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BRINKER v. GREENSBURG. (11/13/62)

November 13, 1962

BRINKER, APPELLANT,
v.
GREENSBURG.



Appeal, No. 198, March T., 1962, from judgment of Court of Common Pleas of Westmoreland County, July T., 1960, No. 266, in case of Harry D. Brinker v. City of Greensburg and Stinson Brown. Judgment affirmed.

COUNSEL

John D. Lyons, Jr., with him Scales and Shaw, for appellant.

Robert W. Smith, Jr., with him Smith, Best and Horn, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 409 Pa. Page 111]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal presents two questions: (1) is a volunteer fireman, an employee of a third class city for purposes of the Workmen's Compensation Act but not otherwise, or generally, a city employee, barred from suing the city in a trespass action to recover damages sustained while he was engaged in the performance of his duties as a volunteer fireman?; (2) if he is barred, is the city nevertheless required to defend in a trespass action which such volunteer fireman has instituted jointly against the city and another defendant?

On April 7, 1959, H. D. Brinker, a member of Hose Company No. 6, a volunteer fire company in the City of Greensburg (City), was driving his own automobile to the fire company's station house for standby service during a fire. At the intersection of West Otterman and Westminster Streets in Greensburg, a collision occurred between Brinker's automobile and a fire truck owned by Hose Company No. 6 which was then being operated, en route to a fire, by Stinson Brown. As a result of this collision, Brinker sustained both personal injuries and damage to his automobile.

[ 409 Pa. Page 112]

Brinker instituted a trespass action in the Court of Common Pleas of Westmoreland County against both Brown, the operator of the fire truck, and the City. Brinker's complaint, consisting of three counts, alleges both joint and several liability on the part of Brown and the City. The City filed an answer containing new matter wherein it averred that Brinker was a volunteer fireman acting, at the time of the accident, in the course of his duties; that, as such volunteer fireman, Brinker was within the provisions of the Workmen's Compensation Act; that, after the accident, Brinker applied for and received the benefits to which he was entitled under that Act; that he, therefore, was an employee to whom the City was not liable in a trespass action. Brinker, responding to the City's new matter, averred that he was only a limited employee for the purposes of the Workmen's Compensation Act and that his relationship to the City as such did not bar this trespass action. The City moved for and the court below granted judgment on the pleadings. From such judgment this appeal was taken.

Certain facts, for the purpose of this appeal, may be taken as established: (a) at the time of accident Brinker was performing the duties of a volunteer fireman for the City; (b) as such volunteer fireman Brinker was within the provisions of and received benefits from the Workmen's Compensation Act; (c) Brinker was not on the City payroll nor a general employee of the City.

By virtue of the provisions of the Workmen's Compensation Act*fn1 (Act), a volunteer fireman becomes entitled to workmen's ...


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