No. 828 April Term, 1978, No. 829 April Term, 1978, No. 830 April Term, 1978, No. 831 April Term, 1978, Appeals from the Orders of March 22, 1978, of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. G.D. 77-13267; G.D. 77-13167; G.D. 77-13258; and G.D. 77-12031, sustaining the Preliminary Objections of the Additional Defendant.
George Buckler, Pittsburgh, for appellant.
Richard F. Lerach, Pittsburgh, for U. S. Steel Corp., appellee.
Cercone, President Judge, and Price, Van der Voort, Spaeth, Hester and Wieand, JJ. Spaeth, J., files a dissenting opinion.
[ 272 Pa. Super. Page 325]
Henry Potts, Robert Potts, Michael Baker, and John Flatt, employees of United States Steel Corporation, sustained injuries as a result of inhaling chemical fumes released while Dow Chemical Company was cleaning the water system of United States Steel Corporation's plant in Ambridge. The employees filed separate complaints in trespass against Dow, in which they alleged negligent handling of cleaning chemicals. Dow filed complaints in all actions joining U. S. Steel as an additional defendant on the grounds that it was solely liable to each plaintiff on the cause of action alleged or jointly liable thereon with Dow, or liable over to Dow under the terms of the contract between the parties. U. S. Steel filed preliminary objections in the nature of a demurrer to each complaint, which the trial court sustained. Dow appealed. We affirm.
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) provides as follows:
"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 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."
In Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977), this court held that Section 303(b) of the Workmen's Compensation Act bars the joinder of an employer as
[ 272 Pa. Super. Page 326]
an additional defendant in an action by an employee against a third party. That decision is controlling of Dow's attempted joinder of U. S. Steel in the instant case.
Dow argues that Hefferin has no application where the third party's claim against the employer is based upon an express contract of indemnity. We agree that Section 303(b) of the Workmen's Compensation Act specifically creates an exception in favor of liability of an employer when it is based on an express agreement of indemnity. In the instant case, however, Dow's pleadings demonstrate clearly that there was no contract of indemnity. The provisions which are alleged to be a part of Dow's contract with U. S. Steel and upon which Dow relies are as follows:
"5. The liability of [Dow] for injury to persons or damage to property, including . . . injury to third parties or employees of [U. S. Steel] . . . shall be limited to that directly resulting from the sole negligence of [Dow] in the performance of this contract.
6. [Dow] shall not be liable for any special incidental, indirect, punitive or consequential damages, including, but not limited to, loss of use or loss of profit, for breach of contract, negligence or any other cause of action."
An agreement to indemnify is an obligation resting upon one person to make good a loss which another has incurred or may incur by acting at the request of the former, or for the former's benefit. 18 P.L.E. Indemnity § 1. A contract will not be construed to indemnify a party for his or her own negligence unless the contractual language and surrounding circumstances clearly indicate an intention of the parties to do so. Westinghouse Electric Company v. Murphy, Inc., 425 Pa. 166, 172, 228 A.2d 656, 660 (1967); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 57, 171 A.2d 185, 187 (1961). The language relied on by Dow does not impose upon U.S. Steel an obligation to indemnify Dow against liability resulting from Dow's ...