rejecting the defendant’s argument that § 7102 permits “apportionment among all tortfeasors causally responsible for an injury” and explaining that the statute “merely provides for apportionment among those defendants against whom recovery is allowed”
How later courts described this case
- rejecting the defendant’s argument that § 7102 permits “apportionment among all tortfeasors causally responsible for an injury” and explaining that the statute “merely provides for apportionment among those defendants against whom recovery is allowed”
Written by the judges who cited it.
The opinion
MONTEMURO, Judge,
concurring:
After review of a variety of arguments for and against joinder of an employer as involuntary plaintiff or involuntary defendant for the purpose of apportioning negligence under the Comparative Negligence Act in light of the Workmen’s Compensation Act, I have concluded that Judge Wieand, for the majority, most nearly reflects my own views, and I therefore concur in his opinion.
I am convinced by the reasoning in Judge Wieand’s opinion which finds joinder of an employer as an involuntary plaintiff is both procedurally and substantively improper. As Judge Wieand ably demonstrated, the interests of the injured employee and that of his employer are not joint; listing the victim as co-plaintiff with one of his alleged tort-feasors appears a patently inappropriate disposition of parties.
The problems inherent in a decision which denies relief to the third party tort-feasor by barring joinder of the employ *371 er as either an involuntary plaintiff or an involuntary defendant are considerable. Judge Cavanaugh’s thoughtful analysis in his Concurring and Dissenting Opinion has a great deal of merit: forcing a third party to assume the entire cost of the plaintiff’s recovery, where the employer’s negligence contributed significantly to the tortious injury, is fundamentally unfair.
I also find Judge Spaeth’s hypothetical case as set forth in his concurring and dissenting opinion in Arnold v. Borbonus, 257 Pa.Super. 110 , 390 A.2d 271 (1978) persuasive. He demonstrates that the result is fair when the third party pays his full share of the judgment and the employer pays the compensation maximum in fulfillment of the quid pro quo legislated in the Workmen’s Compensation Act.
However, in the end I find my research supports Judge Wieand’s result, under the following analysis:
Section 303 of the Workmen’s Compensation Act as originally worded and found at 77 Pa.C.S.A. § 481 reads as follows:
§ 481. Effect of agreement
Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided, in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife or husband, widow or widower, next of kin, and other dependents. (Emphasis supplied.)
Clearly the wording as set forth above forbids the parties to the agreement, i.e., the employer and employee, from seeking a determination by any method other than through the compensation board and referee as provided in “article three.” It does not forbid a third party defendant from joining the employer as an additional defendant. As the court in Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. *372 513 , 412 A.2d 1094 (1980) said in discussing the revisions of 1974 in that section of the Act:
Prior to the passage of Section 303(b), our law permitted the joinder of the employer as an additional defendant in a suit by an employee against a third party tortfeasor on the basis of joint liability or liability over. If it were determined that both the employer and the third party were responsible for the employee’s injury, the employee could obtain a full recovery from the third party, but the third party could also obtain contribution or indemnity from the employer to the extent of the employer’s statutory liability under the Workmen’s Compensation Act. [Citations omitted].
Id, 488 Pa. at 517-18 , 412 A.2d at 1096 .
The Supreme Court then went on to find that § 303(b) of the Act, also found at 77 Pa.C.S.A. § 481 as was its predecessor, not only barred any sort of indemnity from the employer to the third party but also barred joinder as an additional defendant:
Section 303(b) creates an exception to the general right to contribution from joint tortfeasors. Under that section, a third party whose negligence is responsible, in part, for an injury suffered by an employee protected by the Workmen’s Compensation Act, may not, in the suit brought by the employee against him, join the employer as an additional defendant. Nor may the third party otherwise seek contribution or indemnity from the employer, even though the employer’s own negligence may have been the primary cause of the injury.
Id., 488 Pa. at 518 , 412 A.2d at 1096 . (Emphasis supplied.)
My own perusal of the actual wording of § 303(b), stripped of excess verbiage, reduces itself to the following statement:
In the event injury ... to an employee is caused by a third party, then such employe, may bring [his] action at law against such third party, but the employer ... shall not be liable to a third party for damages, contribution, or indemnity in any action at law...
*373 In my opinion, such wording would logically bar only, the liability of the employer for damages over and above the amount for which he is statutorily responsible. Were the matter before us as a matter of first impression I would interpret the statute to permit joinder of the employer as involuntary defendant. If the interpretation of the statute were purely a matter of this en banc panel overturning the result in Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474 , 439 A.2d 674 (1981), I would join Judge Cavanaugh in calling for this result.
However, in the face of the unequivocal wording of our state’s highest court as cited supra this opinion, in which § 303(b) is interpreted to forbid joinder of the employer as an additional defendant, I am compelled to agree with Judge Wieand that the third party is foreclosed from joining the employer involuntarily either as a defendant or as a plaintiff.
Although I am not entirely happy with the result thus reached, I can accept the Supreme Court’s interpretation, which sees the Workmen’s Compensation Act as creating “an exception to the general right of contribution among tortfeasors.” (See, supra, citation from Tsarnas on interpretation of § 303(b)).
The common law has always permitted a plaintiff to recover his entire claim in damages from any tort-feasor he could reach, leaving that party to recover, if possible, from his fellow defendants. If the joint tort-feasors were judgment-proof, that was not considered to be the plaintiff’s problem. If the “legislatively created bar to contribution” is viewed as analogous to the long-tolerated situation in which one tort-feasor is unfairly “stuck” with an entire recovery, the conscience of the court cannot be shocked by the result. It parallels the common law result which prefers to over-penalize a tort-feasor in preference to under-compensating the injured party. 1
*374 If the Supreme Court were to reconsider this matter, I would be pleased to see the interpretation of § 303(b) revised to permit joinder of the employer as an involuntary defendant. As the law stands at present, I must agree with Judge Wieand that such a joinder is unlawful.
For the above reasons, I too would affirm the trial court’s order refusing to permit Power Piping Company to be joined as an involuntary plaintiff or as an involuntary defendant.
. Of course, the injured employee’s own contributory negligence is a matter for close examination at trial.