Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of City of Pittsburgh v. Wilson Rue, City Tank Corporation, a corporation, and Equipment and Supplies, Inc., a corporation, No. G.D. 76-28836; and Wilson Rue v. City Tank Corporation, a corporation, and Equipment and Supplies, Inc., a corporation, v. City of Pittsburgh, No. 2628 July Term, 1972.
Toni J. Bione, Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellant.
James R. Miller, with him Randall J. McConnell, Jr.; Dickie, McCamey & Chilcote; Robert G. Simasek ; and Stein & Winters, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 38 Pa. Commw. Page 188]
The City of Pittsburgh (City) has appealed from two orders of the Court of Common Pleas of Allegheny County, both of which concerned its right to subrogation pursuant to Section 319 of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. § 671.*fn2
Wilson Rue (Rue) was employed by the City when he sustained injuries due to an alleged malfunction
[ 38 Pa. Commw. Page 189]
of a City refuse vehicle manufactured by City Tank Corporation (City Tank) and sold by Equipment and Supplies, Inc. (Equipment). Rue brought suit in the court below against City Tank and Equipment to recover damages for the injuries and the City was joined as an additional defendant. In its answer, the City notified all parties of its claim for $12,126.76 in workmen's compensation benefits paid to Rue. After negotiations, Rue entered into a settlement with City Tank and Equipment releasing them from all liability for the consideration of $15,000.00. The agreement contained the provision that liability was neither admitted nor denied by any of the parties, and further provided that City Tank would "indemnify and hold harmless Wilson Rue for any judgment the City of Pittsburgh may recover for its Workmen's Compensation lien paid to Wilson Rue for the injury of June 3, 1970." By order of court, the case was discontinued between Rue and City Tank and between Rue and Equipment, but continued as to the other parties. On May 10, 1977 the Court dismissed the case because the City was "unable to proceed to prove its claim." The City has appealed from this order.
Subsequent to the settlement agreement, the City filed an assumpsit complaint against Rue, City Tank, and Equipment for the amount of compensation paid by the City to Rue. All three defendants filed preliminary objections in the nature of a demurrer and these objections were sustained and the complaint was dismissed. The City has also appealed from the dismissal of its complaint.
We have been asked to determine the subrogation rights of an employer pursuant to Section 319 of the Act, 77 P.S. § 671, which provides, inter alia :
Where the compensable injury is caused in whole or in part by the act or omission of a third party, the ...