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FRED M. HECKENDORN AND MARY ANNE HECKENDORN v. CONSOLIDATED RAIL CORPORATION (10/09/81)

filed: October 9, 1981.

FRED M. HECKENDORN AND MARY ANNE HECKENDORN, HIS WIFE, PLAINTIFFS,
v.
CONSOLIDATED RAIL CORPORATION, DEFENDANT-APPELLANT, V. EVANS PRODUCTS COMPANY, ADDITIONAL DEFENDANT, AND THE CARNATION COMPANY, ADDITIONAL DEFENDANT AND APPELLEE



No. 2177 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Cumberland County, No. 3781 of 1979.

COUNSEL

David C. Eaton, Harrisburg, for defendant-appellant.

Thomas J. Williams, Carlisle, for Carnation Co.

Price, Wieand and Lipez, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Wieand

[ 293 Pa. Super. Page 476]

The difficult issue in this appeal is whether, in an action by an employee against a third party tortfeasor, the employer can be joined as an additional defendant for the purpose of apportioning negligence under the Comparative Negligence Act. The trial court held that joinder was barred by Section 303 of the Workmen's Compensation Act, as amended,*fn1 and dismissed the attempted joinder. We agree and affirm.

Fred Heckendorn, an employee of the Carnation Company, was injured when he was struck by a falling bulkhead while unloading a railroad box car. The car was owned by Consolidated Rail Corporation (Conrail) but had been leased to Carnation. The bulkhead, which had been manufactured by Evans Products Company, fell during unloading at Carnation's warehouse in Mechanicsburg, Cumberland County.

Heckendorn filed a complaint in trespass against Conrail, alleging defective maintenance of the box car. Conrail joined Carnation as an additional defendant.*fn2 The complaint demanded "judgment against the Carnation Company for indemnity or, alternatively, for contribution . . . ." Carnation thereupon filed preliminary objections challenging its joinder on the grounds that it was Heckendorn's employer and, therefore, immune from joinder. The trial court agreed and vacated the joinder. Conrail appealed.

Section 303 of the Workmen's Compensation Act provides:

"(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in Section 301(c)(1) and (2) or occupational disease as defined in Section 108.

[ 293 Pa. Super. Page 477]

"(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, 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."

This section, it has been said, manifested a broad legislative intent to bar the joinder of an employer as an additional defendant. Arnold v. Borbonus, 257 Pa. Super. 110, 114, 390 A.2d 271, 273 (1978). It has "obliterated" the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer. Bell v. Koppers Co., Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978). It has created an exception to the general right of contribution among tortfeasors. Thus a defendant whose negligence is alleged to be responsible for an injury suffered by an employee protected by the Workmen's Compensation Act, may not, in the suit brought against him, join the employer as an additional defendant. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 518, 412 A.2d 1094, 1096 (1980). See also: Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977); Atkins v. Urban Redevelopment Authority of Pittsburgh, 263 Pa. Super. 37, 396 A.2d 1364 (1979). The policy consideration which prompted the enactment of Section 303 is clear. An employer's liability for an ...


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