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
CIRILLO, Judge,
dissenting:
I respectfully dissent. The majority concludes that the joinder of the employer as either an additional defendant or as an involuntary plaintiff, for purposes of determining fault, is improper. However, I feel that under the Comparative Negligence Act, the employer must be joined as a involuntary plaintiff in this instance.
The Pennsylvania Supreme Court has determined that Section 303 of the Workmen’s Compensation Act creates an exception to the general right to contribution from joint tortfeasors. Under this 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 a suit brought by the employee against him, join the employer as an additional defendant. Nor may the third party seek contribution from the employer, even though the employer’s own negligence may have been the primary cause of the injury. Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 518 , 412 A.2d 1094, 1096 (1980). See also: Atkins v. Urban Redevelopment Authority of Pittsburgh, 263 Pa.Super. 37 , 396 A.2d 1364 (1979). Section 303(b) preserves for injured employees their common law cause of action against any negligently responsible third party and clearly bars an employer’s liability for “damages, contribution or indemnity.” However, it is silent on the issue of joinder of the employer as an involuntary plaintiff for reasons other than the assertion of a right to damages, contribution or indemnity. Specifically, in the instant case, the appellant seeks only to join the employer so as to determine the proportion of the employer’s negligence.
*382 The Pennsylvania Comparative Negligence Act provides as follows:
(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 of 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 by recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.
The Comparative Negligence Act expressly states that it is applicable to “all actions brought to recover damages for negligence resulting in death or injury to person or property.” Therefore, it is apparent that the appellee’s third party action under the Workmen’s Compensation Act is governed by comparative negligence. Since these two statutes relate to the same subject matter, namely employee negligence actions against third parties, they must be interpreted in such a way as reconciles the two statutes. 1
*383 The purpose of the Comparative Negligence Act is obviously to assess liability for damage in a negligence case in proportion to the degree of fault of each of the parties involved. Subsection (a) requires the trier of fact to initially determine the degree of the plaintiff’s negligence for purposes of determining whether the plaintiff can recover from any party and to diminish the plaintiff’s potential recovery from any other party if the plaintiff’s causal negligence is not greater than the combined negligence of all defendants against whom recovery is sought. Under subsection (b), in the event there is a finding of negligence, the trier of fact is required to calculate the ratio of each defendant’s causal negligence attributed to all defendants who have been found negligent. The determination required under subsection (a), and the calculation to be made under subsection (b), cannot be accurately made absent the opportunity for the finder of fact to also consider and evaluate the proportionate fault of the plaintiff’s employer. The extent of the employer’s involvement in the law suit initiated by his employee is only to determine the employer’s degree of negligence and not to reduce the third party’s responsibility to pay the verdict that is rendered. This result is evident since Section 303(b) of the Workmen’s Compensation Act eliminates the right of contribution. This approach promotes judicial economy by seeing to it that all parties who have an interest in the litigation are present on the record.
In the case of Heckendorn v. Consolidated Rail Corporation, 293 Pa.Super. 474 , 439 A.2d 674 (1981), a panel of this Court held that an employer cannot be joined as an additional defendant for the purpose of apportioning negligence under the Comparative Negligence Act. 2 In that case, the Court (per Wieand, J.) stated:
*384 If an employer accepts the responsibility of providing worker’s compensation benefits, he cannot be solely or jointly liable to an employee for negligence. Similarly, he is not liable to a third party tortfeasor for indemnification or contribution. His negligence is no longer a factor. He is not and cannot be a defendant against whom recovery is allowed. He is not a party whose negligence is to be included in the apportionment required by the Comparative Negligence Act.
293 Pa.Super. at 481-82 , 439 A.2d at 678 .
While I agree with the panel’s decision that the employer may not be joined as an additional defendant, in as much as the employer is no longer liable to a third party tortfeasor for indemnification or contribution, his negligence is a factor in determining the proportion in which all other parties are negligent. The Workmen’s Compensation Act creates in the employer a right of subrogation in his employee’s recovery against a third party. 3 If the employer is permitted to be joined as an involuntary plaintiff, the employer can present his claim for subrogation so that his recovery is reduced in proportion to the assessment of his responsibility for the accident. The employer, by assuming such a posture, thus has a joint interest with the employee in the action, as provided in Pa.R.C.P. 2227(a) 4 of proving the negligence of the third party. Moreover, judicial resources are used more effectively as all of the parties must present their cases *385 before the same factfinder instead of having a separate subrogation action between the employer and employee. In addition, for purposes of correctly apportioning negligence, the joinder of the employer as an involuntary plaintiff is imperative under the Comparative Negligence Act. Therefore, I would find that the employer, Power Piping Company, must be joined in this action as an involuntary plaintiff under Rule 2227 of the Pennsylvania Rules of Civil Procedure 5 since the actions of the employer are clearly relevant to the question of liability for the injuries suffered by David F. Kelly. See: Lipari v. Niagra Machine and Tool Works, 87 F.R.D. 730 (W.D.Pa.1980); also: Ledford v. Central Medical Pavilion, Inc., 90 F.R.D. 445 (W.D.Pa.1981); Hamme v. Dreis & Krump Manufacturing Co., 716 F.2d 152 (1982) (Rosenn, J., dissenting). To hold otherwise would impose on a third party who may be only slightly blameworthy, total liability for all of the damages sustained by the employee. Certainly, such an inequitable result was not intended by the legislature in enacting the Workmen’s Compensation Act.
. Act of December 6, 1972, P.L. 1339, No. 290, § 3 provides:
(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.
(b) Statutes in pari materia shall be construed together, if possible, as one statute.
1 Pa.C.S.A. § 1932.
. Joinder of an employer as an additional defendant for purposes of ascertaining the employer’s proportion of negligence, while not the law in Pennsylvania, has been allowed in the following cases: Schaeffer v. Didde-Glaser, Inc., 504 F.Supp. 613 (M.D.Pa.1980); Flack v. Calabrace, 15 D & C 3d 765, 62 W.L.J. 137 (1980); Yeagley v. Metropolitan Edison Company, No. 442 Phila.1981 (Lebanon County, C.S. No. 3316, filed May 13, 1980).
. The employer’s right of subrogation is provided for in 77 Pa.C.S.A. § 671 as follows in pertinent part:
Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to. the extent of the compensation payable under this article by the employer... Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation.
. Pa.R.C.P. 2227(a) provides as follows:
Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.
. Pa.R.C.P. No. 2227(b), Adopted June 7, 1940; amended April 18, 1975, provides:
If a person who must be joined as a plaintiff refuses to join, he shall, in a proper case, be made a defendant or an involuntary plaintiff when the substantive law permits such involuntary joinder.