The opinion of the court was delivered by: WEBER
Plaintiff Madrin was an employee of Consolidated Freightways. He was a relief driver and was sleeping in the sleeper cab of Consolidated's truck being driven by his fellow-employee Larson. The truck collided with a vehicle driven by Defendant Wareham. Plaintiff sued Wareham who joined Larson, the driver, and Consolidated, the employer, as Third-Party Defendants, claiming contribution if Wareham, Larson and Consolidated were found to be joint tort-feasors under Pennsylvania law.
Third-Party Defendants move to dismiss the Third-Party Complaint as to both Larson and Consolidated on the grounds that Ohio law controls their liability and that under Onio law the fellow-employee and the employer are immune from suit in this situation, including immunity from a suit by a third-party for contribution or indemnity to an award in favor of an employee and fellow-employee.
Plaintiff is an Ohio resident. Defendant is a Pennsylvania resident. Third-Party Defendants are an Ohio resident and an Ohio corporation. The accident occurred in Pennsylvania.
Third-Party Defendants argue that the Pennsylvania choice-of-law rules would compel the application of Ohio substantive law to the relationship between the Plaintiff, his employer Consolidated and his fellow-employee Larson.
In any event, whether Pennsylvania or Ohio law controls is immaterial in the case of the fellow-employee. The Ohio Workmen's Compensation statute bars suit against a fellow-employee for injuries received in the course of employment which are compensable under the Ohio Workmen's Compensation statute [Ohio Revised Code § 4123.741]. The Pennsylvania Workmen's Compensation statute, 77 P.S. § 72, similarly exempts any employee from any liability to a fellow-employee. We have previously held that this immunity applies to any liability for contribution. Dodick et al. v. Norfolk & Western Railway Co. et al., 326 F. Supp. 1154 [W.D. Pa. 1971].
As to an employer, the Pennsylvania rule differs from that of Ohio. Under the Pennsylvania law, the employer is immune from suit by his employee but he is not immune from liability for contribution to a joint tort feasor although the contribution is limited to the amount of liability of the employer under the Pennsylvania Workmen's Compensation Act. Maio v. Fahs, 339 Pa. 180, 14 A. 2d 105 . In this respect the Pennsylvania rule is a departure from --
". . . the generally prevailing practice of insulating a statutory employer from contribution. 2 Larson, Workmen's Compensation Law § 76.21 (1961 ed.); McCoid, The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Non-Employers, 37 Tex. L. Rev. 389, 437-38 (1959); Note, Contribution and Indemnity: The Effect of Workmen's Compensation Acts, 42 Va. L. Rev. 959, 963 (1956). This result has been reached on the following ground:
2 Larson, Workmen's Compensation Law § 76.21 (1961 ed.)." Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A. 2d 318 .
This court has applied the same rationale in denying the right of contribution in diversity cases tried under Pennsylvania law in other than Workmen's Compensation Act situations. See Cage v. New York Central R.R. Co., 276 F. Supp. 778 [W.D. Pa. 1967], affd. per curiam 386 F.2d 998 [3rd Cir., 1967]; Fenton v. McCrory Corp., 47 F.R.D. 260 [W.D. Pa. 1969].
But we are compelled by controlling Pennsylvania decisions, Maio v. Fahs, 339 Pa. 180, 14 A. 2d 105  to apply the right of contribution where the employee's claim against the third-party is founded on negligence. We always have difficulty in applying the rule of contribution where the employee's claim against the third person is based solely on the strict liability for dangerously defective product under the rule of Restatement of Torts, Second, Sec. 402A. While it would appear under the above rationale that no contribution should be allowed, our Court of Appeals, 407 F.2d 87 [3rd Cir., 1969] has affirmed a verdict in a Pennsylvania diversity case, in which liability was found against the third person for a defective product and liability for contribution for negligence was found against the third-party defendant employer. See Greco v. Buccionio Engineering Co., 283 F. Supp. 978 [W.D. Pa. 1967]. We find no Pennsylvania appellate decisions on this point.
The Ohio Constitution, Art. II, Sec. 35, provides for a workmen's compensation statute and provides that it shall be the injured workman's exclusive remedy, and that any employer who pays the compensation provided shall not be liable for damages at common law or by statute for such injuries. ...