article by the employer'. The employer is substituted to the rights of the employe only 'until he is reimbursed for whatever sums he was required to pay the employe under the Compensation Act'. Haley to Use of Martin v. Matthews, 104 Pa.Super. 313, 158 A. 645, 646; Myers v. Philadelphia Daily News (168 Pa.Super. 561, 79 A.2d 787). With these principles in mind, the fallacy of appellants' (employer-insurance carrier) contention is apparent. They would reduce the deduction made for funeral expenses to $ 200, thus increasing the sum available as a credit against the compensation due claimant and her minor son by $ 752.12. This would result in subrogation beyond the extent of compensation payable by employer. The sum of $ 752.12 could not have been recovered by the employer in an action brought directly against the tortfeasor for in such case its recovery would be limited to its liability, that is, to $ 200.' Leach v. Meadow Gold Dairies, Inc., 1952, 171 Pa.Super. 594, at page 597, 91 A.2d 293, at page 294; see also, Scalise v. F. M. Venzie, Inc., 1930, 301 Pa. 315, 317, 319, 152 A. 90. (Emphasis supplied.)
Ours can be the only interpretation. To hold otherwise would permit the insurance carrier to control the action. Obviously in a suit of this kind the primary recovery belongs to the injured employee. By permitting the subrogee to bring the entire action in its own name, we would be letting 'the tail wag the dog.' Clearly this should not be so. The fact that the plaintiff-insurer has become subrogated to part of the injured employee's claim, should not make it the proper party to enforce the entire cause of action. The cases cited by the plaintiff apparently extend the language of the Act; but a careful reading of these cases only strengthens the defendant's position.
Although it might be argued that a multiplicity of suits will ensue because of our conclusion, this is a necessary evil of our dual judicial system. And although this Court would have liked to have adjudicated this matter in a single action, it was prevented from doing so for two reasons. First, a joinder of the Leitchs in this tribunal would have been impossible because as partial subrogors, they are only necessary parties whose joinder can only be accomplished where federal jurisdiction permits. United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 70 S. Ct. 207, 94 L. Ed. 171. As residents of Pennsylvania, the joinder of these parties would oust the jurisdiction of this Court and therefore would not be permitted under our rules. Rule 19, Fed.Rules Civ.Proc. 28 U.S.C.; 3 Moore, Federal Practice (2d ed.1948), p. 2902; Mackintosh v. Marks Estate, 5 Cir., 1955, 225 F.2d 211, certiorari denied 1955, 350 U.S. 934, 76 S. Ct. 306, 100 L. Ed. 816; Dunham v. Robertson, 10 Cir., 1952, 198 F.2d 316. Secondly, a dismissal of the action in its entirety, in effect sending it to the State court, would deprive the non-Pennsylvania plaintiff, London Lancashire, of its constitutional right to have its claim determined in a federal court. See, Norton v. United Gas Corporation, D.C.W.D.La.1940, 1 F.R.D. 155. Thus, London Lancashire, as partial subrogee, may sue in this Court, while the Leitchs must get their satisfaction in the State tribunal.
Fortunately, at this point, neither party will be prejudiced by this decision. Since the action has not been barred by the applicable statute of limitations of Pennsylvania, the Leitchs may still have their day in court.
Plaintiff's motion to strike is denied, and its recovery limited to the amount of compensation paid and to be paid according to The Pennsylvania Workmen's Compensation Act.