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JOHN W. BROWN v. DICKEY. (11/25/59)

November 25, 1959

JOHN W. BROWN, JR. EQUIPMENT RENTAL CORP., APPELLANT,
v.
DICKEY.



Appeal, No. 124, March T., 1959, from order of Court of Common Pleas of Allegheny County, July T., 1958, No. 3544, in case of John W. Brown, Jr. Equipment Rental Corporation v. Robert J. Dickey, trading as R. J. Dickey Company, et al. Order affirmed. Proceedings on attachment execution. Garnishee's preliminary objections sustained and order entered dissolving writ of attachment, opinion by ELLENBOGEN, J. Plaintiff appealed.

COUNSEL

William A. Challener, Jr., for appellant.

John F. Will, Jr., with him Neely & Will, for appellees.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.

Author: Cohen

[ 397 Pa. Page 456]

OPINION BY MR. JUSTICE COHEN

David John O'Connell, an ironworker, while engaged on a construction job for his employer, Robert J. Dickey (Dickey), trading as the R. J. Dickey Company, was killed as a bundle of steel fell from a crane. The crane had been rented by Dickey from the John W. Brown Equipment Rental Corporation (Brown).

Nora J. O'Connell, Administratrix of the Estate of David J. O'Connell, brought suit in the Court of Common Pleas of Allegheny County in 1953 against Brown, who joined the employer (Dickey) as an additional defendant. On January 12, 1954, a workmen's compensation award was levied against the employer Dickey for the benefit of the deceased employee's dependents. The jury, in the common law action, after a trial of the merits of the case, found both defendants equally guilty of negligence. On July 2, 1957, the plaintiff entered judgment on the verdict equally against Brown and Dickey in the amount of $43,700. On appeal to this Court, the judgment was unanimously affirmed in O'Connell v. Roefaro, 391 Pa. 52, 137 A.2d 325 (1958).

Brown thereupon discharged the judgment by payment of the full sum. The judgment was marked to the use of Brown, who then issued a writ of attachment execution sur judgment against Dickey and named the United States Fidelity and Guaranty Company, the workmen's compensation carrier for Dickey, as garnishee. The garnishee filed preliminary objections to the writ of attachment in which it contended that it was the workmen's compensation carrier for Dickey; that David J. O'Connell was an employee of Dickey; and that its liability for contribution was limited to $342, the balance of the amount due to Nora J. O'Connell under the workmen's compensation award.

The court en banc, held that the decision of Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940), was controlling,

[ 397 Pa. Page 457]

    and ordered the writ of attachment execution dissolved upon the payment of $342. This appeal followed.

Appellant Brown does not deny that the decision in Maio v. Fahs, supra, if still applicable, precludes any right of contribution against Dickey in excess of the employer's workmen's compensation liability. He argues rather that the Maio case is erroneous and should be overruled insofar as it limits a third party tortfeasor's right of contribution, because (1) the Workmen's Compensation Act does not limit the third party tortfeasor's right of contribution; (2) if the Act were so construed, the Act would be unconstitutional; (3) the ruling in Maio is in direct conflict with the Uniform Contribution Among Tortfeasors Act, Act of July 19, 1951, P.L. 1130, 12 ...


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