author: WIEAND, Judge:

text:
    453 A.2d 620
    COMMONWEALTH of Pennsylvania, v. Grace E. GROSS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1981.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied March 4, 1983.

      William C. Dissinger, Marysville, for appellant.
    Lester H. Zimmerman, Mifflintown, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Grace Gross was tried by jury and convicted of arson endangering property. After post-trial motions had been denied, she was sentenced to probation for three years, conditioned upon her participation in a county-supervised treatment plan. On direct appeal, she argues: (1) that she was denied a fair trial because a search of her person was conducted during trial; (2) that the trial court erred in allowing an expert to express an opinion that the fire had been intentionally set; (3) that she received ineffective assistance of counsel; and (4) that her trial was held in violation of Rule 1100. Finding no merit in any of these arguments, we affirm the judgment of sentence.

At or about 6:30 a.m. on April 20,1979, a furnished mobile home owned by Gerald Fulkroad and leased to Grace Gross was completely destroyed by fire. About one month prior to the fire, Fulkroad had hand delivered to appellant an eviction notice which gave her thirty days to vacate the property. On the evening of April 19, the landlord had again visited the trailer to remind appellant of her eviction. He testified that when he visited the trailer on April 19, it appeared to have been cleared of appellant’s personal effects. Two witnesses who were visiting appellant on April 19 testified that after Fulkroad departed, appellant remarked, “It goes up tonight.” Other testimony established that appellant had taken out a fire insurance policy on the contents of the trailer for the first time on March 23, 1979. Expert .witnesses testified that the fire had been of incendiary origin. It spread rapidly because a flammable liquid had been poured on the floor at several points. One Commonwealth expert opined that the fire had been intentionally set.

During the course of the trial, the prosecutor received information that appellant was carrying bullets in her purse. He received permission from the court to conduct a search of appellant's person. In the presence of the judge, a deputy sheriff and counsel, but out of the presence of the jury, appellant was searched by using a metal detector. She was required to remove her boots, but no other disrobing was required. Appellant contends that this search violated her constitutional rights and prejudiced her right to a fair trial. We disagree.

“It is universally accepted that the trial judge has the responsibility and authority to maintain in the courtroom the appropriate atmosphere for the fair and orderly disposition of the issues presented.” Commonwealth v. Patterson, 452 Pa. 457, 464, 308 A.2d 90, 94 (1975). Proper security measures fall within the trial court’s exercise of discretion. When necessary to prevent a defendant from disrupting a trial and possibly injuring others, reasonable security measures will not prejudice the defendant’s fair trial rights. See, e.g., Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974); Commonwealth v. Carter, 219 Pa.Super. 280, 281 A.2d 75 (1971). In the instant case, the possibility of prejudice was nonexistent. The search of appellant’s person was conducted outside the presence of the jury. See: Commonwealth v. Wright, 456 Pa. 511, 514, 321 A.2d 625, 626 (1974); Commonwealth v. Hinton, 269 Pa.Super. 43, 53, 409 A.2d 54, 59 (1979); Commonwealth v. Geho, 223 Pa.Super. 525, 526 n. 1, 302 A.2d 463, 464 n. 1 (1973). Appellant’s argument that she was thereby denied a fair trial is without merit.

An expert witness called by the Commonwealth testified that, in his opinion, the fire was of incendiary origin and had been intentionally set. Appellant agrees that the expert could testify that the fire was of incendiary origin but argues that he could not conjecture that the fire had been set. This is a distinction without a difference.

An expert witness may express an opinion on matters which are within his or her scientific training and experience. Commonwealth v. Crawford, 468 Pa. 565, 572, 364 A.2d 660, 664 (1976). “[T]he question whether a witness is qualified to testify as an ‘expert’ is within the sound discretion of the trial court and will not be overturned except in clear cases of abuse.” Commonwealth v. Stickle, 484 Pa. 89, 104, 398 A.2d 957, 965 (1979), quoting Commonwealth v. Bennett, 471 Pa. 419, 424, 370 A.2d 373, 375 (1977). “The appropriateness of expert testimony relating to the incendiary origin of fires is well recognized in our courts. Commonwealth v. Kaufman, 182 Pa.Super. 197, 126 A.2d 758 (1956); Commonwealth v. Nasuti, 180 Pa.Super. 279, 119 A.2d 642 (1956); Commonwealth v. George, 178 Pa.Super. 261, 116 A.2d 253 (1955).” Commonwealth v. Paskings, 447 Pa. 350, 355, 290 A.2d 82, 85 (1972). The expert may offer that opinion as long as it is based upon and supported by facts in the record. Commonwealth v. Paskings, supra, 447 Pa. at 355-56, 290 A.2d at 85. See generally: Henry, Pennsylvania Evidence, § 561. The record in this case clearly establishes that the trial court did not abuse its discretion by allowing the expert to state his opinion. See: Commonwealth v. Leveille, 289 Pa.Super. 248, 258 n. 7, 433 A.2d 50, 55 n. 7 (1981); Commonwealth v. Colon, 264 Pa.Super. 314, 324, 399 A.2d 1068, 1073 (1979).

Appellant makes numerous averments that trial counsel was ineffective. These matters were properly raised for the first time in supplemental post-trial motions by appellant’s new counsel.

Our standard of reviewing questions of counsel’s ineffectiveness has been stated often:

[0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967). Counsel will not be deemed ineffective for failing to raise meritless claims. Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980); Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981); Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980).

Appellant argues eight instances of ineffectiveness: (1) failure to object to the admission of photographs of the fire scene, because the photographer-witness did not testify that the photographs “fairly and accurately represented the scene”; (2) failure to make the same objection to the admission of a diagram of the mobile home, drawn by the Commonwealth’s expert witness and illustrating the patterns of burn marks; (3) failure to object to the testimony of two lay witnesses that the fire had burned fast and had burned the aluminum siding; (4) failure to object to statements made at trial by the landlord which are alleged to be prejudicial; (5) failure to move to strike a comment made by the landlord in response to an objection made by defense counsel; (6) failure to object when three Commonwealth experts expressed opinions regarding matters allegedly beyond their area of expertise; (7) failure to object to cross-examination of appellant regarding previous residences and other disputes with other landlords; and (8) failure to investigate properly whether the trailer had been flooded and damaged before appellant moved in.

It is unnecessary that we discuss each of these contentions in detail; each has been discussed fully in the opinion of the learned trial judge. Suffice it to say that our review of the record discloses no arguable merit in any of them. Moreover, trial counsel’s strategy was to show that the fire, which unquestionably occurred, had been caused by electrical defects in the trailer and had not been set by appellant. This defense he presented vigorously and well. Most omissions complained of by appellant could not have prejudiced or affected adversely the defense which counsel attempted to present. We have repeatedly held that counsel will not be found ineffective where some reasonable basis existed for his acts. Here, it was an entirely reasonable trial strategy for counsel to forego objections to harmless and innocuous evidence. Thus, counsel cannot properly be found ineffective for failing to enter meaningless objections.

Finally, appellant contends that she failed to receive a speedy trial within the time constraints of Pa.R.Crim.P. 1100. The complaint against appellant was filed on June 26, 1979, making the run date for Rule 1100 purposes December 23, 1979. The case was scheduled for trial on November 5, 1979, but was not reached. It was rescheduled for November 13, 1979, at which time appellant failed to appear. Counsel advised the court that she was then incarcerated in Virginia. A bench warrant was issued, and extradition proceedings were begun on December 7, 1979. Appellant waived extradition and returned to Pennsylvania on December 11, 1979. The Commonwealth filed a petition to extend on December 18,1979. After a hearing on December 20, the court granted an extension until the next term of court, commencing January 21, 1980. Trial commenced that day.

Appellant now urges that the Commonwealth failed to exercise due diligence in bringing her to trial. We need not reach the question of the exercise of due diligence by the Commonwealth. Because there were a sufficient number of excludable days, appellant’s trial did, in fact, begin within 180 days. The record shows that on September 7, 1979, appellant filed an “Application for Trial Date Modification as of Course.” This application, although reciting that it was not a defense continuance for speedy trial purposes, nevertheless sought a trial delay because appellant had not been afforded thirty days between arraignment and trial. The application was granted, and trial was continued specifically to November 5, 1979. Moreover, when the case was called for trial on November 13, 1979, appellant was outside the jurisdiction. Although appellant seeks to avoid calling her motion of September 7 a request for a continuance, it is clear that it was, in fact, exactly that. It was a defense request to postpone trial so that counsel would have a full thirty days between arraignment and trial for purposes of discovery and preparation. There may well have been good cause for the requested postponement of trial; however, appellant cannot now charge that delay against the Commonwealth by labeling her motion an “application for trial date modification,” and not a motion for continuance. The postponement of trial from September 7, 1979, to November 5,1979, therefore, was caused by a defense requested continuance.

Rule 1100(d)(3)(ii) expressly provides for the exclusion of the period of delay which results from a defense requested continuance in excess of thirty days. See: Commonwealth v. Frazier, 278 Pa.Super. 247, 420 A.2d 523 (1980); Commonwealth v. Brant, 272 Pa.Super. 135, 414 A.2d 707 (1979); Commonwealth v. Bond, 268 Pa.Super. 49, 407 A.2d 430 (1979). The continuance in the instant case was granted for the period of September 7 to November 5, a period of 59 days. Therefore, 29 days were excludable. For this reason, it seems clear that trial commenced within a 180 day period from the filing of the complaint. Rule 1100 was not violated.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3301(b).

      . Appellant does not have an absolute right to a period of thirty days between arraignment and trial. Commonwealth v. Thomas, 298 Pa.Super. 210, 444 A.2d 735 (1982). Moreover, contrary to appellant’s argument, the Rules of Criminal Procedure regarding arraignment do not vitiate the need to file for a continuance if the full thirty days is required to enable the defense to prepare for trial. See: Commonwealth v. Thomas, id., 298 Pa.Super. at 211, 444 A.2d at 736; Pa.R.Crim.P. 301, 303, 305, 307.


source: Caselaw Access Project

author: WIEAND, Judge: MONTEMURO, Judge, CAVANAUGH, Judge, McEWEN, Judge, CIRILLO, Judge,

license: Public Domain

text:
    453 A.2d 624
    David F. KELLY and Patricia Ann Kelly, his wife v. The CARBORUNDUM COMPANY, a corporation, Appellant, v. WILLSON PRODUCTS, A DIVISION OF E.S.B. INDUSTRIES, INC.; Power Piping Company; Murphy Industries Corporation; Reed Tool Company; and Baker International Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1982.
    Filed Nov. 30, 1982.
    Appeal Granted and Order Affirmed Feb. 6, 1984.

      John E. Kunz, Pittsburgh, for appellant.
    Linda Pretz, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   WIEAND, Judge:

In an action by an employee against a third party tortfeasor, may the employer be joined either as an additional defendant or as an involuntary plaintiff for the purpose of apportioning negligence under the Comparative Negligence Act? The trial court held that joinder under either procedure was improper. We affirm.

David F. Kelly, an employee of Power Piping Company, was injured when an abrasive grinding wheel attached to a mechanical grinder broke while in use. He and his wife commenced an action in trespass against The Carborundum Company which had designed and manufactured the grinding wheel. The Carborundum Company caused Power Piping Company to be joined as an additional defendant, alleging that Kelly’s employer had been negligent in removing safety-guards, in failing to supply eye shields and in failing to instruct and supervise Kelly in the use of the grinder. Power Piping Company filed an answer to Carborundum’s complaint in which it denied negligence and averred, as “new matter”, that it had paid workmen’s compensation benefits to Kelly. When the fact of compensation coverage was subsequently admitted, Power Piping filed a motion for judgment on the pleadings on the grounds that its joinder as an additional defendant was barred by provisions of the Pennsylvania Workmen’s Compensation Act. An order was entered granting the motion and entering judgment in favor of the employer. Carborundum then filed a petition attempting to join Power Piping as an involuntary plaintiff. This attempted joinder was also denied. Both orders were appealed and, because of the importance of the issues involved, were consolidated for argument before a court en banc.

Substantively, the joinder of an employer for the purpose of determining his negligence, if any, is prevented by prior decisions interpreting Section 303 of the Workmen’s Compensation Act of December 5,1974, P.L. 782, No. 263, 77 P.S. § 481. This section provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions 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.

In Heckendorn v. Consolidated Rail Corporation, 293 Pa.Super. 474, 439 A.2d 674 (1982), we followed prior decisions of the Supreme and Superior Courts which held that the statutory language “obliterated” the common law cause of action against an employer and prevented his joinder as an additional defendant in an action brought by an employee against a third person to recover for personal injuries sustained by the employee during the course of employment. Thus, we said:

[Section 303 of the Workmen’s Compensation Act] . . . manifested a broad legislative intent to bar the joinder of an employer as an additional defendant. Arnold v. Borbonus, 257 Pa.Super. 110, 114, 390 A.2d 271, 273 (1978). It has 'obliterated’ the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer. Bell v. Koppers Co., Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978). It has created an exception to the general right of contribution among tortfeasors. Thus a defendant whose negligence is alleged to be responsible for an injury suffered by an employe protected by the Workmen’s Compensation Act, may not, in the suit brought against him, join the employer as an additional defendant. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 518, 412 A.2d 1094, 1096 (1980). See also: Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977); Atkins v. Urban Redevelopment Authority of Pittsburgh, 263 Pa.Super. 37, 396 A.2d 1364 (1979). The policy consideration which prompted the enactment of Section 303 is clear. An employer’s liability for an industrial accident is limited to an amount determined by the Workmen’s Compensation Act. If he assumes that liability, there can be no cause of action against him for negligence; and he cannot be made a party to his employee’s common law action for negligence against a third person.

Id., 293 Pa.Superior Ct. at 477, 439 A.2d at 675.

We also held in Heckendorn that prior appellate decisions had not been overruled or otherwise deprived of efficacy by enactment of the Comparative Negligence Act of 1978. The employer, we said, “is liable solely for worker’s compensation benefits. If [the 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.... He is not a party whose negligence is to be included in the apportionment required by the Comparative Negligence Law.” Heckendorn v. Consolidated Rail Corporation, supra, 293 Pa.Superior Ct. at 481-82, 439 A.2d at 678.

Appellant renews in this appeal the argument that prior decisions have been impliedly overruled by the Comparative Negligence Act. This statute provides:

(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 from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

42 Pa.C.S.A. § 7102.

Contrary to the premise for appellant’s argument, this statute does not provide for apportionment among all tortfeasors causally responsible for an injury. “It merely provides for apportionment among those defendants against whom recovery is allowed. There is no suggestion in that statute that all possible tortfeasors be brought into court, and certainly no requirement that this be done to achieve the purposes of the act. The trier of fact is simply to apportion liability on a percentage basis among those defendants on the record against whom recovery is allowed.” Ryden v. Johns-Manville Products, 518 F.Supp. 311, 316 (W.D.Pa.1981). We observed in Heekendom, and repeat here, that under existing law, an employer is not a defendant “against whom recovery is allowed.”

In Hamme v. Dreis & Krump Manufacturing Co., 716 F.2d 152 (3rd Cir.1982), a products liability action, the manufacturer had attempted to join the employer of the plaintiff-employee as an additional defendant. A majority of the Court of Appeals for the Third Circuit followed Heekendom and held improper an attempted joinder of the employer for purposes of determining comparative fault under the Pennsylvania Comparative Negligence Act.

It seems clear, therefore, that substantive law precludes the joinder of an employer for the purpose of determining fault in an action commenced by an employee against a third person. Appellant contends that this result is unfair because it requires a third party tortfeasor to pay more than his or her fair share of the damages sustained. This argument is not persuasive. The law does not now and never has required that all possible tortfeasors be made parties to an action. Appellant also argues that an interpretation of Section 303 of the Workmen’s Compensation Act which disallows joinder of an employer constitutes too absolute a victory for the employer. This argument is more properly directed to the legislature, which is responsible for establishing social policy. Unless and until the legislature changes the provisions of the Workmen’s Compensation Act or the Supreme Court alters its interpretation thereof, we are obliged to follow those decisions which hold that there is no liability on the part of an employer for job related injuries sustained by an employee except for workmen’s compensation benefits. All other causes of action against the employer have been “obliterated,” and the employer cannot be joined in an action brought by the employee against a third person. See: Tsarnas v. Jones & Laughlin Steel Corp., supra; Bell v. Koppers Co., Inc., supra; Arnold v. Borbonus, supra; Hefferin v. Stempkowski, supra.

Joinder of Power Piping Company as an involuntary plaintiff would also have been procedurally improper. The circumstances under which a party may be joined as an involuntary plaintiff are set forth in Pa.R.C.P. 2227 as follows:

(a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.
(b) 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.

This rule permits compulsory joinder in very limited situations. Subsection (b) is not predicated upon “some administrative benefit to be gained by joinder but upon the unity and identity of the interests of the co-owners who are to be joined.” 7 Goodrich-Amram 2d § 2227(a):l. It is applicable only where the substantive law provides that an interest is joint and the holder of such interest refuses to join. Involuntary joinder is necessary because without such joinder an indispensable party is missing and the action cannot proceed.

An employer is not an indispensable party to his employee’s action in trespass against a third party tortfeasor. The interests of the employee and employer are not joint. The employee’s cause of action is independent of the employer and can be pursued without the latter’s joinder. The employee’s claim, moreover, is not limited by any interest of a subrogated employer or workmen’s compensation insurance carrier. See generally: 77 P.S. § 671; 42A P.L.E. Workmen’s Compensation § 578. Indeed, in an employee’s action, the prior payment of workmen’s compensation benefits is irrelevant. See: Downey v. Weston, 451 Pa. 259, 273, 301 A.2d 635, 643 (1973); Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); Lengle v. North Lebanon Twp., 274 Pa. 51, 54, 117 A. 403, 404 (1922). See also: Feeley v. U.S., 337 F.2d 924, 931 (3rd Cir.1964); Lawrence v. Holan Corp., 43 F.R.D. 292, 294 (W.D.Pa.1967). Thus, even though the employer may enjoy subrogation rights in his employee’s recovery against the third person, it is not and never has been the law that the subrogee is an essential party to the employee’s action. See: Smith v. Yellow Cab, 288 Pa. 85, 135 A. 858 (1927); 42A P.L.E. Workmen’s Compensation § 580. See also: London Lancashire Indemnity Co. of America v. Reid, 156 F.Supp. 897 (1958). The interests of the subrogee, if necessary, can be determined in a separate action. Involuntary joinder of the employer very simply is not necessary to a determination of the employee’s cause of action against the third party; and Pa.R.C.P. 2227(b) is not a rule of administrative convenience.

To summarize, Pa.R.C.P. 2227 permits compulsory joinder of persons having a joint interest in the subject matter of an action and without whose joinder the action cannot substantively proceed. An employer has no direct interest in and is not an indispensable party to a common law tort action commenced by an employee against a third party. The compulsory joinder of an employer as an involuntary plaintiff in his employee’s third party action, therefore, is not procedurally authorized.

Joinder of the employer for purposes of determining fault, if any, is also improper substantively. It is barred by Section 303 of the Workmen’s Compensation Act as previously interpreted by both the Supreme and Superior Courts.

Thus, the trial court was correct in refusing to allow Power Piping Company to be joined either as an additional defendant or as an involuntary plaintiff.

The orders of the trial court are affirmed.

MONTEMURO, J. files a concurring opinion.

CAVANAUGH, J. files a concurring and dissenting opinion.

McEWEN and CIRILLO, JJ., file dissenting opinions.

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 employer 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. 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...

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.

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.

CAVANAUGH, Judge,

concurring and dissenting:

The majority concludes that in an action by an employee against a third party tortfeasor, an employer can not be joined as an additional defendant or as an involuntary plaintiff for purposes of determining the employer’s proportion of negligence under The Comparative Negligence Act. I agree with Judge Wieand’s conclusion that joining the employer as an involuntary plaintiff would not be proper because his interest and that of his employee are not joint. I would hold, however, that the employer can be joined as an additional defendant. I realize that a panel of this court has previously held that an employer can not be joined as an additional defendant for the purpose of determining his proportion of negligence. Heckendorn v. Consolidated Rail Corporation, 293 Pa.Super. 474, 439 A.2d 674 (1981). I believe, however, that that case was wrongly decided and that we, sitting as an en banc panel of this court, can and should overrule it.

As stated by Judge Rosenn in a recent decision of the Third Circuit Court of Appeals, the effect of the Heckendom decision is to make “third parties who may be only partially responsible for another’s employee’s injuries ... bear the full burden of compensating the injured employee, regardless of the third party’s possible minimal degree of fault compared to that of the employer.” Hamme v. Dreis & Krump Manufacturing Co., 716 F.2d 152 at 157 (1982) (slip opinion at 11, Rosenn, J., dissenting). I agree with Judge Rosenn’s conclusion that such a result was not intended by the Pennsylvania Legislature and is not compelled by the language of the Workman’s Compensation Act (WCA). The issue in the Hamme case was whether an employer could be joined as a third party defendant for purposes of determining his degree of fault under The Comparative Negligence Act in a personal injury products liability action brought by an employee against a manufacturer. Two of the three panel members before whom the Hamme case was argued felt that the Third Circuit was bound by this Court’s decision in Heckendorn and therefore ruled that the employer could not be joined as an additional defendant. In a lengthy and well-reasoned dissent, Judge Rosenn explained why he believed that Heckendorn was wrongly decided and was likely to be reversed by the Pennsylvania Supreme Court and was therefore not binding on the Third Circuit.

Judge Rosenn summarizes the purpose and function of the WCA as follows:

The WCA creates a comprehensive and exclusive scheme between employer and employee for awarding reparations to employees for work-related injuries. The primary feature of the WCA, in common with workmen’s compensation acts throughout the United States, is its establishment of fixed but limited compensation for employees who are injured in work-related accidents. In return for foregoing all rights to bring a common law action for damages against his employer, an employee is awarded compensation that is statutorily provided for under the WCA. Both parties to this relationship benefit from such coverage. The employee is assured of certain, immediate compensation regardless of his own fault or that of his fellow servants. The employer, although compelled to provide compensation for all work-related injuries, benefits from the ceiling on liability incorporated in the compensation schedules under the WCA. Society as a whole benefits from the provision made for injured workers who might otherwise become public charges.

Hamme, at 158 (footnotes omitted).

The WCA specifically provides in section 303(b) that where an employee’s injury is caused by a third party, the employee may bring an action against that third party, but that the employer shall not be liable to the third party for damages, contribution, or indemnity unless such liability is expressly provided for in a written contract. The statute does not specifically bar joinder of the employer for all purposes. It is silent on the question of joinder for apportionment of fault. As Judge Rosenn points out, permitting joinder of the employer does not

run afoul of the WCA if the employer is joined solely to determine his relative fault, vis a vis that of the other parties, in causing the employee’s injuries. From the employer’s perspective, so long as his liability for the injuries to his employee exists solely as provided for in the WCA, the legislatively enforced quid pro quo has been respected. Joinder of the employer for this limited purpose is thus fully consistent with both the language and the spirit of the WCA.

Hamme, at 162.

Nor is permitting joinder of the employer unfair to the employee-plaintiff even though his total recovery may, as a result, be less than it would have been if his employer’s negligence was not considered and the third party was thus liable for all damages not directly attributable to the employee’s own negligence. To explain how allowing joinder of the employer protects the interests, of all the parties, we need only quote, as Judge Rosenn did, from Judge Spaeth’s concurring and dissenting opinion in Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978). Judge Spaeth envisioned a hypothetical case in which an employer and a third party were equally negligent in causing injury to an employee and the employer was joined as an additional defendant. His analysis was as follows:

[W]here the employer and a third party are equally negligent, the third party pays only his half of the judgment and the employer pays up to the compensation maximum in fulfillment of his half of the judgment. Thus, no one bears more than his fair share of the liability judgment; to the extent that the employer bears less than his share and the employee thereby gets less than his due, this is what the Act contemplated in the “bargain” between the employee and the employer, the one getting an assured recovery, the other getting a fixed limit on liability. It is unjust to make the third party fill the gap between what the employee gets and what he needs to be made whole, for the third party was not part of the bargain; he gained nothing from it.

257 Pa.Super. at 118 n. 4, 390 A.2d at 274 n. 4, quoted in Hamme, at 163.

In sum, neither the WCA or The Comparative Negligence Act specifically address the issue raised in this case. I do not believe that the language of either statute prohibits joinder of an employer for the limited purpose of apportionment of fault and permitting joinder certainly seems to be the most just result.

Nor do I agree with Judge Montemuro’s conclusion that the result advocated here is precluded by the Pennsylvania Supreme Court’s holding in Tsarnas v. Jones and Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). In that case, the court, in discussing Section 303(b) of the Workmen’s Compensation Act, stated:

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.

488 Pa. at 518, 412 A.2d at 1096. (Emphasis added). As Judge Rosenn pointed out, with reference to the above quotation:

The quoted paragraph makes clear that in speaking of the inability of the third party to join the employer as a defendant, the court was speaking to the existence of the statutory bar to contribution and indemnification. As the court noted, under section 303(b), a third party is not entitled to contribution from or indemnification by the employer, and may not obtain them by joining the employer as a defendant or otherwise. The court was not confronted with an attempt to join the employer in a manner that would fully respect the employer’s immunity from claims over by the third party while permitting a single, judicial determination of the relative fault of all the interested parties. The decision thus cannot be read as necessarily foreclosing such limited-purpose joinder.

Hamme, at 162.

For the reasons discussed above, I would overrule Heckendorn, and reverse the order of the lower court in the instant case and permit Power Piping Company to be joined as an additional defendant for the limited purpose of apportioning fault under The Comparative Negligence Act.

McEWEN, Judge,

dissenting:

I most respectfully dissent from the majority opinion and, as well, differ with the views that have been otherwise expressed.

I cling to the view earlier expressed in a dissenting opinion in Leonard v. Harris Corporation, 290 Pa.Super. 370, 434 A.2d 798 (1981), that an employer may be joined as an additional defendant for the reason that the 1974 amendment to § 303 of the Workmen’s Compensation Act does not prohibit the joinder of an employer as an additional defendant in an action instituted by an employee against a third party defendant. Rather, § 303(b) of the Act sets forth a considerably more limited restriction when it declares that the employer “shall not be liable to a third party for damages, contribution, or indemnity in the action of law or otherwise... . ” As for the view that the Pennsylvania Supreme Court has precluded the joinder of an employer for every purpose including the apportionment of fault, the dissent herein of our eminent colleague Judge James R. Cavanaugh as well as the dissent of the distinguished United States Circuit Court Judge Max Rosenn very perceptively responds that the Pennsylvania Supreme Court has not so held since the Supreme Court has not as yet specifically ruled upon an attempt to join the employer in a fashion that would provide for the determination of the fault of the employer without intrusion upon the immunity of the employer.

It seems, however, that I differ with both the majority and also Judge Cavanaugh upon the issue of the joinder of the employer as an involuntary plaintiff. It is my view that if the Pennsylvania Supreme Court pronounces at a future time that § 303(b) precludes the joinder of the employer as an additional defendant for every purpose and in every circumstance, the employer may be joined as an involuntary plaintiff pursuant to Pennsylvania Rule of Civil Procedure 2227. The very fine majority opinion provides a thorough itemization of reasons for its conclusion that the interests of the employer and the employee are not joint; it strikes me, however, that each reason is but an echo of the conclusion itself. Since an effort to here refer and respond to each reason would be little more than a “ ’tis so”—“ ’tis not” dispute, such an exercise would not seem purposeful. Suffice it to say that the employer, by reason of its subrogation interest, has a stake in the cause of action of the employee and that, therefore, both the employer and the employee share a concern in the outcome and an interest in the verdict that can only be termed a joint interest. The majority opinion quite properly observes that the law has never stated the subrogee is an essential party to the action of the employee but our research has not produced any case that has, since the 1974 enactment of § 303(b), so concluded. And, while the interests of the subrogees, if necessary, can be determined, as noted by the majority, in a separate subsequent action, some authorities upon judicial administration may be of the view that such a notion is not consistent with the prudent and effective use of judicial resources.

Finally, while Judge Cavanaugh and I share the view that § 303(b) does not preclude the joinder of the employer as an additional defendant, I do not foresee such a reduction in the total recovery of the employee-plaintiff as he envisions, in the hypothetical case quoted by him, will follow the joinder of the employer. The Pennsylvania Comparative Negligence Act provides in 42 Pa.C.S.A. § 7102:

(b) Recovery against joint defendant; contribution. Where recovery is allowed against more than one defendant, each defendant shall be liable for that portion 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 from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

Since the plaintiff-employee may recover the full amount of the verdict from the third party defendant(s) whenever the employer and the third party defendant(s) are found to be at fault, any reduction in the amount of the recovery is limited to a sum equal to the amount of the payments that had been made (or that become payable) to the plaintiff-employee under the Workmen’s Compensation Act.

In summary, I would overrule Heckendorn and, failing that objective, would permit the joinder of the employer as an involuntary plaintiff.

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.

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.

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. In that case, the Court (per Wieand, J.) stated:

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. 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) of proving the negligence of the third party. Moreover, judicial resources are used more effectively as all of the parties must present their cases 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 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 April 28, 1978, P.L. 202, No. 53, § 10(89), as amended, 42 Pa.C.S.A. § 7102.

      . Also joined as additional defendants were Willson Products, a division of E.S.B. Industries, Inc., the alleged manufacturer and distributor of safety shields; and Murphy Industries Corporation, the manufacturer and distributor of the grinding machine.

      . The Supreme Court granted allocatur on April 27, 1982, but no decision has as yet been rendered.

      . In Adamik v. Pullman Standard, 439 F.Supp. 784, 786 (W.D.Pa. 1977), Judge Knox has offered the following explanation: “‘By rendering employers who are liable for compensation without regard to fault immune from third party actions ... the General Assembly intended to provide more certainty in administration of the benefit fund and more stability to the fund. Elimination of third party actions against employers permits employers and their insurers to better estimate compensation costs. It also prevents the uncertain drain on the benefit fund caused by the employer contribution costs and legal defense expenses that had resulted from third party actions in the past.’ ”

      . Compulsory joinder under Pa.R.C.P. 2227 must be distinguished from permissive joinder under Pa.R.C.P. 2229.

      . Of course, the injured employee’s own contributory negligence is a matter for close examination at trial.

      . I note that although this court denied a petition for reargument of Heckendom, the Pennsylvania Supreme Court granted a petition for allocatur in Heckendom on April 27, 1982.

      . The power of an en banc panel of this court to overrule a decision of a three-member panel is well established. See Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982); Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981); Evans v. Blimpie Base, Inc., 284 Pa.Super. 256, 425 A.2d 801 (1981).

      . One of these two judges noted that it may have been more prudent to delay disposition of the Hamme appeal until the Pennsylvania Supreme Court decided whether to grant allocatur in Heckendorn, (at 154 n. 4). As stated in footnote 1, supra, the Supreme Court did, in fact, grant allocatur on April 27, 1982, just two weeks after the decision in Hamme was filed.

      . In Hamme v. Dreis & Frump Mfg. Co., 716 F.2d 152 (1982) Judge Rosenn provides a very thoughtful analysis of the questions that have continued to confront the appellate courts since the enactment of the 1974 amendment to § 303 of the Workmen’s Compensation Act.

      . Act 1976, July 9, P.L. 586, No. 142, effective June 27, 1978.

      . 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.


author: McEWEN, Judge:

text:
    453 A.2d 637
    COMMONWEALTH of Pennsylvania v. Michael SALVAGGIO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Nov. 30, 1982.

      George E. Goldstein, Pottstown, for appellant.
    Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

We here review an appeal from a judgment of sentence imposed after appellant was convicted following a non-jury trial of possession of cocaine and possession of methamphetamine and sentenced to two terms of imprisonment for a period of from five months to one year to be served concurrently.

Appellant expresses the following contentions in his brief:

1. An individual cannot be considered to be credible in order to establish probable cause to issue a search warrant when he has never provided information in the past and the police know nothing about his background other than he is a drug user and had done nothing to determine whether he is an honest individual.
2. The affidavit did not provide the issuing authority with a factually supported basis to conclude that contraband was present on the premises at the time of the search.
3. The failure to provide the issuing authority the information known about the informant constituted a material misstatement of fact.

The first contention of appellant requires a close scrutiny of the application for a search warrant and affidavit so as to determine whether the district magistrate had a sufficient basis to determine there was probable cause for the issuance of a warrant to search the house at 417 Laubach Street, Hellertown, the residence of appellant. The distinguished Northampton County Common Pleas Court Judge Robert A. Freedberg conducted a hearing upon the motion of appellant to suppress the evidence as a result of an illegal search and seizure, but refused appellant such relief.

When we review the decision of the trial court, we must determine whether the factual findings are supported by the record. In making this determination, we consider only the evidence of the witnesses of the Commonwealth and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings we are bound by such findings and may only reverse if the logical conclusions drawn therefrom are in error. Commonwealth v. Johnson, 467 Pa. 146, 151-152, 354 A.2d 886, 889 (1976). Our review of such evidence reveals that the factual findings of the suppression judge are supported by the record and we refer to those Findings of Fact to establish a factual basis for our discussion of this issue:

1. A member of the Pennsylvania State Police filed with a district magistrate an application for search warrant and affidavit seeking a search warrant for defendants’ residence, 2V2 story red brick dwelling at 417 Laubach Street, Hellertown.
2. The probable cause averments contained therein are set forth as follows:
(1) Between the period of 25 to 31 October, 1979, affiant met with a confidential informant who related to affiant that one Vic Salvaggio is involved in the distribution of large quantities of cocaine and marijuana. That Vic Salvaggio rents vehicles and makes trips to New York and New Jersey to pick up said drugs. That further the said confidential informant related to affiant that he (Cl) has on numerous occasions purchased cocaine and marijuana from Vic Salvaggio at Salvaggio’s residence, 417 Laubach St., Hellertown, Penna.
(2) Said information mentioned in fact # 1 is consistent with information relative to prior investigations conducted by the Penna. State Police and arrests involving the aforementioned Salvaggio. Said investigations revealed Salvaggio’s correct first name is Michael and Vic is an alias.
(3) On 31 October, 1979 that affiant conducted a records check on aforementioned Michael Salvaggio. Said records check revealed 2 arrests by the Pa. State Police for narcotics. One on 15 March, 1972 for delivery of marijuana and one on 5 September, 1972 for Possession with the Intent to Deliver Marijuana.
(4) That in the past 6 months members of the Pa. State Police Region 1 Strike Force conducted an independent investigation into Michael Salvaggio and found that Salvaggio has been renting vehicles from the ABE Airport. This information was obtained by the affiant from members of the Region 1 Strike Force of which affiant is the supervisor.
(5) Between the period of 28 to 30 October, 1979 that affiant met with the aforementioned confidential at which time confidential informant was searched by affiant in the presence of Agent Ken Marut of the Bureau of Drug Control and said confidential informant was found to be drug free. The affiant then gave a quantity of money to the said confidential informant to purchase a quantity of cocaine from the aforementioned Michael Salvaggio. Said confidential informant was in the view of affiant from the time of search until confidential informant entered the residence (417 Laubach St.) of Michael & Gloria Salvaggio and affiant along with Agent Marut did observe confidential informant enter the residence of Michael & Gloria Salvaggio. Confidential informant was then observed exiting the residence of Michael & Gloria Salvaggio and immediately turned over to affiant a quantity of suspected cocaine. The aforementioned confidential informant then related to affiant that while in the residence of Michael & Gloria Salvaggio, he (Cl) did purchase suspected cocaine.
(6) Subsequent to fact # 5, the affiant conducted a field test on the suspected cocaine mentioned in fact # 5. Said field test gave him a positive reaction for cocaine. Further the affiant proceeded to the Penna. State Police Crime Lab. at Bethlehem and a field test was conducted by Criminalist II Stanley Burghardt and said test also was positive for cocaine.
(7) That on 31 October, 1979 that affiant contacted Chief David Einherst of the Hellertown Police Dept, to ascertain the correct address of Michael & Gloria Salvaggio. Chief Einherst related that a check on the Boro, tax records indicate the address of Michael & Gloria Salvaggio is 417 Laubach St., Hellertown, Penna.
(8) The affiant has been a member of the Penna. State Police for approximately 9V2 yrs. six (6) of which the affiant has spent investigating narcotics and is presently the supervisor of the State Police Region 1 Strike Force located in Allentown, that during the past 6 yrs. the affiant has conducted numerous narcotics investigations. That from said investigations the affiant learned that drug dealers of ten times keep records of said drug deals. That said drug dealers keep drug paraphernalia such as scales and various types of containers to distribute said drugs.
3. A search warrant, issued by the district magistrate, was executed by the state police on October 31, 1979, resulting in confiscation of various items which are the subject of this suppression application.
4. The probable cause averments in the search warrant application are truthful.

The appellate courts of this Commonwealth have clearly accepted the “two pronged test” provided by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964):

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was “credible” or his information “reliable”.

See, Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Minton, 288 Pa.Super. 381, 432 A.2d 212 (1981); Commonwealth v. Reisinger, 252 Pa.Super. 1, 380 A.2d 1250 (1977). Aguilar reiterates that it is the magistrate or issuing authority who is to make the conclusion that probable cause exists and permits the magistrate to reach such a conclusion only when the magistrate has been informed of:

(1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were. Aguilar, supra, 378 U.S. at 114-115, 84 S.Ct. at 1514.
(2) some of the underlying circumstances from which the officer concluded that the informant ... was credible or his information reliable. Id. at 114-115, 84 S.Ct. at 1514.

The principles proclaimed by the United States Supreme Court in Aguilar were refined by that court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) when the court, inter alia, declared:

In absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. Spinelli supra, 393 U.S. at 416, 89 S.Ct. at 589.

Appellant cannot seriously dispute the adequacy of the affidavit with regard to the first prong. The statement of the informant “that he (Cl) has on numerous occasions purchased cocaine and marijuana from Vic Salvaggio at Salvaggio’s residence, 417 Laubach St., Hellertown, Pa.” is certainly conclusive as to the manner in which the informant obtained his information. It would seem there is no more conclusive method of securing evidence of criminal activity in and upon a certain premises than by actual personal purchase of contraband in the pertinent premises from a resident thereof. The issuing authority would have no alternative but to conclude that the informant had a sufficient basis for his conclusion that contraband was stored and sold at 417 Laubach Street, Hellertown.

When we consider the second prong of the Aguilar test, we must determine either that the issuing authority determined the informant was credible or that the issuing authority determined that the information from the informant was reliable. This court in Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973), delineated four criteria to be considered by the issuing authority in an evaluation of whether there is substantial basis for determining either that the informant is credible or his information reliable:

1. Did the informant give prior reliable information?
2. Was the informant’s story corroborated by any other source?
3. Were the informant’s statements a declaration against interest?
4. Does the defendant’s reputation support the informant’s tip?

See U.S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982); Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979); In re Burton, 259 Pa.Super. 20, 393 A.2d 696 (1978).

The fact that the instant informant was here engaged in such activity for the first time does not necessarily negate his veracity. United States v. Bush, 647 F.2d 357, 363 (3rd Cir.1981). It is also clear that each of the four criteria need not be met before the issuing authority can conclude the informant was credible or his information reliable. Commonwealth v. Moyer, 270 Pa.Super. 393, 398, 411 A.2d 776, 779 (1979); Ambers, supra, 225 Pa.Super. at 386, 310 A.2d at 350. An examination of the application makes clear that a consideration of the remaining criteria, however, provide an ample basis for the magistrate to have concluded that the informant was credible or the information reliable. Corroboration was provided by: (1) the controlled purchase; (2) the prior investigation conducted by the Pennsylvania State Police that resulted in two arrests of appellant on drug related charges; (3) the independent police investigation confirming that appellant rented vehicles; and (4) the independent surveillance by the State Police strike force. See Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976). As for the reputation of appellant, the affidavit, when read as a whole, establishes the basis for the reputation of appellant as an individual engaged in the traffic, possession and sale of narcotics.

We conclude the application and affidavit for a warrant provided the magistrate with a more than adequate basis to determine either that the informant was credible or the information reliable. We emphasize that while we have engaged in an application of the facts of this case to the Ambers criteria and have concluded the magistrate had an ample basis to conclude that probable cause existed, we do not infer that the controlled purchase did not in and of itself constitute a sufficient underlying circumstance to enable the conclusion that the informant was credible or his information reliable. Rather, to the contrary, we opine that the controlled purchase here did in se constitute a sufficient underlying circumstance for such a conclusion by the magistrate.

The United States Supreme Court in Aguilar noted: Thus, when a search is based upon a magistrate’s, rather than on a police officer’s determination of probable cause, the reviewing courts . .. will sustain the judicial determinations as long as. ‘there was substantial basis for [the magistrate] to conclude that narcotics were probably present.’

Aguilar v. Texas, supra, 378 U.S. at 111, 84 S.Ct. at 1512, 12 L.Ed.2d at 726 (quoting Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (I960)). It is to be remembered that the instant affidavit, found by the magistrate to be sufficient, was also determined to be adequate by the Common Pleas Court Judge who heard, considered and ruled upon the suppression application, as well as by a three member court en banc of the Northampton County Common Pleas Court. We share their conclusion that probable cause was present for the magistrate to issue the warrant.

We also note that the court en banc properly rejected the contention of appellant that the probable cause affidavit is defective because it fails to discuss factors relative to the credibility of the informant such as his background, reputation and motive in supplying this information. See Commonwealth v. Gelfont, 264 Pa.Super. 96, 399 A.2d 414 (1979). As the Northampton County court en banc opined in its reliance upon Commonwealth v. Herron, supra: “[h]aving determined that the affidavit contained a sufficient statement of the underlying circumstances for the magistrate to independently conclude that the information was reliable under the factors outlined in Commonwealth v. Ambers, supra, it is not necessary to consider the additional factors outlined in Commonwealth v. Gelfont, supra.

These conclusions, as well as the analysis and discussion upon which they are based, dispose of the first and second questions presented by appellant. Our careful review of the entire record and study of the briefs of the parties lead to the conclusion that the en banc opinion of the Northampton County Common Pleas Court has in able fashion provided for a proper disposition of the remaining contentions of appellant.

Judgment of sentence affirmed.

      . We note that the informant stated that he had “on numerous occasions purchased cocaine and marijuana from [appellant].” This statement alone, without specificity as to when purchases were made, is insufficient to warrant the conclusion that the informant has provided a declaration of criminal conduct against his penal interest. See Harris, supra, 403 U.S. at 583, 584, 91 S.Ct. at 2082. See also, Moyer, supra, 270 Pa.Super. at 398, 411 A.2d at 779; Commonwealth v. Burke, 235 Pa.Super. 36, 41, 340 A.2d 524, 527 (1975).