Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[64 NJSuper Page 346] This appeal is from an order of the Superior Court, Law Division, denying a motion by defendant Otis Elevator Company (hereinafter "Otis"), for leave to file a third-party complaint against plaintiff's employer, Arthur G. McKee and Co. (hereinafter "McKee"). By its proposed third-party action Otis seeks to obtain contribution from McKee under Pennsylvania law for any
damages which it might be required to pay plaintiff. The main action has not yet been tried.
Plaintiff Rocco Zotta, a resident of New Jersey, alleged in his complaint that he was injured on August 8, 1957, while working at the Morrisville, Pa. plant of defendant United States Steel Corporation (hereinafter "Steel"). Zotta was then an employee of McKee, which had been engaged by Steel as the general contractor for the construction of a blast furnace at its aforesaid plant. Otis was a subcontractor of McKee in doing part of the job. Zotta contends that his injuries occurred in the motor room of an elevator shaft where Otis had installed a freight elevator.
Subsequent to the accident Zotta began to receive workmen's compensation benefits from McKee under the Pennsylvania Act. However, on October 16, 1958 Zotta was also awarded compensation by the New Jersey Workmen's Compensation Division, which had jurisdiction because Zotta's contract of hire was entered into at the union hiring hall in Trenton, N.J. The amount of the New Jersey award was $1,927.50, and took into account, as a credit, the amount Zotta had already received under the Pennsylvania law.
On October 21, 1958 Zotta filed the present action against Otis and Steel, alleging that his injuries were the proximate result of their negligence.
Answers were subsequently filed by both defendants, and each defendant in its respective answer cross-claimed against the other defendant for contribution and indemnification.
The suit was pretried on July 23, 1959, without any mention then of the applicability of Pennsylvania law. Thereafter, on February 29, 1960, on the motion of Steel and with the consent of the other parties, the pretrial order was amended to include as a legal issue the law of Pennsylvania, insofar as it would apply to the liability of the defendants.
Subsequently, on March 29, 1960, Otis moved for leave to file its third-party complaint against McKee, in which it sought indemnification and contribution under Pennsylvania law. The court below denied this motion with prejudice,
and an order was so entered on April 27, 1960. This appeal followed after leave granted on June 2, 1960.
Otis does not contest on this appeal the denial of its motion as to its claim for indemnification, but claims error in the denial of its asserted right to file a third-party complaint for contribution.
Under Pennsylvania law, in a common law negligence action by an injured employee against a third-person tortfeasor, the defendant may implead the plaintiff's employer, to obtain contribution. If the employer is found jointly responsible for the injury, then the original defendant would have a right of contribution against the employer, limited to the amount of the compensation payable by the employer to the employee. Because of "equitable considerations," Pennsylvania allows a defendant tortfeasor to implead the employer, as an alleged joint tortfeasor, even though the Pennsylvania workmen's compensation law precludes a direct cause of action in tort by the employee against his employer. Maio v. Fahs , 339 Pa. 180, 14 A. 2 d 105 (Sup. Ct. 1940); Rau v. Manko , 341 Pa. 17, 17 A. 2 d 422 (Sup. Ct. 1941); Shaull v. A.S. Beck New York Shoe Co. , 369 Pa. 112, 85 A. 2 d 698 (Sup. Ct. 1952); Puller v. Puller , 380 Pa. 219, 110 A. 2 d 175 (Sup. Ct. 1955); Davis v. Miller , 385 Pa. 348, 123 A. 2 d 422 (Sup. Ct. 1956); Brown v. Dickey , 397 Pa. 454, 155 A. 2 d 836 ...