will dismiss Plaintiffs’ Complaint for failure to state a
A party can pursue a claim for contribution only if it has established that it was
itself liable to the injured party for that party’s injury. Kirschbaum v. WRGSB Assocs.,
243 F.3d 145, 156 (3d Cir. 2001) (citing 42 Pa. Cons. Stat. Ann. § 8324(a) (contribution
only available among joint tortfeasors); 42 Pa. Cons. Stat. Ann. § 8322 (joint tortf easor
is, in part, one who is liable to plaintiff)). Therefore, a defendant cannot be held liable for
contribution without a showing that the defendant and the contribution-seeking party are
joint tortfeasors. See United States v. Union Corp., 277 F. Supp. 2d 478, 496 (E.D. Pa.
2003). Stated differently, a party may seek contribution only if he was also “liable in tort
to the [original] plaintiff.” Mattia, 531 A.2d at 791.
Plaintiffs’ Complaint fails to state a claim for contribution against Tunkhannock
because it does not allege that Plaintiffs JWB, TMD, and TB Choya are themselves
tortfeasors. The Complaint alleges that Plaintiffs, through their insurers, discharged the
common liability arising from the Prebola Action, that Tunkhannock’s liability was
extinguished by the settlement agreement and release, and that Tunkhannock’s
negligence was a direct and proximate cause of Prebola’s accident. (Compl. ¶¶ 22, 27,
30-36.) However, the Complaint is devoid of any allegations that Plaintiffs JWB, TMD,
and/or TB Choya were themselves liable in tort to Prebola for the injuries he sustained
from the accident. See Kirschbaum, 243 F.3d at 156 (“A party pursuing [a] claim for
contribution . . . can do so only if it has established that it was itself liable to the plaintiff
for the plaintiff's injury.”). The only allegation in the Complaint which potentially touches
upon TMD’s liability to Prebola is the vague assertion that TMD was engaged in the
business of delivering auto parts to Tunkhannock. Similarly, with respect to TB Choya,
the only allegation in the Complaint potentially bearing upon its liability is that TB Choya
provided training, supervision, and direction to “drivers” for TMD and JWB. These onesentence allegations fail to state that TMD or TB Choya is a joint tortfeasor. And with
respect to JWB, the mere assertion that non-party Mr. Punko operated a tractor trailer
on the night of the accident while “in the scope of his employment” with JWB fails to
sufficiently allege that JWB is a joint tortfeasor, as there is no claim that JWB itself was
negligent or that Mr. Punko, its purported employee,4 was negligent. (See Compl. ¶¶ 9-
The Court notes that there appears to be a dispute over which entity employed Mr.
Punko when the accident occurred. (See Doc. 20, at 4.) It is unclear whether
Plaintiffs have conceded that non-party Chopper 79, and not Plaintiff JWB as
alleged originally in the Complaint, was Mr. Punko’s employer at the relevant
10, 12.) Simply put, Plaintiffs never allege that they themselves committed a tort, which
is necessary in order to establish a joint tortfeasor relationship with Tunkhannock. See
Slaughter v. Pa. X-ray Corp., 638 F.2d 639, 642 (3d Cir. 1981).
Instead, the allegations of negligent conduct in the Complaint are directed entirely
at Tunkhannock. (See id. ¶¶ 14-16, 29-36.) The Complaint, as pled, fails to state that
Plaintiffs are tortfeasors, which is a necessary element of a contribution claim. See EQT
Prod. Co. v. Terra Servs., LLC, 179 F. Supp. 3d 486, 495 n.5 (W .D. Pa. 2016) (noting
that dismissal would likely be appropriate if the pleadings of the party seeking
contribution “generally lay all of the blame” with the party from whom contribution is
sought and fail to “explain exactly how it may be found to be a joint tortfeasor”); Bank v.
City of Phila., 991 F. Supp. 2d 523, 538 (E.D. Pa. 2014) (dism issing contribution claim
when contribution-seeking party failed to allege that it was a joint tortfeasor); see also
Slaughter, 638 F.2d at 642 (explaining that in order to seek contribution, a settling party
must “be a tortfeasor” and “establish joint liability with another. . . . [I]f the payor is not a
tortfeasor, his payment would be that of a volunteer and would not support a claim for
contribution”). The mere fact that Plaintiffs JWB, TMD, and TB Choya paid money,
through their insurers, to settle the Prebola Action “is not a sufficient basis for recovery
in the absence of an established joint tortfeasor relationship.” Progress Bank, 2004 WL
2980412, at *10 (citing Slaughter, 638 F.2d at 642)). Because Plaintiffs’ Complaint fails
to allege a joint tortfeasor relationship with Tunkhannock, Tunkhannock’s Amended
Motion to Dismiss will be granted.5
time. (See Doc. 21, at 4-5.)
Additionally, while the Court assumes Plaintiffs’ claim of diversity of citizenship,
if Plaintiffs elect to file an amended complaint with this Court they should state
their jurisdictional grounds more completely. See Zambelli Fireworks Mfg. Co.,
Inc. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) (“A corporation is a citizen both of
the state where it is incorporated and of the state where it has its principal place of
For the above stated reasons, the Court will grant Tunkhannock’s Amended Motion
to Dismiss (Doc. 11) and dismiss Plaintiffs’ Complaint (Doc. 1) without prejudice. Plaintiffs
will be given leave to file an amended complaint consistent with this opinion if they so
An appropriate order follows.
February 17, 2017
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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