Kincel v. COM., DEPT. OF TRANSP.

• Decision Date: 09 February 2005
• Citation: 867 A.2d 758
• Parties: Gerald KINCEL and Lisa Kincel, Husband and Wife v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, and Dick Corporation Appeal of Commonwealth of Pennsylvania, Department of Transportation.
• Court: Pennsylvania Commonwealth Court

867 A.2d 758

Gerald KINCEL and Lisa Kincel, Husband and Wife v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, and Dick Corporation

Appeal of Commonwealth of Pennsylvania, Department of Transportation.

Commonwealth Court of Pennsylvania.

Argued December 6, 2004.

Decided February 9, 2005.

Michael A. Giannetta, Scranton, for appellant.

Neil T. O'Donnell, Wilkes-Barre, for appellees, Gerald and Lisa Kincel.

James F. Lynn, Philadelphia, for appellee, Dick Corp.

BEFORE: McGINLEY, Judge, and LEAVITT, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge LEAVITT.

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT), appeals from an order of the Court of Common Pleas of Luzerne County (trial court) denying its motion for summary judgment. This case presents an issue of first impression: whether an employee of a Commonwealth agency, injured in the course of his employment, can collect workers' compensation benefits and also maintain a suit against a different Commonwealth agency for his injuries. The trial court determined that such an action is permissible. We reverse.

On July 18, 2000, Appellee Gerald Kincel (Kincel), a Pennsylvania State Trooper, was investigating the scene of a motor vehicle accident on Interstate Route 81 in Luzerne County, Pennsylvania. As Kincel lifted a traffic sign that was lying on the roadside, part of the roadway collapsed and the officer fell into a hole approximately nine feet deep. Kincel sustained injuries to his left knee, right ribs and left wrist. He was out of work for six weeks and returned to light-duty work for eight weeks. Kincel received workers' compensation benefits and benefits under the act commonly referred to as the Heart and Lung Act.¹

Further background to the incident is as follows. In 1998, Appellee Dick Corporation contracted with PennDOT to perform road work in the area where Kincel was injured. At this point in the litigation, there is apparently no dispute that Dick Corporation was responsible for the formation of the hole and that PennDOT was aware of the dangerous condition at least eight weeks prior to Kincel's accident.²

Kincel filed a civil complaint against PennDOT and Dick Corporation in April 2002. His wife, Lisa Kincel, joined in his action with a claim for loss of consortium. In its answer, Dick Corporation asserted a crossclaim against PennDOT seeking indemnification and/or contribution in the event that it was found liable in whole or in part for Kincel's injuries. PennDOT filed a motion for summary judgment arguing, inter alia, that Kincel's claim and Dick Corporation's crossclaim were barred by the exclusivity provisions of Section 303 of the Workers' Compensation Act (Act).³ CompServices, Inc., the administrator of the Commonwealth of Pennsylvania's workers' compensation program, has also asserted a lien in the amount of $8,309.29 against any recovery by Kincel on his third-party claims. Reproduced Record at 35 (R.R. ____).⁴

The trial court denied PennDOT's summary judgment motion, reasoning that each of the Commonwealth's governmental agencies is an employer independent of the Commonwealth itself and that PennDOT is neither Kincel's employer nor his statutory employer.⁵ PennDOT petitioned the trial court pursuant to Pa.R.A.P. 1311(b) to amend its order to certify a controlling question of law for interlocutory appeal.⁶ The trial court denied PennDOT's petition by order dated June 15, 2004. PennDOT petitioned this Court for review and on July 23, 2004, we granted the petition. The matter is now ready for disposition.⁷

Section 303(a) of the Act bars an employee from bringing a suit at common law against his employer for injuries sustained in furtherance of the employer's business; it makes benefits under the Act the sole and exclusive means for an individual to recover for such injuries. Sutmire v. Andrews, 108 Pa.Cmwlth. 90, 529 A.2d 68, 70 (1987). Section 303(b) preserves the common law right of action by the employee against a third-party tortfeasor but generally immunizes the employer from liability to the third party for contribution or indemnification. Id.⁸ The term "employer" as used in the Act, is "synonymous with master, and ... include[s] ... the Commonwealth, and all governmental agencies created by it." Section 103 of the Act, 77 P.S. § 21.

The trial court's analysis focused on the relationship, or lack thereof, between Kincel and PennDOT. The court first looked to the statutory definition of "employer" in the Act, which, as stated above, includes "the Commonwealth and all governmental agencies created by it." Id. In the trial court's view, Section 103 means that each Commonwealth agency, such as PennDOT and the Pennsylvania State Police, is a separate employer, independent of the Commonwealth itself. From this premise, the trial court reasoned that none of the usual criteria were present to establish an employment relationship between Kincel and PennDOT.⁹ Accordingly, the trial court determined that PennDOT was not entitled to the immunity generally extended to a "statutory employer."¹⁰ The trial court's analysis is flawed. While it may be true that Kincel is not assigned to PennDOT, the real issue is whether Kincel is an employee of the Commonwealth. The answer to this question lies first in certain fundamental principles of our Commonwealth government. The organization and management of the Commonwealth's executive branch is governed generally by those provisions of the Pennsylvania Constitution dealing with the "Executive Department"¹¹ and "Public Officers;"¹² by the Administrative Codes of 1923¹³ and 1929¹⁴ (Administrative Code); and by other portions of Title 71 of the Pennsylvania Statutes relating to state government. For example, Section 201 of the Administrative Code states that

[t]he executive and administrative work of this Commonwealth shall be performed by the Executive Department, consisting of the Governor, Lieutenant Governor, Secretary of the Commonwealth, Attorney General, Auditor General, State Treasurer, and Secretary of Education; by the Executive Board, and the Pennsylvania State Police.

71 P.S. § 61 (emphasis added). The Commissioner of the State Police is nominated and appointed by the Governor upon approval by a majority of the Senate. Section 207.1(d)(1) of the Administrative Code, 71 P.S. § 67.1(d)(1). The various members of the State Police Force are appointed by the Commissioner and receive such compensation as shall be fixed by the Commissioner, with the approval of the Governor. Section 205(c) of the Administrative Code, 71 P.S. § 65(c).¹⁵ The Commonwealth has organized itself into branches of government but that does not mean that each branch and each department is a separate legal person.¹⁶

PennDOT offered uncontroverted evidence that Kincel is an employee of the Commonwealth. Linda M. Bonney, Director of the Bureau of Human Resources for the Pennsylvania State Police, submitted an affidavit stating inter alia that (1) all State Troopers are paid by the Commonwealth and receive a paycheck drawn from the State Treasury, signed by the State Treasurer; (2) all State Troopers receive a Commonwealth of Pennsylvania Employee Pay Statement; (3) the Commonwealth provides medical benefits and life insurance for State Troopers and pays their employment taxes; (4) a pension from the State Employee Retirement System is provided to all State Troopers; (5) workers' compensation coverage and Heart and Lung Act disability benefits are provided to State Troopers by the Commonwealth;¹⁷ (6) State Troopers work under a collective bargaining agreement between their union and the Commonwealth of Pennsylvania.¹⁸ R.R. 36-37. Ms. Bonney also noted that "the Pennsylvania State Police does not have its own funding source, and all of its funding as a state agency, comes from the Commonwealth of Pennsylvania." R.R. 37. In consideration of the evidence offered by PennDOT, and the fundamental principles of Commonwealth government enumerated above, it is beyond peradventure that all State Troopers, including Kincel, are employees of the Commonwealth who ultimately serve at the behest of the Governor.

Tellingly, Kincel offered no evidence to rebut the fact that he is an employee of the Commonwealth. Instead, Kincel argues that our Supreme Court's decision in Tork-Hiis v. Commonwealth, 558 Pa. 170, 735 A.2d 1256 (1999), is controlling here. We disagree. In Tork-Hiis, decedents died while cross-country skiing in a state park. Their survivors (appellees) commenced wrongful death and survivor actions against the Commonwealth and two "John Doe" defendants. The Commonwealth preliminarily objected on the grounds that it was statutorily immune, that appellees had failed to name a "Commonwealth party" for which immunity had been waived, and that the statute of limitations precluded amendment of the complaint. The trial court determined that the Commonwealth and a Commonwealth agency are separate and distinct entities and, thus, appellees could not amend their complaint after the statute of limitations had run because addition of a new party would be prejudicial to that party. This Court reversed, finding that the addition of an agency was a mere correction of the caption and was permissible, even after the statute of limitations had expired, so long as the same assets were exposed to judgment before and after the amendment. Tork-Hiis v. Commonwealth, 714 A.2d 518 (Pa.Cmwlth.1998), reversed, 558 Pa. 170, 735 A.2d 1256 (1999).

The Pennsylvania Supreme Court reversed our decision, holding that for purposes of tort litigation "[t]he [C]ommonwealth and its agencies are distinct legal entities; the substitution of one for the other amounts to the addition of a new party and is impermissible after the statute of limitations expires." Tork-Hiis, 558 Pa. at 177, 735 A.2d at 1259. The Court further explained that

the plaintiff seeks to name a new defendant, one whose assets, although ultimately

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