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DOLAN v. LINTON'S LUNCH. (07/02/59)

July 2, 1959

DOLAN, APPELLANT,
v.
LINTON'S LUNCH.



Appeal, No. 246, Jan. T., 1958, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1957, No. 1652, in case of Joseph James Dolan v. Linton's Lunch. Order reversed. Trespass for personal injuries. Adjudication entered sustaining defendant's preliminary objections and dismissing complaint and order entered, opinion by DOTY, J. Plaintiff appealed.

COUNSEL

Irwin Paul, for appellant.

Paul H. Ferguson, with him James F. Malone, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 116]

OPINION BY MR. JUSTICE MCBRIDE

This is an appeal from an order sustaining defendant's preliminary objections in the nature of a demurrer to plaintiff's complaint in trespass.

Plaintiff, Dolan, averred that while he was lawfully on the premises of defendant, Linton's Lunch, pursuing his duties as its employee, one Bernard Boyle, a fellow employee, came upon the premises and without provocation proceeded to administer a beating to plaintiff. He alleged as well that this same fellow employee had been guilty of similar previous assaults upon other employees with knowledge of defendant, which therefore was guilty of negligence (a) in failing to provide a safe place for plaintiff to work; (b) in failing to provide adequate protection for the person of plaintiff while lawfully on the defendant's premises; (c) in inviting plaintiff upon its premises and failing to safeguard his rights; (d) in failing to keep Boyle from its premises; and (e) in failing to properly police its premises so that plaintiff could perform his duties without interference by Boyle.

[ 397 Pa. Page 117]

The complaint does not allege that the defendant is liable on a theory of respondeat superior nor does it in any way allege that the assailant committed the assault in the course of his employment.

In sustaining defendant's demurrer the court below held that the sufficiency of the complaint, in stating a common law cause of action in trespass, was not questioned but that the court had no jurisdiction to entertain the complaint since plaintiff was limited exclusively to the statutory remedy provided in the Pennsylvania Workmen's Compensation Act. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1, et seq. With this conclusion we cannot agree.

The Workmen's Compensation Act provides for compensation without resort to a suit at law in all cases of injuries to employees arising from accidents in the course of employment. It provides for compensation in such cases even though the employer was not negligent and the employee was.

Section 302(a) of the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 461, provides: "In every contract of hiring ... it shall be conclusively presumed that the parties have accepted the provisions of article three of this act, and have agreed to be bound thereby, unless there be, at the time of the making, ... an express statement in writing, from either party ...


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