Appeal, No. 275, Jan. T., 1955, from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1953, No. 8879, in case of Mary Nelk Socha, administratrix of estate of Stanley A. Socha, deceased v. Ernest Metz and Hugh F. Brown and City of Philadelphia. Order affirmed; reargument refused July 31, 1956.
I. Raymond Kremer, with him Rush, Kremer & Maerz, for appellant.
Levy Anderson, Deputy City Solicitor, with him Israel K. Levy, Assistant City Solicitor, Jerome J. Shestack, First Deputy City Solicitor, James L. Stern, Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The question in this case is whether the City of Philadelphia, in the trespass action here involved, waived its defense of liability for workmen's compensation when it did not formally raise the employer-employee relationship between it and the plaintiff's decedent until the plaintiff issued a mandamus execution to obtain satisfaction from the City of her judgment recovered against the City and the other defendants jointly.
The plaintiff is the widow and personal representative of Stanley A. Socha who died as a result of injuries received in a collision between a sanitation truck of the City, upon which he was riding, and an automobile operated by the original defendant, Ernest Metz. Metz joined Hugh F. Brown, the driver of the City's truck, and the City of Philadelphia as additional defendants. The original defendant's complaint against the City of Philadelphia, as additional defendant, alleged that the "collision was directly, proximately and solely due to the carelessness, recklessness and gross negligence of the servant, agent or employee of the addition defendant, City of Philadelphia, in operating its aforementioned motor vehicle" and that by reason thereof the "additional defendant, City of Philadelphia, is either solely liable to plaintiff, ... jointly and severally liable to them with defendant, or liable to defendant ... in whatever amounts defendant ... may be held liable to plaintiff ... on the causes of action declared by her ...."
Trial of the negligence issue and liability therefor was had which resulted in a jury's verdict for the plaintiff against all defendants jointly in the sum of $40,000. Motions for new trial filed by Metz and the City of Philadelphia were refused and judgment was entered on the verdict. No further motions were made, and no
appeal was taken by either the defendant or the additional defendant, City of Philadelphia. The plaintiff collected $15,000 from Metz's insurance carrier on account of her judgment and caused a writ of mandamus execution to issue against the City of Philadelphia for the balance of the judgment. The next day the City petitioned the court to quash the writ of mandamus execution and to have the judgment marked satisfied of record as to it. A rule was entered on the plaintiff to show cause why the prayers of the petition should not be granted, all proceedings against the City on the judgment to stay meanwhile.
Paragraph 2 of the City's petition to quash the writ, etc., averred "That at the time of the alleged accident, the said Stanley A. Socha, deceased, was in the employ of the City of Philadelphia as a helper on its said garbage truck, as will more fully appear in the Notes of Testimony filed in this case, which are herein incorporated by reference and made a part hereof." The notes of the testimony taken at the trial of the trespass action plainly reveal that, at the time the plaintiff's decedent received his mortal injury as a result of the collision, he was an employee of the City acting in the course of his employment.
For answer to the above-quoted averment of the City's petition to quash, the plaintiff merely averred argumentatively that "the allegations of paragraph two of the petition are irrelevant and immaterial for reasons hereinafter more fully set forth in this answer to said petition; that this proceeding by way of petition to quash the mandamus execution and to cause judgment against the City of Philadelphia to be marked satisfied is improper and without authority or warrant in law."
Within some three weeks of the accident, the City forwarded to the attorney for the plaintiff a compensation
agreement to be executed by her and filed with the Pennsylvania Workmen's Compensation Board which the plaintiff refused to sign. The plaintiff's answer admitted these facts but endeavored to obviate their effect by pleading her own legal conclusions.
It is the City's contention that the plaintiff's decedent and the City were subject to the Workmen's Compensation Act; that the plaintiff could not maintain a separate action of trespass against the City; that the joinder of the City as an additional defendant was permissible only to the original defendant to protect his right of contribution from the City in the event they were held jointly liable for the accident; and that, in such circumstances, action by the City to have the judgment against it marked satisfied upon payment of its liability for compensation is the appropriate and only available procedure open to the employer City.
On the other hand, the plaintiff contends that the City's action is a collateral attack on the judgment entered against it and an effort to litigate and raise a defense of "limited liability" which could and should have been raised in the pleadings or at the trial of this matter or by way of a motion for judgment n.o.v. or any other proper proceeding within the term of court. In short, the plaintiff argues that the City waived its defense of liability for workmen's compensation.
The court made the rule absolute and ordered (1) that the writ of mandamus execution be quashed and (2) that the judgment entered in favor of the plaintiff be satisfied of record as to the City of Philadelphia upon payment by the City to the plaintiff of a sum equal to the aggregate amount allowable by the Workmen's Compensation Act for the death of her husband. The plaintiff brought this appeal.
The appellant's contentions are without merit and obviously stem from a fundamental misconception of
the effect of liability for workmen's compensation where applicable.
An employer's liability to his employee for compensation under the Workmen's Compensation Act for injuries received by the employee in the course of his employment is not a "limited liability" as the appellant mistakenly terms it. It is the whole liability under the parties' statutory agreement to be bound by the provisions of the Act, and, where such an agreement exists, the injured employee has no other right of action. By virtue of the Compensation Act, an employee's common law right to damages for injuries suffered in the course of his employment as a result of his employer's negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer's liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated: Swartz v. Conradis, 298 Pa. 343, 346, 148 A. 529. In the Swartz case it was said that "When the statutory employer accepts article III [of the Compensation Act] he is relieved of all liability for compensation at common law. Section 303 makes the 'agreement [referred to in Section 302] operate as a surrender by the parties thereto of their rights to any form or amount of compensation ... or to any method of determination thereof, other than as provided in article III of this act.'" See, also, Staggers v. Dunn-Mar Oil & Gas Co., 312 Pa. 269, 274, 167 A. 785. It is plain enough, therefore, that there is no need for a "limited liability" defense or any other defense to a nonexistent right of action.
There is a conclusive presumption under the Workmen's Compensation Act that the parties to every contract of hiring agree to be bound by the Act unless at the time of the making, renewal or extension of such a contract one or the other of the parties, by express
statement in writing, rejects the provisions of the Act. And, the burden of proving that the Act is not applicable in any given instance is upon the party so asserting: Swartz v. Conradis, supra. Here, the relationship of employer and employee between the City of Philadelphia and the plaintiff's decedent is admitted and is fully established by the record which also discloses that the employee received his fatal injuries while in the course of his employment by the City. The presumption is therefore conclusive that the provisions of the Workmen's Compensation Act are applicable, no written rejection of the Act, as the statute specifies, having been offered or even intimated. Indeed, the City is not permitted by law to reject the provisions of the Act. Section 302(a) of The Workmen's Compensation Act provides that "It shall not be lawful for any officer or agent of this Commonwealth, or for any county, city, borough, or township therein, or for any officer or agent thereof, or for any other governmental authority created by the laws of this Commonwealth, to give such notice of rejection of the provisions of this article to any employe of the State or of such governmental agency."
It necessarily follows that the sole procedure available to the plaintiff for the recovery of damages from the employer for her husband's death from injuries received in the course of his employment was by virtue of the Workmen's Compensation Act and by that alone.
It so happens, however, just as in the instant case, that an employer may be required to defend his employee's trespass action for personal injuries received in the course of his employment when the employer is summoned as an additional defendant or is sued jointly with another for such injuries. But, that procedure is for the sole and exclusive purpose of protecting the original or ...