Hamme v. Dreis & Krump Manufacturing Co.

OPINION OF THE COURT

PER CURIAM.

The question presented by this appeal in a diversity case is whether an employer’s comparative fault can be adjudicated under the Pennsylvania comparative negligence statute, 42 Pa.Cons.Stat.Ann. § 7102,¹ in a personal injury products liability action brought by an employee against a manufacturer who sought to join plaintiff’s employer as a third-party defendant. The district court held that § 303(b) of the Pennsylvania Worker’s Compensation Act, Pa.Stat.Ann.tit. 77, § 481(b) (Purdon),² foreclosed application of the statute and dismissed the defendant’s third-party complaint against the employer. Hamme v. Dries & Krump Manufacturing Co., 512 F.Supp. 944 (M.D.Pa.1981). The district court then certified its order and this court granted leave to appeal the dismissal under 28 U.S.C. § 1292(b).

A steel power press brake used for bending sheet metal severed three of plaintiff’s fingers while he was operating it in the course of his employment. Plaintiff sued appellant, the manufacturer of the machine, on a theory of strict liability, alleging that the machine was defective, as that term is defined by Restatement (Second) of Torts § 402A. Appellant then filed a third-party complaint against plaintiff’s employer “solely for the purpose of enabling the jury and the court to determine comparative negligence and/or fault of all parties to this action,” Defendant’s Third-Party Complaint, reprinted in app. at 7, apparently recognizing that § 303(b) of the Worker’s Compensation statute barred an adjudication of the employer’s liability to appellant for damages or contribution.

After reviewing the relevant Pennsylvania trial and appellate decisions, Judge Sylvia Rambo dismissed the third-party complaint.³ She acknowledged that no Pennsylvania appellate court had confronted the issue presented here, but, relying on Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), and Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978), concluded that the “intent of the Pennsylvania legislature in enacting § 303(b) was to create an absolute bar to the joinder of the employer as an additional defendant.” 512 F.Supp. at 948.

Subsequent to the district court’s decision, the Pennsylvania Superior Court decided Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), which presented the same question in a negligence action, and reached the same result as the district court here. The superior court in Heckendorn affirmed the dismissal of a third-party complaint against the employer on the ground that the comparative negligence statute permits allocation of fault only against parties against whom recovery is allowed for negligence. “An employer is one against whom recovery can neither be ‘sought’ nor ‘allowed.’ A cause of action against the employer has been obliterated.” Id. at 480, 439 A.2d at 677 (citing Bell v. Koppers Co., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978)).

Because we are bound by the interpretation given to Pennsylvania law by the courts of Pennsylvania, and because the rule articulated by the Pennsylvania Superior Court in Heckendorn governs the situation before us here, we will affirm the judgment of the district court for the reasons set forth in its opinion.⁴

1 . The Pennsylvania Comparative Negligence Act provides in relevant part:

(a) General Rule. In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

(b) Recovery against joint defendant; contribution. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount to his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any

defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

2 . Section 303(b) provides:

(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, contribution, or indemnity shall be expressly 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.

Section 303(a) limits an employee’s remedy against his employer for injuries sustained in the course of his employment to that provided in the Worker’s Compensation statute. Pa.Stat. Ann.tit. 77, § 481(a) (Purdon).

3 . The district court noted the issue but did not decide whether the concept of comparative negligence may be applied in a products liability case premised on § 402A strict liability theory. See generally Vizzini v. Ford Motor Co., 569 F.2d 754, 766 (3d Cir. 1977) (holding that Pennsylvania law would not apply principles of comparative negligence in § 402A cases).

4 . The appellant has also challenged the district court’s decision on the ground that § 303(b) violates article III, § 3 of the Pennsylvania Constitution, and the equal protection clause of the United States Constitution. The Pennsylvania Supreme Court has already rejected an attack on the statute based on the equal protection clause of the fourteenth amendment. Tsarnas v. Jones & Laughiin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). Because the appellant did not raise these issues below, see Third-Party Complaint, reprinted in app. at 5, we will not consider them on appeal. Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976). We note, however, that if the federal constitutional question were properly presented, the unsettled questions of state statutory and constitutional law could possibly make the case an appropriate one for district court abstention under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

Judge Adams agrees that, under Heckendorn, the judgment of the district court should be affirmed. Nevertheless, he believes that the points raised in Judge Rosenn’s opinion have considerable force, and that it might therefore have been more prudent to delay the disposition of the appeal until the Supreme Court of Pennsylvania decides whether to grant the petition for allocatur which is now pending in Heckendorn.