Arnold v. Borbonus

390 A.2d 271, 257 Pa. Super. 110, 1978 Pa. Super. LEXIS 3122

• Court: Superior Court of Pennsylvania
• Decided: July 12, 1978
• Docket: 312
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant contends that the lower court erred in sustaining appellee’s preliminary objections in the nature of a demurrer to its third party complaint. We affirm.

On October 29, 1976, plaintiffs filed a complaint in trespass in the Westmoreland County Court of Common Pleas to recover for injuries suffered and damages incurred in an employment related accident. In the complaint, plaintiff, Robert Arnold, averred that on February 16, 1976, as an employee of appellee, Ramaley Brothers, he was performing excavation work on land owned and developed by defendants, Catherine and William Borbonus. While excavating a foundation for a house, plaintiff’s heavy equipment struck and punctured a subterranean pipeline containing liquid propane under high pressure and low temperature. The pipeline was owned by defendant-appellant, Texas Eastern Transmission Corporation. The puncture caused an explosion the force of which threw plaintiff from his machine and caused severe injuries.¹

Appellant joined appellee as an additional defendant.² According to the third party complaint, appellee, plaintiff’s employer, was negligent in failing to ascertain the exact location of the pipeline before the commencement of the excavation work. Consequently, appellant asserted that if and to the extent that it may be adjudged liable to plaintiffs, the court should give appellant credit in an amount equal to the total of workmen’s compensation benefits paid by appellee pursuant to the Pennsylvania Workmen’s Compensation Act.³

Appellee filed preliminary objections in the nature of a demurrer in which it stated that § 303(b) of the Workmen’s Compensation Act⁴ barred appellant’s third party complaint. On October 4, 1977, the lower court sustained appellee’s preliminary objections and dismissed appellee from the action. The court predicated its order on the 1974 amendments to § 303(b) of the Workmen’s Compensation Act which, according to the court, granted the “employer immunity from suit and bar[red] its joinder as an Additional Defendant in this action.” This appeal followed.

Appellant contends that § 303(b) of the Workmen’s Compensation Act does not bar the joinder of the plaintiff’s employer as an additional defendant. Specifically, appellant contends that joinder of the employer is not barred to determine the employer’s entitlement to subrogation to the rights of the employee against a third party.⁵ Section 303(b), as amended in 1974, provides:

“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, contributions 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.” In Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), our Court considered and rejected the identical contention. After reviewing the legislative history of the 1974 amendment to § 303(b), we concluded that “the intention of the [1974] amendments to Section 303 was to grant the employer total immunity from third-party action . ... By this amendment the Legislature made the Pennsylvania Workmen’s Compensation Act a complete substitute for, not a supplement to, common law tort actions.” supra, 247 Pa.Super. at 368, 372 A.2d at 871.⁶

In his Concurring Opinion in Hefferin, Judge VAN der VOORT addressed appellant’s specific contention that joinder of the employer is not barred by § 303(b) if the joinder is intended to adjudicate the employer’s subrogation rights:

“The amending Act creates many questions which it ignores, the most obvious of which questions are as follows:

“In the event judgment goes against the third party defendant, does he have a right of set-off or recoupment for the amount of compensation paid or to be paid to the injured plaintiff? .

“Does the employer have a right of subrogation against the third party, and if so, how is this to be determined? Since the employer can no longer be joined under the provisions of the Act, not only questions of procedure will arise, but also questions of collateral estoppel. Despite the shortcomings, I believe it is the intention of the Legislature to preclude the joining of the employer by an alleged third party tortfeasor.” supra at 370, 372 A.2d at 872.

We agree that the 1974 amendment to § 303(b) manifests a broad legislative intent to bar the joinder of an employer as an additional defendant.⁷ Therefore, we conclude that the lower court properly sustained appellee’s preliminary objections.

Order affirmed.

SPAETH, J., files a concurring and dissenting opinion. PRICE, Judge, dissenting:

See his Dissenting Opinion in Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977). He also wishes to note that in many respects he concurs in the comments made by Judge SPAETH in his Concurring and Dissenting Opinion. He certainly agrees that reargument would be a highly desirable result so that the court may weigh, based on new briefs, the problems posed by Judge SPAETH.

1 . In Count II of the complaint, Barbara Arnold, a co-plaintiff, averred that as the result of the injuries to her husband, she had been “deprived” of [his] support, services, assistance and companionship.”

2 . Further, defendants, William and Barbara Borbonus, joined Michael Bove, d/b/a Bove Engineering Company, as an additional defendant. According to the third party complaint, William Borbonus engaged Bove to prepare plans and drawings which would indicate the location of the underground pipeline owned by appellant. The Borbonuses also alleged that Bove’s negligent misrepresentation of the location of the pipeline was the cause of plaintiffs injuries. Consequently, the Borbonuses averred that Bove was either solely liable to the plaintiffs, liable over to the Borbonuses for all sums recovered from them by the plaintiffs, or jointly liable with the Borbonuses who would be entitled to indemnity and/or contribution in the amount recovered by the plaintiffs.

3 . Act of June 2, 1915, P.L. 736, art. 1, § 101 et seq., as amended; 77 P.S. § 101, et seq.

4 . The Workmen’s Compensation Act, supra; 77 P.S. § 481(b).

5 . See The Workmen’s Compensation Act, supra; 77 P.S. § 671. Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir., 1973); Stark v. Posh Construction Co., 192 Pa.Super. 409, 162 A.2d 9 (1960).

6 . The scope of § 303(b) also forecloses appellant’s reliance upon Pa.R.C.P. 2252(b) as authorization for the joinder of appellee as an additional defendant.

7 . We add, as we did in Hefferin, that the foregoing statutory preclusion does not alter the employer’s right to subrogation in an appropriate case and forum.