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decided: December 28, 1978.


No. 820 April Term, 1977, Appeal from the Order and Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, at G.D. No. 76-18134.


Paul D. Kruper, Pittsburgh, for appellant.

No appearance entered nor brief submitted for appellees.

Cercone, J., files an opinion in support of affirmance in which Jacobs, P. J., and Hester, J., join. Price, J., files an opinion in support of reversal in which Van der Voort, J., joins. Spaeth, J., files an opinion in support of reversal. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 262 Pa. Super. Page 419]

The six Judges who decided this appeal being equally divided, the order and judgment are affirmed.

[ 262 Pa. Super. Page 420]



This appeal challenges the constitutionality of Section 303(b) of the Pennsylvania Workmen's Compensation Act, as amended.*fn1 The lower court sustained preliminary objections in the nature of a demurrer to appellant's (Whitehead & Kales Company) complaint to join appellee-employer (Avalotis Paint Company) as an additional defendant and directed that judgment be entered in favor of Avalotis and against all other parties.

The salient events culminating in this appeal are as follows. Plaintiff, Xenophon Tsarnas, filed a complaint in trespass against Jones & Laughlin Steel Corporation, Eichleay Corporation, and Whitehead & Kales alleging that he sustained personal injuries on August 4, 1975, while acting within his scope of employment for Avalotis. The injuries are alleged to have occurred when plaintiff, while painting the steel frame on a building being constructed at a J & L plant, grabbed onto a vertical steel sag bar which pulled loose from its fasteners and caused him to fall to the ground below. Each of the defendants are alleged to have been negligent in failing, inter alia, to securely fasten the sag bar to the horizontal beams. Whitehead & Kales filed a complaint to join plaintiff's employer, Avalotis, as an additional defendant on the theory that Avalotis was solely liable, or jointly and severally liable to plaintiff, or liable over to the defendants for contribution and/or indemnification. Avalotis countered with preliminary objections in the nature of a demurrer contending that Section 303(b) of Workmen's Compensation Act, supra, prohibits a third party from joining the plaintiff's employer as an additional defendant. Whitehead & Kales, however, maintained below, as it does on this appeal, that Section 303(b) is violative of both our state and federal constitutions. The lower court was of the opinion that our decision in Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977) (allocatur denied June 27,

[ 262 Pa. Super. Page 4211977]

), foreclosed inquiry into the constitutionality of Section 303(b) and, consequently, sustained Avalotis' preliminary objections. This appeal followed.

Appellant contends that Section 303(b) is unconstitutional for any one of three different reasons. It is first argued that the section violates Article I, Section 11, of the Pennsylvania Constitution because it denies a third party the opportunity to present its claims for contribution or indemnity to the courts. Secondly, it is asserted the section abridges Article III, Section 18, of the Pennsylvania Constitution because it prohibits a third party from recovering against a plaintiff's employer by way of contribution or indemnity. Lastly, appellant contends that Section 303(b) transgresses the equal protection clause of the Fourteenth Amendment to the United States Constitution because it establishes unreasonable and arbitrary classifications.

"Any discussion of the constitutionality of lawfully-enacted legislation must commence with the restatement of the principle of law which creates a 'presumption' in favor of constitutionality. 'An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.' . . . '[T]he burden rests heavily upon the party seeking to upset legislative action on constitutional grounds; all doubt is to be resolved in favor of sustaining the legislation.' . . ." (Emphasis in original; citations and footnote omitted.) Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975). Considered in accordance with the foregoing principles, appellant's arguments are unavailing.


The statute in question, Section 303(b), provides as follows:

"(b) 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

[ 262 Pa. Super. Page 422]

    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." 77 P.S. § 481(b), supra.

In Hefferin v. Stempkowski, supra, we held that the above amendment granted employers total immunity from third party actions. See also Arnold v. Borbonus, 257 Pa. Super. 110, 390 A.2d 271 (1978). In the instant case the opinion in support of reversal correctly notes that our decision in Hefferin did not expressly address any constitutional questions pertaining to Section 303(b).*fn2 However, I cannot agree with Judge Price's opinion that Section 303(b), as interpreted in Hefferin is violative of both Article I, Section 11 and Article III, Section 18 of the Pennsylvania Constitution.

Article I, Section 11 provides in relevant part:

"All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. . . ."

It is urged that Section 303(b) violates this constitutional mandate in that it denies third parties access to the courts to litigate claims for contribution and indemnity without providing any alternative remedy. Our Supreme Court has recently been confronted with similar constitutional arguments advanced under analogous circumstances. In Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), the Court addressed itself to the constitutionality of the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974,

[ 262 Pa. Super. Page 423]

P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. In Singer it was contended that Section 301(a) of the No-Fault Act, supra, which abolished tort liability in relatively "minor" automobile accidents, unconstitutionally denied the victims of these "minor" injuries access to the Courts. The Court rejected this argument and pertinently remarked:

"Any conclusion that an individual has a vested right in the continued existence of an immutable body of negligence law would necessitate the invalidation of the No-Fault Act as a violation of Article I, Section 11, and the due process clause of the Fourteenth Amendment to the Federal Constitution.

"However, the practical result of such a conclusion would be the stagnation of the law in the fact of changing societal conditions. In 1876, in Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77, the United States Supreme Court recognized that due process was not violated when legislative action modified the common law. The Court ruled:

"'A person has no property, no vested interest, in any rule of common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adopt it to changes of time and circumstances. ' (Emphasis added.) 94 U.S. at 134."

Singer v. Sheppard, supra, 464 Pa. at 399, 346 A.2d at 903. See also, Jackman v. Rosenbaum Co., 263 Pa. 158, 175, 106 A. 238 (1919), aff'd 260 U.S. 22, 43 S.Ct. 9, 67 L.Ed. 107 (1932) (quoted in Singer v. Sheppard, supra); Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976); Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 269, 382 A.2d 715 (1978). The Opinion in Support of Reversal, however, finds Singer distinguishable*fn3

[ 262 Pa. Super. Page 424]

    from the case at bar because "an alternative remedy was made available to the plaintiff through operation of the no-fault statute." (Opinion in Support of Reversal at 262 Pa. Super. , 396 A.2d 1248). As I read Singer this does not constitute a viable distinction. In any event, the recent decision in Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 269, 382 A.2d 715 (1978), makes clear that a common law cause of action may be constitutionally abolished without providing a substitute remedy. In that case a constitutional challenge, virtually identical to the instant one, was launched against a statute (Act of December 22, 1965, P.L. 1183, § 1, 12 P.S. § 65.1 (Supp.1977)) that limited the time in which an action could be commenced against those persons involved in the design, planning, and construction of improvements to real property. The Court responded to the contention that a cause of action could not be abrogated absent allowance for a substitute remedy, by first noting that this very argument had been rejected in Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955)*fn4 and; secondly, stating that the language in Dolan v. Linton's Lunch, supra, supporting a contrary result was dicta and "[t]o the extent that the dictum therein suggests that the Legislature may never abolish a judicially recognized cause of action, we decline to follow it." Freezer Storage, supra, 476 Pa. at 282-283, 382 A.2d at 721. Accordingly, recent precedent makes plain that appellant's Article I, Section 11 challenge to Section 303(b) of the Workmen's Compensation Act must fail.

Notwithstanding the foregoing, it must be emphasized that Section 303(b) does not absolutely preclude a third party from bringing an action against the employer for

[ 262 Pa. Super. Page 425]

    damages, contribution, or indemnity. It merely bars these actions . . . "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." Section 303(b) supra, 77 P.S. § 481(b). Thus, Section 303(b) neither totally abolishes actions by a third party for contribution or indemnity, nor does it leave them entirely remediless. It simply requires them to contemplate such measures in advance of any injury. Parenthetically, it should also be noted that nothing in Section 303(b) precludes a defendant from defending at trial on the theory that the conduct of the plaintiff's employer was the legal cause of the injury. In other words, if there is no fault on the defendant's part, it will not be held liable. Albrecht v. Pneuco Machinery Co., 448 F.Supp. 851 (E.D.Pa.1978); Arcell v. Ashland Chemical Co., Inc., 152 N.J.Super. 471, 378 A.2d 53 (1977).


Appellant's second constitutional argument has also been dismissed by our Supreme Court. Article III, Section ...

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