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GEORGE S. FULMER v. DUQUESNE LIGHT COMPANY (05/05/88)

filed: May 5, 1988.

GEORGE S. FULMER, AND EVA FULMER HIS WIFE, APPELLANTS,
v.
DUQUESNE LIGHT COMPANY, A CORPORATION, APPELLEE, V. RUST CHIMNEY, INCORPORATED, A SUBSIDIARY OF UNION BOILER COMPANY, APPELLEE. GEORGE S. FULMER AND EVA FULMER, HIS WIFE, APPELLEES, V. DUQUESNE LIGHT COMPANY, A CORPORATION, V. RUST CHIMNEY, INCORPORATED, A SUBSIDIARY OF UNION BOILER COMPANY, APPELLANT. GEORGE S. FULMER AND EVA FULMER, HIS WIFE, APPELLEES, V. DUQUESNE LIGHT COMPANY, A CORPORATION, APPELLEE, V. RUST CHIMNEY, INC., APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 83-07440.

COUNSEL

John F. Becker, Pittsburgh, for George and Eva Fulmer.

Kathy K. Condo Caritis, Pittsburgh, for Duquesne Light.

Avrum Levicoff, Pittsburgh, for Rust Chimney.

Wieand, Kelly and Popovich, JJ. Kelly, J., concurs in the result.

Author: Wieand

[ 374 Pa. Super. Page 539]

George Fulmer was an employee of Rust Chimney. He fell and was seriously injured while working inside a smokestack at the Elrama Power Station, which was owned and operated by Duquesne Light Company. Fulmer filed an action against Duquesne Light to recover for his injuries. Duquesne Light caused Rust Chimney to be joined as an additional defendant. The basis for such joinder was an express agreement by Rust Chimney to indemnify Duquesne Light for injuries occurring to employees of Rust Chimney while they worked on the premises of Duquesne Light. The only exception, according to the agreement, was in a case where the injuries to an employee were caused by the sole negligence of Duquesne Light. At trial, the court instructed the jury to apportion negligence among all the parties, including plaintiff's employer, Rust Chimney. The jury found that (1) Fulmer's causal negligence was twenty (20%) percent, (2) Duquesne Light's causal negligence was twenty (20%) percent, and (3) Rust Chimney's causal negligence was sixty (60%) percent. The jury determined Fulmer's

[ 374 Pa. Super. Page 540]

    damages to be $112,549.90 and awarded his wife the sum of $20,000.00 for loss of consortium. The trial court molded the verdict and recorded it against Duquesne Light in the amount of $90,039.92 for Fulmer and in the amount of $16,000.00 for his wife, with indemnification to be made by Rust Chimney to Duquesne Light. Post-trial motions were denied, delay damages were added, and judgments were entered. The trial court also directed that Rust Chimney pay seventy-five (75%) percent of Duquesne Light's counsel fees. Fulmer and Rust Chimney have appealed; they contend that a new trial is necessary. Fulmer also complains about the award of delay damages, and Rust Chimney complains about the order directing the payment of counsel fees to Duquesne Light.

The principal argument made by Fulmer is that the trial court erred when it instructed the jury to include Rust Chimney, the employer, in the jury's apportionment of causal negligence in the action brought by Fulmer against Duquesne Light. We agree with Fulmer that this was improper and that a new trial, therefore, is necessary.

It is beyond cavil in this Commonwealth that an employer may not be joined as an additional defendant in an action by an injured employee against a third party tortfeasor on grounds that he is liable to his employee on the cause of action alleged or on grounds that he is jointly or severally liable with the defendant thereon. The rule bars the joinder of an employer for the purpose of apportioning negligence. See: Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983). See also: Hall v. Goodman Co., 310 Pa. Super. 465, 456 A.2d 1029 (1983); William Harter and Cleaver Brooks v. Yeagley, 310 Pa. Super. 449, 456 A.2d 1021 (1983); Kelly v. Carborundum Co., 307 Pa. Super. 361, 453 A.2d 624 (1982), aff'd, 504 Pa. 238, 470 A.2d 969 (1984). This result is mandated by section 303 of the Pennsylvania Workmen's Compensation Act which provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such

[ 374 Pa. Super. Page 541]

    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 . . . .

(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 ...


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