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KOHLER v. UNITED STATES

February 12, 1985

FREDERICK C. KOHLER, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: MENCER

 Plaintiff instituted this diversity action against the defendant, the United States of America, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. Arguing that application of the FTCA and the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq. bar recovery in this case, the United States filed a Motion to Dismiss or, Alternatively, for Summary Judgment, along with briefs in support and the affidavits of Homer K. Browne, Jr., and Ralph V. McKnight. Plaintiff has filed a brief in opposition to defendant's motion and the affidavit of Julie Frazee Steidl.

 On or about October 2, 1981, the plaintiff was injured on the defendant's premises, the Butler Post Office, while attempting to load from defendant's dock onto his employer's truck, an overfilled mail hamper. The plaintiff was employed by McKnight Trucking, which was under contract with the United States Postal Service to transport mail.

 On September 30, 1983, the plaintiff submitted a claim to the United States Postal Service. This claim was rejected by letter dated November 30, 1983. Plaintiff, in addition, had submitted a claim for workmen's compensation benefits. Pennsylvania Manufacturer's Insurance Co., the insurance carrier for McKnight Trucking, paid this claim.

 We will treat this as a Motion for Summary Judgment. Summary judgment is proper under Rule 56(c) of the Federal Rules of Civil Procedure if there is no genuine issue as to any material fact. Disposition of this motion requires examination of two statutes -- the Federal Tort Claims Act and the Pennsylvania Workmen's Compensation Act.

 Traditionally, the United States has been immune to suit without its consent. The Federal Tort Claims Act provides a broad exception to this general rule. Under the FTCA, the United States is liable for the tortious conduct of its employees to the same extent as a private individual. United States v. Orleans, 425 U.S. 807, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976). The pertinent part of the FTCA, 28 U.S.C. § 2674, states:

 
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances but shall not be liable for interest prior to judgment or for punitive damages.

 In other words, the "government stands in the shoes of a private person in like circumstances." Hunt v. United States, 204 U.S. App. D.C. 308, 636 F.2d 580, 585 (D.C. Cir. 1980). We shall, therefore, accord the United States the same rights and liabilities as a private individual. We must determine whether the actions of the United States, if performed by a private individual, would have subjected the private individual to tort liability.

 The federal government's liability shall be determined "in accordance with the law of the place where the (wrongful) act or omission occurred." 28 U.S.C. § 1346(b). We will, therefore, consult Pennsylvania law because the injury occurred at the Butler Post Office in Butler, Pennsylvania. The law to be scrutinized is the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq., which guarantees immediate, fixed benefits to employees, regardless of fault, but as a quid pro quo denies them the right to sue their employer for any injury. 77 P.S. § 481(a).

 The defendant contends that the United States through its agent, the United States Postal Service, meets the criteria of "statutory employer" under the Pennsylvania Workmen's Compensation Act. If it is a statutory employer, it would be liable to pay workmen's compensation benefits, if required, as if to its own employee, but it would also be entitled to statutory immunity from the plaintiff's claim.

 Courts which have decided the issue of whether the United States may enjoy a statutory employer defense have reached mixed results. The Tenth Circuit in Richardson v. United States, 577 F.2d 133 (10th Cir. 1978), addressed the issue of whether the government may invoke a defense available under a state workmen's compensation statute and held that the statutory employer defense was not available to the United States. The Florida law of workmen's compensation was held to be controlling since the accident occurred in Florida. The court stressed that although the government had required the contractor and subcontractor to maintain adequate workmen's compensation insurance and such insurance was in effect at the time the plaintiff was injured, since the government did not have a duty to provide workmen's compensation insurance, it could not avail itself of the statutory employer defense. 577 F.2d at 134-35.

 The Fifth Circuit reached an opposite conclusion in Roelofs v. United States, 501 F.2d 87 (5th Cir. 1974), cert. denied, 423 U.S. 830, 46 L. Ed. 2d 47, 96 S. Ct. 49 (1975). The court reasoned that since the United States did, as a matter of its own policy, require the contractor to provide workmen's compensation insurance for its own employees it should enjoy the benefit of any immunity provided to private employers. In the Richardson case, the court discussed the Roelofs decision. "In Roelofs it was assumed that the United States, had it been a private employer, would have been liable for workmen's compensation under the Louisiana statute." 577 F.2d at 137. This is also true in Pennsylvania. In Pennsylvania, a statutory employer is liable to such an injured employee in the same manner and to the same extent as to his own employee. 77 Pa.C.S.A. § 52.

 We hereby adopt the reasoning in the Roelofs decision as it is more persuasive. The court in Watkins v. United States, 479 F. Supp. 785 (D.S.Car. 1979), expressed it well. "A private person who had done for his employees what the United States has required here would enjoy statutory employer immunity, therefore, it is appropriate that the United States should also enjoy that immunity." 479 F. Supp. at 788.

 In light of the statutory policy of Pennsylvania of supplanting an employee's common law rights against his employer with a system of benefits payable to the employee by the employer, without regard to negligence or contributory fault in return for the employer's immunity from common law liability, we will ...


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