Temple v. Able Tool Co. ( 1976 )

Opinion by

Watkins, P.J.,

This appeal is from an order of the court below dismissing motions for judgment n.o.v. and a new trial filed by appellant, The Modulus Corporation.

This is a wrongful death and survival action brought by Alice Temple, Administratrix of the Estate of Oscar Temple, deceased (Appellee) [hereinafter referred to as “Temple”] in which Able Tool Company, Inc. [hereinafter referred to as “Able”] was an original defendant and the Modulus Corporation of Mt. Pleasant, Westmoreland County, Pennsylvania, Screw & Bolt Division (Appellant) [hereinafter referred to as “Modulus”] was an additional defendant. The action was initiated by a summons in trespass issued May 20, 1970 and re-issued October 19, 1970 against Able and National Machinery Company. Subsequently, on August 20, 1971, a complaint was filed naming National Machinery Company and Able as defendants. (Immediately prior to trial the action was discontinued as to National Machinery Company on motion of counsel for Temple, consented to by Counsel for Able and Modulus.) Incorporated in the said complaint were claims for wrongful death and a survival action both based upon strict liability in tort and, in the alternative, negligence.

On December 10, 1971 Able filed a complaint against Modulus as an additional defendant alleging sole liability to Temple or joint and several liability to Temple with Able or liability over from Modulus to Able, all on a theory of negligence.

On December 28, 1971 Temple filed preliminary objections. Modulus filed an answer to the complaint against it by Able and raised as new matter the defense of the Workmen’s Compensation Act of the Commonwealth of Pennsylvania, praying that the allegations of sole liability be stricken and that the liability of Modulus be limited to its responsibility, if any, under the provisions of the Workmen’s Compensation laws of the Commonwealth of Pennsylvania.

On March 23, 1972 there was filed a stipulation executed by counsel for all parties.¹ The stipulation provided that Modulus could not be solely liable (though perhaps solely responsible) by virtue of its employer-employee relationship with Temple’s decedent, that any verdict in favor of Temple and against Modulus would be unenforceable against Modulus, that the joinder of Modulus as an additional defendant was for contribution only and limited to the extent of its liability under the Workmen’s Compensation Act of the Commonwealth of Pennsylvania, and that the filing of the stipulation would serve to withdraw the preliminary objection filed by Temple.

The matter was tried for five days in October, 1973. The jury rendered a verdict in favor of Temple “naming the Modulus Corporation as primarily responsible and the Able Tool Company as secondarily responsible.” The trial judge struck out the words quoted immediately above and added, in his own hand, the words “as between Able Tool Company and Modulus Corporation verdict for Able Tool Company against Modulus Corporation.”

Modulus filed a petition for rule to show cause why the judgment against it should not be marked satisfied. After the issuance and service of the rule, Temple filed a motion to strike the rule and the rule was dismissed without prejudice to the parties by Order of Judge Richard E. McCormick, the trial judge and author of the Opinion dismissing the post-trial motions filed by Modulus.

On May 20, 1969 Temple’s decedent, Oscar Temple, was an employee of Modulus and was working in his capacity as a bolt maker at a bolt making machine known as Brass Tag No. 16. At that time the machine was being used for the making of bolts by a method known as trap extrusion. The Brass Tag No. 16 machine was manufactured by National Machinery Company and the machine had as an integral part thereof a hammer pin manufactured by Able pursuant to a design supplied to Able by Modulus. The hammer pin, manufactured by Able, fractured and a portion thereof struck Oscar Temple causing injuries resulting in his death on May 20, 1969.

The verdict as molded, upon which judgment was entered and from which no appeal has been taken by Temple, is tantamount to a finding of sole liability against Modulus. This is permitted under the present posture of Pennsylvania law.

Employer, Modulus, is entitled to judgment n.o.v. which the court should have granted; or to have the judgment marked satisfied under the rule to show cause which was filed. Either would have been proper. Burke v. Duquesne Light Company, 231 Pa. Superior Ct. 412, 332 A.2d 544 (1974).

This matter is not at the execution stage. There can be no question here of indemnity between Able and Modulus. Absent a contract between the parties an active wrongdoer has no implied obligation capable of penetrating the exclusiveness rule of compensation laws. O’Neill, et al. v. United States of America, et al., 450 F.2d 1012 (3d Cir. 1971).

Judgment n.o.v. granted as to the Modulus Corporation.

1 . (1) Modulus Corporation, the above named additional defendant cannot be solely liable by virtue of its employment of the deceased, Oscar Temple, notwithstanding that Modulus Corporation could be solely responsible for the injuries and death complained of. (2) Any verdict rendered in favor of the plaintiff and against Modulus Corporation, additional defendant, shall be unenforceable against said Modulus Corporation. (3) The joinder of Modulus Corporation as an additional defendant was for contribution only and limited to the extent of its liability under the Workmen’s Compensation Act. (4) The Preliminary Objections filed by the plaintiffs shall be withdrawn and by filing a copy of this Stipulation with the Prothonotary, the Prothonotary is asked to withdraw said Preliminary Objections.