Hefferin v. Stempkowski

PRICE, Judge,

dissenting:

Section 303 of The Pennsylvania Workmen’s Compensation Act was amended in 1974 to provide that a third party who injures an employe is subject to a cause of action for damages, “but the employer . . . shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise,” except in cases not here relevant.¹

The question posed by this case is whether the above statutory language requires the sustaining of an additional defendant-employer’s preliminary objections to an original defendant’s complaint. It is, at least to me, indisputable that prior to the 1974 amendment, the preliminary objections would have been dismissed. Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); Burke v. Duquesne Light Co., 231 Pa. Super. 412, 332 A.2d 544 (1974).

In Burke v. Duquesne Light Co., supra, this court considered the propriety of a jury charge which prohibited the jury from finding solely against the employer. We said:

“We are of the view that the proper procedure in cases like that at bar is to allow the jury to determine who is liable in negligence.

By charging the jury as he did in the case at bar, the trial judge effectively precluded the original defendant from establishing his own due care, and thus forced the jury to conclude that if there was negligence at all, Duquesne was negligent, and consequently liable to the Burkes. The jury had to reach this conclusion, for it had no alternative under the charge but to find against Duquesne alone, or against Duquesne and Granz jointly. It was not proper, in our opinion, for the lower court to take away from the jury the reasonable possibility that Granz was alone liable to the Burkes.” 231 Pa.Super. at 421, 332 A.2d at 548.

In this case, under the guise of interpreting the 1974 amendment, the majority ignores the policy considerations found determinative in Burke. However, the 1974 amendment does not speak to the point at issue. The amendment absolves an employer of liability to a third person for “damages, contribution, or indemnity.” It does not state that an employer may not be joined as an additional defendant.

As Burke observes, another reason for joining a tortfeasor as an additional defendant is to provide the jury with an alternative, that alternative being that the employer was responsible for the injuries and the third party was not. Burke and its predecessors did not stand for the proposition than an employer could be liable over to the third party-original defendant. On the contrary, we recognized that:

“The Supreme Court of Pennsylvania has construed the language of The Workmen’s Compensation Act as precluding liability by the employer for any amount larger than the [workmen’s compensation] agreement requires. . Such construction is in accord with one of the purposes of the Act, which is to protect the employer from common law liability to the employee. A verdict against both the original and additional defendants imposing joint liability cannot impose liability above the statutory contribution demanded of the employer . . . .” 231 Pa.Super. at 426, 332 A.2d at 550.

Nevertheless, we held that a bar against liability to the third party was not necessarily a bar against joinder:

“we must draw a distinction between the issue of the right of an original defendant to contribution and that of the right of the original defendant to a determination that the suit brought against him was unfounded as only the employer — not the original defendant — was negligent.” 231 Pa.Super. at 427, 332 A.2d at 550. See also Hinton v. Waste Techniques Corp., 243 Pa.Super. 189, 364 A.2d 724 (1976).

It may be that the majority no longer finds persuasive our decision in Burke. So be it. However, the argument that the 1974 amendment overruled Burke is, to my view, not persuasive nor it is correct.

I would affirm the order of the lower court.

1 . Act of June 2, 1915, P.L. 736, art. Ill, § 303 as amended, Act of December 5, 1974, P.L. 782, No. 263, § 6 (77 P.S. § 481 (Supp. 1976-77)).