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KENNEDY v. SHUWA INVS. CORP.

June 23, 1993

SEAN KENNEDY
v.
SHUWA INVESTMENTS CORPORATION VS. UNITED ENGINEERS AND CONSTRUCTORS, INC.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 Sean Kennedy, initiated this civil action against Shuwa Investments Corporation (Shuwa) in order to recover damages for an injury he sustained while working as a stock clerk for United Engineers and Constructors (UE&C). Shuwa, a foreign corporation licensed to operate in the Commonwealth of Pennsylvania, owned the premises upon which Kennedy was injured. UE&C, however, had leased the premises from Shuwa when the injury occurred, and Shuwa, subsequently, joined UE&C in this action as a third-party defendant pursuant to Fed.R.Civ.P. 14 and Local Rule 22.

 UE&C has moved to dismiss themselves as third-party defendants on two grounds. First, Shuwa's joinder was untimely and, therefore, violated Local Rule 22. Secondly, because UE&C employed Kennedy, the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq., bars Shuwa from joining UE&C as a third party in this action.

 For the reasons outlined below, we must conclude that Shuwa's joinder of UE&C was improper, and, therefore, the motion to dismiss of third-party defendant UE&C shall be granted. We agree with UE&C that the Workmen's Compensation Act alone bars Shuwa from joining UE&C in this action. We need not, therefore, address UE&C's first assertion that the joinder was untimely.

 The legislative intent to bar the joinder of an em-ployer in a third-party civil action is well established. A third-party who is responsible in part or in whole for an injury suffered by an employee protected by the Workmen's Compensation Act, may not join the employer in the employee's action against him. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609, 611 (Pa. 1983) quoting Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 517-18, 412 A.2d 1094 (1980). Nor may the third party seek contribution or indemnification from the employer, even though the employer's negligence may have been the primary cause of the injury. Heckendorn, 465 A.2d at 611. The purpose of the bar is to avoid a situation where the employer becomes doubly liable for an employee's injuries as a result of Workmen's Compensation and a civil lawsuit. see Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304, 307 (Pa.Super. 1993).

 Shuwa, however, attempts to invoke the indemnification exception outlined in 77 P.S. § 481(b) which in part provides:

 
...but the employer...shall not be held liable to a third party for damages, contri-bution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions, or indemnity shall be express-ly 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. (emphasis added).

 Shuwa contends that UE&C agreed to indemnify it for any injuries arising on the premises and, therefore, is a proper party to the suit.

 The indemnification exception, however, fails because the agreement between Shuwa and UE&C lacks specificity. First, UE&C did not agree to indemnify Shuwa for Shuwa's own negligence:

 
...and indemnify Landlord [Shuwa]...(b) from any use made or thing done or occurring on the Premises not due to the omission, fault, willful act, negligence or other misconduct of Landlord [Shuwa].... (emphasis added).

 Reply Brief of UE&C in Support of Motion to Dismiss,

 Exhibit A, p.2. Secondly, UE&C did not specifically agree to indemnify Shuwa for injuries sustained by UE&C employees. In an analogous case, the court in Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304, 305 (Pa.Super. 1993), granted the third-party defendant's demurrer holding that the indemnification agreement was insufficient to impose liability. There, Bester, a Russell Contruction Company employee, sued Essex for injuries he sus-tained resulting from an Essex employee's act. Id. Essex then joined Russell asserting that Russell agreed to indemnify Essex for such incidents. Id. The indemnity clause stipulated:


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