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).1 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.2
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 *375full 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.3 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 *376under 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 *377concurring 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 *378Workmen’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.
. 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.