Broadwater, S. v. Materkowski, J.

• Court: Superior Court of Pennsylvania
• Decided: November 30, 2020
• Docket: 1021 WDA 2019
• Status: Unpublished

Opinion

J-S75028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHELLY M. BROADWATER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : JOSEPH E. MATERKOWSKI, : No. 1021 WDA 2019 INDIVIDUALLY AND AS AGENT FOR : ABACUS MANAGEMENT SYSTEMS, : LLC; ABACUS MANAGEMENT : SYSTEMS, LLC; DEREK VIRGILI, : INDIVIDUALLY AND AS AGENT FOR : BERKSHIRE HATHAWAY : HOMESERVICES THE PREFERRED : REALTY; AND BERKSHIRE : HATHAWAY HOMESERVICES THE : PREFERRED REALTY :

Appeal from the Order Entered June 11, 2019, in the Court of Common Pleas of Fayette County, Civil Division at No(s): 1725 of 2017 GD.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 30, 2020

I. Introduction

In this dispute over a sale of residential property, Shelly M. Broadwater

(“the Buyer”) appeals an order involuntarily discontinuing her lawsuit against

all four defendants. Those defendants are (1) the company that flipped and

sold her the home in question, (2) its manager,1 (3) the Seller’s real-estate ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We refer to defendants one and two (Abacus Management Systems and Joseph E. Materkowski) collectively as “the Seller.” J-S75028-19

agent, and (4) the agent’s firm.2 During discovery, the Buyer settled her

claims against the Seller for an undisclosed amount of money (“the Release”).

The trial court concluded that the Release of the Seller also released the

Agency, because the Agency had cross-sued the Seller for contribution and

indemnification.

Relying on Pennsylvania Rule of Civil Procedure 229, which governs

voluntary discontinuances, the trial court involuntarily discontinued the entire

lawsuit. This was incorrect. The Buyer did not execute a general release, so

her claims against the Agency remain viable, as do the Agency’s cross-claims

against the Seller. We therefore reverse the order discontinuing this action.

II. Factual & Procedural Background

The Buyer purchased a remodeled home from the Seller. The Buyer

alleges there were substantial defects that all defendants concealed prior to

the closing. She therefore brought counts for fraud, breach of contract, and

violation of the Real Estate Disclosure Act3 against Seller. She also brought a

separate count of fraud against the Agency. Finally, the Buyer alleged a count

for violation of the Unfair Trade Practices and Consumer Protection Law 4 by

all defendants. ____________________________________________

2We refer to defendants three and four (Derek Virgili and Berkshire Hathaway) collectively as “the Agency.” Originally, the real-estate agency was Northwood Realty Service, but that defendant changed to Berkshire Hathaway while this matter was before the trial court.

3 68 Pa.C.S.A. § 7301.

4 73 Pa.C.S.A. § 201.1.

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The Agency filed a cross-claim against the Seller, claiming if the Agency

was ultimately liable to the Buyer, then the Seller is jointly and severally liable.

In other words, the Agency sought reimbursement from the Seller for any

money it might ultimately owe the Buyer.

The Seller filed no Answer to the Buyer’s Complaint. Nor has it filed an

Answer to the Agency’s cross-claim.

After a year, the Buyer signed the Release and agreed to release the

Seller:

from any and all actions, causes of action, claims or demands, of whatever kind or nature, for any known or unknown injuries, losses, or damages allegedly sustained by [Buyer] and related in any way to the legal action instituted by the undersigned in the Court of Common Pleas of Fayette County, Pennsylvania, at Docket No. 1725 of 2017.

Buyer’s 10/24/18 Release at 1. The Release made no direct reference to the

Agency or the Buyer’s claims against the Agency.

The Buyer then praeciped to discontinue her action against the Seller

without permission from the trial court or the Agency. Four months later, the

Agency asked the trial court to strike the discontinuance against the Seller,

under Pa.R.C.P. 229. The court denied that request “without prejudice to re-

present should the [Seller] fail to file a Motion for Leave of Court to discontinue

the action” as to all defendants. 4/12/19 Order.

Next, the Seller moved to terminate the Buyer’s case in its entirety,

under Rule 229. The Seller argued that, because the Buyer did not obtain

permission from the court or the Agency to file her praecipe to discontinue

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regarding the Seller, the Buyer misled opposing counsel and the Seller into

believing that they were fully and forever released and discharged from all

actions or causes of action, claims, or demands in this matter.

The Buyer replied to the motion by specifically denying she “intended,

or represented, that the Praecipe to . . . Discontinue ended all claims against

all Defendants. On the contrary, [the praecipe] clearly indicates, on its face,

that it applies to claims against the [Seller] only.” Buyer’s Answer and New

Matter to Seller’s 5/6/19 Motion at 2. She also indicated that Pa.R.C.P. 229

does not allow the trial court to dismiss a case. See id. In her New Matter,

the Buyer sought the trial court’s approval of her already-filed praecipe to

discontinue as to the Seller, under Rule 229(b)(1). See id. at 4.

The trial court entered an order discontinuing the action completely —

i.e., as to all four defendants. This timely appeal followed.

III. Analysis

The Buyer raises two issues that we combine for ease of disposition –

whether the trial court committed an error of law or abused its discretion by

dismissing this case. See Buyer’s Brief at 4. In the Agency’s responsive brief,

it argues that we should affirm the order discontinuing this case with prejudice

on alternative grounds. See Agency’s Brief at 3-9. We address both parties’

issues in turn.

A. Discontinuance under Rule 229

With only two pages of argument, the Buyer’s brief is quite succinct.

See id. at 7-8. She argues that Rule 229 does not authorize the trial court to

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discontinue a case against all defendants as penalty for failure to obtain leave

of court. She also contends her noncompliance with the Rule, if any, did not

prejudice the defendants. Thus, the Buyer believes the trial court misapplied

Rule 229 and thereby abused its discretion in discontinuing this case.

The Seller’s response expresses frustration with what Seller perceives

to be the Buyer’s anticipatory repudiation (if not outright breach) of the

Release. The Seller claims the Buyer and her counsel “are acting in bad-faith,”

and it should receive “attorney fees and costs per the full-and-final disclosure,

which assures that [the Buyer] will reimburse for all losses or damages . . .

sustained related in any way to legal action instituted by the [Buyer].” Seller’s

Brief at 4 (some punctuation and capitation omitted). According to the Seller,

“The trial court must be upheld and [the Buyer] and her counsel’s bad faith

cannot be permitted under any circumstances as this conduct is

unconscionable in this Commonwealth.” Id. at 6. The Seller contends that

the Buyer promised “full indemnification in exchange for the settlement

payment.” Id. at 9 (emphasis in original). In the Seller’s view, the Buyer’s

procedural error “clearly prejudiced” it, because the Seller fears exposure to

liability from the Agency’s cross-claim “that [the Seller is] responsible for any

and all wrongdoing.” Id. (emphasis in original).5

____________________________________________

5 Also, Seller claims “that five contractors were paid $30,000.00 for the work done in the home” and that the decision to settle involved Ms. Broadwater’s alleged need to join those contractors as co-defendants. See Seller’s Brief at 5-6, 13. Whatever may have transpired during settlement negotiations or

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Initially, we observe that the Seller erroneously states our standard of

review. It asserts “the trial court has absolute discretion over the application

of discontinuances pursuant to Rule 229.” Seller’s Brief at 3 (citing Becker

v. M.S. Reilly, Inc., 123 A.3d 776 (Pa. Super. 2015)). Were we to afford

trial court’s absolute discretion to discontinue a plaintiff’s case, we would

abdicate our duty of appellate review. Instead, the Becker Court said, “The

causes which will move the [trial] court to withdraw its assumed leave and set

aside the discontinuance are addressed to its discretion . . . .” Becker, 123

A.3d at 779. Thus, our “standard of review of a trial court’s order granting a

request for discontinuance is [an] abuse of discretion.” Truesdale ex rel.

Truesdale v. Albert Einstein Med. Ctr., 767 A.2d 1060, 1063 (Pa. Super.

2001), as revised (Mar. 30, 2001).

“An abuse of discretion occurs when the trial judge misapplies the law,

or exercises his or her judgment in a manner that is manifestly unreasonable,

or the result of bias, prejudice, or ill will.” Id. (some punctuation omitted).

In other words, we defer to a trial court’s decision to discontinue a party or

parties, if (1) the ruling is reasonable and (2) it is based upon a correct

interpretation of the rules of civil procedure.

may have appeared in discovery are absent from the record. Thus, these supposed facts are beyond our scope of review. Generally, if it is not in the record, it does not exist. See, e.g., Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super. 2008).

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“To the extent that the question presented involves interpretation of

rules of civil procedure, our standard of review is de novo.” Brown v. Quest

Diagnostics, 209 A.3d 386, 389 (Pa. Super. 2019). We owe the trial court’s

interpretation of Rule 229 no deference whatsoever.

When interpreting the rules of civil procedure our goal “is to ascertain

and effectuate the intention of the Supreme Court.” Pa.R.C.P. 217(a). If “the

words of a rule are clear and free from all ambiguity, the letter of it is not to

be disregarded under the pretext of pursuing its spirit.” Id. We must also

strive to give effect to all of the words within a rule, if possible. See id.

Mindful of these directives, we turn to Rule 229, which provides, in

relevant part:

(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.

(b)(1) Except as otherwise provided in subdivision (b)(2), a discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court upon motion of any plaintiff or any defendant for whom plaintiff has stipulated in writing to the discontinuance . . .

(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.

Pa.R.C.P. 229.

Under the plain language of the Rule, the Buyer is correct. There is no

penalty for violating Pa.R.C.P. 229, and it especially does not authorize the

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imposition of summary judgment as to all defendants, which was the practical

result of the trial court’s order. The Rule is not a proper basis for involuntary

termination (a.k.a., “summary judgment”), because Pa.R.A.P. 229 is “the

exclusive method of voluntary termination of an action . . . .” Id. (emphasis

added).

The trial court acknowledged that “the Rule does not state a clear

remedy when a party fails to comply with that Rule.” Trial Court Opinion,

9/16/19, at 6. The court then said that there “does not appear to be any case

law directly on point with this issue.” Id. As we explain below, some

precedent exists, but none of it supports the trial court’s order.

Paragraph (b)(1) of the Rule specifically deals with cases such as this,

where a plaintiff attempts to discontinue her action against less than all of the

defendants in her lawsuit. That paragraph’s language unambiguously

supports the trial court and the Seller’s view that the Buyer needed to obtain

“the written consent of all parties or leave of court . . . .” prior to praeciping

to her discontinue as to only the Seller. Pa.R.C.P. 229(b)(1).

However, in construing Rule 229, the Supreme Court of Pennsylvania

has held that seeking leave of court before filing the praecipe is a technical

formality, observed more often in the breach than in the keeping. The trial

court presumptively grants its leave, as a matter of ancient practice, predating

the rules of civil procedure. Rule 229(b)(1) “reflects the longstanding practice

in Pennsylvania, which was well-described in Consolidated National Bank

v. McManus, 217 Pa. 190, 66 A. 250 (1907). In McManus, the plaintiff

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entered a discontinuance, the defendant filed a rule to show cause why it

should not be stricken, and the [trial] court discharged the rule.” Fancsali

ex rel. Fancsali v. Univ. Health Center of Pittsburgh, 761 A.2d 1159,

1161 (Pa. 2000).

The McManus Court deemed the discharging of the rule to show cause

as the “equivalent to a grant of leave” to discontinue, even though the plaintiff

never moved for such leave. McManus, 66 A. at 250. The Court explained

that:

A discontinuance in strict law must be by leave of court, but it is the universal practice in Pennsylvania to assume such leave in the first instance . . . All the cases show that a discontinuance must be founded on the express or implied leave of the court. In England, this leave is obtained on motion in the first instance, [but, in American practice,] it is taken without the formality of an application, but subject to be withdrawn on cause shown . . . that is the whole difference.

Id. at 250.

The Supreme Court of Pennsylvania promulgated Pa.R.C.P. 229(b)(1) in

light of McManus (as reaffirmed in Fancsali). The statement that a plaintiff

“may not” enter a discontinuance without the consent of all parties or leave

of court, then, is mandatory, but the Buyer’s violation of the Rule does not

warrant the discontinuance of her action. In the American practice, the Buyer

could presume that she had the leave of the court to file her praecipe without

actually requesting it, if she were discontinuing the action as to all defendants.

But that presumption does not apply to a discontinuance of only some

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defendants. Where, as here, a plaintiff files a discontinuance as to only some

defendants without express leave of court, the Rule allows her to do so without

penalty. However, the remaining defendants may then move for the striking

of the discontinuance, as the Agency did here. The burden of convincing the

trial court to strike the discontinuance, then falls upon any remaining parties

under 229(c). See also, Becker, 123 A.3d at 779 (framing the issue as

whether the trial court should “withdraw its assumed leave and set aside the

discontinuance”) (emphasis added).

Here, the Agency attempted to do just that, but the trial court denied it

relief. Instead, the court essentially reinstated English procedure. By faulting

the Buyer for not obtaining the court’s leave before filing the praecipe to

discontinue, the trial court required that “leave [be] obtained on motion in the

first instance.” McManus, 66 A. at 250. This was error; the trial court should

have limited its inquiry to the single issue the Agency raised — i.e., whether

the Buyer could discontinue as to the Seller without prejudicing the Agency.

If the discontinuance of the Seller prejudiced the Agency, the proper remedy

was not the discontinuance of the whole matter. Instead, the trial court should

have stricken the discontinuance as to the Seller and allowed the case to

proceed to trial against all four defendants.

Under McManus, Fancsali, Becker, and Pa.R.C.P. 229(b)(1), the

Buyer needed leave of court to discontinue the Seller. However, the trial court

also erred as a matter of law when it manufactured a summary-judgment-like

penalty for the Buyer’s Rule 229 violation and discontinued the case. There

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is nothing in Rule 229 that calls for such a draconian result. Accordingly, we

agree with the Buyer; the trial court committed an error of law by misapplying

Rule 229.

The court therefore abused its discretion when it discontinued this case

as to all parties.

B. The Release and UCATA

Our review cannot end here, however, because the Agency asks us to

affirm the dismissal of the Buyer’s suit on alternative grounds. This Court is

“not bound by the rationale of the trial court and may affirm on any basis.”

Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 184 (Pa. Super.

2013) (quotations and citations omitted).

The Agency claims that the trial court properly interpreted and enforced

the Release, which was the true basis for the trial court’s decision, not Rule

229. In essence, the Agency asserts the Buyer signed a general release. It

believes the Uniform Contribution Among Tortfeasors Act (“UCATA”)6 bars the

Buyer from any additional recovery.

This issue requires us to interpret the UCATA statute and the Release.

“Because this claim raises an issue of statutory construction, which is a

question of law, this Court’s standard of review is de novo, and the scope of

review is plenary.” Cash Am. Net of Nevada, LLC v. Com., Dep't of

Banking, 8 A.3d 282, 289 (Pa. 2010). We use the same scope and standard

6 42 Pa.C.S.A. §§ 8321 – 8327.

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of review to interpret the Release, because the “interpretation of a contract is

[also] a question of law.” Gen. Refractories Co. v. Ins. Co. of N. Am., 906

A.2d 610, 612 (Pa. Super. 2006).

When interpreting a statute our goal “is to ascertain and effectuate the

intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). “When the words

of a statute are clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

“Words and phrases shall be construed according to rules of grammar and

according to their common and approved usage,” while any words or phrases

that have a “peculiar and appropriate meaning” are construed according to

that meaning. 1 Pa.C.S.A. § 1903(a).

Critically, statutes relating to the same subjects are in pari materia, and

they “shall be construed together, if possible, as one statute.” 1 Pa.C.S.A. §

1932. UCATA’s seven sections, 42 Pa.C.S.A. §§ 8321 – 8327, relate to the

same subject – i.e., damages apportionment among joint tortfeasors,

especially after a plaintiff has released less than all joint tortfeasors. Thus,

we hold that UCATA’s provisions are in pari materia and must be read and

construed together as one statute.

As for the Release, “it is well settled that the effect of a release is to be

determined by the ordinary meaning of its language.” Taylor v. Solberg,

778 A.2d 664, 667 (Pa. 2001). In other words, we read and apply a release’s

language like any other contract.

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By way of background, the legislature enacted UCATA to supplant the

common law. “UCATA abrogated the broader, common-law rule that payment

by one tortfeasor would release all others regardless of the parties’ intent,

insofar as it applied to joint tortfeasors.” Maloney v. Valley Med. Facilities,

Inc., 984 A.2d 478, 481 n.4 (Pa. 2009). UCATA “drastically changed the law

on this subject, and, since its enactment, a release by the injured party to one

jointly liable does not release others also liable, unless the release expressly

so provides.” Brown v. City of Pittsburgh, 186 A.2d 399, 402 (Pa. 1962).

The statute therefore allows a plaintiff to execute a “general release.”

General releases surrender the plaintiff’s right to sue, not only whichever

defendants’ names appear in the release, but also the rest of the world. For

example, in Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa. 1989),

the plaintiff was severally injured in a car accident and the hospital treated his

injuries. According to Mr. and Mrs. Buttermore, medical malpractice had

worsened his injuries and caused irreversible, nerve damage to his spine.

They sued the hospital and its doctors, who moved for judgment as a matter

of law, based on a release Mr. Buttermore had previously executed with the

driver who caused the underlying accident. That release’s all-encompassing

language was as follows:

I . . . hereby remise, release, acquit, and forever discharge [negligent driver] et al. . . . and any and all other persons . . . or corporations, whether known or unknown, suspected or unsuspected, past, present and future claims, demands, damages, actions, third-party actions, causes of action, or suits at law or in equity, indemnity of whatever nature, for or because of any matter or thing done, omitted or suffered

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to be done, on account of or arising from damage to property, bodily injury, or death resulting or to result from an accident which occurred on or about the 3rd day of December, 1981 at or near Aliquippa, Pennsylvania for which I/We have claimed the said [negligent driver] et al. to be legally liable . . . .

Buttermore, 561 A.2d 733, 734 (quoting release).

The trial court granted summary judgment to the hospital and doctors

based upon the general release. This Court reversed, and the Supreme Court

of Pennsylvania granted review and reinstated summary judgment as to Mr.

Buttermore’s personal-injury claims.7 Citing the universality of the release’s

language, the Supreme Court explained that “a release given to a particular

individual and ‘any and all other persons whether herein named or not’

[applies] to all tortfeasors, despite the fact that they were not specifically

named.” Id. at 735.

Litigants are therefore free to fashion settlement agreements however

they wish. If parties require that “the matter must end then and forever . . .

they are at liberty to do so. They may agree . . . that they will not sue each

other or any one [else] for the event in question. However, improvident their

agreement may be or subsequently prove for either party, their agreement,

absent fraud, accident, or mutual mistake, is the law of their case.” Id. Thus,

one tortfeasor may demand that, as a condition for settlement, that a plaintiff

forfeit all claims against other tortfeasors. ____________________________________________

7The Supreme Court affirmed this Court as to Mrs. Buttermore’s claim for loss of consortium, because she had not signed the release. Her cause of action, while procedurally linked to her husband’s claim, stood alone.

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The Release at bar, however, does not contain the universal language

found in Buttermore. Unlike the Buttermore release, the Buyer’s Release

contains no “et al.” and no “and any and all other persons . . . or corporations,

whether known or unknown” clauses. Additionally, this Release makes no

mention of the Agency and no mention of the two counts that the Buyer has

alleged against the Agency. Instead, it releases only the Seller:

The [Buyer] hereby fully and forever releases, acquits, and discharges JOSEPH E. MATERKOWSKI and ABACUS MANAGEMENT SYSTEMS, LLC from any and all actions, causes of action, claims or demands, of whatever kind or nature, for any known or unknown injuries, losses, or damages allegedly sustained by the [Buyer] and related in any way to the legal action instituted by the undersigned in the Court of Common Pleas of Fayette County, Pennsylvania, at Docket No. 1725 of 2017.

Buyer’s 10/24/2018 Release at 1 (emphasis added). Thus, the Release was

solely and exclusively as to the Buyer’s claims against the Seller.

Because the Release does not provide for the discharge of the Agency

(or anyone else other than the Seller), the Agency’s reliance upon the Release

to exit this lawsuit is misplaced. Indeed, were we to apply the Release as the

Agency suggests and end this case, we would override UCATA and return to

the common law, when payment from one of many tortfeasors to a plaintiff

terminated the remainder of the case.

Still, the Agency argues that such a result would be unjust, because it

has cross-claims for contribution and indemnification pending against the

Seller, whom the Buyer has now fully and finally released from liability in this

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action. The Agency believes that, in order for the Buyer to preserve her claims

against it, she needed to include language in the Release so stating.

This was also the primary concern for the trial court, which opined:

The [Agency] filed a cross-claim against the [Seller], asserting that the [Seller was] responsible for any and all wrongdoing, or that [it was] jointly liable.

The [Buyer] and the [Seller] then entered into the . . . Release, which released the [Seller] from the case in its entirety. The [Seller] paid consideration to the [Buyer] as a settlement. The [Buyer] then filed its Discontinuance as to the [Seller] only, without seeking leave of court or consent of the [Agency].

Legally, however, a discontinuance between a plaintiff and defendants does not preclude cross-claims between defendants and additional defendants. See Ross v. Tomlin, 969 A.2d 230 (Pa. Super. 1997). This means that the [Agency’s] continued presence in the action would also continue [its] cross-claim against the [Seller]. As a result, the [Seller] could still be liable for damages to the [Buyer] if the [Agency] and the [Buyer] went to trial, even though the [Seller] settled [its] case with the [Buyer, who] released the [Seller] from the action.

In deciding whether to grant the [Seller’s] Motion for Leave of Court to Discontinue as to All Parties, this Court determined that discontinuing against all defendants was the only option consistent with the apparent intention of the . . . Release between the [Buyer] and the [Seller]. Further, by not discontinuing the [Agency], [its] cross-claim against the [Seller] would have continued to be valid, which would have greatly prejudiced the [Seller].

Trial Court Opinion, 9/16/19, at 7-8.

The trial court’s reasoning ignores UCATA and impermissibly converts

the Buyer’s specific release of only the Seller into a general release of the

whole world. As explained above, under Buttermore, supra, the Buyer did

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not execute a general release. Thus, the trial court’s discontinuance as to the

Agency directly contradicted the General Assembly’s directives in UCATA that

a “release by the injured person of one joint tortfeasor . . . does not discharge

the other tortfeasors, unless the release so provides.” 42 Pa.C.S.A. § 8326

(emphasis added) (some punctuation omitted).

Indeed, under the plain language of UCATA, the Seller remains liable to

the Agency for contribution and indemnification, notwithstanding the Release

of the Seller by the Buyer. The UCATA “does not impair any right of indemnity

under existing law.” 42 Pa.C.S.A. § 8323. “The right of contribution exists

among joint tortfeasors.” 42 Pa.C.S.A. § 8324(a) (some punctuation

omitted). Finally, a “release by the injured person of one joint tortfeasor does

not relieve him [i.e., the released tortfeasor] from liability to make

contribution to another tortfeasor . . . .” 42 Pa.C.S.A. § 8327 (some

punctuation omitted) (emphasis added). The only exception to that provision

is if “the release [(1)] is given before the right of the other tortfeasor to secure

a money judgment for contribution has accrued and [(2)] provides for a

reduction to the extent of the pro rata share of the released tortfeasor of the

injured person's damages recoverable against all the other tortfeasors.” Id.

(emphasis added).

Currently, the Release only satisfies the first part of the exception, as

Buyer gave it before the Agency’s right to secure its judgment for contribution

from the Seller has accrued. As for the second part, the Release does not

provide for a pro rata reduction of the Seller’s share from any judgment that

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the Buyer might, in the end, recover from the Agency. Hence, the exception

to Section 8327 of UCATA does not apply, and we may not hold that this

Release automatically relieves the Seller “from liability to make contribution

to [the Agency]” under UCATA. Id.

By concluding the Release automatically canceled the Agency’s cross-

claim for contribution and indemnity against the Seller, the trial court failed

to apply the plain language of 42 Pa.C.S.A. §§ 8323, 8324(a), 8327. Total

discontinuation of this case relieved a released tortfeasor (Seller) from

contribution to its potential, joint tortfeasor (the Agency), based solely upon

the fact that the Buyer had entered a release with the Seller. Automatic

discontinuance of the whole action was error as a matter of law.

IV. Conclusion

In sum, because the trial court misapplied Pennsylvania Rule of Civil

Procedure 229, its effective grant of summary judgment under Rule 229 must

be reversed. The pro tanto Release that Seller executed with Buyer does not

permit the Seller to exit this lawsuit, because a pro tanto Release does not

settle or discontinue Seller’s potential liability to the Agency on the cross-

claims for indemnification and contribution.

Order reversed. Case remanded for further proceedings.

Jurisdiction relinquished.

Judge Stabile joins the memorandum.

Judge Pellegrini concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/30/2020

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