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June 3, 1981

James W. JONES, Plaintiff,
The CARBORUNDUM COMPANY, a corporation, and Ingersoll-Rand Co., a corporation, Defendants

The opinion of the court was delivered by: DUMBAULD

Plaintiff James W. Jones, an employee of Westinghouse Air Brake Company (hereinafter called WABCO), was injured in the course of his employment when a grinding wheel manufactured by defendant Carborundum Company shattered and disintegrated while he was polishing a brake shoe with a portable grinding machine manufactured by defendant Ingersoll-Rand Company.

Plaintiff sued both defendants in the Court of Common Pleas of Allegheny County, and the case was removed to this Court at the instance of defendant Carborundum. The Complaint, in six Counts, charges each defendant with (1) negligence; (2) supplying a defective and unreasonably dangerous article; thereby incurring strict liability under § 402-A of the Torts Restatement, which Pennsylvania law has adopted; and (3) breach of warranty under the Uniform Commercial Code for supplying an article not merchantable under the standards of the trade for the purpose for which it was to be used.

 Carborundum's answer to the § 402-A allegations avers that if the grinding disc was defective or dangerous such "condition was created by an act or omission by the other defendant or others and/or by the misuse or misoperation of the grinding disc by plaintiff, plaintiff's employer and/or others."

 There is no other allegation of negligence on the part of WABCO. However, in the motion now pending before us filed by Carborundum on March 31, 1981 (and joined in by Ingersoll-Rand on May 8, 1981) Carborundum asserts that WABCO "is solely responsible or in part responsible for the injuries to the plaintiff in that it was negligent in failing to require that all hand grinders used by its employees be equipped with wheel guards." From the oral arguments the Court has obtained the impression that Ingersoll-Rand contends that the grinding machine when sold to WABCO was equipped with a guard, which WABCO removed before furnishing the machine to employees for use. Among the alleged defects alleged by plaintiff against Ingersoll-Rand were listed design, manufacture, and distribution of the machine without a protective guard; and failure to equip the machine "with a non-removable guard or shield."

 The question before us is whether WABCO, plaintiff's employer, should be joined as an involuntary party plaintiff in the pending action by plaintiff Jones against the manufacturers of the grinding wheel and grinding machine which he was using in the course of his employment at the time of the accident.

 Resolution of the question depends upon the interpretation, application, and accommodation of several Pennsylvania statutes. In view of the lack of consensus with respect to the subject manifested in the pronouncements of various Pennsylvania courts and judges of this Court, we are constrained to utilize the "threefold imperative" which Judge Friendly ascribes to Professor (later Justice) Frankfurter: "(1) Read the statute; (2) read the statute; (3) read the statute." Henry J. Friendly, Benchmarks (1967) 202. With regard to procedure, we follow federal rules; with regard to substance Pennsylvania rules under Erie principles. ( Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).) If the dominant intent of the legislature is reasonably plain, we must give it full effect, even if it seems unjust or is clumsily expressed, or even if it is slily and artfully formulated for the benefit of insurance carriers or other influential interests.

 It is a basic principle of tort law that a person whose negligence causes detriment to another shall pay damages equivalent to the harm inflicted. However, in dealing with the industrial accidents incident to production, it has seemed desirable to compensate all workmen injured in the course of their employment, whether or not the injury is caused by negligence on the part of the employer. In return for the certainty of such compensation, the amount thereof is less than the usual verdict in a successful tort action (and the employee is precluded from suing his employer, 77 P.S. 481(a)). As Judge Spaeth well explains in Arnold v. Borbonus, 257 Pa.Super. 110, 116, 390 A.2d 271 (1978), this exception to the general tort principle of liability based upon negligence is a bargain between employer and employee alone and does not bind third parties either for weal or woe.

 Hence the practice has arisen for employees injured by the alleged negligence of third parties to bring suit against the third party under the general tort law, without regard to workmen's compensation legislation. In a meritorious case the workman may expect to receive an amount larger than his workmen's compensation.

 However, it would be unjust to permit him to receive duplicate recovery for the same injury (as distinguished from a benefit from a collateral source, such as his individual health or disability or life insurance); and hence in case a verdict is won against a third-party tortfeasor the employer is entitled to reimbursement of the workmen's compensation payments arising as a result of the injury.

 In Pennsylvania this situation is expressly governed by 77 P.S. 671, which provides:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of (the employee) against such third party to the extent of the compensation payable ... by the employer...

 Hence if the injury is caused "in part" by a third party, the employer is entitled to recoup in full the entire amount of compensation payable. This would be true if the third party's negligence was only 10%, and the employer's own negligence was 90%. But if the employer is 100% negligent, he loses the benefit of his right to subrogation. Stark v. Posh Construction Co., 192 Pa.Super. 409, 413-17, 162 A.2d 9 (1960); Grimm v. O. K. Keckley Co., 555 F.2d 123, 124 (C.A.3, 1977).

 Another statutory provision in pari materia, perhaps the crucial language in the case at bar, is § 303(b) of the Workmen's Compensation Act as revised ...

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