No. 312 April Term, 1978, Appeal from the Order of October 4, 1977, of the Court of Common Pleas, Westmoreland County, at No. 3590 of 1976, Civil Action-Law.
John David Rhodes, Pittsburgh, with him Thomson, Rhodes & Grigsby, Pittsburgh, for appellant, Texas Eastern Transmission Corp.
Rabe F. Marsh, III, Greensburg, with him B. Patrick Costello, Greensburg, for appellee, William Ramaley, t/d/b/a Ramaley Brothers.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring and dissenting opinion. Price, Judge, dissenting.
[ 257 Pa. Super. Page 111]
Appellant contends that the lower court erred in sustaining appellee's preliminary objections in the nature of a demurrer to its third party complaint. We affirm.
On October 29, 1976, plaintiffs filed a complaint in trespass in the Westmoreland County Court of Common Pleas to recover for injuries suffered and damages incurred in an employment related accident. In the complaint, plaintiff, Robert Arnold, averred that on February 16, 1976, as an employee of appellee, Ramaley Brothers, he was performing excavation work on land owned and developed by defendants, Catherine and William Borbonus. While excavating a
[ 257 Pa. Super. Page 112]
foundation for a house, plaintiff's heavy equipment struck and punctured a subterranean pipeline containing liquid propane under high pressure and low temperature. The pipeline was owned by defendant-appellant, Texas Eastern Transmission Corporation. The puncture caused an explosion the force of which threw plaintiff from his machine and caused severe injuries.*fn1
Appellant joined appellee as an additional defendant.*fn2 According to the third party complaint, appellee, plaintiff's employer, was negligent in failing to ascertain the exact location of the pipeline before the commencement of the excavation work. Consequently, appellant asserted that if and to the extent that it may be adjudged liable to plaintiffs, the court should give appellant credit in an amount equal to the total of workmen's compensation benefits paid by appellee pursuant to the Pennsylvania Workmen's Compensation Act.*fn3
Appellee filed preliminary objections in the nature of a demurrer in which it stated that § 303(b) of the Workmen's Compensation Act*fn4 barred appellant's third party complaint. On October 4, 1977, the lower court sustained appellee's
[ 257 Pa. Super. Page 113]
preliminary objections and dismissed appellee from the action. The court predicated its order on the 1974 amendments to § 303(b) of the Workmen's Compensation Act which, according to the court, granted the "employer immunity from suit and bar[red] its joinder as an Additional Defendant in this action." This appeal followed.
Appellant contends that § 303(b) of the Workmen's Compensation Act does not bar the joinder of the plaintiff's employer as an additional defendant. Specifically, appellant contends that joinder of the employer is not barred to determine the employer's entitlement to subrogation to the rights of the employee against a third party.*fn5 Section 303(b), as amended in 1974, provides:
"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." In Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977), our Court considered and rejected the identical contention. After reviewing the legislative history of the 1974 amendment to § 303(b), we ...