In any event, it is obvious that these two acts are in fact reconcilable and that they can coexist peacefully, for there is nothing in § 303(b) which precludes an apportionment of liability among multiple tort-defendants, and there is no language in the Negligence Act which requires that employers be brought on the record as defendants in order that there be apportionment among those defendants who are on the record.
We conclude, therefore, that the comparative negligence law provides no basis for a refusal to apply the present rule as established in Hefferin, Arnold, and Bell, or for the conclusion that those holdings will be overruled in the future.
The question remains under Bell v. Koppers, supra, as to those "injuries" that pre-dated the effective date of § 303(b).
III. INJURIES PRIOR TO 1975
The effective date of § 303(b) was February 5, 1975, but, as we have seen, the court held in Bell v. Koppers, supra, that § 303(b) was to be given prospective application only and that the old rule permitting joinder of an employer for contribution or indemnity to the extent of his workmen's compensation liability continued to apply in those instances in which the "injury" preceded the effective date of § 303(b).
Although many of the joinders here being sought allegedly involve pre-1975 injuries, the employers nonetheless resist joinder on several grounds. First, they contend that even under the old rule the employer could be joined only to the extent of his compensation liability, and, they say, the employers have incurred no such liability because the employees never filed compensation claims and now are time-barred from doing so under the Compensation and O.D. Acts. 77 P.S. §§ 602, 1415. Next they argue that the "injury", as that term has been construed under the Compensation and O.D. Acts, for which the plaintiffs seek recovery, in fact did not occur until after 1975, thus the new rule totally barring joinder applies.
The question of whether to be subject to joinder under the rule of Maio v. Fahs an employer must actually have incurred workmen's compensation liability in the form of an award in favor of, or payments otherwise being made to, an employee as opposed to merely to have been potentially subject to such liability, has never been addressed specifically by the Pennsylvania courts. The employers note that Maio v. Fahs speaks of the employer being joinable to the extent of his "liability to the (employee) under the Compensation Act." Maio, supra, 339 Pa. at 192, 14 A.2d at 111. (emphasis added). And we know that the plaintiff was receiving compensation benefits in that case, but the precise question before us was not an issue there. Furthermore, the employers point out that the Compensation and O.D. Acts fix and limit the extent of their liability exposure to injured employees and argue that if the employer incurs no actual liability under those Acts, his liability exposure is completely eliminated with the running of the time provided in them for the injured employee to file a claim for compensation benefits.
The third parties attempting joinder counter by arguing that not having incurred any actual liability under the Compensation and O.D. Acts, the employers are not now entitled to the protection of those Acts at all. Second, the third parties rely on the general common-law rule in Pennsylvania that while a special immunity rule may prevent a plaintiff from directly suing a particular tortfeasor, this will not prevent a second tortfeasor sued by the plaintiff from joining the first for contribution. See Robert Levin, Russell Levin, L. Levin, Summary of Pennsylvania Jurisprudence, Torts II § 646 (1958). Defendants offer as analogous the rule that although one spouse may not sue another for negligently inflicted injuries, the negligent spouse may nonetheless be joined for contribution by a third-party sued by the injured spouse. Puller v. Puller, 380 Pa. 219, 110 A.2d 175 (1955). Finally, defendants contend, that even though a statute of limitations does bar plaintiff's action against one jointly liable with a defendant for plaintiff's injuries, this does not prevent the subsequent joinder of that individual by the defendant for contribution. Smith v. Falcone, 85 D.C. 463 (Northhampton Cty. 1953). Thus it is argued here that even though the injured employee may be time-barred from recovery against his employer under the Compensation and O.D. Acts, that does not prevent a third-party product-supplier from joining the employer for contribution, at least to the extent that the employer might have been liable under those Acts.
We reject the Defendants' arguments and conclude that under the prior rule only those employers who actually incurred compensation liability could be joined for "contribution."
We believe that Maio v. Fahs, supra, and especially Brown v. Dickey, supra, are not only dispositive of this issue, but also cast light on several other questions raised by the Defendants.
It is clear enough in Maio that the limited departure there permitted from the exclusive remedies against an employer provided for in the Compensation Act was for the sole and specific purpose of preventing the manifest inequity of allowing a plaintiff to recover "twice" for the same injury. However, the court while fashioning a means by which to prevent the unjust enrichment of a plaintiff did so, at least in part, under principles of contribution.
But Maio was not, strictly speaking, a case of contribution among joint tortfeasors. The employer already was paying compensation benefits to the plaintiff by virtue of a compensation agreement entered into between the plaintiff and the employer pursuant to the Compensation Act, which was irrespective of the employer's negligence. It was statutorily immune from a common-law action in tort by the injured employee, and, therefore, could not be a joint-tortfeasor. See Brown, supra, 397 Pa. at 461, 155 A.2d at 840. The subsequent finding by the jury that the employer was negligent did not establish its obligation to pay the injured employee nor did it result in an increase in compensation payments. Instead, it resulted in the diversion of future workmen's compensation payments from the injured employee to the third-party tortfeasor and in the deduction from the plaintiff's judgment against the non-employer tortfeasors of an amount equal to the compensation payments which previously had been made under the agreement. To that extent, the payments were coming from the victim's pocket and not from those of the so-called "joint-tortfeasor" (except, of course, in the sense that if not negligent the employer might have recouped these payments via subrogation). The Maio ruling, therefore, was not for contribution in the classic sense of joint-tortfeasors sharing the "common burden as reason and natural justice dictate." Maio, supra, 339 Pa. at 189, 14 A.2d at 109.
Indeed, the specific holding of the court is that the non-employer defendants are subrogated to the plaintiff's right against his negligent employer:
Since compensation is being paid under that agreement it would be manifestly inequitable to permit plaintiff to recover the entire amount of her judgment against the other two defendants or against either of them. Therefore, in the event that she proceeds to enforce the judgment against either or both of the other two defendants, she must not be permitted to collect more than the amount of the judgment with interest, less the amount paid her under the compensation agreement. If the judgment thus reduced is paid by either of the other defendants (or by both of them jointly), the defendant so paying the judgment shall be entitled to be subrogated to plaintiff's rights under the Workmen's Compensation Agreement. Maio, supra, 339 Pa. at 190, 14 A.2d at 110.
Even though the rationale and specific holding in Maio indicate that in the final analysis equitable considerations based on concepts of unjust enrichment and subrogation were the basis of the court's decision, and notwithstanding the Brown v. Dickey clarification of Maio which we discuss next, references to principles of contribution so intertwine the opinion that to this day it is cited as authority for the proposition that employers are subject to contribution up to the limit of their liability under the Compensation Act.
See Tsarnas, supra.
The Brown v. Dickey court took a closer look at this concept of contribution and specifically ruled that the Compensation Act did in fact eliminate all "contribution" from employers coming within the Act. The court in Dickey was asked to overrule Maio on the grounds that "(1) the Workmen's Compensation Act does not limit the third party tortfeasor's right of contribution; (2) if the Act were so construed, the Act would be unconstitutional; (3) the ruling in Maio is in direct conflict with the Uniform Contribution Among Tortfeasors Act, Act of July 19, 1951, P.L. 1130, 12 P.S. §§ 2082-2089; (4) Maio has been overruled in principle by later decisions of this Court and (5) the Maio decision has prevented settlements and encouraged litigation." Id. 397 Pa. at 457, 155 A.2d at 837. (emphasis added).
The court rejected all of those grounds for overruling Maio and re-affirmed that holding. In so doing it made several points significant here. First, it re-affirmed that an employer's liability for work-related injuries is limited to the amount of the Workmen's Compensation award.
Appellant argues that the Workmen's Compensation Act does not and cannot limit the right of a third party to contribution. While the Act is mainly concerned with the relationship between employer and employee, it is an expression of the legislative will that an employer's liability, in a case involving injury to an employee during the course of his employment is strictly limited to the amount of the Workmen's Compensation award. Since the employer has been deprived by the Act of his common law defenses, such as contributory negligence, assumption of risk and the fellow servant rule, it would be grossly inequitable to impose a common law liability upon him in the form of a judgment of contribution without permitting him to interpose any defenses. To do so would deprive appellee of his property by legislative fiat. We cannot so interpret the Workmen's Compensation Act. Id. at 458-9, 155 A.2d at 838. (second emphasis added)