Casey v. Dushney

46 Pa. D. & C.4th 436, 2000 Pa. Dist. & Cnty. Dec. LEXIS 300
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedMarch 7, 2000
Docketno. 99-CV-159
StatusPublished

This text of 46 Pa. D. & C.4th 436 (Casey v. Dushney) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casey v. Dushney, 46 Pa. D. & C.4th 436, 2000 Pa. Dist. & Cnty. Dec. LEXIS 300 (Pa. Super. Ct. 2000).

Opinion

MINORA, J.,

I. INTRODUCTION

The current matter before this court is the preliminary objections of the additional defendant, Elegant Moments Inc., to the joinder complaint of defendants, Edna and Ron Dushney.

This action began with the filing of a writ of summons on January 12, 1999. On April 23,1999, a formal complaint was filed by the plaintiff, Colleen Casey, alleging damages for an injury that occurred on July 11, 1997 at premises owned by the Dushneys but leased to EMI.

Plaintiff alleges that while working at the subject premises as an employee of EMI, she put her foot on the [438]*438glass panel of an exit door for the purpose of tapping to get someone’s attention. Upon lightly tapping the glass, it broke in “big sheers of glass like swords,” resulting in the injuries alleged in the complaint.

On May 20, 1999, the Dushneys filed a joinder complaint directed to EMI seeking indemnification and/or contribution for the injuries claimed by the plaintiff.

On June 7, 1999, EMI filed preliminary objections to Dushneys’ joinder complaint, alleging a lack of a written contract between the Dushneys and EMI for indemnity and/or contribution, and further alleging immunity from joinder under the exclusivity provision of the Workers’ Compensation Act, 77 P.S. §481(b). EMI also filed a memorandum of law in support of its preliminary objections on June 7, 1999.

On June 18, 1999, the Dushneys filed a response to EMI’s preliminary objections, along with a memorandum of law. The Dushneys also filed a lease agreement as an exhibit to their response, containing the subject indemnity and/or contribution clause we will hereinafter address. The court entertained oral argument on February 2, 2000 and also entertained EMI’s reply memorandum submitted on that same day. The matter is now ready for disposition.

II. ISSUE(S) PRESENTED

Is the original defendants Dushneys’ joinder complaint against the plaintiff’s employer and additional defendant, EMI, barred by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act, 77 P.S. §481(b)?

[439]*439III. THE STANDARDS FOR PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER

In considering preliminary objections in the nature of a demurrer under Pa.R.C.P. 1028(a)(4), we must consider as true all well-pleaded facts of the joinder complaint at issue and all reasonable inferences that may be drawn from those facts, Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992), and if we are to dismiss a claim on preliminary objections, we must do so only in cases that are clear and free from doubt. Bower, supra; Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 602 A.2d 864 (1992). See also, Denton v. Silver Stream Nursing & Rehabilitation Center, 739 A.2d 571 (Pa. Super. 1999); Pennsylvania Pharmacists Association v. Commonwealth, Department of Public Welfare, 733 A.2d 666 (Pa. Commw. 1999).

Furthermore, if an amendment such as attaching a required lease agreement as an exhibit will cure any legal insufficiencies of a complaint, we should allow such amendment rather than order an outright dismissal of a complaint. See 5 Standard Pennsylvania Practice 2d §25.66; Maddox v. Commonwealth, Department of Agriculture, Bureau of Animal Industry, 35 Pa. Commw. 386, 386 A.2d 620 (1978); Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978). Further, if issues of fact are raised by preliminary objections, the court has the right to receive evidence by depositions or otherwise, such as looking at the lease agreement at issue. See Pa.R.C.P. 1028(c)(2); Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

With these principles in mind, we will consider EMI’s workers’ compensation exclusivity defense in conjunction with the lease agreement proffered by the Dushneys.

[440]*440IV. THE EXCLUSIVITY DEFENSE OF THE PENNSYLVANIA WORKERS’ COMPENSATION ACT

Exhibit “A” attached to defendants Dushneys’ response to additional defendant’s preliminary objections to joinder complaint and memorandum in support thereof, is a lease agreement between the parties dated May 1, 1994 and an addendum dated May 1, 1994.

The indemnity clause at issue is in paragraph 26 of said addendum and states in pertinent part:

“(26) Tenant will indemnify landlord and save it harmless from and against any and all claims, actions, damages, liability and expenses in connection with loss of life, personal injury or damage to property occurring in or about, or arising out of the demised premises and access road and other like areas used exclusively by tenant or occasioned wholly or in part by any act or omission of tenant, its agents, contractors, customers, employees, subtenants and concessionaires.”

The relevant portion of the Workers’ Compensation Act states:

“(b) In the event injury or death to an employee is caused by a third party, then such employee, 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, employees, 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 [441]*441into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. ” 77 P.S. §481(b). (emphasis added)

There is no question that the indemnity clause at issue existed on May 1, 1994, over three years prior to the date of injury of July 11, 1997. Therefore, we must examine whether the indemnity clause at issue is specific enough to meet the “expressly provided for” portion of 77 P.S. §481(b).

Under 77 P.S. §481(b), a third party may not seek contribution or indemnity from an injured party’s employer absent an express provision for indemnity in a written contract. Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530(1994).

Our Pennsylvania Supreme Court has not yet examined the degree of specificity required in an indemnification agreement in order for an employer to waive immunity under 77 P.S. §481(b).

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Related

Hackman v. Moyer Packing
621 A.2d 166 (Superior Court of Pennsylvania, 1993)
Otto v. American Mutual Insurance
393 A.2d 450 (Supreme Court of Pennsylvania, 1978)
Snare v. Ebensburg Power Co.
637 A.2d 296 (Superior Court of Pennsylvania, 1993)
Remas v. Duquesne Light Co.
537 A.2d 881 (Supreme Court of Pennsylvania, 1988)
Pennsylvania Pharmacists Ass'n v. Commonwealth, Department of Public Welfare
733 A.2d 666 (Commonwealth Court of Pennsylvania, 1999)
Ambrose v. Cross Creek Condominiums
602 A.2d 864 (Superior Court of Pennsylvania, 1992)
Mellon Bank, N.A. v. Fabinyi
650 A.2d 895 (Superior Court of Pennsylvania, 1994)
Bester v. Essex Crane Rental Corp.
619 A.2d 304 (Superior Court of Pennsylvania, 1993)
Bower v. Bower
611 A.2d 181 (Supreme Court of Pennsylvania, 1992)
Denton v. Silver Stream Nursing & Rehabilitation Center
739 A.2d 571 (Superior Court of Pennsylvania, 1999)
Maddux v. Commonwealth
386 A.2d 620 (Commonwealth Court of Pennsylvania, 1978)

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Bluebook (online)
46 Pa. D. & C.4th 436, 2000 Pa. Dist. & Cnty. Dec. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-dushney-pactcompllackaw-2000.