Dissenting Opinion by
Jacobs, J.:I respectfully dissent.
The law, as I am able to distill it from the spattering of cases in this area, is not so generous to the nonemployer-defendant as the majority would suggest.
“The great majority of jurisdictions have held that the employer whose concurring negligence contributed to the employee’s injury cannot be sued or joined by the third party as a joint tortfeasor, whether under contribution statutes or at common law.” 2 A. Larson, Workmen’s Compensation Law §76.21 at 235 (1974). See Note, Contribution and Indemnity: The Effect of Workmen’s Compensation Acts, 42 Va. L. Rev. 959 (1956) ; Annot. 53 A.L.R. 2d 977 (1957). This result is reached because “the employer is not jointly liable to the employee in tort; therefore he cannot be a joint tortfeasor. The liability that rests upon the employer is an absolute liability irrespective of negligence, and . . . is the only kind of liability that can devolve upon him whether he is negligent or not. The claim of the employee against the employer is solely for statutory benefits; his claim against the third person is for damages. The two are different in kind and cannot result in a common liability.” 2 A. Larson, supra §76.21 at 235-38 (footnotes omitted). “Absent such common liability, it is reasoned, the parties may not be deemed joint tortfeasors. Thus, contribution may not be per*428mitted.” Elston v. Indus. Lift Truck Co., 420 Pa. 97, 101, 216 A.2d 318, 320 (1966).
The Pennsylvania rule, however, does permit the joinder of the employer as an additional defendant on the basis of joint liability or liability over.1 But as stated by the Court in Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940), the liability of the employer is limited to the amount of its statutory liability under the Workmen’s Compensation Act.2 This is so because the Act eliminated “any trespass cause of action whatsoever against the employer” and substituted the workmen’s compensation procedures. John W. Brown, Jr. Equip. Rental Corp. v. Dickey, 397 Pa. 454, 461, 155 A.2d 836, 840 (1959). “There is no common liability based in tort, for the employer is simply not liable in tort.” Id. The Court observed that “[t]o allow the third party tortfeasor even the limited right of contribution up to the amount of the employer’s workmen’s compensation liability, as we do in Pennsylvania, is most generous indeed. He is not so well treated in other jurisdictions.” Id. at 462, 155 A.2d at 840.
This elimination of liability is precisely the reason why the additional defendant-employer cannot be joined on the basis of sole liability. The Court stated in Shaull v. A. S. Beck N. Y. Shoe Co., 369 Pa. 112, 115, *42985 A.2d 698, 701 (1952) : “It must be immediately obvious that [employer] cannot be retained on the record as additional defendant on the ground of being solely liable to plaintiff, since its liability to its employe for injury or death in the course of his employment is only that prescribed by the Workmen’s Compensation Act. . . .” The procedure of joining the employer as an additional defendant “is for the sole and exclusive purpose of protecting the original or third-party defendant’s right of contribution from the employer. . . .” Socha v. Metz, 385 Pa. 632, 638-39, 123 A.2d 837, 840 (1956) (emphasis added). In Grasha v. Ingersoll-Rand Co., 439 Pa. 216, 266 A.2d 710 (1970), the Court held that an employer joined as an additional defendant could be fixed with responsibility, by virtue of the Workmen’s Compensation Act, only on the theory of joint liability. The Court held that “Steel [the employer] could not be solely liable, as a matter of law. . . .” Id. at 220, 266 A.2d at 712 (emphasis original).
The decisions, it seems to me, follow logically from the reading of Rule 2252.3 The rule permits the joinder of any person “who may be alone liable or liable over to [the joining party] on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him. . . Pa. R.C.P. 2252(a) (emphasis added). By virtue of the Workmen’s Compensation Act the employer is not liable on the basis of sole liability on the muse of action declared upon by the plaintiff. The employee’s common law right to damages for injuries suffered in the course of his employment “is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor ... is abrogated. . . .” *430Carroll v. Whitemarsh Township Sewer Auth., 83 Montg. Co. L.R. 180, 181 (Pa. C.P. 1964). See John W. Brown, Jr. Equip. Rental Corp. v. Dickey, supra. Because an employer cannot be solely liable as a matter of law on tbe cause of action declared upon, see Crasha v. Ingersoll-Rand Co., supra, joinder on tbat basis is not proper and preliminary objections to joinder on tbat ground will be sustained. Carroll v. Whitemarsh Township Sewer Auth., supra.
Tbe majority states: “We, therefore, begin our analysis with tbe premise tbat any [nonemployer] defendant who is tbe joining party may allege tbe sole liability of tbe additional defendant employer, and has the concomitant right to an instruction to tbat effect. . . .” On this point I most strenuously disagree. As stated above, Rule 2252(a) permits joinder on one or more enumerated grounds where tbe party to be joined would be liable on such ground or grounds on tbe cause of action declared upon by tbe plaintiff. Because an employer is not solely liable as a matter of law on the cause of action, be cannot be joined on tbe basis of sole liability. Since be cannot be joined on tbat basis, there is no “concomitant right to an instruction” on tbat ground simply because no one objected to tbe joinder.4
*431The majority would, have us believe that “the trial judge effectively precluded the original defendant from establishing his own due care, and thus forced the jury to conclude that if there was negligence at all, Duquesne was negligent, and consequently liable to the Burkes.” However, this conclusion is unsupported in both logic and fact. First, there were no restrictions which prohibited Duquesne from establishing its own freedom from negligence. In being compelled to compete against an additional defendant who could not be found solely liable, Duquesne’s position was not materially different from that in which it would have been in the majority of jurisdictions where the employer could not even have been joined. Secondly, the judge charged the jury: “If you find that the Duquesne Light Company was not negligent, then, under the law and the pleadings in this particular case, then [sic] your verdict must be in favor of both Defendants.” Record at 395a. This charge did not “[force] the jury to conclude that if there was negligence at all, Duquesne was negligent. . . .”
In my opinion the trial judge in the instant case was correct in his evaluation of the law. He presented to the jury the alternatives in the verdicts which the law would permit, and he did not foreclose to Duquesne the opportunity to prove itself free from negligence.
I would affirm the judgment below.
Hoffman, J., joins in this dissenting opinion.Implicit in this rule “is the view that the definition of ‘jointtortfeasors’ does not require that they have a common liability toward the injured party but only that their combined conduct be the cause of the injury.” Elston v. Indus. Lift Truck Co., 420 Pa. 97, 102 n.2, 216 A.2d 318, 320 n.2 (1966).
See, e.g., Elston v. Indus. Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966) ; John W. Brown, Jr. Equip. Rental Corp. v. Dickey, 397 Pa. 464, 155 A.2d 836 (1959) ; Shaull v. A. S. Beck N. Y. Shoe Co., 369 Pa. 112, 85 A.2d 698 (1952) ; Stark v. Posh Constr. Co., 192 Pa. Superior Ct. 409, 162 A.2d 9 (1960) ; O’Neill v. United States, 450 F.2d 1012 (3d Cir. 1971) ; Nuzzo v. Commercial Concrete Co., 366 F. Supp. 1333 (E.D. Pa. 1973) ; Madrin v. Wareham, 344 F. Supp. 166 (W.D. Pa. 1972).
Pa. R.C.P. 2252.
The majority, relying upon two Pennsylvania Supreme Court decisions, implies that the proper procedure would have been to send the entire case to ¡the jury and then, in the event of a verdict against the additional defendant-employer alone, to either grant a judgment n.o.v. as in Grasha v. Ingersoll-Rand Co., 439 Pa. 216, 266 A.2d 710 (1970), or mark the judgment satisfied as in Winters v. Herdt, 400 Pa. 452, 162 A.2d 392 (1960). Although each of these procedures was tacitly “approved,” the approval extends to an available remedy after a verdict has been incorrectly rendered, and does not suggest a preferred procedure. Moreover, nowhere does it appear in either of these cases that any objection was ever raised to the manner in which the ease was submitted to the jury.