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filed: March 25, 1983.


No. 3174 PHILADELPHIA, 1981, Appeal from an Order dated November 9, 1981, of the Court of Common Pleas, Civil Division, of Cumberland County, No. 3089 of 1979.


David W. Knauer, Stroudsburg, appellant, in propria persona.

Mark Garber, Jr., Carlisle, for appellee.

Hester, Johnson and Popovich, JJ.

Author: Hester

[ 313 Pa. Super. Page 291]

Appellant, David Knauer, was injured on July 10, 1977, while on active training duty with the Pennsylvania National Guard. At the time of the events in question, appellant was assisting appellee, Major Edward Salter, in unloading a truck. As a result of Salter's alleged negligence, appellant sustained injuries to his left knee. He thereupon initiated legal action against appellee. Contending that appellant's action was barred as a matter of law, appellee filed a Motion for Summary Judgment. Said motion was granted by Order of Court on November 9, 1981. This appeal ensued.

A Motion for Summary Judgment should only be granted in those cases which present no genuine issues of material fact. Dippold v. Amherst Insurance Co., 290 Pa. Super. 206, 434 A.2d 203 (1981); Giannini v. Carden, 286 Pa. Super. 450, 429 A.2d 24 (1981); Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980). If there are no genuine issues as to any material fact, and the applicable law entitles the moving party to a judgment, then the motion is properly granted. See Pa.R.C.P. No. 1035(b).

Herein, an examination of the law reveals that summary judgment was appropriately entered. No dispute existed as to any of the material facts. The trial judge held that, as a matter of law, appellant was barred from suing appellee, a fellow member of the Pennsylvania National Guard, for damages allegedly caused by appellee's negligence. The trial judge ruled that state compensation benefits as provided in the Military Code of August 1, 1975, and as supplemented by federal compensation pursuant to 32 U.S.C.A. § 318 established an exclusive remedy for appellant. Since the state benefits are determined by the Pennsylvania Workmen's Compensation Act, the trial court declared that appellant was bound by the restrictions included in that Act. Finally, the waiver of sovereign immunity embodied in 42 Pa.C.S.A. § 8522(b)(8) for National Guard activities was deemed to be inapplicable to the case at bar.

The relevant federal statute provides:

[ 313 Pa. Super. Page 292]

Workmen's Compensation Law of Pennsylvania, the restrictions of the Workmen's Compensation Act were also applicable to appellant's recovery under 51 Pa.C.S.A. § 3501. The Workmen's Compensation Act explicitly bars an employee's common law right to sue a co-employee for damages resulting from the co-employee's negligence. See 77 Pa.S.A. § 72. Moreover, this Act defines the liability of the employer within the scope of the Act as "exclusive and in place of any and all other liability to such employees . . . ." 77 Pa.S.A. § 481(a). The trial judge opined that the Commonwealth, as the "employer," was solely liable to appellant for compensation for his injuries. Since the Commonwealth supplied an adequate remedy in 51 Pa.C.S.A. § 3501, appellant was prohibited from also pursuing his claim against appellee.

Appellant directs our attention to a recent Commonwealth Court opinion, Commonwealth, Pennsylvania National Guard v. Workmen's Compensation Appeal Board, 63 Pa. Commw.Ct. 1, 437 A.2d 494 (1981). In that case, a member of the Pennsylvania National Guard was awarded benefits by the Workmen's Compensation Appeal Board for an injury he sustained while engaged in training for the Guard. Although the Workmen's Compensation Act is the standard to be applied in determining the amount of compensation due to the injured guardsman under 51 Pa.C.S.A. § 3501, the court noted that the actual authority to grant relief lies with the Department of Military Affairs pursuant to 51 Pa.C.S.A. § 702. Consequently, the court resolved, compensation is exclusively provided under the state's Military Code. To permit recovery under the Workmen's Compensation Act would sanction double recovery. The Commonwealth Court therefore reversed, ruling that "a member of the Pennsylvania National Guard is not an employee within the intendment of the Workmen's Compensation Act." Id., 63 Pa. Commw.Ct. at 4, 437 A.2d at 491.

Appellant is correct that this case has abrogated portions of the trial court's rationale for ruling that appellant's action is barred. ...

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