The opinion of the court was delivered by: MUIR
The Keeners bring this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., and invoke the Court's jurisdiction under 28 U.S.C. § 1346(b) seeking to recover damages for injuries caused by a motor vehicle accident between Plaintiffs' vehicle driven by Mr. Keener and a vehicle owned by the United States and driven by Army Sergeant Robert Alan Ludwig. The accident occurred shortly after midnight on December 17, 1976. The issue whether Sergeant Ludwig was acting within the scope of his employment at the time of the accident was tried to the Court without a jury separately pursuant to Fed.R.Civ.P. 42(b) on September 25 and September 26, 1980. The following constitute the Court's findings of fact, discussion and conclusions of law with respect to that issue.
1. Plaintiff Dennis Paul Keener is an adult individual who resides at 107 Bunker Hill Road, R.D. # 2, New Cumberland, Pennsylvania, within the jurisdiction of this Court. (Undisputed, hereinafter U).
2. Plaintiff Marian J. Keener, is the wife of Dennis Paul Keener and is an adult individual who resides at 107 Bunker Hill Road, R.D. # 2, New Cumberland, Pennsylvania. (U)
3. Defendant Department of the Army, United States of America, is a military department of the Defendant, United States of America. (U)
4. Robert Alan Ludwig is and was at all times relevant to this action a sergeant in the United States Army on active duty.
5. Dennis P. Keener, on December 16, 1976, was employed by the U.S. Army at the New Cumberland Army Depot, New Cumberland, Pennsylvania, as a civilian employee. (U)
6. On December 16, 1976, Dennis P. Keener worked at the U.S. Army Depot at New Cumberland and left his job for home after the night shift at approximately 12:00 midnight. (U)
7. On December 17, 1976, at approximately 12:05 A.M. Dennis P. Keener was driving his 1976 Honda automobile owned jointly by him and his wife on his way home from work. (U)
8. On December 17, 1976, shortly after 12:00 midnight, the weather was clear and the roadway was dry. (U)
9. On December 17, 1976, shortly after 12:00 midnight, Dennis P. Keener was driving in a westerly direction on Pennsylvania Route 114, in Fairview Township, York County, Pennsylvania. (U)
10. In December 1976 Sergeant Robert Alan Ludwig was an Army Recruiter stationed in Chambersburg, Pennsylvania. (U)
11. In his capacity as an Army Recruiter Robert Alan Ludwig was ordered by Temporary Duty (TDY) orders to attend a two-day recruiting seminar sponsored by the Department of the Army on December 16 and 17, 1976 at the Sheraton Motor Lodge, New Cumberland, Pennsylvania.
12. Robert Alan Ludwig's TDY orders read that he was to go from Chambersburg to Harrisburg and return, with variation authorized.
13. Department of Defense joint travel regulations provide that:
4. VARIATION IN ITINERARY. Travel orders may include authorization for variation in itinerary so as to permit:
1. omission of travel to places stated in the travel order,
2. changes in the order of continuity of places shown,
3. changes in the original specified time duration at a place stated in the travel order,
14. Robert Alan Ludwig's written official travel authorization did not specify how many meals he should eat a day or where he should eat. (U)
15. In connection with his temporary duty assignment to the professional development seminar at the Sheraton Motor Inn, New Cumberland, Pennsylvania, Sergeant Robert Alan Ludwig was authorized to use a United States Government vehicle for the purpose of obtaining meals at locations other than the Sheraton Motor Inn.
16. Robert Alan Ludwig was authorized a per diem allowance for room and meals of $ 46.00 per day. (U)
17. After paying for his room at the Sheraton, Sergeant Ludwig had approximately $ 29.00 in per diem expense allowance money available to him, to apply towards food from noon on Thursday, December 16, 1976 to noon or shortly thereafter on December 17, 1976 when the seminar concluded.
18. Charles E. Hartz and Ronald G. Nonnemacher were Army sergeants and were attending the recruiter's seminar at the Sheraton Motor Lodge on December 16 and 17, 1976. (U)
19. On the evening of December 16, 1976, Robert Alan Ludwig was ordered to attend a banquet provided by his recruiting ...