That is not to say, however, that this issue has never been discussed in the appellate courts. In addition, various trial courts, both state and federal, have grappled with this issue. A brief review of the relevant cases is warranted.
State Trial Court Cases
Three state trial courts have addressed the issue presently before this court, with differing results. In Yeagley v. Metropolitan Edison Co., No. 3316 (Leb.Pa.C.P., May 13, 1980) and Flack v. Calabrace, No. 9431 of 1978 (West., Pa.C.P., Aug. 28, 1980) the court held that where the sole purpose of joinder of the employer was to determine the comparative negligence of all potentially negligent persons, and not to assess damages, contribution, or indemnity, it should be granted. In arriving at this determination, the court in Yeagley attempted to distinguish the Pennsylvania Superior Court's holding in Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), asserting that § 303(b) of the Act did not expressly prohibit the joinder of an employer for the purpose of determining comparative negligence, only for damages, contribution, or indemnity. However, as will be discussed infra, this court is not persuaded that Hefferin is distinguishable, particularly in light of the express language of the concurring and dissenting opinions.
In Heckendorn v. Consolidated Rail Corporation, No. 3781 of 1979 (Cumb., Pa.C.P., Aug. 25, 1980) the court held that joinder of the employer is not permitted in accordance with the appellate court decisions of Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978); Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978); Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977); and Mosholder v. Greene County Industrial Development Corporation, 49 Pa.Cmwlth. 340, 411 A.2d 1262 (1980). The court in Heckendorn went on to say that it "must apply the statute as it has been construed by our appellate courts, however unjust the outcome." (Page 5 of the slip opinion).
State Appellate Court Cases
As mentioned previously, while the specific issue before this court has never been squarely before a Pennsylvania appellate court for determination, it has been discussed in several cases. The Superior Court of Pennsylvania in Hefferin, supra, held that § 303(b) of the Act made it a complete substitute for the common law tort actions by an employee against his or her employer. The court went on to state, "the intention of the amendments to Section 303 was to grant the employer total immunity from third party actions," and later stating this "bars its (employers) joinder as an additional defendant in this action. The employer's right to subrogation remains unchanged." Id. at 372 A.2d 871 (emphasis added). In a concurring opinion, Judge Van der Voort indicated that while the "amended act does not expressly provide that the employer cannot be joined as an additional defendant by an original third party defendant," he believes it was "the intention of the Legislature to preclude the joining of the employer by an alleged third party tortfeasor." Id. at 372 A.2d 872.
Slightly more than one year later, the Superior Court of Pennsylvania reiterated its position in Arnold, supra, wherein it stated, "We agree that the 1974 amendment to § 303(b) manifests a broad legislative intent to bar the joinder of an employer as an additional defendant." Id. at 390 A.2d 273. (footnote omitted) (emphasis added).
The Arnold opinion is particularly instructive in that the defendant sought to join the employer solely to determine subrogation rights of the parties, not "damages, contribution or indemnity," which are expressly prohibited by the statute. This is comparable to the argument defendant makes in the case sub judice, that the sole purpose of joinder was to determine the respective degrees of negligence. In his concurring opinion, Judge Spaeth supported the conclusion that the majority opinion bars any joinder of the employer by the following discussion:
Since Hefferin, however, the employer may not be joined as an additional defendant. The result is that one of two equally negligence tortfeasors the third party bears the entire burden of the judgment. Since the employer is not cannot be a party to the suit, the third party cannot get contribution from the employer commensurate with the employer's fault. The employee, on the other hand, may have the opportunity to recover twice: once by the full judgment against the third party, and once through workmen's compensation; for if the employer comes against the employee for subrogation, the employee may defend on the ground that the employer was at fault and is thus disabled from getting reimbursed through subrogation. If the employee fails, or is not permitted to prove the employer's fault, the employer will recoup the workmen's compensation payments and thus in the end pay nothing despite having been at fault. Either outcome a double recovery for the employee, or a negligent employer who pays nothing represents an injustice; additionally, the third party is forced to bear the full burden of the judgment when he was only partially at fault. 3 (emphasis added).
I find it impossible to believe that the Legislature could have intended such a result. Yet the language of § 481(b) is difficult to interpret otherwise, as Judge VAN der VOORT observed in his concurring opinion in Hefferin. Judge PRICE's dissents in Hefferin and in the present case offer an appealing alternative, but one that cannot be reached except in the teeth of § 481(b) or so at least it seems to me.