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WILLIAM GILLESPIE v. HARRY VECENIE AND TRANSPORT MOTOR EXPRESS (10/30/81)

filed: October 30, 1981.

WILLIAM GILLESPIE, APPELLANT,
v.
HARRY VECENIE AND TRANSPORT MOTOR EXPRESS, INC.



NO. 64 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division-Law, of Allegheny County, at No. G.D. 79-10401.

COUNSEL

Thomas W. Brown, Pittsburgh, for appellant.

Harry Stump, Pittsburgh, for Vecenie, appellee.

Robert G. Simasek, Pittsburgh, for Transport Motor, appellee.

Hester, Brosky and Van der Voort, JJ.

Author: Van Der Voort

[ 292 Pa. Super. Page 13]

This is an action in trespass to recover damages for personal injuries sustained by plaintiff-appellant. Appellant was injured on August 10, 1978 at about 7:00 P.M. in a parking lot allegedly owned by defendant-appellee Transport Motor Express, Inc. (hereafter referred to as Transport). Appellant, an employee of Transport had a few minutes earlier "punched out" on the employer's time clock. The other defendant-appellee, Vecenie, was a dispatcher in the employ of Transport. It is alleged that an altercation occurred between Vecenie and appellant involving the "punching out" procedure; Vecenie followed appellant into the parking lot where he attacked him both verbally and physically.

The appellees filed Preliminary Objections in the nature of a demurrer to the original complaint; the complaint was amended. Preliminary objections were again filed and the Complaint was again amended. A third set of Preliminary Objections was filed, and briefs were submitted, after which Judge Del Sole sustained the objections and dismissed the complaint. The present appeal is from that order dated December 18, 1979.

Judge Del Sole's order is supported by his opinion which states, in effect: (1) that the common-law action in trespass by an employee against a fellow employee and against his employer is barred by the Pennsylvania Workmen's Compensation Act;*fn1 (2) that, in any event, Vecenie's intentional assault upon the appellant cannot be charged vicariously to the employer; and (3) further, that the employer's liability, if any, to appellant by reason of a failure to provide him a safe place to work, similarly, gives appellant a remedy only under the Workmen's Compensation Act (hereafter referred to as the Act).

The lower court relied on 77 P.S. ยง 411(1), which provides as follows:

[ 292 Pa. Super. Page 14]

The terms "injury" and "personal injury" as used in this Act, shall be construed to mean an injury to an employee, . . . arising in the course of his employment and related thereto . . . The term "injury arising in the course of his employment" as used in this article shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment ; but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer's business or affairs thereon, sustained by the employee, who though not so engaged, is ...


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