No. 442 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Lebanon County, at No. 3316 of 1979.
R. Burke McLemore, Jr., Harrisburg, for appellants.
Robert I. Cottom, Reading, for Yeagley and Metropolitan, appellees.
Christian S. Erb, Jr., Harrisburg, for The Unit Crane and Shovel, appellee.
Cercone, President Judge, and McEwen and Hoffman, JJ. McEwen, J., files a dissenting statement.
[ 310 Pa. Super. Page 450]
Appellee, Miriam A. Yeagley (hereinafter Yeagley), plaintiff below, brought an action in trespass and assumpsit for injuries to, and the death of, Frederick A. Yeagley, her husband. Yeagley alleges that her husband's death occurred while he was assisting a crane operator in moving metal boiler shells. It is asserted that the metal outrigger of the crane came into contact with an overhead high voltage transmission line owned by Metropolitan Edison Company (hereinafter Met Ed), which caused Frederick A. Yeagley to be electrocuted. Yeagley, Executrix of the Estate of Frederick A. Yeagley, deceased, instituted suit against Met Ed and the Unit Crane and Shovel Corporation on various theories of negligence, strict liability and breach of warranty.*fn1
Met Ed filed a complaint on various theories of liability joining as additional defendants, William Harter (Harter), co-employee of decedent who was operating the crane at the
[ 310 Pa. Super. Page 451]
time of the unfortunate occurrence, and Cleaver-Brooks, a division of Aqua-Chem, Inc., the employer of the decedent.
The additional defendants filed preliminary objections in the nature of a demurrer to Met Ed's complaint; they contended that their joinder as additional defendants was barred by the Pennsylvania Workmen's Compensation Act. Specifically, Cleaver-Brooks, decedent's employer, objected that its joinder, even for purposes of enabling a court and jury to affix the comparative negligence of all parties, was barred by § 303(b) of the Workmen's Compensation Act, Act of December 5, 1974, P.L. 782, No. 263 (77 P.S. 481(b)). Additional defendant, William Harter, objected to his joinder as co-employee of decedent Yeagley, both on the grounds of Section 303(b) of the Workmen's Compensation Act and Section 205, of the same Act, which was added August 24, 1963, P.L. 1175, No. 496 § 1 (77 P.S. § 72).
The lower court rejected the contentions of the additional defendants and dismissed their preliminary objections. While the court recognized that an employer may not be joined as a defendant by reason of the 1974 amendment to the Workmen's Compensation Act, it concluded that the employer and co-employee could be joined for the limited purpose of permitting the jury to determine the employer's percentage of liability, if any, under the Pennsylvania Comparative Negligence Act, Act of July 9, 1976, P.L. 586, No. 142, as amended, 42 Pa.C.S.A. § 7102.*fn2
The lower court certified its interlocutory order as involving a controlling question of law to which there is substantial ground for difference of opinion and represented that an immediate appeal from its order may materially advance the ultimate termination of the matter. ...