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January 17, 1983

Robert GUFFEY, Dorothy Smith and Thomas Smith, Jacqueline Savage and James Savage
Michael J. LOGAN and William R. Meeker, Inc. v. LEVITTOWN-FAIRLESS HILLS RESCUE SQUAD and Robert Guffey

The opinion of the court was delivered by: MCGLYNN

 McGLYNN, District Judge.

 This diversity suit arises out of an automobile accident between an ambulance and another vehicle. Although one would expect that legal issues arising out of such an occurrence would be relatively simple, novel and thorny issues concerning third party practice and the Pennsylvania Workmen's Compensation Act ("PWCA") have arisen.

 Plaintiffs in this case are Robert Guffey, Dorothy Smith, her husband Thomas Smith, Jacqueline Savage and her husband James Savage. Guffey, Mrs. Smith and Mrs. Savage are all volunteer members of the Levittown-Fairless Hills Rescue Squad ("Rescue Squad"). In December of 1978, Guffey was driving an ambulance in response to an emergency call by the police. With him were Mrs. Smith and Mrs. Savage both of whom were emergency medical technicians. While en route, they collided with a vehicle operated by one of the defendants, Michael J. Logan, and owned by the other defendant, William R. Meeker, Inc. The three plaintiffs in the ambulance were injured, they assert, as a result of the defendants' negligence. Mr. Smith and Mr. Savage join as plaintiffs alleging the loss of the society, service, companionship and consortium of their spouses.

 Defendants then filed a third party complaint against Guffey and the Rescue Squad. In it they contend that if they are found liable to the plaintiffs, then Guffey and the Rescue Squad are liable over to them for either contribution or indemnity. The third party defendants have now moved for summary judgment asserting that they are both immune from liability under the PWCA, and, in addition, that the Rescue Squad cannot be vicariously liable for an immune employee.

 Rule 56 of the Federal Rules of Civil Procedure provides that a district court shall enter summary judgment where "the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . . ." Fed.R.Civ.P. 56(c). The court must recognize, though, that it is a drastic remedy, resolve all doubts as to the existence of genuine fact against the moving party, and view all inferences from the facts in the light most favorable to the parties opposing the motion. Continental Insurance Co. v. Bodie, 682 F.2d 436 (3d Cir.1982). The issues presented in this motion and in the defendants' responses are legal issues involving statutory interpretation and application of common law principles to the material facts of this case all of which are undisputed. *fn1" Thus, summary judgment is an appropriate procedure for resolving these issues.

 Motion for Summary Judgment of Robert Guffey

 Guffey seeks summary judgment based on the argument that he is immune under the PWCA which provides that:

if disability . . . is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability . . . for any act or omission occurring while such person was in the same employ as the person disabled . . . .

 Pa.Stat.Ann. tit. 77, § 72 (Purdon Supp.1982). The immunity supplied by this provision has been invoked successfully by several employees in suits by co-employees and their spouses. See Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971) (nonsuit affirmed); DeLong v. Miller, 285 Pa. Super 120, 426 A.2d 1171 (1981); Flanders v. Hoy, 230 Pa.Super.Ct. 322, 326 A.2d 492 (1974) (dismissal of complaint affirmed). *fn2"

 The parties agree, and I concur, that Guffey, Mrs. Smith and Mrs. Savage are co-employees under the PWCA and are covered by workmen's compensation insurance provided by Bristol Township. See Pa.Stat.Ann. tit. 77, § 1031(a)(2) (Purdon Supp.1982). As a result, Guffey is entitled to immunity. The fact that it is the defendants who seek to impose liability through contribution or indemnity and not Guffey's co-employees directly does not require a different result. See Dodick v. Norfolk and Western Railway Co., 326 F. Supp. 1154 (W.D.Pa.1971) (summary judgment granted in favor of third party defendant). Cf. Nationwide Mutual Insurance Co. v. Campbell, 45 Pa.D. & C.2d 675 (1968). Thus, Guffey is also immune from any liability to defendants based upon a theory of contribution or indemnity. Accordingly, summary judgment in favor of Guffey, as a third-party defendant, is appropriate.

 Motion for Summary Judgment of the Rescue Squad

 The resolution of the Rescue Squad's motion for summary judgment is not so simple a matter. The Rescue Squad raises two theories on its behalf. First, they contend it is immune from suit under the PWCA as an employer pursuant to Pa.Stat.Ann. tit. 77, § 481(b) (Purdon Supp.1982). Second, they assert they can not be vicariously liable for Guffey if he is found immune from liability.

 I begin with the second and easier of these contentions. Defendants admit that the sole basis for recovery against the Rescue Squad is that the latter is vicariously liable as Guffey's employer. Because Guffey can not be liable by reason of the immunity provided co-employees, the Rescue Squad contends it can not be vicariously liable for any negligence of Guffey. This assertion misperceives the nature of vicarious liability.

 The policy underlying vicarious liability was stated by Dean Prosser as follows:

 W. Prosser, The Law of Torts, § 69, at 459 (1971) (footnotes omitted). The predicate then for finding an employer vicariously liable is that the employee was negligent, not that the latter was liable. The Restatement (Second) of Torts puts it this way:

When the liability of one party to an action [here the employer] is based entirely upon a wrongful act by another [the employee], a judgment necessarily based upon the finding that the first is liable and the second party is not is inconsistent with itself, unless the second party has a personal immunity or has been discharged from liability.

 Restatement (Second) of Torts § 883, Comment b (1979). The Restatement (Second) of Agency is even more explicit:

In an action against a principal based on the conduct of a servant in the course of employment:
* * *
(b) The principal has no defense because of the fact that: . . . (ii) the agent had an immunity from civil liability as to the act.

 Restatement (Second) of Agency § 217 (1958). The latter Restatement section has been relied upon by the Supreme Court of Pennsylvania in Wicks v. Milzoco Builders Inc., 481 Pa. 554, 393 A.2d 300 (1978). The court held that although a township's Supervisors were immune from liability for their negligence in permitting construction which created drainage problems affecting plaintiffs' property, the township was nonetheless still subject to respondeat superior liability. Cf. Koontz v. Messer, 320 Pa. 487, 181 A. 792 (1935) (principal not relieved of respondeat superior liability because of agent's immunity from suit).

 Two cases have suggested such a result in construing the PWCA. In Dodick v. Norfolk and Western Railway Co., supra, the plaintiffs were injured when the truck they were in collided with the defendant's train. The defendant, in turn, joined the driver of the truck and truck's owner. The driver was awarded summary judgment because of the immunity provided him by section 72. See discussion supra, at 3. In dictum, however, the court suggests that the owner, who was the driver's employer, might still be vicariously liable to the extent then allowed by the PWCA.

 The case relied upon in Dodick is Nationwide Mutual Insurance Co. v. Campbell, supra. Although not a case involving a third party defendant, it did deal with the issue of contribution by an employee and an employer in a matter involving the PWCA. There, the plaintiff, an insurance carrier, had settled a claim with an injured employee who had been in an accident with the plaintiff's insured. The plaintiff then sought contribution from a co-employee also involved in the accident and their employer. Because the employee had coverage under the PWCA, his co-employee was found immune from liability. The employer, however, did not fare as well:

A different situation arises with reference to [the employer]. It is true that at common-law the master is liable because of the imputed negligence of his servant. However, the excusing from liability of the servant under the act does not eliminate the fact that a tort has been committed.

 45 Pa.D. & C.2d at 677. Thus, the employer was not freed from the lawsuit because of ...

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