No. 28 E.D. Appeal Dkt. 1982, Appeal of Consolidated Rail Corporation from Order of Superior Court entered October 9, 1981, at No. 2177 Philadelphia 1980, affirming Order of Court of Common Pleas of Cumberland County entered August 25, 1980, at No. 3781 Civil 1979,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., joins this opinion in part and files a concurring opinion.
At issue on this appeal is whether, in an action brought by an injured employee against a third-party tortfeasor, the employer, although statutorily immune from liability, may nonetheless be joined by the third party for the purpose of apportioning the employer's negligence with the negligence of the third party. Both the trial court and the Superior Court held joinder of the employer as a defendant for any purpose to be barred by section 303 of the Workers' Compensation Act. We granted allowance of appeal and now affirm.
In November of 1979, Fred M. Heckendorn, an employee of appellee Carnation Company, and his wife filed a complaint in trespass against appellant Consolidated Rail Corporation (Conrail) and Evans Products Company alleging that on August 22, 1977, while in the course of his employment, Heckendorn had been struck and injured by a falling bulkhead door, manufactured by Evans, as he was loading a
railroad boxcar owned by appellant Conrail and leased to Carnation. When Conrail attempted to join Carnation as an additional defendant, Carnation filed preliminary objections to the joinder. The Court of Common Pleas of Cumberland County sustained the preliminary objections, and the Superior Court affirmed. 293 Pa. Super. 474, 439 A.2d 674 (1981). This appeal by allowance followed.
Section 303 of the Workers' Compensation Act 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) [77 P.S. § 411(1)(2)] or occupational disease as defined in section 108 [77 P.S. § 27.1].
(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 damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided 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."
Act of December 5, 1974, P.L. 782, No. 263, as amended, 77 P.S. § 481 (Supp.1983).
In Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980), this Court sustained the constitutionality of section 303(b) and concluded that section 303(b) was intended by the Legislature to prohibit the joinder of an employer as an additional defendant in employee actions against third-party tort-feasors:
"Prior to the passage of Section 303(b), our law permitted the joinder of the employer as an additional defendant in a suit by an employee against a third party tortfeasor on the basis of joint liability or liability over. If it were determined that both the employer and the third party were responsible for the employee's injury, the employee could obtain a full recovery from the third party, but the third party could also obtain contribution or indemnity from the ...