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WALTER E. SPIDLE v. LIVINGSTON CONSTRUCTION CO. (03/11/83)

filed: March 11, 1983.

WALTER E. SPIDLE
v.
LIVINGSTON CONSTRUCTION CO., INC. V. DOROTHY DORBIAN AND JOSEPH DORBIAN T/D/B/A CARLISLE STEEL AND SUPPLY AND CENTRAL STORAGE AND TRANSFER COMPANY OF HARRISBURG



No. 38 Harrisburg, 1981, Appeal from the Order of January 29, 1981 in the Court of Common Pleas of Dauphin County, Civil Action at No. 1413 S 1979.

COUNSEL

David C. Eaton, Harrisburg, for appellant.

William J. Peters, Harrisburg, for appellees.

Wickersham, Rowley and Watkins, JJ.

Author: Watkins

[ 311 Pa. Super. Page 203]

This is an appeal from the order of the Court of Common Pleas of Dauphin County sustaining the preliminary objections in the form of a demurrer by a party which was joined as an additional defendant to the original action.

The action in trespass arose out of an incident which occurred on January 6, 1978, on premises owned by Central Storage and Transfer Company of Harrisburg. At that time and place, plaintiff was employed by that company as a forklift operator. Livingston Construction Company was then in the process of constructing an addition to a building which was leased by Bayard Sales Corporation under contract with Central Storage.

At the time of the incident, Dorbian, doing business as Carlisle Steel and Supply, had just delivered steel beams to the building. Plaintiff, using his forklift, was attempting to

[ 311 Pa. Super. Page 204]

    remove the steel beams from a Carlisle Steel truck. While he was doing so, a chain which was being used in the process became entangled in the forklift mechanism. In an attempt to free the chain, it was struck with a hammer. The chain was freed, but the steel crashed down and crushed plaintiff's hand.

The initial action was commenced against Livingston Construction alone. Subsequently, Livingston Construction joined as additional defendants Carlisle Steel and Central Storage. Central Storage filed preliminary objections raising an employer's immunity from suit by an employee. The court sustained the objections.

The first question raised on appeal is whether an employer can be joined as an additional defendant in order to determine the proportion of causal negligence attributable to it under the Comparative Negligence Act, 42 Pa.C.S.A. 7102. Or, must an employer be excluded from joinder by virtue of the Act of December 5, 1974, P.L. 782, 77 P.S. 481, which amended Section 303 of the Pennsylvania Workmen's Compensation Act?

The employer and fellow employees "shall not be liable to third party for damages, contribution or indemnity in any action at law" unless such a remedy is provided for in a written contract ...


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