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July 17, 1981

Teresa Anne RYDEN, et al., Plaintiffs,
JOHNS-MANVILLE PRODUCTS, et al., Defendants, and Related Cases

The opinion of the court was delivered by: DIAMOND

In each of these diversity actions plaintiff seeks to recover damages from the manufacturer or supplier of certain asbestos products for injury or death allegedly suffered by plaintiff or plaintiff's decedent (hereafter, plaintiff) from the inhalation of asbestos fibers during the course of his employment. Because the injury or death in each instance was employment-related under The Pennsylvania Workmen's Compensation Act (Compensation Act) of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., plaintiff was precluded by that law from instituting a common-law action for damages against his employer, and in none of these cases was such an action brought. Now, however, several of the original defendants either have filed third-party complaints joining plaintiff's former employers or have tendered motions for such joinder. In each case, the original defendants seek contribution or indemnity on the ground that the employer's negligence contributed to plaintiff's alleged injury or death.

The issue presently before the court is whether the joinder of these former employers is permissible. In motions to dismiss or for summary judgment, the employers claim that § 303(b) of the Compensation Act, 77 P.S. § 481(b) (1974), prohibits their joinder for any purpose. The defendants who seek joinder (Defendants) respond in the alternative that (a) The Pennsylvania Comparative Negligence Act (Negligence Act) of July 9, 1976, P.L. 855, No. 152, 17 P.S. §§ 2101, 2102, as amended, added by the act of April 28, 1978, P.L. 202, No. 53, § 10(89), 42 Pa.C.S.A. § 7102, enacted subsequent to § 303(b) of the Compensation Act, requires, or at least permits, joinder of any and all culpable parties; or (b) that, in any event, under the holding in Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978), employers whose employees contracted an occupational disease prior to the effective date of § 303(b) may be joined. For the reasons set forth below, we will sustain the objections to joinder in all cases except where the plaintiff "was injured" prior to the effective date of § 303(b), filed a claim for benefits under the Compensation Act or The Pennsylvania Occupational Disease Act (O.D. Act) of June 21, 1939, P.L. 566, No. 284, as amended, 77 P.S. 1201 et seq., and was awarded benefits under one of those Acts, or the claim remains in litigation, or the claim was denied because plaintiff's "injury" was not an occupational disease covered by the Compensation or O.D. Act.


 In 1915 Pennsylvania enacted its first workmen's compensation statute. This act authorized an employee and his employer contractually to establish their respective rights and duties in the event of an employment-related injury to the employee. If the parties accepted the terms of that act, *fn1" a fundamental change in their common-law relationship resulted. In place of the common-law rule that provided for the recovery of damages resulting from work-related injuries only where the injured employee could prove that his injuries were caused by the negligence of his employer and where proof of the employee's contributory negligence or assumption of the risk would bar recovery, the Compensation Act virtually assured compensation benefits to an injured workman for work-related injuries regardless of who, if anybody, was at fault. Thus, the negligence of the employee or a fellow worker, or the employee's assumption of the risk, or even the absence of fault of the employer no longer would defeat or reduce the employee's right to recover benefits under the law. 77 P.S. § 41. In return, the employee surrendered his right to institute a common-law action for damages against his employer and was limited in his recovery to specific sums scheduled under the Act. 77 P.S. § 481(a); Swartz v. Conradis, 298 Pa. 343, 148 A. 529 (1929).

 The relationship between the injured employee and a third party whose negligence caused the employee harm and between the employer and such third parties was not altered so radically. The employee retained his right to sue third parties for damages and the employer obtained a statutory right of subrogation to the rights of the employee against a negligent third party to recover the compensation benefits paid by the employer. 77 P.S. § 671; See Stark v. Posh Construction Company, 192 Pa.Super. 409, 162 A.2d 9 (1960). Further, in Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940), the Pennsylvania Supreme Court held that in an action by an employee against a third party, the latter could join the plaintiff-employee's allegedly negligent employer as an additional defendant for purposes of obtaining "contribution" (or indemnity) from the employer up to the extent of his liability under a compensation agreement entered into pursuant to the Compensation Act. *fn2"

 The Maio ruling prevailed for years. See Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); Brown v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959). And the law regarding joinder of an employer thus remained essentially unchanged until February 5, 1975, the effective date of the amendment to § 303 of the Compensation Act. Subsection (b) of the amended section, 77 P.S. § 481(b), provides in its pertinent part:

(b) In the event injury or death to an employe is caused by a third party, then such employe ... may bring (his) ... 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. (matter in brackets added)

 From the outset, the Pennsylvania appellate courts construed this provision liberally in favor of granting to the employer total immunity from suit. In Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), for example, the Superior Court, stating that § 303(b) provided employers with "total immunity from third-party actions", ruled that it was an absolute bar to the joinder of an employer. Id. at 368, 372 A.2d at 871. In so holding, Hefferin rejected the trial court's conclusion that § 303(b) was merely a codification of the existing law established in Maio v. Fahs. Any doubt regarding the scope of § 303(b) immunity after Hefferin clearly was dispelled by Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978) and Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978). In Arnold the court specifically ruled that § 303(b) prohibited the joinder of an employer even for the limited purpose of determining his subrogation rights or liability for contribution.

 Significantly, both Hefferin and Arnold, but particularly the latter, recognized the potential inequities which could result from their construction of § 303(b), especially that an injured employee might recover twice *fn3" or that a negligent employer could entirely escape payment including that of his workmen's compensation liability. *fn4" See Hefferin, supra, (Van der Voort, J., concurring); Arnold, supra, (Spaeth, J., concurring and dissenting). In either case, a third-party tortfeasor only partially at fault in causing injury to the employee of another could be required to bear the entire cost of the employee's injury, and the employee could be the beneficiary of a windfall "double" recovery. Nevertheless, both the Hefferin and Arnold courts concluded that notwithstanding this potential for apparent injustice their construction of § 303(b) was consistent with the intent of the legislature. Hefferin, supra, 247 Pa.Super. at 369-70, 372 A.2d at 872; Arnold, supra, 257 Pa.Super. at 114, 390 A.2d at 273. And recently, in Tsarnas v. J. & L. Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980), § 303(b), as construed by Hefferin and Arnold, withstood constitutional attack.


 Notwithstanding the consistent and virtually unbroken line of appellant authority in Pennsylvania holding that § 303(b) confers absolute immunity on an employer covered by the Compensation Act from suit by an employee or third-party tortfeasor arising out of work-related injuries to the employee, the Defendants now insist that the Negligence Act requires a different result. Since the Pennsylvania appellate courts have not yet resolved this specific question, it becomes our duty to predict how the Pennsylvania Supreme Court ultimately will rule. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3rd Cir.), cert. denied, 449 U.S. 976, 101 S. Ct. 387, 66 L. Ed. 2d 237 (1980).

 We begin by looking at the Negligence Act. This statute, enacted in 1976, more than one year after the effective date of § 303(b), provides:

(a) General Rule. In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(b) Recovery against joint defendant; contribution. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution. 42 Pa.C.S.A. § 7102(b). (emphasis in text supplied).

 First, we note that the Defendants' argument is based on a premise which is fundamentally false. The Negligence Act does not, as they would have it, provide for apportionment among all persons responsible for a tortious injury. It merely provides for apportionment among those defendants against whom recovery is allowed. There is no suggestion in that statute that all possible tortfeasors be brought into court, and certainly no requirement that this be done to achieve the purposes of the act. The trier of fact is simply to apportion liability on a percentage basis among those defendants on the record against whom recovery is allowed.

 Second, focusing on possible inequities or practical problems resulting from the employer's absence on the record is not the proper perspective from which to resolve this question. As we have seen, the Hefferin and Arnold courts flatly rejected this approach. And since the question is whether Hefferin and Arnold should still apply, the more pertinent inquiry would seem to be whether, in the context of employment-related injuries, the potential problems under the Negligence Act are qualitatively different from those under the prior law and the Uniform Contribution Among Joint-Tortfeasors Act (Contribution Act) of July 19, 1951, P.L. 1130, 12 P.S. § 2082 et seq., which it replaced or modified. Prior to the Negligence Act, plaintiff's contributory negligence was a complete bar to recovery and the liability of joint tortfeasors was pro rata regardless of the extent to which their respective negligence contributed to the harm suffered by the tort victim. If, as we believe, there has been no qualitative change in the law vis-a-vis joint tortfeasors, then it seems logical to conclude that Hefferin and Arnold, which arose in the context of that law, remain fully viable, and that the inequities and trial problems of which defendants continue to complain should provide no basis for concluding that the Pennsylvania Supreme Court will reach a result different from that reached in those cases.

 The only qualitative change brought about by the Negligence Act is found in subsection (a) and has to do with the effect of plaintiff's contributory negligence. Simple contributory negligence is no longer a complete bar to a plaintiff's recovery. 42 Pa.C.S.A. § 7102(a). The apportionment of liability among joint tortfeasors on a percentage-of-fault basis, found in subsection (b) of the act, 42 Pa.C.S.A. § 7102(b), is simply a quantitative refinement of the prior law which also provided for apportionment and contribution among joint tortfeasors, but on a pro rata basis without consideration of the relative degree of fault among them. 12 P.S. § 2083(1), (2). Thus, the Negligence Act presents no problem significantly different from those considered and rejected as immaterial by the Hefferin and Arnold courts, for it long had been desirable to have all joint tortfeasors on the record to adjudicate their fault, if any, and to provide for contribution, or credit therefor, among them if possible.

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