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ROBERT E. TAYNTON v. RALPH W. DERSHAM AND SANDRA L. DERSHAM (10/27/86)

filed: October 27, 1986.

ROBERT E. TAYNTON, JR., ADMINISTRATOR OF THE ESTATE OF SHELLY LYN TAYNTON, DECEASED, APPELLANT,
v.
RALPH W. DERSHAM AND SANDRA L. DERSHAM, H/W, T/D/B/A MILTON SPORTS CENTER, MARK DERSHAM, DAVID L. SOHMER AND UNI-MARTS, INC.



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Lycoming County at No. 84-01288.

COUNSEL

Raymond E. Ginn, Wellsboro, for appellant.

Jonathan E. Butterfield, Williamsport, for appellees.

Wickersham, Brosky and Watkins, JJ.

Author: Wickersham

[ 358 Pa. Super. Page 180]

Robert E. Taynton, Jr. appeals from the judgment on the pleadings entered by the Court of Common Pleas of Lycoming County in favor of Uni-Marts, Inc.

Appellant is the administrator of the estate of his daughter, Shelly Lyn Taynton, who was employed by Uni-Marts, Inc., appellee herein, as a retail clerk in one of appellee's convenience stores located in Williamsport. On the early morning of July 5, 1982, Ms. Taynton was at work in the store when she was shot and killed by David L. Sohmer. Appellant commenced this civil action by writ of summons on July 3, 1984, naming as defendants Sohmer, Uni-Marts, Inc., Ralph W. and Sandra L. Dersham, t/d/b/a Milton Sports Center (where Sohmer purchased the gun used in the shooting), and Mark Dersham (the clerk who sold the gun to Sohmer).

Appellant filed a complaint on September 17, 1984 against the defendants listed above. Appellee Uni-Marts, Inc. and the Dershams filed answers containing new matter, to which appellant replied. On October 23, 1984, appellee moved for judgment on the pleadings, on the basis that under the Workmen's Compensation Act, it was immune from suit. Appellant filed an answer to the motion. On March 1, 1985, the lower court entered an order granting judgment on the pleadings in favor of appellee, to which appellant filed this timely appeal.*fn1

Appellant raises two issues before us:

1. Is appellee, Uni-Marts, Inc., subject to tort liability under the facts of the instant case on the basis that the doctrine of "Dual Capacity" provides that the Pennsylvania Workers' Compensation Act is not appellant's exclusive remedy under the facts of this case?

[ 358 Pa. Super. Page 1812]

. Whether the exclusivity provisions of the Workers' Compensation Act as applied to a parent and personal representative of a decedent violates Article 1, Section 11 and Article 3, Section 18 of the Pennsylvania Constitution, and the Fourteenth Amendment to the Constitution of the United States?

Brief for Appellant at 3.

Our court recently summarized our standard of review on an appeal from the granting of judgment on the pleadings:

Initially we note that to determine the propriety of awarding judgment on the pleadings, we must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. West Penn Administration Inc. v. Pittsburgh National Bank, 289 Pa. Super. 460, [467], 433 A.2d 896, 900 (1981) (citations omitted); Zelik v. Daily News Publishing Co., 288 Pa. Super. 277, 431 A.2d 1046 (1981); see also Wojcie-chowski v. Murray, 345 Pa. Super. 138, 497 A.2d 1342 (1985). The parties cannot be deemed to admit either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); West Penn, 289 Pa. Super. at [468], 433 A.2d at 900.

We will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa. Super. 267, 476 A.2d 1322 (1984); see also Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967); Wojcie-chowski, 345 Pa. Super. at [139], 497 A.2d at 1343. In conducting this inquiry, the ...


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