Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before DOBIE and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
Pete Sporia (hereinafter called Sporia) and Stephen Kosana (hereinafter called Kosana), as co-plaintiffs, brought a civil action against Pennsylvania Greyhound Lines, Incorporated (hereinafter called Greyhound) as defendant, in the common Pleas Court of Washington County, pennsylvania. This action sought to recover damages for injuries alleged to have been suffered by Sporia and Kosana as the result of a collision between an automobile driven by Sporia, in which Kosana was riding as a guest, and an auto bus of Greyhound. Greyhound removed the action into the District Court of the United States for the Western District of Pennsylvania.
In the District Court, Greyhound sought a severance of the claim (or cause of action) of Sporia against Greyhound from the claim (or cause of action) of Kosana against Greyhound, and Greyhound asked that Sporia be made a party defendant to the claim (or cause of action) of Kosana against Greyhound.
The District Court denied the relief sought. Judge Schoonmaker stated: "As Pete Sporia is already a party to this action, we are of the opinion that he cannot be brought on the record as an additional defendant." 3 F.R.D. 197. Greyhound has duly appealed. Counsel for Greyhound inform us that neither Sporia nor Kosana objected to the severance which Greyhound seeks.
It seems clear that the joinder of Sporia and Kosana as co-plaintiffs here was proper under both the practice in Pennsylvania and the practice in the federal District Courts. See Civil Practice Rules of Pennsylvania, Rule No. 2229, 12 P.S. Pa. Appendix; Federal Rules of Civil Procedure, Rule 20(a), 28 U.S.C.A. following section 723c. Equally clear is it that the claim of Sporia and the claim of Kosana here are quite separate and distinct, each from the other. The judgments obtained, if the plaintiffs should prevail, would necessarily be different, depending upon the injuries sustained by each. And it might well be, if both Sporia and Greyhound are found to be negligent, that judgment might go against Sporia (the driver) and still be in favor of Kosana (the guest).
If the severance be granted, and if Sporia be made a party-defendant to the action of Kosana against Greyhound, then Greyhound has proper opportunity to assert that Sporia is liable (alone or severally or jointly) in the action of Kosana, Sporia's geust. As this action is now brought, Greyhound, if held liable to Kosana, might lose its right of contribution from Sporia.
The District Judge evidently proceeded under Rule 14(a) of the Federal Rules of Civil Procedure which (in part) provides:
"When Defendant May Bring in Third Party.
"Before the service of his answer a defendant may more ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him."
This rule was evidently drawn to cover cases of bringing in persons not already parties to the action, and Sporia was clearly a party to the action as a co-plaintiff.
Rule 42(b) of the Federal Rules of Civil Procedure provides:
"Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third-party claim, or of any separate issue or of any number of claims, ...