his regular duties as a driver-salesman would be detrimental to his health and well-being, the defendant ordered the decedent back to work, there by causing his death. The question here involved is do these allegations state a cause of action for negligence, which cause of action is not barred by the exclusive remedy provisions of the Workmen's Compensation Act of Pennsylvania, Act of July 2, 1915, P.L. 736 as amended, 77 P.S. § 1 et seq. (hereinafter referred to as the 'Act')?
The defendant has moved to dismiss the action and for summary judgment. It argues that we are without jurisdiction to hear this case because of the Act. Unfortunately we cannot agree. Reading the complaint in the light of such cases as Stufflet v. Fraternal Order of Eagles, 1949, 164 Pa.Super. 473, at page 476, 65 A.2d 443; Ricketts v. Bell Telephone, Co., 1955, 178 Pa.Super. 588, at pages 592-593, 115 A.2d 818; Lorigan v. W. O. Gulbranson, Inc., 1957, 184 Pa.Super. 251, at page 255, 132 A.2d 695; and Gammaitoni v. Gasparini Excavating Co., 1958, 185 Pa.Super. 643, at pages 645-647, 139 A.2d 679, the conclusion seems inescapable that the plaintiff has effectively pleaded himself without the terms of the Act.
This being so, he is free to pursue any common-law remedy which may exist within this remaining circumscribed area of facts. See Dolan v. Linton's Lunch, 1959, 397 Pa. 114, 152 A.2d 887.
We point out, however, that if, during the course of discovery or at trial, it is affirmatively established that the decedent's death resulted from an 'accident' and not merely from the aggravation of an existing abnormal condition, which aggravation was caused by the decedent simply performing his ordinary and regular duties, then a proper motion to dismiss will be entertained.
Only a word need be said concerning the remaining issue in this case, i.e., whether the complaint otherwise states a cause of action under the law of Pennsylvania. Although we have been unable to discover a Pennsylvania case directly on point, there is precedent in the law for allowing recovery on analogous facts. See for example Dunn v. Conemaugh and Black Lick Railroad Co., 3 Cir., 1959, 267 F.2d 571; Nuttall v. Reading Co., , 3 Cir., 1956, 235 F.2d 546; Bascho v. Pennsylvania Railroad Co., 1949, 3 N.J.Super. 86, 65 A.2d 613; Restatement of Torts, § 323 (1934 Ed.)
Recognizing the peculiar relationship between an employer and his employee and the fundamental duty of an employer to exercise reasonable precautions against injury to his employees while they are in his service and obeying his orders, a jury might reasonably find an employer negligent in ordering an employee whom it knew was physically unfit to perform his normal duties, to perform such duties, thereby causing his death.
Dunn v. Conemaugh and Black Lick Railroad, supra. Again we merely point up the difficulty of the plaintiff's proof, if he is to prevail at trial. Nevertheless the fact that the plaintiff has chosen a long and steep road to recovery does not justify our blocking that road at this point.
In light of what has already been said, defendant's motion to dismiss and for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., will of course be denied. There are a number of genuine issues as to certain material facts, which issues must necessarily be resolved by a jury, thus precluding summary judgment. Bragen v. Hudson County News Co., Inc., 3 Cir., 278F.2d 615.