*1 commenced within a 180 period it seems clear that trial day was not violat- from the Rule 1100 filing complaint. ed. of sentence is affirmed. judgment
453 A.2d Kelly, KELLY Ann wife David F. and Patricia v. COMPANY, corporation, Appellant,
The CARBORUNDUM INDUSTRIES, PRODUCTS, A DIVISION OF E.S.B. WILLSON INC.; Murphy Corpora- Piping Company; Power Industries tion; Company; Corpora- Reed Tool and Baker International tion.
Superior Pennsylvania. Court Feb. 1982. Argued 30, 1982. Filed Nov. Affirmed Feb. Granted Order
Appeal *2 Kunz, Pittsburgh, appellant. John E. Pretz, appellees. Pittsburgh,
Linda CAVANAUGH, CERCONE, Judge, President Before McEWEN, and MONTEM- WIEAND, CIRILLO ROWLEY, URO, JJ.
WIEAND, Judge: tort third party action as an additional either feasor, the employer *3 of for the purpose an involuntary plaintiff defendant or as Negligence under the Comparative apportioning either proce that under joinder court held Act?1 The trial affirm. We improper. dure was Company, Power Piping David F. Kelly, to a wheel attached abrasive grinding was when an injured his wife He and while in use. mechanical broke grinder The Carborundum trespass against commenced an action the grind and manufactured which had designed Company Power Pip caused Company wheel. The Carborundum ing defendant,2 as an additional to be Company joined ing in remov negligent had been alleging Kelly’s and shields supply eye failing ing safety-guards, in the use of supervise Kelly to instruct and failing to Carbo filed an answer Company Power grinder. Piping and av- it denied negligence in which complaint rundum’s amended, 202, 53, 10(89), 28, 1978, April No. § 1. Act of P.L. Pa.C.S.A. 7102. § Products, a were Willson defendants 2. Also as additional Industries, Inc., alleged manufacturer and division of E.S.B. shields; Corporation, Murphy safety Industries and distributor of grinding machine. manufacturer and distributor of compen- matter”, that it had workmen’s erred, paid as “new the fact of sation When Kelly. benefits filed admitted, Power Piping was coverage subsequently on the on judgment pleadings grounds motion provi- was barred by its as an additional defendant joinder sions of the Workmen’s Pennsylvania motion entering An order entered and granting was then in favor of the Carborundum judgment employer. Power petition attempting join Piping filed was also de- This involuntary plaintiff. attempted and, were because of the appealed impor- nied. Both orders involved, consolidated for argument tance of issues were before a court en banc. the purpose of an
Substantively, if is prevented by prior his determining negligence, any, 303 of the Workmen’s Com- decisions Section interpreting P.L. 77 P.S. 5,1974, Act of December No. pensation 481. This section provides: under act shall be this (a) liability all other to such exclusive and in place any wife, par- husband or legal representative, his employes, entitled ents, next kin or otherwise dependents, anyone account action at law or otherwise on damages any 301(c)(1) or death as in section defined injury or disease as defined in section (2) occupational caused or to an (b) employe the event death representa- then such employe, legal party, kin, wife, next of tive, parents, dependents, husband *4 damages by and entitled to receive anyone otherwise thereof, their action at law bring against reason may carrier, their his insurance third but employer, party, on representatives acting servants and agents, employes, shall not be liable to a their behalf or at their request contribution, or damages, indemnity law, otherwise, action at unless for such dam- liability or shall be ages, indemnity expressly provid- contributions entered into the party ed for a written contract by
365 the occurrence to date of prior be liable alleged rise the action. which gave 293 Pa. Rail Corporation, In Heckendorn v. Consolidated decisions 474, (1982),3 prior 674 we followed 439 A.2d Super. held that Courts which Superior and Supreme common law cause “obliterated” the language statutory an his prevented action an against by in an action an brought additional defendant sus personal injuries to recover for person against of employment. the course employee during tained Thus, we said: . . . 303 of the Workmen’s Compensation Act]
[Section a broad intent to bar legislative manifested an as an additional defendant. Arnold Borbo 110, 114, 271, It nus, (1978). 257 390 A.2d 273 Pa.Super. has common law cause of action against 'obliterated’ the adjudication liability foreclosed the Co., Inc., 481 Bell v. Koppers on the part employer. 1380, 1382 It created an 454, 458, (1978). 392 A.2d has Pa. among of contribution right to the exception general alleged tortfeasors. Thus a defendant whose an for an suffered employe be responsible Act, not, the Workmen’s protected by him, against join the suit brought Tsarnas v. Jones & Steel Laughlin additional defendant. 518, 1096 513, 1094, (1980). See 488 Pa. A.2d Corp., Pa.Super. Hefferin v. Stempkowski, also: Authori v. Urban Redevelopment A.2d 869 Atkins (1977); (1979). A.2d 1364 Pittsburgh, Pa.Super. ty which enactment consideration policy prompted indus An Section 303 clear. to an amount determined by accident is limited trial If he that liabili assumes Workmen’s Compensation him for action there can be no cause of ty, made a employ- and he cannot be negligence; 27, 1982, April no Supreme granted on but 3. The Court allocatur yet decision has as been rendered. *5 against law action for negligence ee’s common person. A.2d at 675.
Id., Ct. at Pa.Superior decisions that prior appellate We also held in Heckendorn of efficacy by had not been overruled or otherwise deprived Act of 1978. Negligence enactment of the Comparative said, compensa- we “is liable for worker’s solely employer, responsibility tion If employer] accepts benefits. [the benefits, he cannot be sole- worker’s providing Similarly, or liable to an ly jointly negligence. indemnifica- he liable to a third tortfeasor for is not negli- He is not a whose tion or contribution.... by included in the gence apportionment required is to be Law.” Heckendorn v. Consolidated Comparative Negligence 481-82, 439 Ct. at Pa.Superior Rail Corporation, supra, A.2d at 678. in this appeal argument prior renews
Appellant overruled the Comparative decisions have been impliedly by Act. This statute provides: Negligence (a) to recover dam- rule.—In all actions brought General in death or resulting person ages negligence have been plaintiff may or the fact property, shall not bar negligence recovery guilty contributory where legal representative plaintiff than the causal greater negligence was not negligence whom against the defendant or defendants shall plaintiff but sustained sought, any damages to the amount of negligence be diminished proportion to the plaintiff. attributed defendant; joint
(b) Recovery against contribution. than one de- is allowed more against —Where recovery shall be liable for that fendant, proportion each defendant damages total dollar amount awarded of his causal to the amount negligence ratio of the amount to all defendants against of causal attributed recover the is allowed. The plaintiff may whom recovery defendant full amount of the allowed recovery from recovery. whom is not barred plaintiff defendant who is so more than his Any compelled pay *6 seek contribution. share percentage Pa.C.S.A. § to the for Contrary premise appellant’s argument, this statute does not all provide for apportionment among tortfeasors for an “It responsible causally injury. merely for those defendants provides apportionment among against whom is allowed. There is no in that recovery suggestion court, statute that all tortfeasors be into possible brought no requirement this be done to achieve certainly of the act. The trier of purposes fact is simply apportion on a basis those de liability percentage among fendants on the record whom allowed.” against is recovery Products, v. Johns-Manville Ryden F.Supp. (W.D.Pa.1981). Heekendom, We observed in and repeat here, law, that under existing an is not a defend employer ant whom is “against allowed.” Co., Hamme v. Dreis & 716 F.2d Krump Manufacturing (3rd action, the manufac- Cir.1982), products liability turer had of the attempted join plaintiff- as an additional defendant. A of the employee majority Court of for the Third Circuit followed Heekendom Appeals and held an for improper attempted joinder fault the Penn- purposes determining comparative under sylvania Comparative Negligence clear, therefore, It seems that substantive law pre cludes the an for the of deter purpose fault in an action commenced an mining employee a third contends that this result against person. Appellant is unfair because it tortfeasor to requires pay more than his or her fair share of the sustained. damages This is not The law does not now and argument persuasive. never has that all tortfeasors be made required possible parties to an action. also that an Appellant argues interpre tation of 303 of the Section Workmen’s Act Compensation which disallows of an constitutes too abso lute a for the This more victory argument employer. to the which directed properly legislature, responsible legislature until the Unless and establishing policy.4 social Act of the Workmen’s provisions changes thereof, we its alters Supreme interpretation Court there is those decisions which hold are follow obliged related job no on the part for workmen’s except injuries employee sustained against All other causes action benefits. “obliterated,” and the employer have been brought by in an action cannot v. Laughlin Tsarnas Jones & See: person. Inc., Co., Bell Arnold Koppers supra; Steel v. Corp., supra; v. Borbonus, supra. Hefferin Stempkowski, supra; as an involuntary Joinder of Power Piping Company *7 The procedurally improper. would also have been plaintiff a be joined under which party may circumstances 2227 as set forth in Pa.R.C.P. are involuntary plaintiff follows: the subject interest having joint Persons
(a) only same side as joined be on the matter of an action must or defendants. plaintiffs refuses plaintiff who must be If a
(b) person defendant or case, in a be made a shall, he join, proper law permits when the substantive an involuntary plaintiff joinder. such involuntary limited situat joinder very compulsory
This rule permits “some adminis (b) upon is not predicated ions.5 Subsection joinder unity but gained by upon benefit to be trative Standard, 784, (W.D.Pa. F.Supp. 786 Pullman In Adamik v. 4. 439 “‘By following explanation: 1977), Judge Knox has offered the compensation regard rendering without employers who liable are Assembly party actions ... the General immune from third to fault certainty provide of the benefit more administration intended to party stability Elimination of third to the fund. fund and more employers against employers permits and insurers their actions prevents compensation the uncertain costs. It also estimate better employer contribution costs the benefit fund caused drain on party legal expenses from third actions that had resulted and defense ” past.’ distinguished must Compulsory joinder 5. Pa.R.C.P. 2227 be under permissive 2229. under Pa.R.C.P.
369 and who identity the interests the co-owners are 7 joined.” 2227(a):l. Goodrich-Amram 2d It is applicable § where the law that an is only substantive interest provides Invol- joint and holder of interest refuses to join. is because without such untary joinder necessary action cannot indispensable party missing proceed. An is not an to his indispensable party action in tort employee’s trespass against The feasor. are not interests of The joint. cause of action is employee’s independent and can be without latter’s pursued joinder. moreover, claim, is not limited inter employee’s est of a subrogated employer workmen’s compensation 671; insurance carrier. See 77 P.S. 42A P.L.E. generally: § Indeed, Workmen’s in an employee’s action, the prior workmen’s bene payment fits Weston, 259, 273, is irrelevant. v. Downey See: 451 Pa. 635, 301 643 (1973); Co., A.2d Boudwin v. Yellow 410 Cab 31, 188 Pa. A.2d 259 North (1963); Lengle Twp., v. Lebanon 51, 54, 274 Pa. A. See also: v. (1922). Feeley U.S., F.2d 924, (3rd Lawrence Holan Cir.1964); 43 F.R.D. Corp., (W.D.Pa.1967). Thus, even though employer may subrogation rights enjoy employee’s is not person, it and never has been law that the subrogee an essential *8 action. Cab, See: Smith v. Yellow 288 Pa. employee’s 858 (1927); A. 42A P.L.E. Workmen’s Compensation 580. See also: London Lancashire Co. of Indemnity Reid, America v. 156 F.Supp. (1958). The interests of if subrogee, can necessary, be determined in a separate action. is Involuntary joinder employer very simply not to a necessary determination of the cause of employee’s action the third and not against party; 2227(b) Pa.R.C.P. is a rule of administrative convenience. summarize,
To Pa.R.C.P. 2227 joinder permits compulsory persons having interest in the matter of an joint subject action without joinder and whose the action cannot substan- An and has no direct interest in tively proceed. law tort action to a common not an indispensable party The party. commenced by as an involuntary plain- of an joinder compulsory therefore, is not action, third tiff in his employee’s authorized. procedurally fault, determining purposes
Joinder of It is barred by also substantively. if any, improper as Act previ- 303 of Workmen’s Section Courts. Superior both the ously Supreme interpreted to allow refusing trial court was correct Thus, the either as an additional Power to be Piping Company plaintiff. defendant or as an involuntary court are affirmed. The orders of trial MONTEMURO, files a concurring opinion. J. CAVANAUGH, dissenting opin- J. files a concurring ion. CIRILLO, JJ., file dissenting opinions.
McEWEN and MONTEMURO,Judge, concurring: for and against After review of a variety arguments or involun- plaintiff of an involuntary for the purpose apportioning negligence defendant tary Act in of the Work- light under the Comparative Negligence Act, Judge I have concluded that Wi- men’s Compensation views, own eand, most reflects majority, nearly my opinion. and I therefore concur Wieand’s reasoning Judge opin- I am convinced by of an involuntary ion which finds and substantively improper. is both plaintiff procedurally demonstrated, the interests of As Wieand ably of his are not joint; and that injured employee victim with one of his alleged listing co-plaintiff inappropriate disposition tort-feasors appears patently parties. relief to inherent in a decision which denies problems the employ- barring joinder tort-feasor
er as either an or an de- involuntary plaintiff involuntary fendant are Judge thoughtful considerable. Cavanaugh’s analysis his and has a Concurring Dissenting Opinion great deal of merit: third to assume the forcing entire cost of plaintiff’s where the recovery, negligence contributed to the tortious significantly injury, unfair. fundamentally
I also find set forth in Spaeth’s case as hypothetical his and Borbonus, concurring dissenting opinion Arnold 110, 390 Pa.Super. (1978) A.2d He persuasive. fair demonstrates that the result is when the third party pays full share and the judgment employer pays the compensation maximum in fulfillment of the quid pro quo legislated Workmen’s Compensation
However, in end I find research my supports Judge result, Wieand’s under the following analysis: Section 303 of the Act as Workmen’s origi- nally worded and found at Pa.C.S.A. reads as § follows: agreement Effect
Such shall constitute an of all agreement acceptance provisions of article this act, three of and shall operate surrender thereto of parties rights their to any form or amount of or damages compensation any or death occurring the course of the employment, or to method determination other thereof, than as provided, in article three of this act. agreement Such shall bind the his personal and representatives, husband, his or wife or employe, her widow or widower, of kin, next and other dependents. (Emphasis supplied.)
Clearly wording as set forth above the parties forbids i.e., the agreement, employee, from seeking a determination than method other by any through board and referee as “article provided three.” It not does forbid a defendant from joining the additional defendant. As the court in Tsarnas v. Jones & 488 Pa. Laughlin Corp., Steel *10 revisions of discussing in the (1980) A.2d 1094 said
513, 412 Act: in that the section 303(b), permitted our law Prior to the of Section passage in as an additional defendant of the employer the tortfeasor on a third party a suit by employee against If it were or over. liability liability the basis of joint third both the the employer party determined that the employee were for the responsible employee’s injury, but the full from the third party, could obtain a or indemnity obtain contribution party third could also statuto- extent of the employer’s from the Compensation under Workmen’s ry liability [Ci- tations omitted]. 517-18, A.2d at 1096.
Id, 488 Pa. at find 303(b) went on to Court then Supreme § its prede- at 481 as was Act, also found 77 Pa.C.S.A. § from the cessor, not barred sort of any indemnity only third but also barred joinder party additional defendant: to the exception right creates an 303(b) general
Section
section,
Under that
a
tortfeasors.
joint
contribution
for an
responsible,
part,
third
whose
Work-
employee protected by
suffered
injury
Act,
not,
brought by
suit
may
men’s him,
as an addi-
join the
employee against
seek
Nor
third
otherwise
tional defendant.
even though
from the employer,
contribution or indemnity
have been the primary
own
negligence may
cause of the injury.
518,
Id.,
(Emphasis supplied.)
In the event ... at action may bring then such party, employe, [his] ... but the shall law such third party, contribution, for damages, not be liable to third party action at law... indemnity would bar my opinion, wording logically only, of the over and above damages amount for which he is Were the statutorily responsible. matter before us as a matter of first I would impression interpret the statute to of the permit joinder If defendant. involuntary statute interpretation were matter this en banc purely panel overturning result in Heckendorn Consolidated Corp., Rail Pa .Su 474, 439 I per. (1981), A.2d 674 would join Cavanaugh calling this result. *11 However, in of the face of wording our unequivocal state’s highest court as cited supra opinion, this in which 303(b) is to interpreted forbid of the joinder as employer § defendant, an additional I am to agree with compelled Judge Wieand that the third from foreclosed joining either as involuntarily a defendant or as a plain- tiff. I
Although am not entirely with result thus happy reached, I can accept Supreme Court’s interpretation, which sees the Workmen’s Act as creating “an to exception general of contribution right among (See, tortfeasors.” citation supra, from Tsarnas on interpre- tation of 303(b)). §
The common law has a always permitted plaintiff to recover his entire claim damages from tort-feasor he reach, could recover, that if leaving to possible, his fellow If defendants. tort-feasors were joint judg ment-proof, that was not be the considered to plaintiff’s If problem. to “legislatively created bar contribution” is viewed as to the analogous long-tolerated situation in which one tort-feasor is “stuck” with an entire unfairly recovery, the conscience of court cannot be shocked the result. parallels It law common result which to prefers over-pe a nalize tort-feasor in preference to under-compensating injured party.1 course, injured employee’s contributory negligence Of own is a matter for close examination at trial. matter, I reconsider this Court were Supreme
If
re-
303(b)
interpretation
be
see the
would
pleased
as
involuntary
vised
permit
I must
with
agree
As the
stands at present,
defendant.
law
is unlawful.
Wieand that such
Judge
reasons, I
affirm the trial court’s
above
too would
For the
to be joined
Piping Company
order
Power
refusing
permit
involuntary
or as an
defendant.
as an involuntary plaintiff
CAVANAUGH,
dissenting:
concurring
Judge,
an employee
that in an action by
concludes
majority
can not be
tortfeasor, an
a third party
as an involuntary
an additional defendant or
joined
determining
propor
the employer’s
plaintiff
purposes
Comparative Negligence
under The
tion
joining
that
conclusion
I
with
Wieand’s
agree
not be proper
would
plaintiff
as an involuntary
joint.
are not
his employee
because his interest and
can be
joined
that the
hold, however,
I would
court has
of this
panel
defendant.
I realize
additional
not
that an
can
held
previously
determining
purpose
defendant
for the
additional
Rail
v. Consolidated
Heckendorn
negligence.
proportion
*12
I
As stated
Rosenn
Judge
by
effect of the Heckendom
Appeals,
Third Circuit Court
who
bemay
only partially
to make “third parties
decision is
... bear the
injuries
for
employee’s
another’s
responsible
reargument
although
petition
a
for
denied
1.
I note that
this court
Heckendom,
granted
petition
Pennsylvania Supreme
for
Court
27,
April
in Heckendom on
1982.
allocatur
panel
power
en
of this court
overrule
decision
2. The
of an
banc
See
v.
Commonwealth
panel
is
established.
of a
well
three-member
Gallen,
Lewis,
61,
(1982);
Bond
292
Pa.Super.
440 A.2d
Base, Inc.,
Blimpie
(1981);
Evans v.
Pa.Super.
437 A.2d
(1981).
Pa.Super.
Judge Rosenn summarizes the purpose and function of the WCA as follows:
The creates a comprehensive WCA and exclusive scheme between for employee awarding reparations employees injuries. work-related WCA, feature in common primary with workmen’s compensation acts States, United is its throughout establishment of fixed but limited for em- are who ployees injured work-related accidents. return for all foregoing a common law rights bring action for damages against employer, awarded compensation statutorily provided judges prudent One of these two noted that it more have been *13 delay disposition appeal to Pennsylvania of the Hamme until the Supreme Heckendorn, grant decided Court whether allocatur in did, (at supra, 4). Supreme in the 154 n. As stated footnote Court fact, 27, 1982, grant April just allocatur on after two weeks decision Hamme was filed. benefit to this relationship the WCA. Both parties under certain, assured of The is employee from such coverage. his own fault or compensation regardless immediate com- although fellow The employer, that servants. inju- for work-related all compensation pelled provide on ries, ceiling liability incorporated benefits from the as Society under WCA. schedules work- injured for provision benefits from the made whole charges. become public ers who otherwise might Hamme, omitted). (footnotes at 158 303(b) in section provides specifically WCA caused a third party, is employee’s injury where but that third bring party, an action employee not liable to the third for shall be employer is contribution, liability unless indemnity damages, The statute in a written contract. for provided expressly for all joinder bar of the does not specifically appor- on the for joinder It is silent purposes. question out, Rosenn Judge points permitting of fault. As tionment does not of the joinder joined solely if the is run afoul of WCA vis a that of the other fault, determine his relative vis From the injuries. parties, causing employee’s so as his for the long employer’s perspective, solely provided to his exists injuries has been WCA, quo enforced quid pro the legislatively this pur- limited Joinder respected. with both the language thus consistent fully pose spirit of WCA. Hamme, at unfair
Nor permitting as a recovery may, his total though even employee-plaintiff if his result, would have been less than it the third was thus not considered and was em- not attributable to the directly liable for all damages To how negligence. explain allowing own ployee’s interests, all the we protects parties, did, Rosenn only Judge Spaeth’s need quote,
377 Borbonus, and in 257 concurring dissenting opinion Arnold v. 390 Pa.Super. 110, A.2d 271 (1978). Judge envisioned Spaeth case in which an third hypothetical and a employer party were in negligent causing to an equally injury employee and the was as an additional defendant. His was as follows: analysis the and a third are party equally negli-
[W]here gent, the third his only half of the party pays judgment and the to the up maximum pays in the Thus, fulfillment his half of judgment. no one bears than more his fair share of the judgment; to the that the extent bears less his than share and the due, less than employee thereby gets this is what the the Act the contemplated “bargain” between the the one an assured employee employer, getting other a fixed limit on It recovery, getting liability. to make the third fill unjust between what party gap he gets whole, and what needs to be made employee for the third was not of the he party part gained bargain; from it. nothing 4, 4, at A.2d 118 n. at 274 Pa.Super. quoted n.
Hamme, at 163.
In sum, neither WCA or The Comparative Negligence Act address the issue raised in this case. I do specifically not believe that of either language prohibits statute joinder of an for the limited purpose apportion- ment of fault and permitting joinder seems to be certainly the most result. just
Nor do I with Montemuro’s conclusion that agree the result advocated here is precluded by Pennsylvania Supreme Court’s in Tsarnas v. Jones holding Laughlin Steel Pa. 1094(1980). case, A.2d In that Corp., court, in discussing 303(b) Section of the Workmen’s Act, Compensation stated: 303(b)
Section creates an exception the general right from joint contribution tortfeasors. Under that sec- tion, a third whose responsible, negligence part, for suffered employee protected by not, the suit Act, may
Workmen’s
him, join
brought
other-
may
defendant. Nor
an additional
the employer,
contribution
indemnity
wise seek
have
own
even though
cause
injury.
been
primary
added).
(Emphasis
the inability to the existence defendant, the court was speaking As the and bar contribution indemnification. statutory a third not noted, 303(b), party section court under the by or indemnification contribution from entitled to them the joining employ- not obtain by employer, may not The court was con- as a or otherwise. er defendant a manner the an attempt join fronted with immunity the fully respect that would a single, while party permitting claims over of all the relative fault judicial determination read as thus cannot be The decision parties. interested joinder. foreclosing limited-purpose necessarily Hamme, at overrule Hecken- above, I would
For the reasons discussed court in the instant the order of the lower dorn, and reverse be as an joined Power Piping Company case permit purpose apportioning defendant for limited additional Negligence fault under The Comparative McEWEN, Judge, dissenting: and, the majority opinion I most dissent from respectfully that have been otherwise well, differ with the views expressed. in a dissenting earlier cling expressed
I
to the view
290 Pa.Super.
Harris Corporation,
Leonard v.
opinion
(1981),
additional amend defendant for reason that ment to the Workmen’s Act does not § prohibit of an as an additional defend ant in an action instituted Rather, defendant. Act 303(b) of the sets forth a more limited restriction when it declares that
considerably “shall not be liable to a third for damages, contribution, the action of law or indemnity ” otherwise... . As the view that Pennsylvania Supreme precluded Court has of an every purpose apportionment fault, including dissent herein of our colleague eminent James R. Cavanaugh as well as the dissent of the distinguished United States Circuit Court Judge Max Rosenn1 very perceptively responds that the Court Pennsylvania has not so Supreme held since Supreme Court has not yet specifically upon ruled an attempt join in a fashion would provide for the determination the fault of the employer without intrusion upon the of the em immunity *16 ployer.
It seems, however,
I
that
differ with both the majority
Judge
also
Cavanaugh
the issue of the
upon
the
as an
plaintiff.
It is
view that
involuntary
my
if the Pennsylvania Supreme Court
at a future
pronounces
time that
303(b) precludes the joinder of the
as
§
an additional defendant for
in
every purpose and
every
circumstance, the
be
employer may
involuntary
plaintiff pursuant to
Rule of
Pennsylvania
Civil Procedure
2227. The
fine
very
majority opinion provides a thorough
itemization of reasons for its conclusion that the interests of
and the
are
not
it
employee
joint;
me,
strikes
however, that each reason is
an
but
echo of the conclusion
itself.
an
Since
effort
to here refer and
respond
each
“
reason would be little more than
so”—“
a
’tis
’tis not”
Co.,
Frump Mfg.
(1982) Judge
Hamme v. Dreis &
dispute, reason of its subrogation it the employer, by ice say employee cause of action of the has a stake in the interest, employee and the that, therefore, both the employer verdict concern in the outcome and interest share a The joint majority be termed a interest. that can only has law never observes that opinion quite properly of the an essential action stated the subrogee case that has not produced any but our research 303(b), so concluded. has, since the 1974 enactment of § if can And, subrogees, necessary, the interests of the while in a determined, separate as noted majority, adminis- action, upon judicial authorities some subsequent not such a notion is be of the view that tration judicial and effective use consistent with prudent resources. view that and I share the Cavanaugh while
Finally, of the preclude does not 303(b) § defendant, I do not foresee such reduction additional envisions, he of the employee-plaintiff total recovery him, the joinder will follow case hypothetical quoted Negli Pennsylvania Comparative employer. 42 Pa.C.S.A. 7102: provides Act2 gence defendant; contribution. Recovery against joint (b) one defend- more than against Where is allowed recovery ant, shall be liable for portion each defendant the ratio of awarded as damages total dollar amount to the amount of causal negligence amount all attributed to defendants causal recover is allowed. The recovery plaintiff may whom defendant full of the allowed amount *17 recovery. is not barred from whom the against plaintiff more than his compelled pay defendant who is so Any share seek contribution. percentage may the recover full amount of may the plaintiff-employee Since whenever the defendant(s) the verdict from the third party are found to be at defendant(s) and the third employer party 586, 27, 1976, 9, 142, July effective June 2. Act P.L. No. fault, reduction in the amount of is limited to a sum amount of the been equal that had payments made (or that become to the payable) plaintiff-employee under the Workmen’s Compensation I and, would overrule summary, Heckendorn failing that objective, of permit would joinder an plaintiff. involuntary
CIRILLO, Judge, dissenting: I dissent. The respectfully concludes that the majority as either an additional defendant or as an for involuntary plaintiff, purposes determining fault, However, I improper. feel that under the Compara- Act, tive Negligence must be as a involuntary plaintiff this instance. Supreme Court has Pennsylvania determined
Section 303 of the Compensation Workmen’s Act an creates exception to the general right to contribution from joint section, tortfeasors. Under this whose party negli- gence for responsible, part, suffered protected the Workmen’s employee Act not, in a suit may brought by against him, join as an additional defendant. Nor the third seek contribution from the even employer, though own employer’s negligence may have been the cause primary Tsarnas v. Jones injury. & Steel Laughlin Corpora- tion, 513, 518, 488 Pa. 412 A.2d also: (1980). See Atkins v. Urban Redevelopment Authority Pittsburgh, A.2d Pa.Super. 1364 (1979). 303(b) Section for preserves injured their common law cause of employees action any negligently responsible bars an clearly contribu- “damages, tion or However, it is silent on indemnity.” the issue of involuntary plaintiff reasons other than right the assertion to damages, contribution or indemnity. case, instant Specifically, join seeks so appellant only as to determine the proportion employer’s negligence. *18 Act provides Comparative Negligence The Pennsylvania follows: to all actions recover brought rule.—In (a) General or injury in death resulting for negligence damages have may fact that the plaintiff or property, person bar a shall not negligence of contributory been guilty where or legal representative by plaintiff recovery negli- than the causal was not negligence greater re- or whom against the defendant defendants of gence plain- sustained damages is but sought, any covery to the amount of be proportion tiff shall diminished attributed to the plaintiff. negligence defendant; joint contribution. Recovery against (b) more than one de- allowed against —Where fendant, proportion shall be liable for each defendant damages of total dollar amount awarded to the amount of his causal negligence ratio of amount against to all defendants attributed negligence causal The recover plaintiff may is allowed. whom recovery defendant full of the allowed recovery amount by recovery. is not barred whom plaintiff more than his who is so compelled pay defendant Any seek contribution. share percentage Act states that it expressly The Comparative Negligence damages to recover brought to “all actions applicable or person proper or resulting in death negligence third appellee’s it is that the Therefore, ty.” apparent is governed Act action under the Workmen’s statutes relate these two negligence. Since comparative matter, employee negligence subject namely same they interpreted must actions against parties, the two statutes.1 as reconciles such way 6, 1972, provides: P.L. 3§ Act December No. 1. pari they (a) parts are in materia when of statutes Statutes or persons things persons or same class of or to the relate to same things. possi- together, pari if (b) be construed Statutes in materia shall ble, as one statute. Pa.C.S.A. purpose Comparative Act Negligence is obvi- to assess in a ously case damage to the proportion fault each degree parties involved. (a) requires Subsection the trier of fact to initially *19 determine degree the of the plaintiff’s for negligence pur- of poses whether the determining can recover from plaintiff and to the any party diminish plaintiff’s potential recovery other if the causal is party plaintiff’s negligence not than the greater combined of all negligence defendants against whom sought. is Under subsection recovery (b), the is a event there of trier is finding the of fact negligence, to required calculate the ratio of each defendant’s causal attributed all negligence defendants who have been found The determination under negligent. required (a), subsection and the calculation to made (b), be under subsection cannot be made accurately absent for the finder of opportunity fact to also consider and evaluate the fault of proportionate of in- plaintiff’s extent employer. volvement in the law suit initiated his is employee only determine the of employer’s degree negligence not reduce third party’s verdict responsibility pay is rendered. This result is evident since of 303(b) Section Workmen’s Act eliminates the right contribution. This approach promotes judicial economy by to it all seeing who have an interest in the parties are on litigation present the record. case of Heckendorn v. Consolidated Rail Corpora
tion, 474, 293 A.2d this Pa.Super. (1981), panel 439 674 Court held that an joined cannot be as addition al defendant for purpose apportioning negligence under the Comparative Negligence case, Act.2 In that Wieand, Court (per J.) stated: purposes Joinder of an additional defendant ascertaining employer’s proportion negligence, while not the Pennsylvania, following law in has been in the allowed cases: Didde-Glaser, Inc., (M.D.Pa.1980); F.Supp. Schaeffer v. Calabrace, 765, (1980); Yeagley v. Flack 15 D 3d W.L.J. 137 & C Metropolitan (Lebanon Company, Edison No. 442 Phila.1981 Coun- ty, May 1980). No. C.S. filed responsibility providing
If accepts an he be benefits, solely cannot worker’s he Similarly, to an negligence. liable jointly for indemnification not liable to a third tortfeasor party a factor. He longer is no or contribution. His negligence defendant whom is not and cannot be a is to be whose negligence He is not allowed. the Compara- required apportionment included tive Negligence 481-82, A.2d at 678. at
293 Pa.Super.
the employer
I
decision that
panel’s
While
with the
agree
in much as
defendant,
not
as an additional
to a
tortfeasor
is no
liable
longer
the employer
is a factor
contribution,
for indemnification or
parties
in which all other
are
determining
proportion
Act creates
The Workmen’s Compensation
negligent.
*20
in
employee’s recovery
a
of
his
subrogation
employer
right
be
the
is
permitted
a
If
against
party.3
can present
the
plaintiff,
joined
involuntary
his
is reduced in
so that
subrogation
recovery
his claim for
for the
of his responsibility
the assessment
proportion
a
thus
posture,
by assuming
accident.
employer,
action,
the
as
with the
in
joint
has a
interest
of
of
the
2227(a)4
proving
in Pa.R.C.P.
provided
are used more
Moreover,
resources
judicial
the third party.
their cases
must present
as all of the
effectively
parties
right
subrogation
provided
in
77 Pa.C.S.A.
3. The
of
pertinent part:
671 as follows
part by
compensable
in whole or
the
is caused
Where
party,
employer shall be subro-
the
the act or omission of
personal
representative,
gated
right
employe,
his
his
to the
of the
against
to.
extent of
dependents,
his
such third
estate or
employer...
by
compensation payable
under this article
compensa-
person
Any
in excess of the
such third
paid
paid by
be
forthwith to
tion theretofore
shall
dependents,
representative,
his
employe,
personal
his
estate or
payment by
on
be
as an advance
and shall
treated
compensation.
of
account of
future instalments
2227(a) provides
follows:
4.
Pa.R.C.P.
joint
subject
having only
matter of
interest
Persons
plaintiffs
joined
or defendants.
the same side as
action must be
on
before the same factfinder
instead of
having
separate
action between the
subrogation
employer and employee.
addition, for
purposes
correctly apportioning negligence,
involuntary plaintiff
imperative under the
Act. There
Comparative Negligence
fore, I would find that
Power
employer,
Compa
Piping
ny, must be
action as
this
an involuntary plaintiff
under Rule
of Civil Proce
Pennsylvania Rules
dure
since the
actions
are
relevant
clearly
to the
for the
question
liability
injuries suffered
David
by
F.
Lipari
Works,
See:
v.
Machine
Tool
Kelly.
Niagra
(W.D.Pa.1980);
F.R.D. 730
also: Ledford v.
Medical
Central
Pavilion, Inc.,
Submitted Feb.
Filed Nov. 1982. 2227(b), 7, 1940; Adopted April Pa.R.C.P. No. June amended 1975, provides: person join, If a plaintiff who must be as a refuses to he shall, case, proper in a involuntary be made a defendant or plaintiff permits involuntary join- when the substantive law der.