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HAMME v. DREIS & KRUMP MFG. CO.

April 15, 1981

David B. HAMME, Plaintiff,
v.
DREIS & KRUMP MANUFACTURING COMPANY, Defendant



The opinion of the court was delivered by: RAMBO

MEMORANDUM

Plaintiff, David B. Hamme, initiated this action on June 9, 1980, claiming Defendant Dreis & Krump Manufacturing Company was liable for injuries sustained by plaintiff on September 8, 1978, when a steel power press broke and severed three of plaintiff's fingers. On July 31, 1980, the defendant filed a third-party complaint to join Hamme's employer, Cole Business Furniture, as an additional defendant. Defendant specifically limited the purpose of the joinder, claiming it was "solely for the purpose of enabling the jury and the court to determine comparative negligence and/or fault of all parties to this action." (Defendant's Third-Party Complaint, p. 3.)

 On October 24, 1980, Cole filed a motion to dismiss the third-party complaint, pursuant to Federal Rule of Civil Procedure 12(b), alleging that an employer may not be made a party to an action of an employee for damages arising out of injuries that occur in the course of employment. All parties have briefed the matter and it is ripe for determination by the court. *fn1"

 The court initially faces two issues. First, may the concept of comparative negligence be applied in product liability cases that rely upon strict liability theories for recovery. Second, may the employer be joined as an additional defendant for the sole purpose of determining comparative negligence in an action brought by an employee against a third party for injuries sustained while working in the scope of his employment. Because of the court's finding that an employer may not be joined as an additional defendant in this case, it need not address whether comparative negligence concepts are permissible in strict liability cases under Pennsylvania law. Therefore, the court expresses no opinion on that as yet unsettled issue. *fn2"

 At issue in the case is the interpretation of the 1974 amendment to the Pennsylvania Workman's Compensation Act (hereinafter referred to as the "Act"), Act of June 2, 1915, P.L. 736, as amended by, Act of December 5, 1974, P.L. 782, 77 P.S. § 481(b), which reads as follows:

 
(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, contribution, 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. (Hereinafter referred to as § 303(b).)

 The specific issue facing this court, whether or not an employer may be joined as an additional defendant for the sole purpose of determining fault or degree of negligence among the parties in an action commenced by an employee for injuries sustained while working in the scope of his employment, has never been specifically before an appellate court in Pennsylvania. *fn3" 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). *fn4"

 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 ...


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