No. 1022 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Westmoreland County, at No. 11737 of 1978.
Before Rowley, Montemuro, And Van Der Voort JJ.
On December 5, 1978, plaintiff, Theodore D. Wilkins, brought this trespass action against the appellant, Ugite Gas, Inc., trading as Ugite LP-Gas Service, L.B. White Company, Inc. and Ryan Homes, Inc. The plaintiff's suit was based upon injuries he suffered from an alleged propane gas esplosion during the course of his employment. On August 16, 1979, appellant filed a motion to join plaintiff's employer, L.W. Fabrizzi, Inc., appellee herein, as an additional defendant. The motion was granted. However, the appellee subsequently filed a motion for summary judgment to dismiss that complaint on the ground that Section 303(b) of the Workman's Compensation Act of December 5, 1974, P.L. 782, No. 263, 77 P.S. § 481 barred an employer's joinder in an action by an employee against a third party tortfeasor. The lower court granted the motion. This is an appeal from that order.
Appellant questions the propriety of the lower court's order on three grounds:
1. Whether an employer may be joined for the purpose of determining his subrogation rights in an action for personal injury brought by the employee?
2. Whether it is necessary to join the employer as an additional party in his employee's action in negligence and strict liability in order to simultaneously satisfy the underlying policies of comparative negligence, products liability and Workmen's Compensation law?
3. Whether an employer may be joined for the purpose of determining his comparative negligence in an action for personal injury brought by the employee?
These contentions can be disposed of rather quickly. In Kelly v. Carborundum, 307 Pa. Super. 361, 453 A.2d 624 (filed November 30, 1982), our court held that under Section 303(b) of the Workmen's Compensation Act an employer may not be joined as an additional defendant in a negligence action commenced by an employee against a third party tortfeasor for the purpose of apportioning negligence pursuant to the Comparative Negligence Act.*fn1 Further, it has also been decided that an employer may not be joined as an additional defendant in an employee's negligence action against a third party tortfeasor for the purpose of determining that employer's subrogation rights. Leonard v. Harris Corporation, 290 Pa. Super. 370, 434 A.ed 798 (1981); Arnold v. Borbonus, 257 Pa. Super. 110, 390 A.2d 271 (1978).