The fact that the statutory employer or general contractor is not expressly referred to in Section 303, as amended, does not indicate an intention on the part of the legislature to prohibit joinder of the direct employer only and not the statutory employer or contractor on whom liability as an employer is imposed by the Act. Section 303 as originally enacted never made express reference to a statutory employer; the status was created by Section 203, 77 P.S. § 52. That Section of the Act was left untouched by the 1974 amendments and still provides that a contractor (statutory employer) is liable to an employee of a subcontractor ". . . in the same manner and to the same extent as to his own employee."
The issue of third-party contribution in the context of workmen's compensation law has been characterized as "perhaps the most evenly-balanced controversy in all of compensation law." Elston, 216 A.2d at 319. Generally, prevailing practice has been to insulate an employer from contribution on the ground that the employer is not liable to the employee in tort and therefore cannot be a joint tort-feasor. The liability of the employer is considered an absolute liability whether negligent or not and the claim against the employer is allowed solely for statutory benefits.
Pennsylvania, giving recognition to the equities underlying contribution, formerly allowed recovery by the third-party tort-feasor against the employer to the limited extent of the employer's liability under workmen's compensation. But in 1974 the Pennsylvania legislature granted the employer total immunity from third-party actions. The injustice of this result has been called to the attention of the Pennsylvania Legislature by the dissenting justices in Hefferin, Arnold, and Tsarnas v. Jones & Laughlin Steel Corp., 262 Pa. Super. 417, 396 A.2d 1241 (1978).
It is argued that since the employer may not be joined as an additional defendant, one of two equally negligent tort-feasors - the third-party - bears the entire burden of the judgment if the third-party cannot get contribution from the employer. It has also been argued that the "bargain" of the Act is that the employee is limited to a maximum recovery in return for getting an assurance of recovery of some sort regardless of the employee's fault; the employer, in return for being assured of only having to pay a certain limited amount, must pay that amount regardless of the employer's fault. The third-party stranger to the compensation system receives no quid pro quo limited common law liability to compensate for the loss of its right to contribution.
While these arguments are properly addressed to the Legislature, whatever the Pennsylvania rule is or should be, there can be no basis for distinguishing between a direct employer and a Section 203 statutory employer with regard to third-party actions. To treat them differently would have no justifiable purpose either under the statute or case law.
One of the strong arguments against the constitutionality of 77 P.S. § 481(b) as to the direct employer has no validity when the statutory employer is considered. Section 481(b) does not absolutely preclude a third party from bringing an action against the employer for contribution because the right to contribution can be expressly provided for in a written contract made prior to the date of the occurrence which gives rise to the action; Tsarnas, 396 A.2d at 1244. But in many instances the third party and the employer will not be in a contractual relationship (e.g., an employee injured in an automobile accident caused by the negligence of a second employee and a third party), and it will be impossible for the third party to provide expressly for contribution prior to the event; Id. at 1253. That situation does not obtain in the case of the Section 203 statutory employer because to create the relation of statutory employer under Section 203 Pennsylvania courts require that the statutory employer is under contract with an owner and has made a contract with a subcontractor so the right to contribution can be expressly provided for by contract should the parties so choose.
Therefore, the court believes that were the Pennsylvania appellate courts to resolve the issue before us, they would be guided by the comment of the Supreme Court in Elston, 216 A.2d at 324:
. . . it is significant to note that the Pennsylvania policy in favor of permitting contribution between joint tort-feasors has been subjected to modification when that policy conflicts with our workmen's compensation program. The limitation imposed on the extent to which the employer is subjected to liability to the third-party tort-feasor reflects a paramount concern with the policies underlying workmen's compensation and the priority of those policies over the equities underlying contribution.
We conclude as we did in Baraniecki v. Bennett, Civil Action No. 77-729, Slip Op. (E.D.Pa. September 18, 1979), that ". . . the status [of statutory employer] was created by Section 203, 77 P.S. § 52. That Section of the Act was left untouched by the 1974 amendments and still provides that an employee of a subcontractor '. . . in the same manner and to the same extent as to his own employee'. . . ."
Under Pennsylvania law a statutory employer under Section 203 of the Act continues to be immune from suit by the employee under Section 303(a) and precluded from liability to a third party for damages, contribution or indemnity in any action at law, or otherwise, under Section 303(b), 77 P.S. § 481(b), unless liability for such damages, contribution or indemnity has been 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.
Big Sky alleges in its cross-claim that Turner-Bush has in fact agreed to indemnify Big Sky and hold it harmless for claims against it. It is undisputed that plaintiff's injury occurred on November 3, 1982. The agreement attached as an Exhibit was dated June 6, 1983, more than seven (7) months after plaintiff's injury; therefore, Turner-Bush cannot be held liable to Big Sky.
Turner-Bush's motion is granted, and summary judgment is entered in favor of movant against plaintiff Werner and the cross-claim of defendant Big Sky is dismissed with prejudice. The action will proceed only on Werner's claim against Big Sky based on § 431 of the Restatement of Torts 2d.
AND NOW, this 28th day of August, 1985, upon consideration of the motion of defendant Turner-Bush, Inc. for summary judgment, the memoranda filed in support thereof and in opposition thereto, and for the reasons set forth in the foregoing Memorandum, it is ORDERED that:
1. Summary Judgment is granted in favor of defendant Turner-Bush, Inc. and against plaintiff John A. Werner, Jr.
2. The cross-claim of defendant Big Sky is DISMISSED with prejudice.
3. This action may proceed only on plaintiff's claim against Big Sky based on § 431 of the Restatement of torts 2d.