Appeal From the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 80-0684).
Aldisert, Adams and Rosenn, Circuit Judges. Rosenn, Circuit Judge, dissenting.
The question presented by this appeal in a diversity case is whether an employer's comparative fault can be adjudicated under the Pennsylvania comparative negligence statute, 42 Pa. Cons. Stat. Ann. § 7102,*fn1 in a personal injury products liability action brought by an employee against a manufacturer who sought to join plaintiff's employer as a third-party defendant. The district court held that § 303(b) of the Pennsylvania Worker's Compensation Act, Pa. Stat. Ann. tit. 77, § 481(b) (Purdon),*fn2 foreclosed application of the statute and dismissed the defendant's third-party complaint against the employer. Hamme v. Dreis & Krump Manufacturing Co., 512 F. Supp. 944 (M.D.Pa. 1981). The district court then certified its order and this court granted leave to appeal the dismissal under 28 U.S.C. § 1292(b).
A steel power press brake used for bending sheet metal severed three of plaintiff's fingers while he was operating it in the course of his employment. Plaintiff sued appellant, the manufacturer of the machine, on a theory of strict liability, alleging that the machine was defective, as that term is defined by Restatement (Second) of Torts § 402A. Appellant then filed a third-party complaint against plaintiff's employer "solely for the purpose of enabling the jury and the court to determine comparative negligence and/or fault of all parties to this action," Defendant's Third-Party Complaint, reprinted in app. at 7, apparently recognizing that § 303(b) of the Worker's Compensation statute barred an adjudication of the employer's liability to appellant for damages or contribution.
After reviewing the relevant Pennsylvania trial and appellate decisions, Judge Sylvia Rambo dismissed the third-party complaint.*fn3 She acknowledged that no Pennsylvania appellate court had confronted the issue presented here, but, relying on Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), and Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978), concluded that the "intent of the Pennsylvania legislature in enacting § 303(b) was to create an absolute bar to the joinder of the employer as an additional defendant." 512 F. Supp. at 948.
Subsequent to the district court's decision, the Pennsylvania Superior Court decided Heckendorn v. Consolidated Rail Corp., 293 Pa. Super. 474, 439 A.2d 674 (1981), which presented the same question in a negligence action, and reached the same result as the district court here. The superior court in Heckendorn affirmed the dismissal of a third-party complaint against the employer on the ground that the comparative negligence statute permits allocation of fault only against parties against whom recovery is allowed for negligence. "An employer is one against whom recovery can neither be 'sought' nor 'allowed.' A cause of action against the employer has been obliterated." Id. at 480, 439 A.2d at 677 (citing Bell v. Koppers Co., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978)).
Because we are bound by the interpretation given to Pennsylvania law by the courts of Pennsylvania, and because the rule articulated by the Pennsylvania Superior Court in Heckendorn governs the situation before us here, we will affirm the judgment of the district court for the reasons set forth in its opinion.*fn4
ROSENN, Circuit Judge, dissenting.
I disagree with the majority that we are bound by the decision of the Superior Court of Pennsylvania in Heckendorn v. Consolidated Rail Corp., 293 Pa. Super. 474, 439 A.2d 674 (1981). I am deeply troubled by the inequities engendered by Heckendorn's construction of section 303(b) of the Workmen's Compensation Act (WCA), Pa. Stat. Ann. tit. 77, § 481(b) (Purdon Cum. Supp. 1981-82), and of Pennsylvania's Comparative Negligence Act, 42 Pa. Cons. Stat. Ann. § 7102 (Purdon 1981 Pamphlet). Because I believe that the Supreme Court of Pennsylvania will not follow the Heckendorn decision, but instead will reconcile these statutes in a manner that gives effect to the intendment of the WCA without unfairly burdening third parties who stand outside the workmen's compensation scheme, I respectfully dissent.
As an initial matter, I address the majority's decision simply to follow the Superior Court's recent decision in Heckendorn. The touchstone of our inquiry is the Erie doctrine: a federal district court exercising its diversity jurisdiction must apply the substantive law of the state in which it sits. Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). To ascertain what state law is, a federal court looks initially to the state's statutes and to the decisions of its highest court. Id. at 79. More difficult is the task of ascertaining state law when the state's highest court has not yet spoken to the issue.
This court recently summarized the nature of a federal diversity court's inquiry into the contours of state law absent a controlling decision of the state's highest court, and the guidance to be had from lower state court decisions.
In the absence of an authoritative pronouncement from the state's highest court, the task of a federal tribunal is to predict how that court would rule. To make this prognostication, we are not inflexibly confined by dicta or by lower state court decisions, although we should look to such statements as indicia of how the state's highest court might decide. The policies underlying the applicable legal doctrines, the doctrinal trends indicated by these policies, and the decisions of other courts may also inform our analysis. In addition, we may consult treatises, the Restatement, and the works of scholarly commentators.
Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1982) (citations omitted). In deciding the instant appeal, which concerns a question of law not yet resolved by the state's highest court, we must therefore attempt to predict how the Pennsylvania Supreme Court would decide the question. See, e.g., Safeco Insurance Co. of America v. Wetherill, 622 F.2d 685, 688 (3d Cir. 1980); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir.), cert. denied, 449 U.S. 976, 101 S. Ct. 387, 66 L. Ed. 2d 237 (1980).
Of all of the indicia of what state law is, decisions of intermediate appellate courts are among the most helpful. In the absence of a controlling decision of the state's highest court, the decisions of intermediate state courts having statewide jurisdiction are normally a strong indication of what the state law is. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 177-78, 85 L. Ed. 109, 61 S. Ct. 176 (1940); Six Companies v. Joint Highway District No. 13, 311 U.S. 180, 188, 61 S. Ct. 186, 85 L. Ed. 114 (1940); West v. American Telephone & Telegraph Co., 311 U.S. 223, 85 L. Ed. 139, 61 S. Ct. 179 (1940); Stoner v. New York Life Insurance Co., 311 U.S. 464, 85 L. Ed. 284, 61 S. Ct. 336 (1940). See generally Bator, Mishkin, Shapiro & Wechsler, Hart and Wechsler's The Federal Courts and the Federal System, 708-10 (2d ed. 1973). They do not, however, perforce dictate the result in a federal diversity action. Rather,
"an intermediate appellate state court . . . . is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." 311 U.S. at 237 (Emphasis supplied.) Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling.
Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967) (quoting West v. American Telephone & Telegraph Co., 311 U.S. 223, 85 L. Ed. 139, 61 S. Ct. 179 (1940)). "In short, an intermediate appellate court holding is presumptive evidence, rather than an absolute pronouncement, of state law." National Surety Corp. v. Midland Bank, 551 F.2d 21, 30 (3d Cir. 1977).
This is not to suggest that in our efforts at prognostication that we are free to ignore decisions of intermediate appellate courts merely because we "think the rule is unsound or that another is preferable." West v. American Telephone & Telegraph Co., supra, 311 U.S. at 237. The limits on our discretion not to follow the decisions of a lower court of statewide jurisdiction were set out in Fidelity Union Trust Co. v. Field, 311 U.S. 169, 85 L. Ed. 109, 61 S. Ct. 176 (1940). There the Supreme Court held that this court was bound to follow two decisions of the New Jersey Court of Chancery, a trial court of statewide jurisdiction, which failed to give effect to a recently enacted New Jersey statute that appeared to authorize the creation of a trust bank account. In rebuffing our attempt to reach what we believed to be a correct result under the statute, the Supreme Court concluded that "the Circuit Court of Appeals was not at liberty to reject these decisions merely because it did not agree with their reasoning." 311 U.S. at 179.
Two aspects in Field that were highlighted by the Supreme Court indicate the narrowness of its apparent harnessing of federal diversity courts. First, the Court emphasized that decisions of the Court of Chancery in force "over a course of years will not be set aside by the highest court 'except for cogent and important reasons.'" 311 U.S. at 179 (quoting Ramsey v. Hutchinson, 117 N.J.L. 222, 187 A. 650 (1936)). See also Six Companies v. Joint Highway District No. 13, 311 U.S. 180, 188, 61 S. Ct. 186, 85 L. Ed. 114 (1940) (intermediate appellate court decision left undisturbed for two decades should be followed unless there is convincing evidence that state law is otherwise). Second, the cases in question were "the only exposition of the law of the state with respect to the construction and effect of the statutes." 311 U.S. at 179. There was thus no basis, apart from the statute, on which a court might have concluded that the state's highest court might reach a contrary result.*fn1
A recent decision of this court illustrates the extent to which we may question an intermediate appellate decision in predicting how a state supreme court will answer a question. In Safeco Insurance Co. of America v. Wetherill, 622 F.2d 685 (3d Cir. 1980), this court declined to follow a decision of the Superior Court of Pennsylvania that appeared to control the issue before us. In doing so we noted the existence of contrary decisions of Pennsylvania trial courts, which had been followed by at least one federal district court. Id. at 688. We also questioned the Superior Court's use of authority in reaching its conclusion, closely scrutinizing, and distinguishing, the cases relied on by it. Id. at 689-90. Finally, we noted the existence of a contrary unreported Superior Court decision not referred to by the decision deemed controlling. Under these circumstances we concluded that "we must make an independent judgment as to what the decision of the highest court would be." Id. at 691.
In the instant case a survey of relevant decisions reveals sharp disagreement regarding what the law should be. We note first that the Supreme Court of Pennsylvania has yet to address the question directly, and that that Court's dicta relied on by the Heckendorn decision does not speak directly to the question and therefore should not be viewed as controlling. See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3d Cir.), cert. denied, 449 U.S. 976, 101 S. Ct. 387, 66 L. Ed. 2d 237 (1980); part IV.B. infra. Of three decisions of the Superior Court that address the possibility of limited joinder of the employer, Heckendorn v. Consolidated Rail Corp., 293 Pa. Super. 474, 439 A.2d 674 (1981); Leonard v. Harris Corp., 290 Pa. Super. 370, 434 A.2d 798 (1981); and Arnold v. Borbonus, 257 Pa. Super. 110, 390 A.2d 271 (1978), the latter two include dissenting opinions. See also Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869, 872 (1977) (Price, J., dissenting). Even greater disaccord characterizes the positions taken by the state and federal trial courts that have faced this question.*fn2 Finally, Heckendorn itself was decided only several months ago, and a petition of certiorari to the Supreme Court of Pennsylvania is presently pending. I therefore believe that this court is not bound by the result in Heckendorn in its effort to predict how the Supreme Court of Pennsylvania will resolve the instant question.
This case presents an important question under Pennsylvania law regarding the proper allocation of liability for damages in an action brought by an employee who suffers work-related injury against a party other than the employer. As the majority has noted, Hamme, injured while operating a steel power press brake, brought this action sounding in strict products liability against the press brake's manufacturer, the Dreis & Krump Manufacturing Co. Believing that the negligence of Hamme's employer may have contributed to his injuries,*fn3 Dreis & Krump filed a third-party complaint against the ...