Appeal, No. 110, Jan. T., 1964, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1962, No. 2352, in case of Asbury Peatross v. Southwark Minit-Man Corp. Judgment affirmed.
Avram G. Adler, with him Freedman, Landy and Lorry, for appellant.
Richard D. Harburg, with him Swartz, Campbell & Detweiler, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
On February 13, 1961, appellant Asbury Peatross was employed by appellee Southwark Minit-Man Corporation in its car-wash installation. Due to an alleged "defective condition" in one of the automobiles being washed, the car lurched forward, striking and injuring Peatross. He filed a complaint in trespass against his employer which alleged: "... despite the defendant's knowledge, through its agents, servants, workmen and employees, that the plaintiff had sustained serious injuries, the defendant in violation of its obligations and duties under the circumstances neglected to ascertain or to keep a record of the identification of the automobile causing the injury and of its owners, operators, possessors and other persons responsible."
There followed a general allegation that appellant believes that his injuries were due to the negligence of the owners and possessors of the unidentified automobile.
The crux of appellant's action against his employer is that its failure to ascertain the license number of the vehicle or the identity of its owner or user precluded appellant from pursuing his alleged cause of action against the unknown third party. Consequently, appellant seeks from his employer those damages he believes he would have recovered had he been able to institute an action against the initial, alleged wrongdoer.
Appellee filed an answer denying the material averments of the complaint and alleging that it breached no duty or obligation owing to appellant. Appellee also pleaded "New Matter" which urged that appellant's remedy lay exclusively within the Workmen's Compensation Act. The answer was followed by a motion for judgment on the pleadings on the grounds that the complaint failed to state a cause of action
and that appellant was precluded from pursuing this action because of his receipt of benefits under the Pennsylvania Workmen's Compensation Act.
The motion was initially denied. However, after argument before the court en banc, the motion for judgment on the pleadings was granted without opinion on July 8, 1963. This appeal followed. On January 29, 1964, the court below filed its opinion revealing that its order of ...