Apple v. Reichert

• Decision Date: 27 May 1971
• Citation: 278 A.2d 482,443 Pa. 289
• Parties: Ruth T. APPLE and Ammon A. Apple, Appellants, v. Phyllis M. REICHERT, William P. Reichert, Virginia Maris Bonner and Catherine H. Bonner.
• Court: Pennsylvania Supreme Court

Page 482

278 A.2d 482

443 Pa. 289

Ruth T. APPLE and Ammon A. Apple, Appellants, v. Phyllis M. REICHERT, William P. Reichert, Virginia Maris Bonner and Catherine H. Bonner.

Supreme Court of Pennsylvania.

May 27, 1971.

Rehearing Denied July 1, 1971.

C. David Krewson, Stuckert, Yates & Krewson, Newtown, David Freeman, Philadelphia, for appellants.

Peter A. Glascott, Doylestown, for appellees, Virginia Maris Bonner and Catherine H. Bonner.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

BARBIERI, Justice.

This is an appeal from the refusal of the court below to strike off an involuntary nonsuit entered in favor of one of the defendants, Virginia Bonner, in a trespass action for personal injuries. The question of this defendant's liability was tried before a judge without a jury and the nonsuit was entered at the close of appellant's case. ¹ The court En banc dismissed appellants' motions to strike off the nonsuit and for a new trial, supporting this action with an extensive and thorough opinion. From the En banc order this appeal was taken.

The accident out of which this case arose occurred in June of 1965, when plaintiff-appellant, Ruth Apple, was a passenger in an automobile being operated by appellee, Virginia Bonner. The vehicle was involved in an intersectional collision with another automobile being operated by Phyllis Reichert, a co-defendant in the action below. At that time both appellant and appellee were employed as school teachers by the Centennial Joint School System in Bucks County. It was the practice in the school in which they taught to meet their respective classes at one school building, take the roll and lunch count, and thereupon the pupils were transported by school bus to another school building where school classes were held. These two teachers had no specific duties to perform on the school bus and were officially authorized to proceed to the classroom site, either by means supplied by themselves or on the school bus. When the accident occurred they were in transit from the first to the second school.

The appellant, in addition to instituting this trespass action, made a workmen's compensation claim under the Workmen's Compensation Act (Act), ² against the school district and was granted injury compensation benefits under a regular agreement for compensation entered into with her employer's carrier and filed with the Bureau of Workmen's Compensation.

Appellee, Virginia Bonner, interposed as a defense in the trespass action that she was immune from liability by virtue of a 1963 amendment adding Section 205 to the Act, Act of August 24, 1963, P.L. 1175, No. 496, § 1, 77 P.S. § 72 (Supp.1971), which provides: 'If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.'

The trial court concluded that both appellant and appellee were acting within the scope of their employment and in the course of their employer's business; that the Act was applicable; that Section 205 of the Act as amended (77 P.S. § 72), did provide immunity from liability for appellee; and that, therefore, a compulsory nonsuit must be entered in favor of the appellee. As we have noted, the court En banc, after an extensive review of the law, agreed and dismissed appellant's motion.

The question raised on this appeal is whether or not the parties were in the 'same employ' when the accident occurred within the meaning of the 1963 amendment so that the appellee would be immune from liability for her negligence as to her co-employe. The language of the amendment, as we read it, clearly provides that a co-employe is immune from liability for his negligent act resulting in injury to his fellow employe. Holdings to that effect have been uniform at the trial level. See e.g., McSparran v. Hanigan, 225 F.Supp. 628 (E.D.Pa.1963), Aff'd 356 F.2d 983 (3d Cir. 1964); Knauss v. Gaines, 49 Dist. & Co.2d 269 (1970). In addition, courts in other jurisdictions having similar or identical co-employe provisions in their Workmen's Compensation Acts have reached the same conclusion--the co-employe is immune from liability. Stillwell v. McGrath, 85 N.J.Super. 252, 204 A.2d 385 (1964); Konitch v. Hartung, 81 N.J.Super. 376, 195 A.2d 649 (1963); Groves v. Marvel, 213 A.2d 853 (Del.1965); Solomon v. Russo, 21 N.Y.2d 688, 282 N.Y.S.2d 554, 229 N.E.2d 231 (1960); Lambiase v. Schecter, 22 A.D.2d 648, 253 N.Y.S.2d 16 (1964). See generally, 101 C.J.S. Workmen's Compensation § 985.

Appellant argues that the new Section 205 applies only where the act or omission occurs within the Scope of the sued employe's employment and that, although the appellee was acting within the Course of her employment, she was not acting within the Scope of her employment. Appellant argues further that the purpose of the amending act was to prevent recovery against the employer's liability carrier and not to protect employes from liability to their fellow employes. He draws this conclusion from the fact that employe immunity is only provided for where the injury is compensable under the Act. This purpose, he urges, is accomplished if Section 205 is applied only in cases where the employe is acting within the 'scope' of his employment. Finally, appellant argues that the result of the lower court's decision is to bestow a windfall on appellee's automobile liability insurance carrier and relieve it from liability for a peril against which it had issued insurance.

It is fundamental, of course, that a judgment of nonsuit can be entered only in clear cases; that the plaintiff, appellant herein, must be given the benefit of all evidence favorable to her, together with all reasonable inferences of fact arising therefrom; and that any conflict in the evidence must be resolved in her favor. Repyneck v....