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CLARK v. ESSEX INTL.

March 30, 1976

MARIE CLARK and ROOSEVELT CLARK
v.
ESSEX INTERNATIONAL, INC. v. DILL PRODUCTS, INC.



The opinion of the court was delivered by: GORBEY

GORBEY, J.

 Plaintiffs instituted an action against the defendants for allegedly supplying a defective machine to the plaintiff's employer. The defendant has joined the employer, Dill Products, Inc., as a third-party defendant alleging that the machine was altered, modified and changed by the employer. Third-party defendant, Dill Products, Inc., by its attorneys, moves the court to dismiss the third-party action against it for failure to state a claim upon which relief can be granted.

 In support of the motion, movant relies upon the Workmen's Compensation Act of Pennsylvania which in 77 P.S. § 481(b) states:

 
"In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action."

 Third-party plaintiff opposes the motion on the basis that the statute relied upon does not have retroactive effect. It does not, however, cite any authority in support of its objection.

 The statute in question was passed December 5, 1974, to become effective in sixty (60) days, which would be February 5, 1975. In the complaint plaintiffs allege that the injury occurred on November 23, 1973, a date prior to both the passage of the Act and its effective date.

 In 46 P.S. § 556 it is recorded:

 
"§ 556. Presumption against retroactive effect
 
No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature." (1937, May 28, P.L. 1019, art. IV, § 56.)

 Also, significant because the statute relied upon by third-party defendant is an Amendment to the Workmen's Compensation Act, is 46 P.S. § 573 which provides:

 
"§ 573. Construction of amendatory laws
 
Whenever a section or part of a law is amended, the amendment shall be construed as merging into the original law, become a part thereof, and replace the part amended and the remainder of the original law and the amendment shall be read together and viewed as one law passed at one time; but the portions of the law which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective."

 This section, while providing that the provision shall be construed as effective only from the date when the Amendment became effective, does not state that it shall have retroactive effect.

 In SWARTZ, Appellant v. CARLISLE BOROUGH, 237 Pa. 473, 478, 85 A. 847 (1912) the Supreme Court of ...


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