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Kulik v. Mash

September 16, 2009

RODERICK KULIK AND ANITA KULIK, HUSBAND AND WIFE, APPELLANTS
v.
ROSE MASH, APPELLEE



Appeal from the Order entered June 9, 2008 In the Court of Common Pleas of Allegheny County, Civil, No. GD-07-018275.

The opinion of the court was delivered by: Klein, J.

BEFORE: KLEIN, ALLEN and COLVILLE*fn1, JJ.

OPINION

¶ 1 Roderick Kulik*fn2 appeals from the Order granting Rose Mash's summary judgment on the ground that the claim is barred by the Workers' Compensation Act. We agree with the ruling of the trial judge, the Honorable Paul F. Lutty, Jr., and affirm.

¶ 2 Kulik arrived approximately 30 minutes early, for his job at Sears Roebuck & Co in Pittsburgh and was sleeping in his car until it was time to start his shift.*fn3 He claims that he was injured when another Sears employee, Rose Marsh, backed into his car while he was in it.

¶ 3 The issue turns on whether Kulik was in the scope of his employment at the time of the accident. He was in the parking lot furnished by the employer but was not in the process of walking to the building. However, he was just taking a cat nap because he arrived early and was doing nothing else other than waiting. We find that this is more akin to arriving at the parking lot and directly proceeding to the building than doing something else unrelated to work, such as shopping. Accordingly, we believe this case is barred by the Workers' Compensation Act. A full discussion follows.

Discussion

¶ 4 Several principals of law are clear. If an injury occurs within the scope of employment due to the negligence of a fellow employee who is also in the scope of his or her employment, any private tort action between employees is barred by the Workers' Compensation Act. Jadosh v. Goeringer, 275 A.2d 58 (Pa. 1971); Gardner v. Erie Insurance Company, 691 A.2d 459 (Pa. Super. 1997).

¶ 5 It is also clear that if there is a parking lot supplied by the employer and the injury occurs immediately as the employee alights from the vehicle on his or her way to the job, this is also covered by the Workers' Compensation Act and the bar applies. In a similar case, this Court said

[E]ven though not actually engaged in the employer's work, an employee will be considered to have suffered an injury in the course of employment if the injury occurred on the employer's premises at a reasonable time before or after the work period.

Albright v. Fagan, 671 A.2d 760, 762 (Pa. Super 1996), citing Motion Control Ind. V. W.C.A.B., 603 A.2d 675, 678 (Pa. Commw. 1992). See also Dennis v. Kravco Company, 761 A.2d 1204 (Pa. Super. 2000).

¶ 6 At the same time, there are also cases which hold that even if the employee is injured in the employee parking lot, if he or she is not going directly to the car but engaging in unrelated activities, such as shopping or delaying for several hours before going to the car for some other reason, this is not within the scope of employment.

1. Cases where there is no workers' compensation bar

ΒΆ 7 Kulik refers to a number of cases to support his argument that he was not in the course and scope of his employment, more specifically he was not furthering his employer's business, and therefore is not ...


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