filed: February 18, 1983.
WILLIAM HARTER AND CLEAVER BROOKS, A DIVISION OF AQUA-CHEM, INC., APPELLANTS,
MIRIAM A. YEAGLEY, EXECUTRIX OF THE ESTATE OF FREDERICK A. YEAGLEY, DECEASED, AND METROPOLITAN EDISON COMPANY, A CORPORATION, AND THE UNIT CRANE AND SHOVEL CORPORATION, A CORPORATION
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. We entertained the appeal. 42 Pa.C.S.A. § 702(b); Pa.R.A.P., Rule 312.
Appellants in this case, the additional defendants Harter and Cleaver-Brooks, urge us to reverse the order of the lower court and to hold that an employer and/or co-employee
[ 310 Pa. Super. Page 452]
may not be joined as additional defendants even for the limited purpose of enabling the jury to determine the comparative negligence of all parties to the transaction. We agree and therefore, reverse and remand.
We are guided in our disposition of this case by Heckendorn v. Consolidated Rail Corp., 293 Pa. Superior Ct. 474, 439 A.2d 674 (1981), application for permission to appeal to the Supreme Court granted, April 27, 1982. That case affirmed the lower court's denial of joinder of an employer as an additional defendant for purposes of ascertaining the employer's share of liability under the Comparative Negligence Act since Section 303 of the Workmen's Compensation Act provided for the employer's immunity from suit.
In Heckendorn, this Court reviewed Section 303 of the Workmen's Compensation Act and the interpretation given to it by relevant precedent.*fn3 Section 303 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 damage, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided
[ 310 Pa. Super. Page 453]
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 Court held that the Workmen's Compensation Act precluded any and all causes of action against the employer where the injury was caused by a third party. We wrote:
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 common law action for negligence against a third person.
Heckendorn, supra, 293 Pa. Superior Ct. at 477, 439 A.2d at 675.
Additionally, in Heckendorn, the Court found that this principle of an employer's immunity was not affected by the enactment of the Comparative Negligence Act of 1978. In Heckendorn as in the instant case, the defendant seeking to join the employer argued that the Comparative Negligence Act impliedly repealed Section 303(b) of the Workmen's Compensation Act and allowed for joinder for the purposes of apportioning liability. The Comparative Negligence Act 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
[ 310 Pa. Super. Page 454]
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. Any defendant who is so compelled to pay more than his percentage share may seek contribution.
A review of the second paragraph of the statute persuades us, as it did the Heckendorn Court, that recovery is allowed against more than one defendant in a ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. However, Heckendorn held that an employer is one against whom recovery can neither be sought nor allowed. "A cause of action against the employer has been obliterated." Heckendorn 293 Pa. Superior Ct. at 480, 439 A.2d at 678. See also Ryden v. Johns-Manville Products, 518 F.Supp. 311, 316 (W.D.Pa. 1981) and Hamme v. Dreis and Krump Mfg. Co., 716 F.2d 152 (3rd Cir. 1982). Therefore, the Comparative Negligence Act does not permit joinder of an employer as an additional defendant, even for the limited purpose of apportioning liability.*fn4
The Heckendorn case was relied upon by this Court in the en banc decision, Kelly v. Carborundum, 307 Pa. Superior Ct. 361, 453 A.2d 624 (1982). Kelly involved the identical issue of the attempted joinder of an employer both as an additional defendant and also as an involuntary plaintiff, for the sole purpose of apportioning liability under the Comparative Negligence Act. The lower court in Kelly refused to permit joinder of the employer by either procedure. This court affirmed the trial court's order.
Moreover, we direct the defendants and all who are of the opinion that such a resolution is unfair to non-employer defendants, to seek a change in the Workmen's Compensation
[ 310 Pa. Super. Page 455]
Act through the legislature, wherein such power properly lies.*fn5 As in Kelly, we are required to follow those cases which have held all causes of action against an employer to be obliterated, with the exception of workmen's compensation benefits.*fn6
Finally, the lower court likewise dismissed the preliminary objections of co-employee, William Harter, under the same reasoning as it applied to the employer, that is, that both the Workmen's Compensation Act and the Comparative Negligence Act may be interpreted harmoniously to allow for joinder merely to reduce Met Ed's percentage share of causal negligence. The Workmen's Compensation Act provides in Section 205, added August 24, 1963, P.L. 1175, No. 496 § 1 (77 P.S. § 72):
If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise, on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.
[ 310 Pa. Super. Page 456]
The second part of Section 303 of the Workmen's Compensation Act, referred to above, prohibits joinder of a fellow employee as well as of his employer in an action against a third party defendant. Thus, the rationale advanced on behalf of immunity from suit of the employer applies with equal force to immunity of a co-employee.*fn7
For all of the above reasons, the order of the lower court is reversed. This case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.
McEWEN, Judge, dissenting:
I most respectfully dissent for all of the reasons that I have earlier expressed in a dissent to the majority opinion in the cases of Leonard v. Harris Corp., 290 Pa. Super. 370, 434 A.2d 798 (1981), and Kelly v. Carborundum, 307 Pa. Super. 361, 453 A.2d 624 (1982).