No. 537 APRIL TERM, 1977, No. 552 APRIL TERM, 1977, Appeal from the Order of the Court of Common Pleas, Civil Division of Allegheny County at No. 1538 January Term, 1973 (No. 552) and No. 3423 January Term, 1973 (No. 537).
James A. Wood, Pittsburgh, for appellant at No. 537.
No appearance entered nor brief submitted for appellant at No. 552, and appellee at No. 537.
Robert S. Grigsby, Pittsburgh, for appellee, at No. 552.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., filed a concurring opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 152]
The instant case involves a fairly complicated factual situation as well as a procedural one. Two appeals have been consolidated for our review, however, both have their origins in a case initiated by the wife and administratrix of the estate of Lewis M. Webb who was killed while in the employ of the Sargent Electric Company. As briefly as possible without omission of any salient facts the history of the appeals are as follows:
The Duquesne Light Company in an effort to improve its operations entered into a contract with the Stone & Webster Engineering Company (hereinafter referred to as Stone) whereby Stone was to act as its agent for the construction of a facility for unloading coal from barges at a location known as the Cheswick Plant. Acting as Duquesne Light's agent Stone entered into a contract with Heyl & Patterson, Inc., (hereinafter referred to as Heyl) whereby Heyl agreed to undertake the construction of the facility. Heyl in turn entered into various agreements with subcontractors for the purposes of obtaining materials, supplies, and labor. One of the subcontractors was the John Harrison Company (hereinafter referred to as Harrison) which was to construct and sell a cabin which was to be situated high on a crane
[ 261 Pa. Super. Page 153]
overlooking the barge docking facilities and unloading equipment. Heyl also contracted with the Eichleay Corporation (hereinafter referred to as Eichleay) to erect certain equipment in and about the cabin and with the Sargent Electric Company (hereinafter referred to as Sargent) to do the wiring of the cabin. Lewis M. Webb was an employee of the Sargent company and in the course of his duties was working in the cabin. Pursuant to the agreement between Heyl and Harrison and in keeping with the specifications for the job which were approved and adopted by Stone, Harrison was to have installed one-quarter inch plywood covering all openings in the cabin. Instead, Harrison installed one-eighth inch pressboard. While working in the cabin, Webb went through an opening falling a considerable distance to a coal barge beneath the cabin. He was pronounced dead at the scene by a physician.
On April 3, 1970, Elsie M. Webb filed an action in trespass against Harrison and Eichleay for damages arising out of the death of her husband. Harrison filed a complaint to join Heyl, Sargent and Stone as additional defendants. Sargent subsequently filed its answer and new matter. In its new matter Sargent asserted the affirmative defense of an employer whose liability is limited by the Pennsylvania Workmen's Compensation law. Heyl filed its answer and new matter wherein it denied liability and set forth affirmatively, under new matter, the defense of statutory employer as well as other defenses against the respective parties. The affirmative defenses against Harrison, Eichleay and Sargent averred that each of these parties agreed to indemnify Heyl for any liability that it may have to the plaintiff and/or other parties to the proceeding. By reply to the answer and new matter of Heyl, Sargent denied liability for indemnification to Heyl. Eichleay filed its reply to Heyl's answer and new matter wherein it denied that Heyl was entitled to indemnification and that it was either jointly or severally liable with Heyl to any other person. There is nothing in the record to disclose that Harrison ever replied to Heyl's new matter and consequently the averments of Heyl's new matter as affects Harrison must be taken as correct.
[ 261 Pa. Super. Page 154]
The Webb case went to trial before a judge and jury, but prior to conclusion settlement negotiations were conducted between all counsel with the assistance of the trial judge. As a result of these negotiations an agreement was entered into between plaintiff and defendants Harrison and Eichleay and additional defendants Sargent and Stone. Pursuant to the agreement Harrison was to contribute $30,000, Eichleay was to contribute $15,000 and Stone was to contribute $15,000. Sargent waived any claim for past and future subrogation interest as the party who paid the Workmen's Compensation benefits. Heyl paid no money, but was aware of the negotiations for settlement and did not object to the termination of the proceedings against it which also terminated its claim for indemnification against Harrison, Eichleay and Sargent. Plaintiff filed a petition for approval of the settlement which eventually resulted in an order dated October 5, 1972, amending the order of July 17, 1972 as follows:
AND NOW, to-wit, this 17th day of July 1972, the within petition having been presented, it is hereby ordered and decreed that Elsie M. Webb, Administratrix of the Estate of Lewis M. Webb, deceased, be and is hereby authorized to execute releases and settle the within captioned case. Upon payment as set forth below, the retained ...