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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HERNDON BOROUGH JACKSON :

TOWNSHIP JOINT MUNICIPAL :

AUTHORITY :

 :

Plaintiff, : Case No. 4:12-cv-01116

 :

v. :

 :

PENTAIR PUMP GROUP, INC. : (Judge Brann)

t/d/b/a MYERS PUMP COMPANY :

and MID ATLANTIC PUMP AND :

EQUIPMENT COMPANY :

 :

Defendants, :

 :

v. :

 :

LARSON DESIGN GROUP, INC. :

 :

Third Party Defendant. :

MEMORANDUM

May 8, 2015

Third Party Defendant Larson Design Group, Inc. (“Larson”) has filed a

Motion to Strike Defendant Pentair Pump Group, Inc. t/d/b/a/ Myer Pump 

Company’s (“Pentair”) Third Party Complaint pursuant to Rule 14(a)(4) of the 

Federal Rules of Civil Procedure or, in the alternative, to Dismiss the Third Party 

Complaint for failure to state a claim upon which relief can be granted pursuant to 

Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 49). Pentair’s 

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Third Party Complaint, as amended on September 8, 2014, alleges a single count 

for contribution and/or indemnification against Larson for Negligent 

Misrepresentation of a Professional Design. (ECF No. 46). 

Larson seeks to strike or dismiss Pentair’s Third Party Complaint in its 

entirety. (ECF No. 49). This Court retains diversity jurisdiction pursuant to 28 

U.S.C. § 1332. Consequently, Pennsylvania substantive law applies. E.g., Erie 

R.R. Co. v. Tompkins, 304 U.S. 64, 91-92 (1938). For the reasons discussed

below, Larson’s Motions will be denied.

I. BACKGROUND

On February 22, 2012, Plaintiff Herndon Borough Jackson Township Joint 

Municipal Authority (“Herndon Borough”) filed a complaint against Defendants in 

the Court of Common Pleas of Northumberland County, Pennsylvania. See (ECF 

No. 1). Herndon Borough moves wastewater through various pump-stations, 

including Pump-Station Number 2 (the “Pump-Station”). Id. The Defendants 

supplied parts for the Pump-Station, and Pentair provided the water pump used in 

the Pump-Station. Id. Herndon Borough alleges, inter alia, that Pentair installed 

inferior parts in the water pump, resulting in Herndon Borough incurring 

significant damages. Id. On June 12, 2012, Defendants removed the action to this 

Court based on diversity of citizenship. Id. 

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On July 16, 2014, Pentair filed a Third Party Complaint against Larson, 

which was subsequently amended on September 8, 2014. (ECF Nos. 35, 46). 

Pentair alleges that “the design of the sewage treatment plant . . . and not any 

alleged defects in the pumps, caused the alleged defects in the grinder pumps[.]” 

(ECF No. 46 ¶ 8). Specifically Pentair alleges that Larson, the design firm 

employed by Herndon Borough, negligently designed the Pump-Station. Id. at ¶¶ 

11, 17. This negligent design led the pumps to fail. Id. at ¶¶ 13-17. Furthermore, 

Larson allegedly failed to communicate these design flaws to third parties that 

relied on Larson’s representations. Id. at ¶¶ 23-24. As a result, Pentair alleges 

that, if judgment is entered against it, then Larson is “liable over to Pentair by way 

of contribution and indemnity.” Id. at ¶ 18. 

Larson has filed its Motion to Strike, claiming that Pentair essentially argues 

Larson is solely liable to Herndon Borough, and therefore has failed to state a 

proper claim under Rule 14. (ECF No. 49). Furthermore, Larson argues that 

Pentair has failed to set forth viable claims for contribution or indemnification. Id. 

In the alternative, Larson seeks dismissal of the third-party complaint pursuant to 

Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Id.

II. DISCUSSION

A. Motion to Strike Under Rule 14(a)(4)

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Rule 14 of the Federal Rules of Civil Procedure broadly provides that “a 

defending party may, as a third-party plaintiff, serve a summons and complaint on 

a nonparty who is or may be liable to it for all or part of the claim against it.” 

Conversely, where a third party complaint is improperly brought, any party may 

move to strike it. Fed. R. Civ. P. 14(a)(4). “In general, whether a particular thirdparty defendant may be impleaded is a question which ‘rests with the sound 

discretion of the trial court.’” State Coll. Area Sch. Dist. v. Royal Bank of Can., 

825 F.Supp.2d 573, 379 (M.D. Pa. 2011) (quoting Hartford Casualty Ins. Co. v. 

ACC Meat Co., 2011 WL 398087, at *1 (M.D. Pa. Feb. 2, 2011)).

“Where . . . state substantive law recognizes a right of contribution and/or 

indemnity, impleader under Rule 14 is the proper procedure by which to assert 

such claims.” In re One Meridian Plaza Litig., 820 F.Supp. 1492, 1496 (E.D. Pa. 

1993) (citing Smith v. Whitmore, 270 F.2d 741 (3d Cir.1959); Pennine Res., Inc. v. 

Dorwart Andrew & Co., 639 F.Supp. 1071 (E.D. Pa. 1986)). However, a “thirdparty complaint may not set forth a claim that the third party defendant is directly 

liable to the original plaintiff; it is limited to claims of secondary or derivative 

liability.” Id. Rule 14 is procedural in nature, and a party’s substantive rights must 

derive from state law. Garcia v. Cummings, 1:07-cv-1886, 2009 WL 136785, at 

*2 (M.D. Pa. Jan. 20, 2009).

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Larson first argues that Pentair alleges sole liability from Larson to Herndon 

Borough, rather than secondarily liable to Pentair. (ECF No. 52, pp. 7-9). While 

Pentair’s Third Party Complaint can be read as arguing primary liability on the part 

of Larson, this is not the only permissible reading of the Third Party Complaint. 

Although it is not a model of clarity, Pentair’s complaint does allege that Larson is 

secondarily liable to Pentair. Reading Pentair’s Third Party Complaint liberally, it

alleges that, in the event that Pentair is found to have created a defective product, 

Larson’s negligent design contributed significantly to the pump’s failure and, 

ultimately, to Herndon Borough’s damages. This would constitute a joint tort, and 

therefore Larson would be liable to Pentair because Pentair would have paid in 

excess of its fair share of the total losses. 

Thus, as Pentair plainly states, “[i]f judgment . . . is entered against Pentair, 

then Larson is liable over to Pentair by way of contribution and indemnity.” Id. at 

¶ 18. Based on the Court’s reading of Pentair’s Third Party Complaint, Pentair has 

sufficiently alleged liability from Larson to Pentair, and therefore striking the 

Third Party Complaint on that basis is not appropriate.

1. Contribution

Larson next argues that Pentair has not stated a claim for contribution. (ECF 

no. 52). Contribution is only allowed under Pennsylvania law for torts; thus, 

Pentair’s claim for contribution may only rest on the tort claim under products 

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liability. See (ECF No. 52) (citing Castle Cheese, Inc. v. MS Produce, Inc., 04-cv878, 2008 WL 4372856, at *42 (W.D. Pa. Sept. 19, 2008)). The Pennsylvania

Uniform Contribution Among Tortfeasors Act (the “Uniform Act”) provides for a 

right of contribution among joint tortfeasors. 42 Pa.C.S.A. § 8324(a). “Joint 

tortfeasors are defined as ‘two or more persons jointly or severally liable in tort for 

the same injury to persons or property[.]’” Mattia v. Sears, Roebuck & Co., 366 

Pa.Super. 504, 507 (1987) (quoting 42 Pa.C.S.A. § 8322)). “Two actors are jointly 

liable for an injury if their conduct ‘causes a single harm which cannot be 

apportioned . . . even though [the actors] may have acted independently.’” Id.

(quoting Capone v. Donovan, 332 Pa.Super. 185, 189 (1984)).

“The focus of the Uniform Act is on the relationship existing between 

tortfeasors rather than the manner in which several tortfeasors have been held 

liable to an injured claimant[.]” Smith v. Weissenfels, Inc., 441 Pa. Super. 328, 

337 (1995) (quoting Svetz v. Land Tool Co., 355 Pa. Super. 230, 238 (1986)). As 

the Supreme Court of Pennsylvania has noted, “contribution is not a recovery for 

the tort [committed against the plaintiff,] but the enforcement of an equitable duty 

to share liability for the wrong done.” Puller v. Puller, 380 Pa. 219, 221 (1955). 

The Pennsylvania Superior Court further expounded that:

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 

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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 [Uniform] Act to deny that party’s right to 

contribution from a second tortfeasor who also contributed to the 

plaintiff’s injury.

Svetz, 355 Pa. Super. at 238.

Larson argues that, in a products liability case, contribution is not available 

outside the chain of distribution. (ECF No. 52, p. 11). However, the Uniform Act

“‘may properly be applied to effectuate contribution among joint tortfeasors where 

one tortfeasor is adjudged liable of negligence and the other liable under the 

concepts of strict products liability[.]’” Smith, 441 Pa. Super. at 337 (quoting

Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 107-09 (1991)).

Therefore, contrary to Larson’s argument, liability may be apportioned 

through contribution amongst joint tortfeasors where one is held liable under a 

products liability theory and another may be liable for negligence. For example, in 

Smith the plaintiff sued the defendant for allegedly producing a defective chain; 

this chain broke when plaintiff was moving a heavy object, causing physical 

injuries. 441 Pa. Super. at 331. The defendant sought contribution from a third 

party, the trucking company that advised the plaintiff that the chain was “adequate 

for the task” of moving the object. Id. Despite the fact that the third party 

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defendant was held liable only under a negligence theory, the Pennsylvania 

Superior Court affirmed the contribution award. Id. at 337. 

Similarly in Svetz, the plaintiff sued defendant under a theory of products 

liability, alleging that defendant had produced a defective motorcycle helmet. 355 

Pa. Super. at 233. The decedent had been driving his motorcycle when he crashed; 

upon impact, his motorcycle helmet split, causing head injuries that resulted in his 

death. Id. The defendant sought contribution from a third party who had allegedly 

served alcoholic beverages to the decedent while he was visibly intoxicated. Id. 

The Pennsylvania Superior Court concluded that, despite the fact that defendant

was liable under a products liability theory and the third party defendant was liable 

based on a separate negligent act, both acts combined to cause a single harm. Id. at 

237-42. Therefore, despite the fact that both acts were distinct, when they 

combined to create unified harm, contribution was allowed. Id.

Although Pentair is being sued under a products liability theory, and Larson 

does not appear to be within the chain of distribution, contribution is allowable 

under Pennsylvania law. If Pentair is found liable, it will be because its pump was 

in some way defective. Because Pentair alleges that Larson’s negligent design of 

the Pump-Station combined with Pentair’s tort to create a unified, more extensive 

harm, Larson may properly be held liable for contribution. See Smith, 441 Pa. 

Super. at 337; Svetz, 355 Pa. Super. at 237.

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2. Indemnity

Next, Larson argues that Pentair has not stated a claim for indemnity or, in 

the alternative, that any claim for indemnity is not yet ripe. (ECF No. 52). In 

Pennsylvania, indemnity is only available “(1) where primary versus secondary or 

vicarious liability is present or (2) where there is an express contract to 

indemnify.” Nat'l R.R. Passenger Corp. v. URS Corp., 528 F.Supp.2d 525, 532 

(E.D. Pa. 2007) (internal quotation marks omitted) (quoting Richardson v. John F. 

Kennedy Mem'l Hosp., 838 F.Supp. 979, 989 (E.D. Pa. 1993)). The Supreme 

Court of Pennsylvania has set forth the law relating to indemnity:

The right of indemnity rests upon a difference between the primary 

and the secondary liability of two persons each of whom is made 

responsible by the law to an injured party. It 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. The difference between primary 

and secondary liability is not based on a difference in degrees of 

negligence or on any doctrine of comparative negligence . . . It 

depends on 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 . . . 

[T]he important point to be noted in all the cases is that secondary as 

distinguished from primary liability rests upon a fault that is imputed 

or constructive only, being based on some legal relation between the 

parties, or arising from some positive rule of common or statutory law 

or because of a failure to discover or correct a defect or remedy a 

dangerous condition caused by the act of the one primarily 

responsible. In the case of concurrent or joint tortfeasors, having no 

legal relation to one another, each of them owing the same duty to the 

injured party, and involved in an accident in which the injury occurs, 

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there is complete unanimity among the authorities everywhere that no 

right of indemnity exists on behalf of either against the other; in such 

a case, there is only a common liability and not a secondary one, even 

though one may have been very much more negligent than the other.

Builders Supply Co. v. McCabe, 366 Pa. 322, 325-28 (1951). See also, Kemper 

Nat'l P & C Cos. v. Smith, 419 Pa.Super. 295, 299–300 (1992).

Evaluated under this standard, Pentair has sufficiently alleged a cause for 

indemnity under the circumstances. As discussed previously, one reading of 

Pentair’s Third Party Complaint is an allegation that, if Pentair is found liable, then 

Larson is a joint tortfeasor who contributed to the harm visited upon Herndon 

Borough. In such circumstances “no right of indemnity exists[.]” Builders Supply 

Co., 366 Pa. at 328. However, a thorough reading of the Third Party Complaint 

evidences a second claim.

Pentair has alleged that Larson negligently misrepresented the design of the 

Pump-Station, and Pentair justifiably relied on that incorrect and inaccurate 

information. (ECF. No. 46, ¶ 21). Based on that reliance, among other things,

Pentair provided a pump “that used single phase pump motors” despite the fact that 

the Pump-Station employed “a three-phase 100 amp circuit breaker[.]” Id. These 

facts are sufficient to establish that Larson’s initial negligence created Pentair’s 

secondary liability. Under this reading of the Third Party Complaint, absent 

Larson’s initial negligence, Pentair’s equipment would have operated as expected, 

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and no liability could have been imputed to Pentair. Therefore, Pentair has 

sufficiently pled a cause of action for indemnity.

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B. Motion to Dismiss Under Rule 12(b)(6)

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff. Hishon v. King 

& Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d 

Cir. 1993). However, “the tenet that a court must accept as true all of the [factual] 

allegations contained in the complaint is inapplicable to legal conclusions.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). 

“Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. At the motion to dismiss stage, the 

court considers whether the plaintiff is entitled to offer evidence to support its

allegations. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, the plaintiff has not pled enough facts to 

 

1

Larson has also argued that any claim for indemnity is not yet ripe, since Pennsylvania law 

allows for indemnity claims only after a party has been found liable for damages. (ECF No. 52, 

p. 14) (citing TDY Indus. v. Nat’l Freight Transp., Inc., 2009 WL 691947, at *12 n. 9 (W.D. Pa. 

March 12, 2009). However, the Court agrees with my colleague, Judge John E. Jones III’s

assessment in Tulpehocken Spring Water, Inc. v. Obrist Americas, Inc. of the ripeness doctrine 

as applied to Pennsylvania indemnity law. 4:09-cv-2189, 2010 WL 5093101, at *4-5 (M.D. Pa. 

Dec. 8, 2010). There, Judge Jones concluded that, in the interests of judicial economy, courts 

may allow joinder for indemnity even though the claim is not yet ripe. Id. Consequently, Pentair 

may assert its claim for indemnity, despite the fact that it is not strictly ripe as of yet.

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state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 561 (2007). “Determining whether a complaint states a plausible 

claim for relief will . . . be a context-specific task that requires the reviewing court 

to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-64. 

Rule 8 of the Federal Rules of Civil Procedure “requires only a ‘short and 

plain statement of the claim showing that the pleader is entitled to relief,’ in order 

to ‘give the defendant fair notice of what the . . . claim is and the grounds on which 

it rests[.]’” Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 47 

(1957)). However, even under this lower notice pleading standard, a plaintiff must 

make a factual showing of entitlement to relief by alleging sufficient facts that, 

when taken as true, suggest the required elements of a particular legal theory. See

Twombly, 550 U.S. at 561. “[W]here the well-pleaded facts do not permit the court 

to infer more than the mere possibility of misconduct, the complaint has alleged –

but it has not “shown” – “that the pleader is entitled to relief.” Iqbal, 556 U.S. at 

679 (quoting Fed. R. Civ. P. 8(a)). A court may dismiss a claim under Rule 

12(b)(6) where there is a “dispositive issue of law.” Neitzke v. Williams, 490 U.S. 

319, 326 (1989). 

1. Negligent Misrepresentation

Here, Pentair alleges that Larson is liable only under a theory of negligent

misrepresentation. (ECF No. 46). In Pennsylvania, “[n]egligent misrepresentation 

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requires proof of: (1) a misrepresentation of a material fact; (2) made under 

circumstances in which the misrepresenter ought to have known its falsity; (3) with 

an intent to induce another to act on it; and (4) which results in injury to a party 

acting in justifiable reliance on the misrepresentation.” Bilt-Rite Contractors, Inc. 

v. The Architectural Studio, 581 Pa. 454, 466 (2005). 

Pentair’s Third Party Complaint alleges sufficient facts to satisfy this 

standard. First, Pentair alleges that Larson misrepresented numerous material 

facts, including the necessity of a wastebasket screen/filter for the Pump-Station, 

the necessity for frequent changing of cutters and shredding rings, and inconsistent 

requirements in the circuit breakers and the pump motors. (ECF No. 46, ¶ 21). 

Second, Pentair alleges that these misrepresentations directly contradict various 

professional standards. Id. at ¶ 15. Thus, Larson should have known of the falsity 

of the statements. Third, the information supplied by Larson “was intended for the 

benefit and guidance of” others. Id. at ¶ 23. Finally, Pentair alleges that it

“justifiably relied on” the misrepresentations, leading to the possible damages 

resulting from this case. Id. at ¶ 24. These facts and allegations, when taken as 

true, form a prima facie case for negligent misrepresentation. 

2. Economic Loss Doctrine

Larson argues that, notwithstanding any potential prima facie case for 

negligent misrepresentation, the Third Party Complaint should be dismissed based 

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on the economic loss doctrine. (ECF No. 52). Specifically, Larson contends that 

no exception to this doctrine applies in this situation. Id. Pentair in turn argues 

that their claim against Larson fits directly within an exception to the doctrine. 

(ECF No. 54).

The economic loss doctrine provides that “no cause of action exists for 

negligence that results solely in economic damages unaccompanied by physical 

injury or property damage.” Adams v. Copper Beach Townhome Communities, 

L.P., 816 A.2d 301, 305 (Pa. Super. 2003) (citing Spivack v. Berks Ridge Corp.,

402 Pa. Super. 73 (1991); Aikens v. Balt. & Ohio R.R. Co., 348 Pa.Super. 17

(1985)). However, the Supreme Court of Pennsylvania in Bilt-Rite carved out a 

narrow exception to this doctrine when it explicitly adopted Section 552 of the 

Restatement (Second) of Torts. 581 Pa. at 479. Section 552 states that:

One who, in the course of his business, profession or employment, or 

in any other transaction in which he was a pecuniary interest, supplies 

false information for the guidance of others in their business 

transactions, is subject to liability for pecuniary loss caused to them 

by their justifiable reliance upon the information, if he fails to exercise 

reasonable care or competence in obtaining or communicating the 

information.

RESTATEMENT (SECOND) OF TORTS § 552 (1977).

In such circumstances, the economic loss doctrine does not bar recovery for 

the tort of negligent misrepresentation. Bilt-Rite, 581 Pa. at 479. As the court 

explained, recovery is permissible only in “cases where [1] information is 

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negligently supplied by one in the business of supplying information, such as an 

architect or design professional, and [2] where it is foreseeable that the information 

will be used and relied upon by third persons, even if the third parties have no 

direct contractual relationship with the supplier of information.” Id. at 482. The 

court noted that defendants are “liable only to those, whether in contractual privity 

or not, for whose benefit and guidance the information is supplied[,]” whether 

directly or indirectly. Id. at 481 (quoting John Martin Co., Inc. v. Morse/Diesel, 

Inc., 819 S.W.2d 428, 431-32 (Tenn. 1991). Liability is imputed “to only those 

whose use of the information is reasonably foreseeable.” Id.

Although the court’s holding was narrowed somewhat by the procedural 

posture of the case, the Bilt-Rite holding is applicable here. In the Third Party 

Complaint, Pentair alleged that the information supplied by Larson “was intended 

for the benefit and guidance of” third parties, including Pentair. (ECF No. 46, ¶ 

23). Taken as true, this language sufficiently alleges that Larson understood it was 

“foreseeable that the information [would] be used and relied upon by third 

persons[.]” Bilt-Rite, 581 Pa. at 482. Second, Larson clearly qualifies as a design 

profession “in the business of supplying information[.]” Id. Finally, Pentair 

alleged several instances of Larson supplying, either by commission or omission, 

negligent information such as recommending the use of a three-phase 100 amp 

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circuit breaker, but inconsistently calling for the installation of single-phase pump 

motors in the pump grinders. (ECF No. 26, ¶ 21). 

Taken together, Pentair has alleged sufficient facts to meet the Bilt-Rite

exception to the economic loss doctrine. Consequently, Larson’s Motion to 

Dismiss the Third Party Complaint must be denied.

III. CONCLUSION

A review of the Third Party Complaint reveals that Pentair has stated a 

proper claim under Rule 14 of the Federal Rules of Civil Procedure. Furthermore, 

when viewed under the federal pleading standards, Pentair has alleged sufficient 

facts to state a claim for relief that is plausible on its face. Therefore, Larson’s

Motion to Strike Under Rule 14(a)(4) or, in the alternative, to Dismiss under Rule 

12(b)(6), is denied.

An appropriate Order will follow.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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