The opinion of the court was delivered by: HUYETT
By an Order dated July 31, 1979, we granted third-party defendant Carson Helicopter, Inc.'s motion to dismiss, which we treated as a motion for summary judgment. This memorandum states the reasons for that Order.
On March 21, 1979, we permitted defendant United Technologies Corporation ("UTC") to join Carson Helicopters, Inc. ("Carson") as a third-party defendant. Gehring v. United Technologies Corp., C.A. No. 78-2972 (E.D.Pa., March 21, 1979). Carson has now moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the third-party complaint filed against it.
Plaintiff in this action is Richard Gehring, as Executor and Personal Representative of Herman W. Gehring ("Gehring") on behalf of Gehring's widow, children and parents. Carson was Gehring's employer at the time he was killed, in a helicopter accident that occurred in the harbor of Jeddah, Saudi Arabia. Defendants UTC and Amtel, Inc. allegedly designed, manufactured and sold to Carson the helicopter that Gehring was piloting at the time of the accident that resulted in his death. In its third-party complaint, UTC alleges that Carson's negligence was responsible for Gehring's death and that in the event UTC is found liable, Carson is liable to UTC for contribution. Plaintiff bases jurisdiction on 28 U.S.C. §§ 1331(a), 1332, 1333, and 46 U.S.C. § 761.
In support of its motion to dismiss the third-party complaint, Carson states that UTC's claim is barred by Section 303(b) of the Pennsylvania Workmen's Compensation Act As amended, 77 P.S. § 481(b). That section provides that:
In the event injury or death to an employee 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.
These affidavits establish the preconditions for the provision of the Act protecting Carson from third-party suits.
UTC argues, however, that application of the provisions of the Pennsylvania Act in this case would contravene "the well-established maritime rule allowing contribution between joint tortfeasors." Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 113, 94 S. Ct. 2174, 2178, 40 L. Ed. 2d 694 (1974). We do not believe, however, that contribution is available on the facts of this case. This conclusion is consistent, we believe, with Pastore v. Taiyo Gyogyo, K.K., 571 F.2d 777 (3d Cir. 1978). In that case a Philadelphia fireman was injured while fighting a fire aboard a ship docked in navigable waters in Philadelphia. The shipowner contended that it was entitled to contribution from Philadelphia, the fireman's employer. The language of the Third Circuit in that case is equally instructive here:
Plaintiff, as an employee of the city, was covered by the state's Workmen's Compensation Act, Pa.Stat.Ann. tit. 77, §§ 1-1602. He could not sue the city in tort, but was restricted to the statutory benefits which he received. Since the event occurred aboard a ship in navigable waters, maritime law applies, including its doctrine of contribution among joint tortfeasors. There was no contractual relationship giving rise to a right of indemnity between the city and the shipowner as there was with the stevedore. Therefore, the right of the shipowner to contribution from the city must rest upon establishment of the municipality as a joint tortfeasor. In Cooper Stevedoring v. Fritz Kopke, Inc., 417 U.S. 106, 94 S. Ct. 2174, 40 L. Ed. 2d 694 (1974), the Supreme Court recognized a right of contribution between joint tortfeasors in maritime law. That decision, however, did not overrule Atlantic Coast Line Railroad v. Erie Lackawanna Railroad, 406 U.S. 340, 92 S. Ct. 1550, 32 L. Ed. 2d 110 (1972), and Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318 (1952), where the Court refused to impose liability for contribution on longshoremen's employers whose conduct had contributed to their employees' injuries. The plaintiffs in both cases received benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, and were barred from pursuing any other remedy against their employers. In Cooper Stevedoring Co., supra, the Court sharply distinguished the situation where an injured party is free to proceed directly against both of the parties who had caused his injuries from that where he is prevented from suing one of those alleged to be at fault, his employer, because of the Longshoremen's and Harbor Workers' Compensation Act. In the former situation, contribution is allowed; in the latter, it is not. See also Dobbins v. Crain Brothers, 567 F.2d 559 (3d Cir., 1977).
UTC has conceded that "(t)here is no question as to the applicability of the Act as between the contracting parties, i. e., Carson and Gehring." Memorandum of United Technologies Corporation in Reply to the Supplemental Memorandum of Carson Helicopters, Inc. in Support of the Motion to Dismiss the Third Party Complaint at 2. We agree. Unlike UTC, however, we believe that it therefore follows that Pastore, supra, controls this case. As in that case, "since the plaintiff (is) unable to proceed directly against (the) employer, it may not be held liable for contribution as a joint tortfeasor . . . ." 571 F.2d at 784.
UTC argues, however, that this case is distinguishable from Pastore since Gehring, unlike the fireman in Pastore, was engaged in maritime employment and since this case occurred outside the jurisdiction of Pennsylvania. We do not believe, however, that these factual differences remove this case from the holding of Pastore. Pastore turned not on the nature of the plaintiff's employment, but on the fact that he could not proceed directly against his employer. Furthermore, we do not believe that the result we reach in this case is precluded by the holding in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1917).
The accident that gave rise to that case, like the accident in Pastore, occurred aboard a ship docked within the navigable waters of the United States. If the employer's immunity from third-party suit in Pastore was consistent with Jensen, we do not believe that a contrary result is required here.
The third-party complaint against Carson may therefore not be maintained.