Louis C. Long, Pittsburgh, for appellant.
Kim R. Bobrowsky, Pittsburgh, for Blanchard, appellee.
Rowley, Johnson and Hester, JJ.
[ 337 Pa. Super. Page 80]
Sherwin-Williams Company brings this appeal from the order granting summary judgment in favor of additional defendant Blanchard Enterprises, Inc., and dismissing Blanchard from this action. Sherwin-Williams now argues, inter alia, that the court erred in that the record raises a genuine issue of material fact and Blanchard was therefore not entitled to judgment as a matter of law upon the assumpsit count. We agree and reverse.
On April 7, 1980, Blanchard rented an airless paint sprayer from Sherwin-Williams. The lease agreement which Blanchard's agent signed, contained this language:
I/We hereby exonerate, indemnify and save harmless the Sherwin-Williams Company, the rentor, from any and all claims or liabilities of any nature whatsoever arising out of the rental and use of the above listed equipment.
Sherwin-Williams was aware at the time of the rental that the paint sprayer, which was capable of penetrating the skin with its spray, did not have a safety guard on the tip as required by OSHA. When the manager of the Sherwin-Williams store began to give instructions on the use of the sprayer, Blanchard's agent stopped him and said that an experienced painter would be using the sprayer. In fact, James S. Rankin, Blanchard's employee, had never used an airless paint sprayer. Subsequently, when Rankin was cleaning the sprayer with turpentine, his hand went into the spray and the turpentine penetrated the left index finger. Ultimately, doctors had to amputate Rankin's finger.
Rankin filed a complaint against Sherwin-Williams, averring counts of negligence, strict liability, and breach of warranty. In addition to an answer and new matter, Sherwin-Williams filed a complaint to join Blanchard as an additional defendant, averring counts of negligence and assumpsit. In this joinder action it was asserted that Blanchard was negligent in instructing and supervising Rankin. The assumpsit count was based on the indemnification clause in the lease agreement. Blanchard moved for
[ 337 Pa. Super. Page 81]
summary judgment, and the court granted this motion as to both counts. From this order, Sherwin-Williams appeals.
As to summary judgment on the negligence count, we find no error in the court's ruling. This same issue was before our court in Szemanski v. Vulcan Materials Company, 272 Pa. Super. 240, 415 A.2d 92 (1979). There we ruled:
The attempted joinder of [the employer] as an additional defendant on the grounds that [the employer] was liable for negligence, either alone or jointly with [the third party] was improper. The joinder of the employer as an additional defendant in an action brought by an employee against a third party is barred by Section 303(b) of The Pennsylvania Workmen's Compensation Act, as amended by the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. 481(b). See: Hefferin v. Stempkowski, ...