Appeal from judgment of Court of Common Pleas of Westmoreland County, April T., 1975, No. 651, in case of Alice G. Temple, Administratrix of the Estate of Oscar Temple, deceased v. Able Tool Company, Inc. v. The Modulus Corporation of Mt. Pleasant, Westmoreland County, Pennsylvania, Screw & Bolt Division.
H. Reginald Belden, Jr., with him Stewart, Belden, Sensenich and Herrington, for appellant.
William J. Ober, with him John M. Campfield, and Scales and Shaw, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j. Dissenting Opinion by Jacobs, J. Hoffman and Spaeth, JJ., join in this dissenting opinion. Dissenting Opinion by Spaeth, J.
[ 240 Pa. Super. Page 611]
This appeal is from an order of the court below dismissing motions for judgment n.o.v. and a new trial filed by appellant, The Modulus Corporation.
This is a wrongful death and survival action brought by Alice Temple, Administratrix of the Estate of Oscar Temple, deceased (Appellee) [hereinafter referred to as "Temple"] in which Able Tool Company, Inc. [hereinafter referred to as "Able"] was an original defendant and the Modulus Corporation of Mt. Pleasant, Westmoreland County, Pennsylvania, Screw & Bolt Division (Appellant) [hereinafter referred to as "Modulus"] was an additional defendant. The action was initiated by a summons in trespass issued May 20, 1970 and re-issued October 19, 1970 against Able and National Machinery Company. Subsequently, on August 20, 1971, a complaint was filed naming National Machinery Company and Able as defendants. (Immediately prior to trial the action was discontinued as to National Machinery Company on motion of counsel for Temple, consented to by Counsel for Able and Modulus.) Incorporated in the said complaint were claims for wrongful death and a survival action both based upon strict liability in tort and, in the alternative, negligence.
On December 10, 1971 Able filed a complaint against Modulus as an additional defendant alleging sole liability to Temple or joint and several liability to Temple with Able or liability over from Modulus to Able, all on a theory of negligence.
On December 28, 1971 Temple filed preliminary objections. Modulus filed an answer to the complaint against it by Able and raised as new matter the defense of the Workmen's Compensation Act of the Commonwealth of Pennsylvania, praying that the allegations of sole liability be stricken and that the liability of Modulus be limited to its responsibility, if any, under the
[ 240 Pa. Super. Page 612]
provisions of the Workmen's Compensation laws of the Commonwealth of Pennsylvania.
On March 23, 1972 there was filed a stipulation executed by counsel for all parties.*fn1 The stipulation provided that Modulus could not be solely liable (though perhaps solely responsible) by virtue of its employer-employee relationship with Temple's decedent, that any verdict in favor of Temple and against Modulus would be unenforceable against Modulus, that the joinder of Modulus as an additional defendant was for contribution only and limited to the extent of its liability under the Workmen's Compensation Act of the Commonwealth of Pennsylvania, and that the filing of the stipulation would serve to withdraw the preliminary objection filed by Temple.
The matter was tried for five days in October, 1973. The jury rendered a verdict in favor of Temple "naming the Modulus Corporation as primarily responsible and the Able Tool Company as secondarily responsible." The trial judge struck out the words quoted immediately above and added, in his own hand, the words "as between Able Tool ...