No. 2695 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas of Philadelphia County, Civil-Trial Division, at No. 1871 of April Term, 1977.
Frank J. Eisenhart, Jr., Philadelphia, for appellant.
Joan Saltzman, Philadelphia, for Leonard, appellee.
Peter S. Miller, Philadelphia, for Hudson, appellee.
Austin Hogan, Philadelphia, for Rothman, et al., appellees.
George J. Guinta, Jr., Media, for Cunningham et al., appellees.
John C. McFadden, Philadelphia, for Lumbermen's, appellee.
Wickersham, McEwen and Wieand, JJ. McEwen, J., files a dissenting opinion.
[ 290 Pa. Super. Page 372]
On April 15, 1977, plaintiff-appellee, Gerald T. Leonard commenced this action in trespass and assumpsit against defendant-appellant, Harris Corporation (hereinafter Harris). Leonard alleged in his complaint that on August 17, 1976, while he was employed by T. J. Henry Associates, Inc. (hereinafter T. J. Henry), he injured himself by catching his foot in an offset printing press designed, manufactured, and sold by Harris. Leonard alleged that the accident occurred because of the defective condition of the press, the failure of Harris to provide proper instructions as to the cleaning and use of the press, and the lack of adequate warnings and safeguards on the press.
On August 16, 1978, Leonard and Harris stipulated through their respective counsel that Harris could join the following parties as additional defendants: Hudson Machinery Co., Inc., Bernard Rothman, Canterbury Press, Canterbury-Perfect Press, Inc., James Cunningham, C & P Lithographic Service & Supply Company, and Lumbermen's Mutual Casualty Company. On September 6, 1978, Harris filed a complaint against these additional defendants*fn1 seeking their contribution or indemnity. Harris averred in its complaint, inter alia, that Lumbermen's Mutual Casualty Company (hereinafter Lumbermen) issued an insurance policy to T. J. Henry, Leonard's employer, covering claims for workmen's compensation which was in force and effect on the
[ 290 Pa. Super. Page 373]
date of the accident. Harris alleged that although the insurance policy did not contractually obligate Lumbermen to undertake safety inspections of T. J. Henry's plant and machinery, Lumbermen did periodically conduct such inspections. According to Harris, if it were established that Leonard's injuries were caused by the defective condition of the press, inadequate warnings or safeguards, or the improper cleaning and use of the press, then Leonard's injuries were caused by Lumbermen's negligence in failing to discover and apprise T. J. Henry and its employees of these conditions during its safety inspections.
Three motions were presented to the Honorable Edward J. Bradley, President Judge of the Court of Common Pleas of Philadelphia County, for decision in this case. Two of these motions presented issues which were argued to this court on appeal,*fn2 and they are as follows. On October 3, 1978, the additional defendant, Lumbermen, filed preliminary objections to Harris' complaint asserting, inter alia, immunity under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 et seq. (hereinafter the Act). The lower court sustained Lumbermen's preliminary objections and dismissed Harris' complaint on the grounds that Lumbermen, as the workmen's compensation insurance carrier for Leonard's employer, was improperly joined as a party in this action under section 303(b) of the Act.
The other motion was Harris' petition filed on November 2, 1978, for leave to join Leonard's employer, T. J. Henry, as an additional defendant pursuant to Pa.R.C.P. No. 2253. In its proposed complaint in trespass against T. J. Henry, Harris demanded a judgment determining that T. J. Henry has no subrogation right against Harris for any sums which the employer has been or may be required to pay Leonard as workmen's compensation. Leonard filed an answer opposing this joinder in which he alleged, inter alia, that T. J.
[ 290 Pa. Super. Page 374]
Henry was immune from suit under section 303(b) of the Act. The lower court agreed with this allegation and denied Harris' petition for joinder.
Harris took this appeal from the lower court's order sustaining Lumbermen's preliminary objections to Harris' complaint and denying Harris' petition for leave to join T. J. Henry as an additional defendant. We will first discuss the issue of whether Harris' petition to join Leonard's employer as an additional defendant was properly denied.
Harris argues on appeal that the lower court erred in not allowing the joinder of T. J. Henry for the purpose of determining the employer's right to subrogation and Harris' right to a credit for the amounts paid to Leonard as workmen's compensation. Appellant urges this court to adopt the following rule:
(1) Joinder of the employer will be allowed for the sole purpose of having the trier of fact determine at trial whether the employer is solely or partially responsible for the plaintiff's injury, and the degree of any partial responsibility.
(2) If the employer is found to be wholly or partially responsible for the plaintiff's injury, his sole obligation to the plaintiff will be his obligation under the workmen's compensation laws, but he will forfeit any right of subrogation with respect to workmen's compensation payments. The employer will have no liability to any other defendant.
(3) If the employer is found to be wholly or partially responsible for the plaintiff's injury, the total verdict to be awarded to the plaintiff will be reduced to the extent of the employer's pro rata share. Other defendants will each be liable to the plaintiff for the full amount of the reduced verdict with their traditional rights of contribution ...