Opinion
No. 03 MDL 1529 (LMM).
June 30, 2005
MEMORANDUM AND ORDER
This action was commenced in the Court of Common Pleas of the Commonwealth of Pennsylvania by the Pagnotti Plaintiffs against Deloitte which brought in the Rigas Defendants. "[T]he Pagnotti Plaintiffs allege that they purchased securities issued by Adelphia and that documents and statements concerning Adelphia, upon which they allegedly relied prior to the their purchases, contained material misstatements regarding Adelphia's financial and operating results" and that, "as Adelphia's independent auditor, Deloitte knew or should have known of the misstatements." They "seek to recover damages [from Deloitte] under the Pennsylvania Securities Act and on theories of fraud and negligent misrepresentation." (Rigas Defendants Mem. at 1.) "In the Deloitte [joinder or third party] complaint, Deloitte alleges that, to the extent liability exists to the Pagnotti Plaintiffs, the Rigases are primarily liable and Deloitte would thus, under Pennsylvania law, be entitled to contribution from the Rigases for any damages awarded to the Pagnotti Plaintiffs." (Id. at 2.)
"Pagnotti Plaintiffs," "Deloitte," "Rigas Defendants" and "Adelphia" have the same meanings as in the Court's May 2, 2005 decision herein. See In re Adelphia Communications Corp. Sec. Deriv. Litig., No. 03 MDL 1529 04 Civ. 4967, 2005 WL 1026559, at *1 (S.D.N.Y. May 2, 2005).
The Rigas Defendants move, pursuant to Fed.R.Civ.P. 12(b) (6), for dismissal of the Deloitte complaint against them, arguing that, since Deloitte has neither made any payments to the Pagnotti Plaintiffs nor had a judgment entered against it, "Deloitte's contribution claim is, therefore, premature and should be dismissed." (Id. at 3.)
While the factual premise of the Rigas Defendants' argument may be correct, their legal conclusion is not. Deloitte need not make a payment to the Pagnotti Plaintiffs nor suffer an adverse judgment before asserting their claim against the Rigas Defendants for contribution. Rather, "[t]he right of contribution may be asserted during the original proceeding via joinder of a third-party defendant." Mattia v. Sears, Roebuck Co., 366 Pa. Super. 504, 508, 531 A.2d 789, 791 (Pa.Super. 1987), app. denied, 519 Pa. 660, 546 A.2d 622 (Pa. 1988) (citing Pa. R. Civ. P. 2252).
The motion for dismissal is denied.
SO ORDERED.