J-A14006-21
2021 PA Super 150
ALYSSA MCLAUGHLIN AND WILLIAM : IN THE SUPERIOR COURT OF
MCLAUGHLIN : PENNSYLVANIA
:
:
v. :
:
:
AMIT NAHATA, M.D.; KATHRYN :
SIMONS, M.D.; ANNE F. JOSIAH, : No. 1115 WDA 2020
M.D.; THOMAS PIROSKO, D.O.; :
JESSIE GANJOO, M.D.; ASHLEY :
BERKLEY, D.O.; THE WASHINGTON :
HOSPITAL; AND WASHINGTON :
HEALTH SYSTEM WASHINGTON :
HOSPITAL :
:
:
v. :
:
:
DIALYSIS CLINIC, INC. :
:
Appellant :
Appeal from the Order Entered February 5, 2020
In the Court of Common Pleas of Washington County
Civil Division at No: 2015-3223
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
OPINION BY MURRAY, J.: FILED: JULY 28, 2021
Dialysis Clinic, Inc. (Appellant) appeals from the order denying its
motion for summary judgment and rejecting its claim that Appellee, The
Washington Hospital (TWH),1 may not seek indemnity or contribution from
____________________________________________
1 Appellee “Washington Health System Washington Hospital” is a business
entity related to TWH. We reference both entities as TWH.
J-A14006-21
Appellant, TWH’s co-defendant in this medical malpractice action. Upon
careful review of the law and the record, we affirm.
Procedural History
The trial court detailed the procedural history of this case, noting the
“recurring battles” between Appellant and TWH, as follows:
[On] February 5, 2020[, the trial court permitted TWH] . . . to
proceed to trial in its effort to obtain contribution or indemnity
from [Appellant] with regard to a total verdict of $17,263,159.33,
[entered in favor of the plaintiffs Alyssa McLaughlin (Mrs.
McLaughlin) and William McLaughlin (collectively, “Plaintiffs” or
“the McLaughlins”)]. TWH is the ostensible employer and
[Appellant] is an actual employer of [two physicians who provided
medical treatment to Mrs. McLaughlin while she was a patient at
TWH in June 2013], Dr. Jessie Ganjoo [(Dr. Ganjoo)] and Dr. Amit
Nahata [(Dr. Nahata)2]. These physicians were found to be at
fault for causing catastrophic harm to the Plaintiffs.
…
On September 23, 2015, the Plaintiffs commenced this
action against Drs. Nahata and Ganjoo, TWH, and several other
physicians[, including Ashley Berkley, D.O. (Dr. Berkley)].
[Appellant] was not named as an original defendant. On
September 6, 2016, Dr. [] Berkley filed a Complaint to Join
[Appellant], as the employer of Drs. Ganjoo and Nahata[; Dr.
Berkley asserted Appellant was vicariously liable for the
negligence of Drs. Ganjoo and Nahata and sought indemnity
and/or contribution from Appellant.] In response, [Appellant]
denied that it employed Drs. Ganjoo and Nahata and that they
were acting within the course and scope of their employment with
[Appellant] when treating Mrs. McLaughlin.
After some period of discovery, [Appellant] began a series
of efforts to gain dispositive relief and avoid trial[, including filing
a motion for summary judgment on June 26, 2017. Appellant
denied any liability to Plaintiffs or entitlement of the other
____________________________________________
2 Drs. Ganjoo and Nahata had staff privileges at TWH.
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defendants – i.e., TWH and the various physicians named in the
caption – to indemnification/contribution from Appellant.3] [The
Honorable] Damon Faldowski denied [Appellant’s] motion for
summary judgment. Judge Faldowski cited the “longstanding
principle” that an employer may be liable for the tortious acts of
his employee when the employee is acting within the course and
scope of his employment. In denying reconsideration of that
decision, Judge Faldowski wrote:
It is clear from the record that Defendants Amit
Nahata, M.D. and Jessie Ganjoo, M.D. are employees
of [Appellant], therefore this Court denied [Appellant’s]
Motion for Summary Judgment.
(See Opinion and Order, 9/1/17) (emphasis added).
Following this ruling, TWH filed an Amended Crossclaim on
April 13, 2018[, seeking indemnification/contribution from
Appellant]. Being filed after a further period of discovery directed
to [Appellant], TWH’s crossclaim more specifically pleaded
[Appellant’s] relationship with Drs. Ganjoo and Nahata.
[Appellant] filed preliminary objections seeking to dismiss TWH’s
crossclaim, which [the] trial court overruled. [The] court
explained that [Plaintiffs’] cause of action was distinct from the
contribution and indemnity claims asserted by TWH. [The] court
added that because no settlement or judgment had taken place,
the statute of limitations could not have expired as to TWH’s
claims against [Appellant]. [Appellant] then filed its answer,
admitting that it executed employment agreements with Drs.
____________________________________________
3 Appellant argued:
[W]ell-established Pennsylvania law [dictates] that [Appellant]
cannot be the subject of a claim for contractual or common law
indemnity in this matter. . . . [Appellant] has not been alleged to
be primarily liable via active negligence, and each individual
defendant, if found liable, must be found primarily liable via active
negligence. Equally clear is that [Appellant] is not the proper
subject of any claim for contribution because [Appellant] is not a
joint-tortfeasor . . .
Brief in Support of Motion for Summary Judgment, 6/26/17, at 16.
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Ganjoo and Nahata but denying that it employed those physicians
at times material to this action.
On August 16, 2019, [the trial] court denied [Appellant’s]
second motion for summary judgment. In denying [the motion,
the] court again rejected [Appellant’s] claims that the statute of
limitations had expired with regard to TWH’s indemnity and
contribution claims. In doing so, the trial court cited Oviatt v.
Automated Entrance Sys. Co., Inc., 400 Pa. Super. 493, 502,
583 A.2d 1223, 1228 (1990), which directs that the “right to
contribution is distinct from the underlying tort action.” Id.
(citations omitted).
Also on August 16, 2019, [Appellant] sought to have the
trial bifurcated. [Appellant] argued that “no party should be
permitted to introduce evidence of actual agency or the
employment of Drs. Ganjoo and Nahata by [Appellant].” Further,
[Appellant] requested that the trial court preclude evidence,
argument or proof with respect to all claims for contribution or
indemnity against [Appellant]. The [trial court found that the]
probability of juror confusion and speculation regarding the
[claims] . . . that [Appellant] would present in a common
proceeding, where jurors would not be told of [the cross]claims
against [Appellant] or its relationship to Drs. Ganjoo and Nahata,
was real. The trial court directed separate trials and severed Dr.
Berkley and TWH’s claims against [Appellant].
The McLaughlins and several of the individual original
defendants [moved] to include Dr. Berkley, then agreed to
settlements. The McLaughlins, TWH, Drs. Ganjoo and Nahata
then consented to the discontinuance of claims against Dr. Berkley
and the other individually named physicians. Because [Appellant]
had been granted a separate trial and had not raised any claims
against the settling original defendants, its objection to this
discontinuance was overruled.
The McLaughlins, TWH, Drs. Ganjoo and Nahata agreed to
try their dispute non-jury and to submit reports in lieu of live
expert testimony. [Appellant] did not agree to a non-jury
consideration of TWH’s crossclaims. The claims of the
McLaughlins and the crossclaims of TWH remained severed.
Th[e] trial court viewed a separate trial of crossclaims
against [Appellant] as a means to protect the Plaintiffs’ procedural
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due process rights. Due process not only requires an opportunity
to be heard, but also that the opportunity is provided “at a
meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 . . . (1976)[; see also] Smith v.
City of Philadelphia, 147 A.3d 25, 32 (Pa. Cmwlth. 2016). The
pre-trial litigation of this medical negligence action was unique.
The parties did not vigorously dispute the [merit] of the Plaintiffs’
claims. Instead, pre-trial litigation was dominated by recurring
battles between TWH and [Appellant] regarding the sufficiency of
crossclaims pleaded, discovery of related insurance matters and
[Appellant’s] potential liability for indemnity and contribution.
Meanwhile, the Plaintiffs’ “day in court” was delayed while they
continued to endure ongoing harm and economic loss due to the
catastrophic injury Mrs. McLaughlin sustained.
On October 11, 2019, following a September [23, 2019]
non-jury trial and extended consideration thereafter of the
evidence presented, the trial court issued a Memorandum and
Order that included 92 separate findings of fact and a non-jury
verdict. The trial court determined that Dr. Nahata was 75%
causally negligent and Dr. Ganjoo was 25% so. The trial court
accepted the parties’ stipulated findings that both Dr. Ganjoo and
Dr. Nahata were not employees but ostensible agents of TWH.[4]
____________________________________________
4 Pennsylvania’s Medical Care Availability and Reduction of Error Act
(“MCARE Act”), 40 P.S. § 1303.101 et seq., governs medical professional
liability claims against physicians. MCARE Act section 1303.516 establishes
the statutory standard for “ostensible agency”:
(a) VICARIOUS LIABILITY.— A hospital may be held vicariously
liable for the acts of another health care provider through principles
of ostensible agency only if the evidence shows that:
(1) a reasonably prudent person in the patient’s position
would be justified in the belief that the care in question was
being rendered by the hospital or its agents; or
(2) the care in question was advertised or otherwise
represented to the patient as care being rendered by the
hospital or its agents.
40 P.S. § 1303.516.
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The trial court entered a verdict against Dr. Ganjoo, Dr. Nahata
and TWH, in a total amount of $15,054,950. [Appellant was not
a party to the non-jury trial or the stipulations.] On November
13, 2019, in an unopposed motion for delay damages,
$2,208,209.33 was added to the verdict for [Plaintiffs].
Following the non-jury verdict, both [Appellant] and TWH
presented post-trial motions regarding the court’s non-jury
decision. [Appellant] filed a “Motion for New Trial as to liability
only,” which TWH opposed and the trial court denied[, ruling that
Appellant lacked standing]. TWH presented a post-trial motion to
mold the verdict to include a verdict on indemnity claims against
Dr. Nahata and Dr. Ganjoo. Such relief was granted without
opposition from Drs. Ganjoo and Nahata.
Meanwhile, TWH’s contribution and indemnity claims
against [Appellant] remained scheduled for trial to commence on
February 10, 2020. However, within a month of jury selection,
TWH filed a motion for summary judgment on its crossclaims
against [Appellant]. TWH argued that through no fault of its own,
it has been required to pay liabilities of [Appellant’s] employees,
Drs. Ganjoo and Nahata. [Appellant] responded by filing multiple
supplemental pre-trial statements and its third motion for
summary judgment. [Appellant] argued that TWH released its
claims, could not prove its right to indemnity and was demanding
an equitable remedy with unclean hands.
On February 5, 2020, the trial court issued a written decision
denying [Appellant’s and TWH’s] competing motions for summary
judgment. The trial court pointed to [Appellant’s] Fifth
Supplemental Pre-Trial Statement, filed within three weeks of the
February trial date. In that filing, for the first time, [Appellant]
identified its expert witnesses with regard to TWH’s direct liability.
The trial court ruled that such evidence could show TWH’s active
fault and defeat its indemnity claim.[5] Further, the issue of
____________________________________________
5 The trial court additionally ruled:
At this pre-trial stage, a sufficient question of material fact is present
as to whether [TWH] was negligent in supervising the quality of the
medical care Mrs. McLaughlin received from [one of the named
defendant physicians employed by TWH], Dr. [Thomas] Pirosko[,
(Footnote Continued Next Page)
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control over Drs. Ganjoo and Nahata remained a jury
question. The possibility existed that both TWH and
[Appellant] could be determined to have jointly controlled
these physicians while they rendered substandard care to
Mrs. McLaughlin. The trial court ruled, that in such a
circumstance, TWH may seek contribution from [Appellant].
Memorandum and Order, 7/15/20, at 1-6 (citations to record and original
footnotes omitted; footnotes 2-5 added and emphasis added).
The trial court elaborated on Appellant and TWH’s possible “joint control”
of Drs. Ganjoo and Nahata, stating:
[N]either the MCARE Act nor common law precludes a finding that
two parties may be vicariously liable for the negligent acts of a
physician. The MCARE Act in permissive language provides that a
hospital through “ostensible agency” principles “may” be
vicariously liable for the acts of a physician. [40 P.S. § 1303.516,
supra]. The MCARE Act does not provide that “ostensible agency”
is the exclusive means for establishing vicarious liability for the
negligent acts of a physician. [] A long-standing common law
principle in Pennsylvania recognizes that a jury may properly find
two defendants to be vicariously liable for the negligence of
another. Kissell v. Motor Age Transit Lines, 357 Pa. 204,
53
A.2d 593 (1947). Such principle applies to a claim of professional
medical negligence. See McConnell v. Williams, 361 Pa. 355,
65 A.2d 243 [(Pa. 1949),6] as cited in Yorston v. Pennell, 397
____________________________________________
D.O.,] and [TWH’s] nursing staff. In this circumstance, granting
summary judgment on the issue of corporate liability is not
appropriate. Thompson v. Nason Hosp., 527 Pa. 330, 342-43,
591
A.2d 703, 709 (1991).
Memorandum and Order, 2/5/20, at 10 (footnote omitted).
6 Our Supreme Court explained: “A person may be the servant of two
masters, not joint employers, at one time as to one act, provided that the
service to one does not involve abandonment of the service to the other[.]”
McConnell,
65 A.2d at 245; see also id. at 247 (“a borrowed employee
may, in the performance of a given act, be serving the interests of both his
general employer and his temporary master.”). The Court further stated:
(Footnote Continued Next Page)
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Pa. 28, 39,
153 A.2d 255, 259-60 (1959), and Tonsic v. Wagner,
458 Pa. 246, 252,
329 A.2d 497, 500-501 (1974)[.] In this
instance, [TWH] possesses sufficient evidence to establish
[Appellant’s] vicarious liability for the negligence of Drs. Ganjoo
and Nahata. (See Trial EX. W-5 ¶ 2-8 and 15-18)
Memorandum and Order, 2/5/20, at 8 (footnotes in original omitted; footnote
6 added).
On February 21, 2020, TWH filed a motion for reconsideration of the
February 5, 2020 order. TWH sought an order “awarding judgment as a
matter of law in favor of TWH and against [Appellant] in the amount of any
unsatisfied portion of the $17,263,159.33 verdict entered in favor of [TWH]
and against [Drs.] Nahata … and [] Ganjoo[.]” Motion for Reconsideration,
2/21/20, at 1. Appellant filed a brief in opposition three days later.
On March 4, 2020, Appellant filed a motion requesting the court amend
its interlocutory February 5, 2020 order denying the competing motions for
summary judgment so that Appellant could file an immediate appeal.7
Appellant asserted, pursuant to 42 Pa.C.S.A. § 702(b), that the order involved
a controlling question of law as to which there is substantial ground for
difference of opinion. Section 702(b) states:
____________________________________________
“When different inferences can fairly be drawn from the evidence as to who is
the controlling master of the borrowed employee at the time of the
commission of the negligent act, it is for the jury, not the court, to determine
the question of agency.” Id. at 245-46. While the facts in this case differ
from those in McConnell, the Supreme Court’s reasoning is instructive.
7 See Ashdale v. Guidi Homes, Inc., 248 A.3d 521, at *7 (Pa. Super. Mar.
5, 2021) (“[A]n order denying summary judgment is ordinarily a nonappealable interlocutory order.” (citation omitted)).
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(b) Interlocutory appeals by permission.-- When a court or
other government unit, in making an interlocutory order in a
matter in which its final order would be within the jurisdiction of
an appellate court, shall be of the opinion that such order
involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the matter, it shall so state in such order.
The appellate court may thereupon, in its discretion, permit an
appeal to be taken from such interlocutory order.
Id. (emphasis added); see also Pa.R.A.P. 1311(b) (governing petitions for
permission to appeal from interlocutory orders). In support of the motion,
Appellant asserted:
[The trial] court incorrectly held that a vicariously liable party can
pass its liability to another vicariously liable party through
indemnity or contribution, and resolution of this question in
[Appellant’s] favor will eliminate the need to consider other
issues[.]
Memorandum, 3/4/20, at 2.
The trial court thereafter issued its comprehensive memorandum and
order detailing the history of the case, and ruling, inter alia, that TWH may
seek to prove a claim for contribution from Appellant. See, e.g.,
Memorandum and Order, 7/15/20, at 6 (“The possibility existed that both TWH
and [Appellant] could be determined to have jointly controlled [Drs. Ganjoo
and Nahata] while they rendered substandard care to Mrs. McLaughlin.”). The
trial court further concluded that TWH may seek to prove a claim for indemnity
from Appellant.
The trial court also granted Appellant’s motion for interlocutory appeal.
It reasoned:
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[A]s to professional medical negligence, the parties have not cited
to and this trial court, independently, has not discovered an
appellate court opinion that holds that a secondarily liable party
may or may not seek indemnity from the actual employer of a
negligent employee. For this reason, TWH’s right to seek
indemnity involves a controlling question of law as to which there
is substantial ground for difference of opinion. [See 42 Pa.C.S.A.
§ 702(b), supra.]
…
Interlocutory review of TWH’s right to seek indemnity
against [Appellant] may materially advance the ultimate
termination of this matter. ...
…
Additionally, a substantial ground for a difference of opinion
exists concerning TWH’s right to seek contribution from
[Appellant]. In this case, Drs. Ganjoo and Nahata are undeniably
the ostensible agents of TWH and the actual employees of
[Appellant].
Recognizing that issues of agency and control exercised by
joint employers require consideration by a jury in the setting of a
medical negligence action, the trial court denied summary
judgment. See Kissell, 53 A.2d at 595-96 [(“Where it is not
entirely clear who was the controlling master of the borrowed
employe[e], and different inferences in that regard can fairly be
drawn from the evidence, it is for the jury, not the court, to
determine the question of agency.” (citation and ellipses
omitted))], and Tonsic, 329 A.2d at 501 [(“Hospitals, as well as
the operating surgeons, owe a duty to the patient. If that duty is
breached under circumstances from which a jury could reasonably
conclude that the negligent party was at the same time the
servant of two masters, both masters may be liable.”)] . . . .
Specifically, the trial court ruled that TWH possessed a right of
contribution against [Appellant], because [both Appellant and/or
TWH] could be vicariously liable for the fault of Drs. Ganjoo and
Nahata.
Memorandum and Order, 7/15/20, at 17-18 (citations modified); see also id.
at 8 (“[T]he law lacks full and clear development on the claims raised against
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[Appellant], and trial is a certainty unless appellate authority springs forward
to give the parties and this trial court clear direction.”).
Finally, the trial court denied TWH’s motion for reconsideration. See id.
at 23.
On August 12, 2020, the Washington County Prothonotary entered
judgment of $17,263,159.33 in favor of Plaintiffs and against TWH, Dr. Ganjoo
and Dr. Nahata.
On August 26, 2020, Appellant filed in this Court a “petition for review,”
requesting permission to file an interlocutory appeal from the February 5,
2020 order. See Pa.R.A.P. 1311. Appellant claimed: “resolution of the gap
in the law has become necessary to establish that a secondarily liable party
cannot, as a matter of law, be the subject of an indemnity or contribution
claim.” Petition for Review, 8/26/20, at 17 n.6.
On October 26, 2020, this Court entered a per curiam order granting
Appellant’s petition for review, stating the matter “shall proceed before this
Court as an appeal from the order entered February 5, 2020.”
On appeal, Appellant presents the following issue:
Can a secondarily liable party pass through its vicarious
liability for the negligence of a tortfeasor to another secondarily
liable party in the form of either contribution or indemnity?
Appellant’s Brief at 2.
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Prevailing Law
Appellant’s issue presents a question of law; therefore, our standard of
review is de novo and our scope of review is plenary. Terra Firma Builders,
LLC v. King, 2021 Pa. LEXIS 1886, at *6,
2021 WL 1681341, at *3 (Pa. Apr.
29, 2021). It is well-settled that a trial court may grant summary judgment
only in cases where the record contains no genuine issue of material fact, and
it is “clear and free from doubt” that the moving party is entitled to judgment
as a matter of law. Bourgeois v. Snow Time, Inc.,
242 A.3d 637, 649-50
(Pa. 2020) (citation omitted).
Appellant argues there is no law in Pennsylvania to provide for the
transfer of “[v]icarious liability for the obligations of a common agent . . ., via
common law indemnity or contribution, from one secondarily liable party to
another secondarily liable party.” Appellant’s Brief at 20.
Preliminarily, we recognize, “[i]ndemnity and contribution are available
against any defendant, even one the original plaintiff did not sue.” MIIX Ins.
Co. v. Epstein, 937 A.2d 469, 472 (Pa. Super. 2007). The Pennsylvania
Supreme Court has explained that indemnity, a common law equitable
remedy,
shifts the entire loss from one who has been compelled, by
reason of some legal obligation, to pay a judgment occasioned by
the initial negligence of another who should bear it. It is not a
fault sharing mechanism; it is a fault shifting mechanism where
a defendant seeks to recover his loss from a defendant who was
actually responsible for the accident which occasioned the loss.
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Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850, 854 (Pa. 1997)
(citations, brackets and quotations omitted; emphasis added); see also
Moran v. G. & W.H. Corson, Inc.,
586 A.2d 416, 427 (Pa. Super. 1991) (en
banc) (“Indemnity, as the more drastic remedy, is recognized in cases where
community opinion would consider that in justice the responsibility should rest
upon one defendant rather than the other.” (citation, quotations and brackets
omitted)). Further, indemnity
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.
Builders Supply, 77 A.2d at 370 (emphasis added). The proper inquiry
concerning a claim for indemnity is “whether the party seeking indemnity had
any part in causing the injury.” Sirianni v. Nugent Bros., Inc., 506 A.2d
868, 871 (Pa. 1986) (emphasis in original).
Contribution, on the other hand, is codified by statute – Pennsylvania’s
Uniform Contribution Among Tort-feasors Act (UCATA), 42 Pa.C.S.A. § 8321
et seq. Contribution “requires those who have liability of a concurrent
character under the relevant tort law to share the loss equally.” Burch v.
Sears, Roebuck & Co., 467 A.2d 615, 622 (Pa. Super. 1983) (emphasis
added). Like indemnity, the doctrine of contribution is based on equity.
Straw v. Fair,
187 A.3d 966, 1002 (Pa. Super. 2018); see also Puller v.
Puller,
110 A.2d 175, 177 (Pa. 1955) (“[C]ontribution is not a recovery for
the tort [committed against the plaintiff,] but the enforcement of an equitable
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duty to share liability for the wrong done.”). A right of contribution exists
when “a joint tortfeasor [] has discharged more than his pro rata share of a
common liability[.]” Id. (emphasis added; citation omitted); see also 42
Pa.C.S.A. § 8324. In such situation, the party “may seek contribution from
any other tortfeasor who contributed to the loss.” Straw,
187 A.3d at 1002
(citation omitted). The UCATA 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.” 42 Pa.C.S.A. § 8322 (emphasis added). Regarding this
statutory definition, this Court explained:
The statutory language does not limit the right of contribution
to tortfeasors who have been guilty of negligence.
Contribution is available whenever two [or] more persons are
jointly or severally liable in tort, irrespective of the theory by
which tort liability is imposed.
Straw, 187 A.3d at 1002 (emphasis added; citation omitted).
Analysis
We first address whether TWH may lawfully seek contribution from
Appellant, a secondarily liable party, for the negligence of Appellant’s
employees, Drs. Ganjoo and Nahata. Appellant repeatedly emphasizes it “did
not contribute to the McLaughlins’ injuries,” and purportedly is not a “joint
tortfeasor” under the UCATA or common law; thus, Appellant claims it cannot
be held liable for contribution to TWH. Appellant’s Brief at 20, 31, 36.
Appellant contends the “burden of who satisfies the vicarious liability
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obligations for a joint agent should fall on the principal that the plaintiff seeks
to enforce that obligation against.” Id. at 43-44. Appellant argues: “The
UCATA has never been interpreted to include those parties who themselves
did not contribute to a plaintiff’s injuries.” Id. at 36. Appellant further asserts
the equities of this case disfavor a “new form of contribution” in Pennsylvania.
Id. at 37; see also id. (“[T]he costs of [this] litigation outweigh its benefits
and do nothing to further the ultimate goal of vicarious liability, which is to
make sure the plaintiff is adequately compensated.”). Finally, Appellant
states:
[I]f this Court is inclined to allow contribution between joint
principals, then the trial court’s decision to have a trial
apportioning vicarious liability based on control should not be
disturbed. Given the procedural posture of this case, the parties
will have to return to litigate how apportionment is to be done,
and which, if any, findings from the first trial are binding against
[Appellant].
Id. at 44.
Our analysis is supported by the trial court’s scrupulous rationale. In
determining that TWH may seek contribution from Appellant, the trial court
explained:
Drs. Ganjoo and Nahata are undeniably the ostensible agents of
TWH and the actual employees of [Appellant]. (See Verdict
10/11/19, Opinion and Order, 9/1/17)[.] Recognizing that issues
of agency and control exercised by joint employers require
consideration by a jury in the setting of a medical negligence
action, the trial court denied summary judgment. See Kissell,
supra, and Tonsic, supra[.] Specifically, the trial court ruled
that TWH possessed a right of contribution against [Appellant],
because each could be vicariously liable for the fault of Drs.
Ganjoo and Nahata. With regard to TWH’s contribution claim, the
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trial court applied the holding in Sleasman v. Brooks, 32 Pa. D.
& C.3d 187, 194-95 (Pa. Com. Pl. 1984). No Pennsylvania
Appellate Court has addressed Sleasman.
Sleasman rests on the conclusion that two vicariously liable
parties are effectively “joint tortfeasors.” [Sleasman held that
co-employers are “like joint tortfeasors, jointly and severally liable
to plaintiff to the extent of the employee’s liability. It logically and
sensibly follows that they are, also like joint tortfeasors, subject
to the rights and liabilities of contribution inter se.” Id. at 194-
95 [(underline emphasis added)].
Sleasman’s holding and the trial court’s application of it,
may appear to be at odds with Pennsylvania appellate decisions
that define the term “joint tortfeasor” differently. For instance,
“joint tortfeasors are parties who either act together in committing
a wrong or whose acts, if independent of each other, unite to form
a single injury.” L.B. Foster Co. v. Charles Caracciolo Steel &
Metal Yard, Inc., 777 A.2d 1090, 1095 (Pa. Super. 2001). Joint
tortfeasors exist where two or more persons owe to any other the
same duty and by their common neglect, such other is injured.
LaZar v. RUR Indus., Inc., 487 A.2d 29, 32 (Pa. Super. 1985)
[(emphasis added by trial court);] and see Crowell v. City of
Philadelphia, 613 A.2d 1178, 1181 (Pa. 1992) [(]“Joint
tortfeasor liability . . . arises when two or more persons acting
together injure another. It is distinguished from vicarious liability
in that liability attaches by virtue of the actions of each person as
opposed to by operation of law.” [(citation omitted))]. The
Supreme Court has also held “…that an agent and its principal are
not joint tortfeasors under UCATA when the liability of the
principal is vicarious liability and is not based upon the
principal’s independent actionable fault.” Mamalis v. Atlas
Van Lines, Inc., 560 A.2d 1380, 1381 (Pa. 1989) (emphasis
added).
However, in the complex setting of this protracted medical
negligence case, relying on targeted precedent such as Mamalis
is not appropriate. As the Supreme Court later held, Mamalis
“was directed to a simple fact pattern involving a single
principal, a single agent, a single event[.]” Maloney [v. Valley
Med. Facilities, Inc., 984 A.2d 478, 485 (Pa. 2009) (emphasis
added by trial court)]. Such is not the facts of this dispute
between TWH and [Appellant].
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Critically, other authority exists that appears to support the
Sleasman view that two co-employers can be joint tortfeasors
who may possess rights of contribution. In at least three
published opinions, the Superior Court has repeated:
[T]he UCATA . . . “is not geared only toward negligence
situations.” McMeekin [v. Harry M. Stevens, Inc.,] 530
A.2d [462,] 465 (Pa. Super. 1987). Rather, as this Court
explained:
[Under the UCATA, “joint tortfeasors”] are defined as
“two or more persons jointly or severally liable in tort
for the same injury to persons or property.” [42
Pa.C.S.A. § 8322] . . . The statutory language
does not limit the right of contribution to
tortfeasors who have been guilty of negligence.
Contribution is available whenever two [or]
more persons are jointly or severally liable in
tort, irrespective of the theory by which tort
liability is imposed.
Straw, 187 A.3d at 1002 . . . (emphasis added); McMeekin, 530
A.2d [at] 465 [(citing Svetz v. Land Tool Co., 513 A.2d 403[,
407] (Pa. Super. 1986)[)]. Vicarious liability is a theory of
recovery that may be used to impute negligence. Scampone v.
Highland Park Care Center, LLC, 57 A.3d 582, 597 (Pa. 2012).
Further, the Supreme Court has held:
[A]lthough joint and several liability requires an indivisible
injury for which two or more parties are partially
responsible, it is the indivisibility of the injury, rather
than of culpability, that triggers joint liability[.]
Carrozza v. Greenbaum, 916 A.2d 553, 556 (Pa. 2007)
(emphasis added). Neither [Appellant] nor TWH has claimed that
the tragic consequences the McLaughlins suffered and now endure
[are] divisible.
Further, support for the existence of contribution claims like
that asserted by TWH against [Appellant] has been recognized for
over a half-century. In the Restatement (Second) of Agency §
317A (1958), one finds the following passage:
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The right to contribution has been less frequently allowed
in tort cases. In fact, it was formerly an almost universal
rule that contribution should not be permitted between
negligent or willful tortfeasors, and the innocent masters
in such cases were denied contribution as if they
themselves were guilty of the tortious conduct. However,
by statute or by judicial decision this earlier rule is
gradually being changed, and, to the extent that
tortfeasors are allowed contribution for
expenditures made in satisfaction of a common tort
claim, a master who has paid an injured person for
harm done by his servant can recover from another
master equally subject to liability.
Id. [(emphasis added by trial court)]. The question of joint
liability between [Appellant] and TWH appears to be an open issue
to be litigated at trial.
The well-recognized purposes behind contribution support
this view. The Superior Court has explained:
a tortfeasor’s right to receive contribution from a joint
tortfeasor derives not from his liability to the claimant
but rather from the equitable principle that once the
joint liability of several tortfeasors has been
determined, it would be unfair to impose the
financial burden of the plaintiff’s loss on one
tortfeasor to the exclusion of the other. It matters
not on which theory a tortfeasor has been held responsible
for the tort committed against the plaintiff. So long as the
party seeking contribution has paid in excess of his or her
share of liability, it would be inequitable under the
[UCATA] to deny that party’s right to contribution from a
second tortfeasor who also contributed to the plaintiff’s
injury.
Svetz, 513 A.2d at 407 (emphasis added). The equitable
underpinnings of contribution were not discarded by the
enactment of the UCATA. ...
…
From this trial [court]’s view, the equities of this dispute
drive the decision to put TWH’s contribution claim to a jury.
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Neither TWH, an ostensible employer, nor [Appellant], the actual
employer, should be permitted to escape liability without a full and
fair hearing. The facts and circumstances surrounding who
controlled Drs. Ganjoo and Nahata in their treatment of Mrs.
McLaughlin should be determined. Then the financial burden
should be apportioned accordingly.
Memorandum and Order, 7/15/20, at 18-22 (citations modified; footnote
omitted; underline emphasis added).
Upon careful consideration, we agree with the trial court’s assessment
of the facts of this case and existing law. Accordingly, we are not persuaded
by Appellant’s claim that a secondarily liable party has no legal right to seek
contribution from another secondarily liable party. See id.; see also Straw,
supra (stating the UCATA “does not limit the right of contribution to
tortfeasors who have been guilty of negligence.”);
Svetz, supra. We further
agree with the trial court that further evidentiary proceedings are warranted,
and thus, remand to the trial court is warranted.
Next, we examine whether TWH is entitled to seek indemnity from
Appellant. Appellant relies heavily on our Supreme Court’s decision in
Builders Supply, supra. Appellant emphasizes the Court’s holding “that the
right of a person vicariously or secondarily liable for a tort to recover from
one primarily liable has been universally recognized.” Builders
Supply, 77 A.2d at 370 (emphasis added). Appellant then argues that in this
case,
There are no allegations that [Appellant] is primarily liable, and
Pennsylvania law instructs that an employer is not primarily liable
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when tortious acts are committed by its employees. Builders
Supply Co., 77 A.2d at 370. Because [Appellant] cannot be a
primary tortfeasor and indemnity under Pennsylvania law cannot
be obtained against a secondarily liable party, the Trial Court
erred in failing to dismiss TWH’s indemnity claim against
[Appellant].
Appellant’s Brief at 26; see also id. at 25 (“[T]here is no dispute that only
the employees, Dr. Nahata and Dr. Ganjoo, were active or primary
tortfeasors.”). Appellant further contends that equities militate against
permitting TWH to seek indemnity from Appellant:
The application of indemnity would allow hospitals, such as TWH,
to completely transfer the liabilities imposed on them by the
Legislature [in the MCARE Act, supra]. TWH’s attempt to use
common law indemnity to avoid all of its statutory responsibilities
at the expense of [Appellant] is hardly an “equitable” outcome.
Id. at 27 (emphasis in original). Finally, Appellant states:
TWH argues that because the McLaughlins’ case has concluded,
[Appellant], who was barred from participating in the trial of the
McLaughlin action, must simply absolve TWH of its vicarious
liability for Drs. Nahata and Ganjoo without being allowed to
participate in a trial. This is not the purpose of vicarious liability.
Appellant’s Reply Brief at 8-9 (emphasis in original).
Again, we find the trial court’s estimation of the law persuasive. The
court stated:
[Appellant’s] application of Builders Supply, [supra,]
Burch, [supra,] and
Sirianni, [supra,] appears unprecedented
and does not necessarily square with the purposes of indemnity.
Indemnity is a common law equitable remedy that is aimed at
preventing an unjust result. See . . . Burch, 467 A.2d at 622. In
this instance, if the McLaughlins had included [Appellant] as an
original defendant in this action, the right to proceed to trial
against [Appellant] would be clear. Because the McLaughlins
failed to do so in an action they filed two years after the offending
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incidents of malpractice, [Appellant] has no sole liability to the
McLaughlins.
However, [Appellant’s] lack of sole liability to the
McLaughlins does not preclude TWH’s right to pursue its equitable
remedies. As the Superior Court in Burch explained:
These remedies between defendants are available even
against defendants whom the plaintiff does not sue, and
their statute of limitations does not commence at the
time of the plaintiff’s injury. Wnek v. Boyle, 374 Pa.
27,
96 A.2d 857 (1953). Thus, victims may not, by
the timing of their complaint, choose which
tortfeasor will pay, and defendants faced with the
frequent occurrence of eleventh-hour lawsuits may
still pursue their rightful equitable remedies
against other tortfeasors. Id.
Burch, 467 A.2d [at] 622 [] (emphasis added). The combination
of the McLaughlins’ choice of defendants and the mechanical
application of statutory ostensible agency principles should not
compel TWH to pay for liabilities [Appellant’s] employees created
while acting within the course and scope of their employment.
Denying TWH its “day in court” appears inequitable and unjust.
Within the Builders Supply opinion, itself, one finds
support for TWH’s right to seek indemnity from [Appellant]. The
Court described indemnity as being dependent upon “a difference
in the character or kind of the wrongs which cause the injury and
in the nature of the legal obligation owed by each of the
wrongdoers to the injured person.” Builders Supply, 77 A.2d at
370. The Court then gave a series of examples where indemnity
exists[, which] include the factual circumstances set forth in
Philadelphia Co. v. Central Traction Co., 30 A. 934, 936 (Pa.
1895). The Court explained:
Many other illustrations might, of course, be given, as,
for example, where a person injured by the leakage of
gas from a defective pipe recovered damages from the
gas company which maintained the pipe; the gas
company was held entitled to recover indemnity from a
street railway company whose negligent excavation in
the street had caused the pipe to break. Philadelphia
Co., supra.
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Builders Supply, 77 A.2d [at] 370-71. In Philadelphia Co., the
offending acts of the street railway company were committed by
its “workmen” who “filled in under and around it the earth which
they had taken out.” Philadelphia Co.[, 30 A. at 936 (emphasis
added by trial court)]. Thus, longstanding precedent appears to
support one corporate entity seeking indemnification against
another corporate entity whose employees have been negligent.
Memorandum and Order, 7/15/20, at 15-16 (footnotes omitted; citations
modified; underline emphasis added).
The trial court further opined:
[TWH] possesses sufficient evidence to establish [Appellant’s]
vicarious liability for the negligence of Drs. Ganjoo and Nahata.
(See Trial EX. W-5 ¶ 2-8 and 15-18). However, such evidence
does not eliminate issues of fact regarding [TWH’s] indemnity
claim against [Appellant]. As the Supreme Court explained in
Yorston[, supra]:
In determining whether a person is the servant of another
it is necessary that he not only be subject to the latter’s
control or right of control with regard to the work to be
done and the manner of performing it but that this work is
to be performed on the business of the master or for his
benefit. McGrath v. Edward G. Budd Manufacturing
Co., 348 Pa. 619, 623,
36 A.2d 303, 305. Actual control,
of course, is not essential. It is [the] right to control which
is determinative. On the other hand, the right to
supervise, even as to the work and the manner of
performance, is not sufficient; otherwise a supervisory
employee would be liable for the negligent act of another
employee though he would not be the superior or master
of that employee in the sense the law means it.
Restatement (Second), Agency, § 220(1) (1958); Orris v.
Roberts, 392 Pa. 572,
141 A.2d 393.
Yorston, 153 A.2d 255, 259-60. The issue of “[w]hether the
power of control was sole or joint” is a jury question. Tonsic, 329
A.2d at 500.
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Also, though [TWH’s] right to indemnity against Drs. Nahata
and Ganjoo has been determined [at the non-jury trial],
[Appellant] was not a party to the trial. To deny [Appellant] the
opportunity to be heard constitutes a violation of due process of
law and results in an invalid judgment. Shay v. Flight C
Helicopter Servs., Inc., 822 A.2d 1, 11 (Pa. Super. 2003)
[(“Lack of notice and an opportunity to be heard constitutes a
violation of due process of law and results in an invalid
judgment.”)], and MIIX Ins. Co., 937 A.2d at 473 [(same)].
Memorandum and Order, 2/5/20, at 8-9 (footnotes omitted; underline
emphasis added; some citations modified).
We are in agreement with the trial court, and thus TWH may seek to
prove its right to indemnity from Appellant at trial. In so holding, we reiterate
that Appellant identified in its trial court filings, “expert witnesses with regard
to TWH’s direct liability . . . that . . . could show TWH’s active fault and
defeat its indemnity claim.” Memorandum and Order, 7/15/20, at 6 (emphasis
added).
Finally, we find no merit to TWH’s extensive argument that the trial court
erred in failing to grant summary judgment in its favor and against Appellant.
See TWH Brief at 13, 17-18, 27, 31-36, 43, 46-47; see also id. at 15 (“[T]he
[t]rial [c]ourt has inappropriately acquiesced to [Appellant’s] relentless
demand to interject questions of indemnity, contribution and the law of
borrowed servants,” none of which are properly at issue). TWH did not appeal
from the denial of its summary judgment motion. See, e.g., Mortg. Elec.
Registration Sys. v. Ralich, 982 A.2d 77, 79 n.2 (Pa. Super. 2009) (this
Court will not address challenges where no appeal was filed). Moreover, the
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issue this Court certified for interlocutory review — i.e., contribution and
indemnity in the context of secondarily liable parties — does not encompass
TWH’s issue challenging the denial of its motion for summary judgment. See,
e.g., Wayne M. Chiurazzi Law Inc. v. MRO Corp., 97 A.3d 275, 296 (Pa.
2014) (“Once an interlocutory order is certified and accepted, it neither
confers a right, nor extends an invitation, to a party to add other interlocutory
issues, not passed upon below, to the appeal.”).
In conclusion, we affirm the trial court with the understanding that the
Superior Court is an error-correcting court, and “[i]t is not the prerogative of
an intermediate appellate court to enunciate new precepts of law or to expand
existing legal doctrines. Such is a province reserved to the Supreme Court.”
John v. Philadelphia Pizza Team, Inc., 209 A.3d 380, 386 (Pa. Super.
2019) (citation omitted), appeal denied,
221 A.3d 1205 (Pa. 2019).
For the above reasons, we discern no error by the trial court, affirm the
February 5, 2020 order, and remand for further proceedings consistent with
this decision.
Order affirmed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/28/2021
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