No. 1973 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, at No. 82-10424, entered July 11, 1983.
Hugh A. Donaghue, Media, for appellants.
Manfred Farber, Philadelphia, for appellee.
Rowley, Hester and Roberts, JJ.
[ 327 Pa. Super. Page 171]
Appellant is an alleged third-party tortfeasor in an action in trespass brought by an employee of appellee, pursuant to
[ 327 Pa. Super. Page 172]
section 303 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 481 (Supp. 1983). This appeal is taken from an order of the Court of Common Pleas of Delaware County sustaining appellee's preliminary objections to appellant's "Complaint Against Additional Defendant in Indemnity" and dismissing the complaint. We affirm.
The action in trespass avers that on December 11, 1981, plaintiff, appellee's employee, was struck in the head by a piece of pipe being lifted in a negligent manner by a crane owned and operated by appellant. In an answer to the action and new matter, appellant alleged that the crane had been leased to and under the sole control of appellee, the plaintiff's employer, and that plaintiff's exclusive remedy was thus under the Workmen's Compensation Act.*fn*
In the complaint forming the basis for this appeal, appellant averred that it is entitled to indemnity from appellee "for any award or settlement to which plaintiff may be entitled," as well as for "counsel fees and costs." Appellant's claim is based on the terms of a written agreement between appellant and appellee covering the rental of the crane involved in the accident.
The written agreement, which was first executed two days prior to the accident and then renewed one day prior to the accident and again on the day of the accident itself, contains a clause which provides: "Lessee [(appellee)] assumes all responsibility for loss, damage and expense resulting from the operation of [the crane] either personal injury or property damage including damage or loss to the equipment leased hereby, unless such damage or loss was caused by the sole negligence of the Lessor [(appellant)]." Immediately preceding this clause was an additional clause in which the parties specified that "Lessor agrees to supply [the crane] and necessary personnel to operate same under direct and sole supervision of the Lessee . . . ."
[ 327 Pa. Super. Page 173]
Section 303(b) of the Workmen's Compensation ...