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decided: March 20, 1980.


No. 47 March Term, 1979, Appeal from the Order of the Superior Court at No. 820 April Term affirming the order of the Court of Common Pleas Civil Division of Allegheny County at No. GD7618134


Paul D. Kruper, Stein & Winters, Wm. R. Tighe, Jr., William John Chapas, Baskin & Sears, Pittsburgh, for appellant.

James A. Beinkemper, Wayman, Irvin & McAuley, Pittsburgh, for appellee.

John F. McElvenny, Patrice A. Toland, Philadelphia, for amicus curiae.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Roberts, J., did not participate in the consideration or decision of this case. Larsen, J., filed a concurring opinion. Nix, J., concurred in the result.

Author: Flaherty

[ 488 Pa. Page 516]


Xenophon Tsarnas sustained personal injuries during the course and scope of his employment with Avalotis Painting Company, Inc. (employer), the alleged injuries having resulted from an accident which occurred at the Jones & Laughlin Steel Corporation Plant at Aliquippa, Pennsylvania. He filed a complaint in trespass against Jones & Laughlin Steel Corporation, Eichleay Corporation and Whitehead & Kales Company (W&K) alleging that the accident occurred when a vertical steel sag bar became detached from its fasteners, causing him to fall and sustain serious injuries. W&K then filed a complaint to join the employer as an additional defendant alleging that the employer was either solely liable, jointly and severally liable, or liable for contribution on the cause asserted. The employer filed preliminary objections to the third party complaint contending that the proposed joinder was barred by Section 303(b) of the Workmen's Compensation Act.*fn1 At argument before the Court of Common Pleas of Allegheny County, W&K argued that Section 303(b) was unconstitutional. That Court, concluding that the Opinion of the Superior Court in Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977) had established the constitutionality of that section, sustained the preliminary objections and entered judgment for the employer. On appeal to the Superior Court, the judgment was affirmed by an equally divided court. Because of the serious constitutional questions involved, and the far-reaching effects our decision will have, we granted allocatur.

[ 488 Pa. Page 517]

Appellant (W&K) argues that Section 303(b) is unconstitutional because (1) it violates Article I, Section 11 of the Pennsylvania Constitution in denying a third party the opportunity to present its claims for contribution or indemnity to the courts; (2) it violates Article III, Section 18, which prohibits the Legislature from imposing a maximum dollar limitation on the amount of damages that are otherwise recoverable in law and (3) it violates the equal protection clause of the Fourteenth Amendment to the U. S. Constitution, by establishing unreasonable and arbitrary classifications.

Section 303(b) of the Act provides:

"(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 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, supra, the Superior Court held that this amendment granted employers total immunity from third party actions. See Arnold v. Borbonus, 257 Pa. Super. 110, 390 A.2d 271 (1978). However, the Superior Court in Hefferin did not address the constitutionality of the Act.

Prior to the passage of Section 303(b), our law permitted the joinder of the employer as an additional defendant in a suit by an employee against a third party tortfeasor on the basis of joint liability or liability over. If it were determined that both the employer and the third party were responsible for the ...

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