No. 1373 April Term, 1978, Appeal from the Order of February 24, 1978, of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at No. G.D. 77-08154.
James R. Miller, Pittsburgh, for appellant.
Fred C. Trenor, Pittsburgh, for appellees.
Cercone, P. J., and Wieand and Hoffman, JJ.
[ 272 Pa. Super. Page 242]
Have the 1969 amendments to Pa.R.C.P. 2252 altered the prior rule which prevented the joinder of an express indemnitor as an additional defendant? The trial court held that such a joinder was improper. We reverse.
The circumstances which have brought this issue before us are as follows. United Industrial Maintenance, Inc. (United) agreed to do repair work on a crane owned by Vulcan Materials Company (Vulcan), and located on the latter's premises. The written contract contained a clause by which United agreed to indemnify Vulcan against "all losses and all claims, demands, payments, suits, actions, recoveries and judgments . . . arising out of any act or omission" of United or "arising out of the use, occupancy or possession of premises of Vulcan" by United. Larry Szemanski, an employee of United, was injured when he fell from an elevated platform while working above the floor and railroad tracks in Vulcan's plant. He filed a complaint in trespass against Vulcan in which he alleged various negligent acts and omissions pertaining to the conditions under which he was compelled to work. Vulcan joined United as an additional defendant, alleging in its complaint that United was solely
[ 272 Pa. Super. Page 243]
liable to the plaintiff or jointly liable with Vulcan because of United's negligence. The complaint also averred that United was liable over to Vulcan under the terms of the aforesaid agreement to indemnify.
The attempted joinder of United as an additional defendant on the grounds that United was liable for negligence, either alone or jointly with Vulcan, was improper. The joinder of the employer as an additional defendant in an action brought by an employee against a third party is barred by Section 303(b) of The Pennsylvania Workmen's Compensation Act,*fn1 as amended by the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. 481(b). See: Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977). See also: Potts v. Dow Chemical Company, 272 Pa. Super. 323, 415 A.2d 1220 (1979).
However, Section 303(b) of The Pennsylvania Workmen's Compensation Act does not bar an action by the third party against the employer if "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."
Prior to its amendment in 1969, Pa.R.C.P. 2252(a) allowed joinder of a party as an additional defendant who was liable "on the cause of action declared upon by the plaintiff." Under this rule, the decisions uniformly held that an express indemnitor could not be joined as an additional defendant in an action of trespass. The indemnitor's liability, if any, was dependent upon an express contract and, therefore, was distinct from the cause asserted by the plaintiff against the defendant. See: Nichols v. American Casualty Co., 418 Pa. 119, 209 A.2d 855 (1965); Lloyd v. Victory Carriers, Inc., 402 Pa. 484, 167 A.2d 689 ...