The opinion of the court was delivered by: SNYDER
This diversity action for wrongful death arises from the crash of an Aero Commander 690 during a training flight in the vicinity of Wellsburg, West Virginia on August 14, 1972. Plaintiff's Decedent was the co-pilot of the aircraft. The Plaintiff, Mary L. Kinchloe, the surviving spouse of the Decedent, Robert C. Kinchloe, is a resident of Allegheny County, Pennsylvania. The action was brought by the surviving spouse for herself and for her minor child, Robert J. Kinchloe, who is also a resident of Allegheny County, Pennsylvania. The Decedent was also a Pennsylvania resident.
Rockwell is a Delaware corporation and hired Robert C. Kinchloe at its business headquarters in Pittsburgh, Pennsylvania. The employee was acting within his scope of employment on this training flight which originated and was to terminate at the Greater Pittsburgh Airport.
Rockwell sets up in full defense the Pennsylvania Workmen's Compensation Act which admittedly applied to Pennsylvania employment and which statute contains the following (77 Purdon's Statutes, Sec. 481):
"Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided, in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife or husband, widow or widower, next of kin, and other dependents."
The surviving spouse, Mary L. Kinchloe, requested and received benefits under the Pennsylvania Workmen's Compensation Act.
As is stated in 6 Moore's Federal Practice, P 56.17 at page 2708:
". . . Hence in an action by an employee against his employer to recover for negligent injury or for violation of a statutory duty, a motion by the employer for summary judgment on the ground that the workmen's compensation law is applicable and recovery must be in accordance therewith, the motion may be properly granted if there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, . . . ."
In Wooddell v. Washington Steel Corporation, 269 F. Supp. 958 (W.D.Pa.1967), a death action was brought against decedent's employer. Motion for Summary Judgment under Federal Rule of Civil Procedure No. 56 was granted, since the plaintiff's decedent had accepted the provision of the Workmen's Compensation Act and acceptance under 77 Purdon's Statutes § 481 "shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of employment, . . . ."
In Watson v. D/S A/S Idaho, 359 F. Supp. 496 (E.D.Pa.1973) a longshoreman brought an action against the owner of the vessel for injuries he received while working on a pier, unloading bales of hay from the vessel. The defendant made a Motion for Summary Judgment, which was granted. The Court stated on page 497 that there were no disputed facts, saying: "The facts are essentially undisputed. On May 19, 1971, plaintiff, a resident and citizen of Pennsylvania, was injured while performing duties within the course of his employment as a longshoreman." The particular piece of equipment which caused the harm to the plaintiff was not owned by the defendant, but by the employer of the plaintiff. The defendant had no ownership or control of the item of equipment. The defendant established its lack of ownership and/or control with affidavits, and Summary Judgment was granted. The rationale was stated at page 498, as follows:
"Plaintiff's position regarding control of the operation, pier, and cherry picker rest upon mere allegations or denials and not upon specific facts supported by affidavits. Accordingly, we find that there is no genuine issue concerning control; ...