Tookmanian v. Safe Harbor Water Power Corp.
Decision Date | 14 January 1981 |
Docket Number | Civ. A. No. 80-1810. |
Citation | 505 F. Supp. 920 |
Parties | Gerard TOOKMANIAN v. SAFE HARBOR WATER POWER CORPORATION, Pennsylvania Power and Light Co., American Chain and Cable Company, Wright Hoist Division, and National Electric Coil, Division of McGraw-Edison Company. |
Court | U.S. District Court — Eastern District of Pennsylvania |
W. A. Atlee, Jr., Lancaster, Pa., for plaintiff.
J. P. Kelley, Philadelphia, Pa., for American Chain.
Rawle & Henderson, Philadelphia, Pa., for Safe Harbor Water & Power.
The Pennsylvania Workmen's Compensation Act, as amended, 77 P.S. § 481 (Supp.1979-1980), provides that a third party sued by an injured plaintiff cannot join the plaintiff's employer for damages, contribution or indemnity unless the parties have so agreed previously by contract. See Kohr v. Johns-Manville Corp., 87 F.R.D. 750 (E.D.Pa.1980). Plaintiff, injured during the course of his employment, seeks recovery from several defendants, one of which joined as a third-party defendant, National Electric Coil, a division of McGraw Edison Company (NEC), his employer, now moving to dismiss. Prior to 1975, Pennsylvania law permitted joinder of the employer as an additional defendant in an action by an employee against a third-party tortfeasor. If the fact finder determined that the conduct of both the employer and third party proximately caused the employee's injury, the employee could obtain a full recovery from the third party, who could procure contribution or indemnity from the employer to the extent of the employer's statutory liability under the Act. Winters v. Herdt, 400 Pa. 452, 162 A.2d 392 (1960); Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940).
The court could not have been more explicit. Clearly, the employer may not be joined in an action of this type. Cf. Kohr v. Johns-Manville Corp., 87 F.R.D. 750 (E.D. Pa.1981) ( ).
Safe Harbor relies principally upon Yeagley v. Metropolitan Edison Co., No. 3316-1979 (C.P. Lebanon County, Pa., May 13, 1980), which held that a defendant may join as additional defendants plaintiff's employer in a tort action by an employee against a third person for the purpose of determining the percentage of pro rata causal negligence among defendants. The court based its conclusion upon its interpretation of the appropriate accommodation between the Pennsylvania Comparative Negligence Act of 1976, as amended, 42 Pa.Cons.Stat.Ann. § 7102, and the Workmen's Compensation Act. However, in Yeagley the defendant did not seek contribution or indemnification from the employer. In the case at bar Safe Harbor joined NEC, plaintiff's employer, for this very purpose, which the Supreme Court has expressly disallowed.
Furthermore, only decisions of a state's highest appellate tribunal bind federal courts sitting in diversity. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); King v. Order of Travelers, 331 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 341 (1948); West v. AT&T Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940). The Supreme Court of Pennsylvania has indicated unequivocally that the employer may not be joined for purposes of contribution. The court decided both Bell and Tsarnis following the 1978 amendment to the comparative negligence statute. Any incompatibility between the two statutes could have been addressed therein. Until the court rules otherwise, the clear and plain language of the state statute and the Supreme Court's opinions construing it mandate the conclusion reached here. See Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979); Malatt v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1968).
Safe Harbor's final argument concerns the contractual liability contemplated by Section 481(b), which provides that "liability for such damages, contribution 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". Safe Harbor contends that NEC agreed to this liability when the parties entered into a written contract for the performance of the repair work during which plaintiff's injury occurred. NEC agreed to "perform all the work and do all things necessary in a skillful and craftsmanlike manner" and to "provide all necessary rigging" and to "maintain neat and safe working conditions". Safe Harbor considers these terms of the contract as indicative of NEC's acceptance of full responsibility for the safety of the workmen. If such a duty were not imposed on NEC, concludes Safe Harbor, these contractual terms would be meaningless.
Generally, the plain and unambiguous words of a contract should be given their natural and ordinary meaning, Vogel v. Tenneco Oil Co., 465 F.2d 563, 150 U.S. App.D.C. 383 (1972), Hanley v. James McHugh Construction Co., 444 F.2d 1006 (7th Cir. 1971), Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958), Foundation & Construction Co. v....
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