Co., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978). In Heckendorn, the Superior Court stated that the Workmen's Compensation Act "has created an exception to the general right of contribution among tortfeasors. Thus a defendant whose negligence is alleged to be responsible for an injury suffered by an employee protected by the Workmen's Compensation Act, may not, in the suit brought against him, join the employer as an additional defendant." 439 A.2d at 675.
In the present case, Doninger Metal Products argues that plaintiff was not protected by the Pennsylvania Workmen's Compensation Act and, therefore, the Act's bar of suits against an employer does not apply to this case. To address this argument, we must consider first whether the United States is an "employer" within the meaning of the Act.
"Employer" is defined in the Act as "synonymous with master, and . . . includes natural persons, partnerships, joint stock companies, corporations for profit, corporations not for profit, municipal corporations, the Commonwealth, and all governmental agencies created by it." 77 P.S. § 21. The federal government is not among those employers specified in the Act. However, the Pennsylvania Legislature could not include the federal government under the definition of employer. The Commonwealth is without power to compel the federal government to participate in a state workmen's compensation program. Nevertheless, the broad definition of employer under the Compensation Act indicates that the Legislature intended the Act to cover as many employment relationships in Pennsylvania as possible. The master in a master-servant relationship qualifies as an employer under the Act, and the rules for determining the existence of the employer-employee relationship are the same as those at common law for ascertaining the relationship of master and servant. Workmen's Compensation Appeal Board v. American Mutual Liberty Insurance Co., 19 Pa.Commw. 502, 339 A.2d 183 (1975). Those common law rules were enunciated in Cookson v. Knauff, 157 Pa.Super. 401, 43 A.2d 402 (1945), where the court said the master-servant relationship exists where the employer has the right to select the employee, the power to remove and discharge, and the right to direct both what work shall be done and the manner in which it shall be done. Applying these rules, we find that the United States is an employer within the meaning of the Pennsylvania Workmen's Compensation Act.
Next we must address the issue whether the bar of the Workmen's Compensation Act in suits against employers applies to the United States as a defendant. This issue is controlled by federal law. While state substantive law provides the cause of action, federal law ultimately determines whether the United States has waived sovereign immunity and consented to suit.
In Indian Towing Co. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955), the Supreme Court emphasized that the federal government decided to waive its immunity in tort cases and agreed to be treated like a private entity. Therefore, a district court should accord the United States the same rights and liabilities as a private entity. Indian Towing Co., supra at 65. We conclude that it is of no consequence that the federal government is not listed among the "employers" in the Pennsylvania Workmen's Compensation Act because federal law controls the rights and liabilities of the United States. United States v. Georgia Public Service Commission, 371 U.S. 285, 9 L. Ed. 2d 317, 83 S. Ct. 397 (1963).
Doninger Metal Products also argues that the protections afforded to "employers" under the Workmen's Compensation Act should not be extended to the United States because it does not contribute to the Pennsylvania workmen's compensation fund. In the present case, plaintiff's injuries were compensated through the Federal Employees' Compensation Act. 5 U.S.C. § 8101 et seq. Doninger argues that the "quid pro quo" -- the payment by an employer into the compensation fund in order to be protected from suits by employees under the Act -- is absent because plaintiff was compensated by a federal program. This argument is insufficient to overcome the overriding federal interest that tort victims be compensated when the federal government, treated as a private entity, is liable under state law.
Congress enacted the Federal Employees Compensation Act to assist the federal government achieve its goal of becoming a "model employer." See S. Rep. No. 1081, 93rd Cong., 1st Sess., reprinted in (1974) U.S. Code Cong. & Ad.News 5341. In a realistic sense, the Act is the government's "answer to Workman's Compensation, . . . first enacted in Pennsylvania three years prior to the passage of the F.E.C.A." Lorenzetti v. United States, 710 F.2d 982, 985 (3d Cir. 1983). That the federal program rather than the state program paid benefits to plaintiff is not significant. Because Pennsylvania law requires private employers to pay premiums to the workmen's compensation fund and because federal law requires the United States to be a private employer in tort cases, it can be assumed for litigation purposes that the requirement of a "quid pro quo" has been satisfied. We hold the fact that the federal government did not make payments to the Pennsylvania workmen's compensation fund does not affect the bar of state law in a tort suit against the United States as an employer.
To summarize, the United States has waived its immunity in tort actions by enacting the Federal Tort Claims Act. The United States is liable in tort to the same extent as a private employer in like circumstances. In a tort action, the United States assumes the characteristics of a private employer, and the court should not consider its governmental characteristics when determining liability. The substantive law of Pennsylvania provides the cause of action and the federal government, in its assumed role of a private entity, is subject to the liability and immunity offered by state law.
In the present case, the United States is immune from liability because state law provides that a private employer is immune in like circumstances. Summary judgment will be entered for the United States on the third-party complaint. A written order will follow.
ORDER OF COURT
AND NOW, this 16th day of May, 1984,
IT IS ORDERED that the motion of the United States for summary judgment be and hereby is granted.
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