Appeal, No. 162, Jan. T., 1949, from judgment of Court of Common Pleas of Lancaster County, August T., 1946, No. 49, in case of Clarence Carlin v. Pennsylvania Power Light Company et al. Judgment affirmed.

Trespass for personal injuries.

The facts are stated in the opinion by WlSSLER, J., of the court below as follows:

Plaintiff Clarence Carlin instituted a suit in trespass against the Pennsylvania Power Light Company to recover damages for personal injuries sustained by him on June 28, 1944, as a result of a fall from a pole owned by the defendant. The Pennsylvania Power Light Company, as original defendant, filed an answer and an amended answer to plaintiff's complaint, also a complaint and an amended complaint against the Southern Telephone and Telegraph Company, as additional defendant, charging it in the alternative as being liable over to the original defendant for plaintiff's damages, or jointly liable therefor.

The instant suit was brought on June 25, 1946, and complaint filed on May 22, 1947. The original defendant on August 15, 1947, filed its answer, and on the same day filed a praecipe to join Southern Telephone and Telegraph Company as additional defendant, and at the same time filed its complaint against the additional defendant. On December 17, 1948, the original defendant filed an amended answer to the plaintiff's complaint, and an amended complaint against the additional defendant. To this amended complaint the additional defendant, on January 6, 1949, filed preliminary objections, and it is these preliminary objections that are presently before the court.

In the complaint filed by the plaintiff it is alleged that at the time he sustained the injuries by falling from pole No. 52,920, owned by the original defendant, he was in the employ of Southern Telephone and Telegraph Company, the additional defendant, and that it maintained its wires on said pole pursuant to permission granted by the original defendant. In the amended answer to the complaint the original defendant denies that Southern Telephone and Telegraph Company had any permissive right to use said pole at the time the accident occurred, and averred that "if the plaintiff, in the course of his employment for Southern Telephone and Telegraph Company ascended said Pole No. 52,920, owned by the defendant, . . . then and in such case, the plaintiff did so as a trespasser, without any right or permission from defendant, contractual or otherwise, . . ." Nevertheless, in the amended complaint against the additional defendant, it sets forth in the alternative that the additional defendant was liable over to the defendant for plaintiff's damages, or was jointly liable therefor.

The additional defendant raises the point in its preliminary objections that the complaint shows on its face that the only liability of the additional defendant for the injuries suffered by the plaintiff was contractual under the Workmen's Compensation Law, and not in tort, and that on its face it shows that an action, even if in tort, was barred by the statute of limitations on the date on which the praecipe to join the additional defendant was filed. There can be no doubt as to the soundness of these contentions, and if the averments contained in defendant's amended answer, and in its amended complaint against the additional defendant, are accepted as true, the additional defendant is alone liable for damages. Where the statute of limitations bars a suit directly against an alleged tortfeasor, he may not be joined as an additional defendant in an action for the tort on an allegation that he is alone liable: Zachrel, Admrx. v. Universal Oil Products Company et al., 355 Pa. 324 (1946). However, the rule is different where the defendant claims and submits facts in the complaint which indicate that the additional defendant is liable over to him, or jointly liable.

"The fact that the statute of limitations will bar the plaintiff from a direct recovery against the additional defendant can have no effect on the defendant's right to enforce his claim of contribution or indemnity. The cause of action owned by the plaintiff is distinct from the cause of action arising out of the duty of the additional defendant to indemnify the defendant." Goodrich-Amram Rules of Civil Procedure, Comments on Rule 2252(a)-9.

The sole question, then, to be decided is whether the defendant has alleged in its complaint sufficient facts to indicate that the additional defendant is either liable over to defendant, or jointly liable with defendant. We conclude that sufficient facts have not been so averred. The facts alleged in the amended complaint do not support a finding of liability over, or a joint liability. At best it is merely an allegation that the additional defendant is liable over or jointly liable, which, as was held in the case of Zachrel, Admrx. v. Universal Oil Products Company et al., supra, is but a statement of legal conclusions of law and amounts to nothing as a pleading. It is only after the defendant has averred sufficient facts constituting the transaction declared on by the plaintiff that the pleader is permitted to state legal conclusions in the alternative.

And now, May 20th, 1949, the preliminary objections to defendant's complaint are sustained, and the question of law raised therein decided in favor of the additional defendant.

Original defendant appealed.