*1 BROOKS, WILLIAM HARTER AND CLEAVER A DIVISION AQUA-CHEM, INC., Aрpellants, OF YEAGLEY, Miriam A. Executrix of the Estate of Frederick A. Yeagley, Deceased, Metropolitan Company, Edison a Cor- poration, And the Corporation, Unit Crane and Shovel A Corporation.
Superior Pennsylvania. Court of
Argued Nov. 1981.
Filed Feb. Petition for Appeal Allowancе of Denied Dec. 1983 &
Jan. *2 McLemore, Jr., Harrisburg, appellants. Burke R. Cottom, Yeagley Metropolitan, and Reading, I. Robert appellees. Erb, Jr., for The Unit Crane and Harrisburg,
Christian S. Shovel, appellee. and CERCONE, Judge, and McEWEN President
Before HOFFMAN, JJ.
CERCONE, Judge: President (hereinafter Yеagley), plain- A. Yeagley Miriam Appellee, assumpsit and below, trespass an action in brought tiff her of, Yeagley, Frederick A. to, and the death injuries death oc- that her husband’s Yeagley alleges husband. operator moving a crane assisting he curred while was outrigger the metal It is asserted that metal shells. boiler high an overhead crane came into contact with of the Edison by Metropolitan line owned voltage transmission Ed), Frederick A. which caused (hereinafter Met Company Executrix of the Yeagley, to be electrocuted. Yeagley deceased, instituted suit Yeagley, A. Estate of Frederick Corporation and Ed and the Unit Crane Shovel Met strict and breach negligence, on various theories warranty.1 of liability theories complaint filed a various Met Ed defendants, (Harter), Harter William joining crane at the operating the of decedent who was co-employee curiae brief of was the amicus for our consideration 1. Also submitted Lawyers Pennsylvania Trial Association. occurrence, Cleaver-Brooks, the unfortunate time of Inc., Aqua-Chem, division of decedent. The additional defendants filed preliminary objections complaint; they the nature of a demurrer to Met Ed’s contended that their as additional defendants was Pennsylvania Compensation Act. barred Cleaver-Brooks, decedent’s Specifically, employer, objected joinder, enabling that its even for a court and affix the jury comparative negligence рarties, § 303(b) barred of the Workmen’s 481(b)). Act of December No. 263 defendant, Harter, Additional objected join- to his co-employee der as of decedent Yeagley, both on 303(b) grounds of the Workmen’s Act and Section of the same which was added *3 § § 24, August 1175, 72). P.L. Nо. 496 The lower court the contentions of the rejected defendants and dismissed their preliminary objections. recognized While the court that an employer may as a joined by reason of the amendment to the Workmen’s it concluded that the and co-employee joined could be for the limited purpose permitting of the to determine the jury employer’s if liability, of Com- any, Pennsylvania parative Negligence Act of No. July § amended, 42 as 7102.2 Pa.C.S.A. The interlocutory lower court сertified its order as involv- ing controlling question of to there is law which substan- tial for difference ground opinion represented of and appeal an immediate from its order may materially advance ultimate termination of the matter. We entertained the § 702(b); Pa.R.A.P., appeal. Pa.C.S.A. Rule 312. case, Appellants in this the additional defendants Harter Cleaver-Brooks, and us urge to reverse order of the lower court and to hold that an and/or co-employ- opinion 2. No mention is mаde in the lower court’s of Harter; however, co-employee, preliminary objections his were also dismissed. as for the not be additional defendants even joined ee enabling to the com- purpose jury limited of determine of all рarties transaction. We parative therefore, and reverse and remand. agree disposition in our of this Hecken- guided by are case We v. Consolidated Rail dorn appeal application permission That case Supreme granted, April Court of an court’s denial of
affirmed lower ascertaining as an additional defendant liability Comparative Negli- under employer’s share 303 of the Workmen’s gence since Section provided employer’s immunity suit. tion 303 of Heckendorn, In this Court reviewed Section given interpretation Act and the provides: to it precedent.3 relevant under act shall (a) this liability other to such and all place any exclusive and wife, par- representative, husband or employes, lеgal his ents, dependents, anyone next of kin or otherwise entitled on account damages in action at law otherwise any 301(c)(1) in section and or death defined in section (2) or disease as defined occupational (b) employe In оr death to caused the event representa- employe, legal a third then party, wife, kin, tive, parents, dependents, next husband or damages by entitled to receive anyone otherwise *4 at such thereof, bring against their action law reаson carrier, their his insurance party, employer, third but acting on representatives agents, employes, servants and to at their shall not be liable a request their behalf or contribution, in or damage, indemnity party third otherwise, for such dam- law, at оr unless action expressly pro- or shall be indemnity ages, contributions section, said, legislative intent it has been manifested broad 3. “This employer as an additional defendant.” Heck- to bar the of an Pa.Superior Ct. at A.2d at See cases cited endom note 6 infra. in by party a written contract entered into vided prior liable to the date of the occurrence alleged rise to the action. gave which Act
This held that the Workmen’s Court causes of action precluded any аgainst and all by party. was caused a third We wrote: where An for an industrial accident is limited employer’s liability by to an amount determined the Workmen’s tion Act. If he assumes that there can be no liability, negligence; action him for and he cannot cause of made a to his common law action for party employee’s person. a third negligence against Heckendorn, Ct. at supra, at 675. Heckendorn, found that this
Additionally, Court principle employer’s immunity was not affected In Comparative Negligence enactment of the Act of 1978. case, seeking as in the instant the defendant Heckendorn that the join employer argued Comparative Negligence 303(b) of the repealed impliedly Act and allowed for for the apportioning liability. Comparative Negligence provides:
(a) brought General rule.—In all actions to recover resulting in death or damages negligence the fact that the have person property, plaintiff may guilty contributory negligencе been shall not bar a recovery by plaintiff legal representative or his where than the causal negligence greater negli- of the defendant or defendants whom re- gence covery sought, any damages but sustained shall to the amount plaintiff proportion be diminished negligence plaintiff. attributed to the defendant; (b) Recovery against joint contribution.— is allowed more than one defend- recovery Where ant, for that proportion each defendant shall be liable damages the total dollar amount awarded as the ratio of the amount of his causal to the amount of *5 454 against negligence
causal
attributed to
defendants
may
is
recover the
recovery
plaintiff
allowed. The
whom
any
recovery
full
of the allowed
frоm
amount
from
plaintiff
recovery.
whom the
is not barred
against
than
compelled
pay
is so
more
Any defendant who
seek contribution.
share
statute persuades
A
of the second
paragraph
review
Court, that
is
us,
recovery
as did the Heckendorn
allowed
it
in a ratio of the amount of
more than one defendant
negligence
to the amount
causal
his causal
recovery is
to all
whom
attributed
defendants
However,
held
an employer
is
Heckendorn
allowed.
sought
neither
nor
recovery
whom
can
one
against the
has been
employer
“A
of action
allowed.
cause
293
Ct. at
439
obliterated.” Heckendorn
Products,
also
Johns-Manville
Ryden
A.2d at 678. See
v.
(W.D.Pa.1981)
v.
and Hamme
Dreis
F.Supp.
(3rd
Co.,
Cir.1982). There-
Finally, the lower court the prelimi- likewise dismissed nary objections co-employee, Harter, of reasoning applied is, same as it that employer, both the Workmen’s Act . Compensation Compara- and the Negligence tive Act may interpreted harmoniously allow for to rеduce Met joinder merely Ed’s negligence. share of causal Compensation provides August added 205, § § No. 496 72): 1 If act, or death is disability compensable under this a person shall not anyone be liable to at common law otherwise, on account of such or death for disability act or omission in the occurring person while killed, same as the employ person except disabled or wrong. intentional analysis parallel, judicially change liability
5. For an of a created emplоyers, Capacity Piercing see The Dual Doctrine: the Exclusive Remedy Compensation, Worker’s 43 U.Pitt.L.Rev. 1013 Laughlin Tsarnas v. Jones & Steel 488 Pa. Cf. (1980) (Workmen’s Compensation provision party 1094 that third responsible, part, whose is suffered em- not, ployee prоtected by brought by employee against in suit him, join employer exception gener- as additional creates right joint al to contribution from tort-feasors and prevents third party er, seeking indemnity employ- from otherwise contribution or though employer’s negligence may pri- even own have been the Co., mary Inc., injury); Koppers cause of the Bell v. 481 Pa. (1978) (Section A.2d 1380 303 of Workmen’s Act has ‘obliterated’ the common law cause of action adjudication part employ- and forеclosed the er.) on the Borbonus, (1978) Pa.Superior Arnold v. A.2d 271 Ct. (Section 303 of Workmen’s Act manifested a broad legislative intent to bar as an additional defendant); Stempkowski, Hefferin (1977) (Workmen’s Compensation A.2d 869 Act bars of em- ployer by employee against as additional defendant in action third party.) part Compen- The second of Section 303 of the Workmen’s above, prohibits joinder sation referred to a fellow in an employee as well action Thus, defendant. the rationale party third advanced from suit of the immunity employer applies behalf of with force to of a equal immunity co-employee.7 reasons, all of the the order of the lower court For above proceedings This case is remanded for consist- is reversed. this opinion. relinquished. ent with Jurisdiction McEWEN, J., dissenting files a statement.
McEWEN, Judge, dissenting:
for all
the reasons
I
respectfully
I most
dissent
that
expressed
majority opinion
earlier
a dissent
have
Pa.Super.
the cases of
v. Harris
Leonard
Carborundum, 307
Charles
v. Hilda B. GEYER. Pennsylvania. Superior Court of Argued Dec. 1981.
Filed Feb. (1971) Reichert, (Section A.2d 482 Apple See 443 Pa. co-employees protects in all of Workmen’s employee may negligent cause where conduct of one situations only question employee, provided that the is one to a fellow Act.) compensable