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DAVID F. KELLY AND PATRICIA ANN KELLY v. CARBORUNDUM COMPANY (02/25/82)

argued: February 25, 1982.

DAVID F. KELLY AND PATRICIA ANN KELLY, HIS WIFE
v.
THE CARBORUNDUM COMPANY, A CORPORATION, APPELLANT, V. WILLSON PRODUCTS, A DIVISION OF E.S.B. INDUSTRIES, INC.; POWER PIPING COMPANY; MURPHY INDUSTRIES CORPORATION; REED TOOL COMPANY; AND BAKER INTERNATIONAL CORPORATION



No. 262 Pittsburgh, 1981, No. 42 Pittsburgh, 1982, Appeal from Orders of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 78-23220.

COUNSEL

John E. Kunz, Pittsburgh, for appellant.

Linda Pretz, Pittsburgh, for appellees.

Cercone, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Cirillo and Montemuro, JJ. Montemuro, J. files a concurring opinion. Cavanaugh, J. files a concurring and dissenting opinion. McEwen and Cirillo, JJ., file dissenting opinions.

Author: Wieand

[ 307 Pa. Super. Page 363]

In an action by an employee against a third party tort-feasor, may the employer be joined either as an additional defendant or as an involuntary plaintiff for the purpose of apportioning negligence under the Comparative Negligence Act?*fn1 The trial court held that joinder under either procedure was improper. We affirm.

David F. Kelly, an employee of Power Piping Company, was injured when an abrasive grinding wheel attached to a mechanical grinder broke while in use. He and his wife commenced an action in trespass against The Carborundum Company which had designed and manufactured the grinding wheel. The Carborundum Company caused Power Piping Company to be joined as an additional defendant,*fn2 alleging that Kelly's employer had been negligent in removing safety-guards, in failing to supply eye shields and in failing to instruct and supervise Kelly in the use of the grinder. Power Piping Company filed an answer to Carborundum's complaint in which it denied negligence and averred,

[ 307 Pa. Super. Page 364]

    as "new matter", that it had paid workmen's compensation benefits to Kelly. When the fact of compensation coverage was subsequently admitted, Power Piping filed a motion for judgment on the pleadings on the grounds that its joinder as an additional defendant was barred by provisions of the Pennsylvania Workmen's Compensation Act. An order was entered granting the motion and entering judgment in favor of the employer. Carborundum then filed a petition attempting to join Power Piping as an involuntary plaintiff. This attempted joinder was also denied. Both orders were appealed and, because of the importance of the issues involved, were consolidated for argument before a court en banc.

Substantively, the joinder of an employer for the purpose of determining his negligence, if any, is prevented by prior decisions interpreting Section 303 of the Workmen's Compensation Act of December 5, 1974, P.L. 782, No. 263, 77 P.S. § 481. This section 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.

(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

[ 307 Pa. Super. Page 365]

    alleged to be liable prior to the date of the occurrence which gave rise to the action.

In Heckendorn v. Consolidated Rail Corporation, 293 Pa. Super. 474, 439 A.2d 674 (1982),*fn3 we followed prior decisions of the Supreme and Superior Courts which held that the statutory language "obliterated" the common law cause of action against an employer and prevented his joinder as an additional defendant in an action brought by an employee against a third person to recover for personal injuries sustained by the employee during the course of employment. Thus, we said:

[Section 303 of the Workmen's Compensation Act] . . . 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 employe 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 industrial accident is limited to an amount determined by the Workmen's Compensation Act. If he assumes that liability, there can be no cause of action against him for negligence; and he cannot be made a party to his employee's

[ 307 Pa. Super. Page 366]

    common law action for negligence against a third person.

Id., 293 Pa. Super. at 477, 439 A.2d at 675.

We also held in Heckendorn that prior appellate decisions had not been overruled or otherwise deprived of efficacy by enactment of the Comparative Negligence Act of 1978. The employer, we said, "is liable solely for worker's compensation benefits. If [the employer] accepts the responsibility of providing worker's compensation benefits, he cannot be solely or jointly liable to an employee for negligence. Similarly, he is not liable to a third party tortfeasor for indemnification or contribution . . . . He is not a party whose negligence is to be included in the apportionment required by the Comparative Negligence Law." Heckendorn v. Consolidated Rail Corporation, supra, 293 Pa. Super. at 481-82, 439 A.2d at 678.

Appellant renews in this appeal the argument that prior decisions have been impliedly overruled by the Comparative Negligence Act. This statute 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.

[ 307 Pa. Super. Page 367]

Any defendant who is so compelled to pay more than his percentage share may seek contribution.

42 Pa.C.S.A. § 7102.

Contrary to the premise for appellant's argument, this statute does not provide for apportionment among all tortfeasors causally responsible for an 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." Ryden v. Johns-Manville Products, 518 F.Supp. 311, 316 (W.D.Pa. 1981). We observed in Heckendorn, and repeat here, that under existing law, an employer is not a defendant "against whom recovery is allowed."

In Hamme v. Dreis & Krump Manufacturing Co., 716 F.2d 152 (3rd Cir. 1982), a products liability action, the manufacturer had attempted to join the employer of the plaintiff-employee as an additional defendant. A majority of the Court of Appeals for the Third Circuit followed Heckendorn and held improper an attempted joinder of the employer for purposes of determining comparative fault under the Pennsylvania Comparative Negligence Act.

It seems clear, therefore, that substantive law precludes the joinder of an employer for the purpose of determining fault in an action commenced by an employee against a third person. Appellant contends that this result is unfair because it requires a third party tortfeasor to pay more than his or her fair share of the damages sustained. This argument is not persuasive. The law does not now and never has required that all possible tortfeasors be made parties to an action. Appellant also argues that an interpretation of Section 303 of the Workmen's Compensation Act which disallows joinder of an employer constitutes too absolute a victory for the employer. This argument is more properly directed to the legislature, which is responsible for

[ 307 Pa. Super. Page 368]

    establishing social policy.*fn4 Unless and until the legislature changes the provisions of the Workmen's Compensation Act or the Supreme Court alters its interpretation thereof, we are obliged to follow those decisions which hold that there is no liability on the part of an employer for job related injuries sustained by an employee except for workmen's compensation benefits. All other causes of action against the employer have been "obliterated," and the employer cannot be joined in an action brought by the employee against a third person. See: Tsarnas v. Jones & Laughlin Steel Corp., supra; Bell v. Koppers Co., Inc., supra; Arnold v. Borbonus, supra; Hefferin v. Stempkowski, supra.

Joinder of Power Piping Company as an involuntary plaintiff would also have been procedurally improper. The circumstances under which a party may be joined as an involuntary plaintiff are set forth in Pa.R.C.P. 2227 as follows:

(a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.

(b) If a person who must be joined as a plaintiff refuses to join, he shall, in a proper case, be made a defendant or an involuntary plaintiff when the substantive law permits such involuntary joinder.

This rule permits compulsory joinder in very limited situations.*fn5 Subsection (b) is not predicated upon "some administrative benefit to be gained by joinder but upon the unity

[ 307 Pa. Super. Page 369]

    and identity of the interests of the co-owners who are to be joined." 7 Goodrich-Amram 2d § 2227(a):1. It is applicable only where the substantive law provides that an interest is joint and the holder of such interest refuses to join. Involuntary joinder is necessary because without such joinder an indispensable party is missing and the action cannot proceed.

An employer is not an indispensable party to his employee's action in trespass against a third party tort-feasor. The interests of the employee and employer are not joint. The employee's cause of action is independent of the employer and can be pursued without the latter's joinder. The employee's claim, moreover, is not limited by any interest of a subrogated employer or workmen's compensation insurance carrier. See generally: 77 P.S. § 671; 42A P.L.E. Workmen's Compensation § 578. Indeed, in an employee's action, the prior payment of workmen's compensation benefits is irrelevant. See: Downey v. Weston, 451 Pa. 259, 273, 301 A.2d 635, 643 (1973); Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); Lengle v. North Lebanon Twp., 274 Pa. 51, 54, 117 A. 403, 404 (1922). See also: Feeley v. U.S., 337 F.2d 924, 931 (3rd Cir. 1964); Lawrence v. Holan Corp., 43 F.R.D. 292, 294 (W.D.Pa. 1967). Thus, even though the employer may enjoy subrogation rights in his employee's recovery against the third person, it is not and never has been the law that the subrogee is an essential party to the employee's action. See: Smith v. Yellow Cab, 288 Pa. 85, 135 A. 858 (1927); 42A P.L.E. Workmen's Compensation § 580. See also: London Lancashire Indemnity Co. of America v. Reid, 156 F.Supp. 897 (1958). The interests of the subrogee, if necessary, can be determined in a separate action. Involuntary joinder of the employer very simply is not necessary to a determination of the employee's cause of action against the third party; and Pa.R.C.P. 2227(b) is not a rule of administrative convenience.

To summarize, Pa.R.C.P. 2227 permits compulsory joinder of persons having a joint interest in the subject matter of an action and without whose joinder the action cannot substantively ...


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