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STEPHEN D. SUTMIRE v. THEODORA ANDREWS AND HARRY N. ANDREWS V. MUNICIPALITY MONROEVILLE. THEODORA ANDREWS AND HARRY N. ANDREWS (07/29/87)

decided: July 29, 1987.

STEPHEN D. SUTMIRE
v.
THEODORA ANDREWS AND HARRY N. ANDREWS V. THE MUNICIPALITY OF MONROEVILLE. THEODORA ANDREWS AND HARRY N. ANDREWS, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Stephen D. Sutmire v. Theodora Andrews and Harry N. Andrews, No. G.D. 85-3437.

COUNSEL

Louis C. Long, Meyer, Darragh, Buckler, Bebenek and Eck, for appellants.

Mark F. McKenna, Mazzotta & Winters, P.C., for appellee, Municipality of Monroeville.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 108 Pa. Commw. Page 91]

Theodora and Harry Andrews (Appellants) appeal from an order of the Court of Common Pleas of Allegheny County, which granted summary judgment to the Municipality of Monroeville (Monroeville) in Appellant's third-party action against Monroeville. We affirm.

On March 12, 1983, Stephen D. Sutmire (Sutmire), a Monroeville police officer, was on patrol when his police

[ 108 Pa. Commw. Page 92]

    vehicle was struck by a vehicle driven by Theodora Andrews. The cause of the accident was allegedly due to the Appellant's vehicle hitting a patch of ice on the road. Sutmire received workmen's compensation benefits from Monroeville.

Sutmire then filed suit against Appellants, alleging that Theodora Andrews had negligently struck his vehicle. Appellants answered, contending that the collision was unavoidable due to the icy condition of the roadway on which both vehicles were travelling. Appellants subsequently joined Monroeville as an additional defendant, alleging that Monroeville had negligently failed to remove ice and snow from the roadway or to salt or cinder the roadway.

Monroeville moved for summary judgment on the basis that Appellants' third-party complaint was barred by Section 303(b) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 Appellant defended on the basis that Monroeville occupied a dual capacity vis-a-vis Sutmire, in that it owed him the same duty of care as that owed to the general public. The trial court granted Monroeville's motion and this appeal followed.

Section 303 of the Act provides as follows:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as ...


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