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YVONNE O. MANN v. CITY PHILADELPHIA (09/08/89)

decided: September 8, 1989.

YVONNE O. MANN, ADMINISTRATRIX OF ESTATE OF SCOTT A. MANN, DECEASED, APPELLANT,
v.
CITY OF PHILADELPHIA, APPELLEE



Appeal from Common Pleas Court, Philadelphia County, Honorable Samuel M. Lehrer, Judge.

COUNSEL

Stephen T. Saltz, Daniels, Saltz & Mongeluzzi, Ltd., Philadelphia, for appellant.

Anna C. Pace, Chief Asst. City Sol., Barbara R. Axelrod, Divisional Deputy Sol., Norma S. Weaver, Deputy in Charge of Claims, and Seymour Kurland, City Sol., Philadelphia, for appellee.

Barry, McGinley and Smith, JJ.

Author: Mcginley

[ 128 Pa. Commw. Page 501]

Yvonne O. Mann (Appellant), administratrix of the estate of her son, Scott A. Mann (Decedent) appeals from an order of the Court of Common Pleas of Philadelphia County which granted a motion for summary judgment on behalf of the City of Philadelphia (City) dismissing Appellant's lawsuit against the City.

During July 1981, Decedent was hired by the City as a temporary employee as a lifeguard. Decedent, who had completed his junior year in high school, began working on July 6, 1981, at the Island Road Recreation Center in the City. Decedent worked eight hour days from 11:00 a.m. to 8:00 p.m. and was given an unpaid one hour dinner break. From July 6, 1981, through August 8, 1981, Decedent took his dinner break between 4:00 p.m. and 5:00 p.m. The record indicates that Decedent began work on August 11, 1981, at 11:00 a.m. and took his dinner break at 5:00 p.m. when the pool was closed to the public for the 5:00 p.m. to 6:00 p.m. dinner hour. (Reproduced Record, (R.R.) at 86a-90a.) George Wiley, a fellow employee working as a pool maintenance attendant, testified by deposition that at approximately 5:00 p.m. Decedent purchased some food at a nearby convenience store and consumed some pretzels before entering the pool. (R.R. at 86a, 89a.) Approximately five minutes after Decedent entered the pool and began swimming he drowned. (R.R. at 86a.)

In a "Participant and Spectator Injury Report," completed by George Wiley after the incident, Wiley stated that Decedent was swimming the breast stroke and was on one of his returns across the pool when he stopped and appeared to search for something on the bottom of the pool.

[ 128 Pa. Commw. Page 502]

(R.R. at 118a.) Wiley and Reginald Armstead, a lifeguard, pulled Decedent out and attempted to resuscitate him. Wiley and Armstead continued their attempt until the rescue squad arrived and transported Decedent to the hospital. (R.R. 118a-119a.) A City "Employee Injury Report" described the injury as "sudden death by drowning" and listed Decedent as "on duty" at the time of the incident. (R.R. at 77a.)

On September 23, 1982, Appellant filed a fatal claim petition for workmen's compensation benefits under The Pennsylvania Workmen's Compensation Act (Act) of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031. The City subsequently agreed to pay workmen's compensation benefits.

On February 22, 1983, Appellant filed a civil action for damages against the City alleging that the pool was operated in a negligent manner at the time Decedent drowned.

The City filed an answer and alleged as new matter that Appellant's exclusive remedy is workmen's compensation. After completion of discovery, the City filed a motion for summary judgment on the basis that Section 303(a) of the Act, 77 P.S. § 481(a)*fn1 bars Appellant's claim. The common pleas court reasoned that Decedent was engaged in an activity clearly related to and in the scope of his employment at the time of his death and thus held that Decedent drowned during the course of his employment. Consequently, the common ...


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