Hamme v. Dreis & Krump Mfg. Co., 81-2174

• Decision Date: 28 September 1983
• Docket Number: No. 81-2174,81-2174
• Citation: 716 F.2d 152
• Parties: HAMME, David B. v. DREIS & KRUMP MANUFACTURING COMPANY v. COLE BUSINESS FURNITURE, DIVISION OF LITTON BUSINESS SYSTEMS, INC., Third Party Defendant. Dries & Krump Manufacturing Company, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 152

716 F.2d 152

HAMME, David B. v. DREIS & KRUMP MANUFACTURING COMPANY v. COLE BUSINESS FURNITURE, DIVISION OF LITTON BUSINESS

SYSTEMS, INC., Third Party Defendant.

Dries & Krump Manufacturing Company, Appellant.

No. 81-2174.

United States Court of Appeals,

Third Circuit.

Argued Jan. 18, 1982.

Decided April 12, 1982.

Order of Certified Judgment in Lieu of Mandate, Sept. 28, 1983.

James W. Evans, Thomas E. Brenner (argued) Goldberg, Evans & Katzman, Harrisburg, Pa., for appellant.

William C. Gierasch, Jr. (argued), Stock & Leader, York, Pa., for appellee Cole Business Furniture, Div. of Litton Business Systems, Inc.

Daniel M. Pell (argued), York, Pa., for appellee David B. Hamme.

Before ALDISERT, ADAMS and ROSENN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

The question presented by this appeal in a diversity case is whether an employer's comparative fault can be adjudicated under the Pennsylvania comparative negligence statute, 42 Pa.Cons.Stat.Ann. Sec. 7102, ¹ in a personal injury products liability action brought by an employee against a manufacturer who sought to join plaintiff's employer as a third-party defendant. The district court held that Sec. 303(b) of the Pennsylvania Worker's Compensation Act, Pa.Stat.Ann.tit. 77, Sec. 481(b) (Purdon), ² foreclosed application of the statute and dismissed the defendant's third-party complaint against the employer. Hamme v. Dries & Krump Manufacturing Co., 512 F.Supp. 944 (M.D.Pa.1981). The district court then certified its order and this court granted leave to appeal the dismissal under 28 U.S.C. Sec. 1292(b).

A steel power press brake used for bending sheet metal severed three of plaintiff's fingers while he was operating it in the course of his employment. Plaintiff sued appellant, the manufacturer of the machine, on a theory of strict liability, alleging that the machine was defective, as that term is defined by Restatement (Second) of Torts Sec. 402A. Appellant then filed a third-party complaint against plaintiff's employer "solely for the purpose of enabling the jury and the court to determine comparative negligence and/or fault of all parties to this action," Defendant's Third-Party Complaint, reprinted in app. at 7, apparently recognizing that Sec. 303(b) of the Worker's Compensation statute barred an adjudication of the employer's liability to appellant for damages or contribution.

After reviewing the relevant Pennsylvania trial and appellate decisions, Judge Sylvia Rambo dismissed the third-party complaint. ³ She acknowledged that no Pennsylvania appellate court had confronted the issue presented here, but, relying on Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), and Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978), concluded that the "intent of the Pennsylvania legislature in enacting Sec. 303(b) was to create an absolute bar to the joinder of the employer as an additional defendant." 512 F.Supp. at 948.

Subsequent to the district court's decision, the Pennsylvania Superior Court decided Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), which presented the same question in a negligence action, and reached the same result as the district court here. The superior court in Heckendorn affirmed the dismissal of a third-party complaint against the employer on the ground that the comparative negligence statute permits allocation of fault only against parties against whom recovery is allowed for negligence. "An employer is one against whom recovery can neither be 'sought' nor 'allowed.' A cause of action against the employer has been obliterated." Id. at 480, 439 A.2d at 677 (citing Bell v. Koppers Co., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978)).

Because we are bound by the interpretation given to Pennsylvania law by the courts of Pennsylvania, and because the rule articulated by the Pennsylvania Superior Court in Heckendorn governs the situation before us here, we will affirm the judgment of the district court for the reasons set forth in its opinion. ⁴ ROSENN, Circuit Judge, dissenting.

I disagree with the majority that we are bound by the decision of the Superior Court of Pennsylvania in Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981). I am deeply troubled by the inequities engendered by Heckendorn's construction of section 303(b) of the Workmen's Compensation Act (WCA), Pa.Stat.Ann.tit. 77, Sec. 481(b) (Purdon Cum.Supp. 1981-82), and of Pennsylvania's Comparative Negligence Act, 42 Pa.Cons.Stat.Ann. Sec. 7102 (Purdon 1981 Pamphlet). Because I believe that the Supreme Court of Pennsylvania will not follow the Heckendorn decision, but instead will reconcile these statutes in a manner that gives effect to the intendment of the WCA without unfairly burdening third parties who stand outside the workmen's compensation scheme, I respectfully dissent.

I.

As an initial matter, I address the majority's decision simply to follow the Superior Court's recent decision in Heckendorn. The touchstone of our inquiry is the Erie doctrine: a federal district court exercising its diversity jurisdiction must apply the substantive law of the state in which it sits. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To ascertain what state law is, a federal court looks initially to the state's statutes and to the decisions of its highest court. Id. at 79, 58 S.Ct. at 822. More difficult is the task of ascertaining state law when the state's highest court has not yet spoken to the issue.

This court recently summarized the nature of a federal diversity court's inquiry into the contours of state law absent a controlling decision of the state's highest court, and the guidance to be had from lower state court decisions.

In the absence of an authoritative pronouncement from the state's highest court, the task of a federal tribunal is to predict how that court would rule. To make this prognostication, we are not inflexibly confined by dicta or by lower state court decisions, although we should look to such statements as indicia of how the state's highest court might decide. The policies underlying the applicable legal doctrines, the doctrinal trends indicated by these policies, and the decisions of other courts may also inform our analysis. In addition, we may consult treatises, the Restatement, and the works of scholarly commentators.

Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1982) (citations omitted). In deciding the instant appeal, which concerns a question of law not yet resolved by the state's highest court, we must therefore attempt to predict how the Pennsylvania Supreme Court would decide the question. See, e.g., Safeco Insurance Co. of America v. Wetherill, 622 F.2d 685, 688 (3d Cir. 1980); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980).

Of all of the indicia of what state law is, decisions of intermediate appellate courts are among the most helpful. In the absence of a controlling decision of the state's highest court, the decisions of intermediate state courts having statewide jurisdiction are normally a strong indication of what the state law is. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 177-78, 61 S.Ct. 176, 177-78, 85 L.Ed. 109 (1940); Six Companies v. Joint Highway District No. 13, 311 U.S. 180, 188, 61 S.Ct. 186, 188, 85 L.Ed. 114 (1940); West v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Stoner v. New York Life Insurance Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940). See generally Bator, Mishkin, Shapiro & Wechsler, Hart and Wechsler's The Federal Courts and the Federal System, 708-10 (2d ed. 1973). They do not, however, perforce dictate the result in a federal diversity action. Rather,

"an intermediate appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." 311 U.S. at 237, 61 S.Ct. at 183. (Emphasis supplied.) Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling.

Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967) (quoting West v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940)). "In short, an intermediate appellate court holding is presumptive evidence, rather than an absolute pronouncement, of state law." National Surety Corp. v. Midland Bank, 551 F.2d 21, 30 (3d Cir. 1977).

This is not to suggest that in our efforts at prognostication that we are free to ignore decisions of intermediate appellate courts merely because we "think[ ] the rule is unsound or that another is preferable." West v. American Telephone & Telegraph Co., supra, 311 U.S. at 237, 61 S.Ct. at 183. The limits on our discretion not to follow the decisions of a lower court of statewide jurisdiction were set out in Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940). There the Supreme Court held that this court was bound to follow two decisions of the New Jersey Court of Chancery, a trial court of statewide jurisdiction, which failed to give effect to a recently enacted New Jersey statute that appeared to authorize the creation of a trust bank account. In rebuffing our attempt to reach what we believed to be a correct result under the statute, the Supreme Court concluded that "the Circuit Court of Appeals was not at liberty to reject these decisions merely because it did not agree with their reasoning." 311 U.S. at 179, 61 S.Ct. at 179.

Two aspects in Field that were highlighted by the Supreme Court indicate the narrowness of its apparent harnessing of federal diversity courts. First, the Court emphasized that decisions of the Court...