Appeal from order of Court of Common Pleas of Cameron County, Sept., T., 1972, No. 23, in case of William T. Flanders and Alice V. Flanders v. Susan Gore Hoy.
Andrew J. Conner, and Dunn & Conner, for appellants.
Norbert J. Powell, and Brahaney and Powell, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 230 Pa. Super. Page 323]
This appeal arises from the order of the lower court which sustained the preliminary objections of the defendant, Mrs. Hoy, and struck off the plaintiff's complaint in trespass. The court thereupon entered judgment for the defendant. The facts of the case, which are not disputed, are as follows:
[ 230 Pa. Super. Page 324]
Mrs. Flanders, the plaintiff-appellant herein, and Mrs. Hoy both worked for the Pennsylvania Department of Transportation (PennDot) in its Cameron office. Mrs. Flanders, the chief clerk in that office, lived in the small community of Sinnemahoning approximately fifteen miles southeast of Cameron. Mrs. Hoy, her assistant, lived within one mile of the office and ordinarily left home at 7:55 a.m. in order to reach the office at 8:00 a.m., the time both women began work. Both were paid hourly wages,*fn1 had an unpaid lunch hour, and finished their regular workday at 4:30 p.m. On the particular day of the instant mishap, March 24, 1972, they had been instructed not to report to Cameron, but to go directly to Clearfield instead in order to attend a seminar on medical benefits for PennDot employees which was to begin there at 9:00 a.m. Since their duties included handling personnel records relating to medical insurance, the conference would have been valuable to them in their work.
Mrs. Hoy and Mrs. Flanders decided that Mrs. Hoy would use her car for the trip to Clearfield. Therefore, on the day of the seminar Mrs. Hoy arrived at Mrs. Flanders' residence around 7:30 a.m. Since Mrs. Hoy's car was used for the trip, PennDot paid her ten cents per mile. Although the women were not required to report in at Cameron, and the seminar in Clearfield was scheduled to begin at nine o'clock and conclude at three in the afternoon, the women were paid a full day's wage based on a 7 1/2 hour working day.
The ladies were only five miles from their destination when, at approximately 8:30 a.m., Mrs. Hoy attempted to pass a convoy of vehicles. The car skidded off the highway, through a ditch, and came to rest in
[ 230 Pa. Super. Page 325]
a roadside field. The accident occurred during the regular working hours of both women. They were taken to the hospital and released in time to reach the seminar at ten-thirty. When the seminar concluded that afternoon, they rode back to the Cameron office with some friends. PennDot paid Mrs. Flanders workmen's compensation for the accident,*fn2 and she brought the instant suit against Mrs. Hoy in tort alleging negligence.
Mrs. Hoy, through preliminary objections to the complaint, raised the fellow employee immunity section of the Workmen's Compensation Act,*fn3 which provides: "Liability of Fellow Employe. If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while ...