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Delmarva Power & Light Co. v. Smith

Court of Common Pleas of Delaware, New Castle

April 20, 2017

DELMARVA POWER & LIGHT CO. Plaintiff,
v.
DRU B. SMITH and BLEVINS INC., Defendants, VERIZON DELAWARE LLC, Defendant/Third-Party Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS, LLC Third-Party Defendant

          Submitted: April 5, 2017

          Lisa C. McLaughlin, Esquire Phillips, Goldman, McLaughlin & Hall, PA. Attorney for Plaintiff.

          Michael J. Logullo, Esquire Rawle & Henderson LLP Attorney for Defendants Dru B. Smith and Blevins Inc.

          Mary E. Sherlock, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LLP Attorney for Third-Party Defendant Plaintiff Verizon Delaware LLC

          Krista E. Shevlin, Esquire Franklin & Prokopik Attorney for Defendant/Third-Party Comcast Cable Communications, LLC

          MEMORANDUM OPINION AND ORDER ON THIRD-PARTY DEFENDANT'S MOTION TO DISMISS

          HONORABLE CARL C. DANBERG JUDGE.

         This is an action for negligence. The third-party defendant, Comcast Cable Communications, LLC (hereinafter "Comcast"), brings this motion under Court of Common Pleas Civil Rule 12(b)(6), alleging the third-party complaint fails to comply with Rule 14(a).

         On March 31, 2017, a hearing was convened on the Motion, at which time the parties presented oral argument and were given the opportunity to submit supplemental briefing.[1] After reviewing the parties' briefs and arguments, the Court reserved decision. This is the Final Decision of the Court on Comcast's Motion to Dismiss.

         STANDARD OF REVIEW

         Due to the early procedural stage and the nature of the instant Motion, there is no factual record beyond the pleadings. In accordance with the standard for reviewing a motion under Rule 12(b)(6), the Court will assume all of the relevant facts in the pleadings are true.[2] The Court will only dismiss the third-party complaint if the third-party plaintiff "would not be entitled to recover under any reasonably conceivable set of circumstances susceptible to proof."[3]

         FACTS AND PROCEDURAL HISTORY

         The genesis of the underlying cause of action is an accident in which a truck, owned by defendant Blevins, Inc. and operated by defendant Dru B. Smith, struck wires attached to a utility pole owned by the plaintiff, Delmarva Power and Light Company (hereinafter "Delmarva"). Delmarva alleged in its complaint the wires belonged to the defendant, Verizon Delaware LLC (hereinafter "Verizon"), and were not kept above eighteen feet.

         In its answer, Verizon denied liability, and stated "Verizon had no overhead wires at the incident location."[4] Verizon filed a crossclaim for contribution and indemnification against the other defendants and filed a third-party complaint against Comcast. Verizon reiterated its assertion the truck did not strike Verizon's wires and instead alleged the wires belonged to Comcast. Comcast then filed the instant Motion to Dismiss in lieu of an Answer.

         PARTIES' CONTENTIONS

         Comcast argues Rule 14(a) only permits a defendant to file a third-party complaint against a joint tortfeasor. Comcast must owe Verizon some duty, thereby entitling Verizon to be indemnified by Comcast for its own liability to Delmarva. According to Comcast, because Verizon has disclaimed all liability to Delmarva, there is no circumstance ...


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