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Nat'l Cas. Co. v. Kinney

Superior Court of Pennsylvania

April 25, 2014

NATIONAL CASUALTY COMPANY, Appellant
v.
JOHN KINNEY, ALEX OSTOPICK, JOSEPH PRICE, STEPHEN BECK, TOBYHANNA ARMY DEPOT AND UNITED STATES OF AMERICA, Appellees

Argued October 30, 2013

Page 748

[Copyrighted Material Omitted]

Page 749

Appeal from the Order of the Court of Common Pleas, Monroe County, Civil Division, No(s): 10410-10. Before ZULICK, J.

Robert J. Grimm, Pittsburgh, for appellant.

David S. Smacchi, Kingston, for appellees.

BEFORE: GANTMAN, J., SHOGAN, J., and PLATT, J.[*]

OPINION

Page 750

GANTMAN, J.

Appellant, National Casualty Company (" NCC" ), appeals from the order entered in the Monroe County Court of Common Pleas, denying its motion for summary judgment in this declaratory judgment action. We affirm.

The relevant facts and procedural history of this case are as follows. John Kinney (" Kinney" ), Alex Ostopick (" Ostopick" ), Joseph Price (" Price" ), and Stephen Beck (" Beck" ) (collectively " the MTP Appellees" )[1] were employees of Tobyhanna Army Depot (" Tobyhanna" ), who participated in a vanpool Mass. Transportation Program (" MTP" ) sponsored by the United States Department of Transportation. Tobyhanna provides vouchers, issued from the Department of Transportation, to employees who voluntarily participate in the MTP to defray the cost of renting or leasing a van.

Specifically, Tobyhanna employees who participate in the MTP select a van or van company of their choosing and submit an application to the Tobyhanna Management Assistant for approval. Van companies seeking to participate in the program must also obtain approval from Tobyhanna.[2] Once approved, the Management Assistant orders vouchers from the Department of Transportation, and distributes the vouchers to the employees to use towards payment for renting or leasing the van. Employees who do not participate in the MTP for more than 50 percent of the month must repay Tobyhanna for the vouchers already received. All full-time employees participating in the program receive vouchers of the same value regardless of how far they travel to work. Likewise, all part-time employees participating in the program receive vouchers of the same value regardless of how far they travel to work. Tobyhanna does not require its employees to participate in the MTP, and

Page 751

employees can opt-out of the program at any time. Participating employees deal directly with van companies and can maximize their voucher amount by carefully selecting van companies based on price. The vouchers constitute fringe benefits, which do not come out of participating employees' salaries.

On November 1, 2009, Beck leased a van from Trygar Transportation, Inc. (" Trygar" ) for transportation to and from Tobyhanna. The MTP Appellees and McClernon used vouchers provided by Tobyhanna as part of the MTP to lease the vehicle. Trygar maintained an automobile liability insurance policy with NCC. The lease states that Trygar's insurance policy provides coverage to van drivers, except drivers under 25 years old or drivers with motor vehicle violations within the past three years. After leasing the van, the MTP Appellees and McClernon met daily at a nearby parking lot to drive to and from work together. The MTP Appellees and McClernon took turns driving throughout the month.

On December 16, 2009, Beck was operating the leased van with the other MTP Appellees and McClernon as passengers, traveling from the designated parking lot meeting place to Tobyhanna. That morning, they were involved in a motor vehicle accident in which Kinney and McClernon were injured. Kinney and his wife subsequently filed a complaint sounding in negligence in the Luzerne County Court of Common Pleas against Beck and Trygar for injuries Kinney sustained in the accident.

On October 27, 2010, NCC, Trygar's insurance company, filed a declaratory judgment action in the Monroe County Court of Common Pleas naming the MTP Appellees, McClernon, Tobyhanna, and the United States of America as defendants. NCC's complaint asked the court to declare the MTP Appellees and McClernon were in the course and scope of their employment at the time of the motor vehicle accident, such that the Pennsylvania Workers' Compensation Act at 77 P.S. § 1, et seq. (" WCA" ) was the sole remedy available to Kinney. NCC further sought the court to declare that it has no coverage obligations relative to any injuries or damages sustained by the MTP Appellees or McClernon arising out of the December 16, 2009 motor vehicle accident.

On January 18, 2013, NCC filed a motion requesting the court to enter summary judgment, declaring that the MTP Appellees and McClernon were acting in the course and scope of their employment at the time of the motor vehicle accident; Kinney's right to seek recovery for injuries arising from the motor vehicle accident is limited to recovery under the WCA; and NCC has no legal obligations relative to any injuries or damages sustained by the MTP Appellees or McClernon arising from the motor vehicle accident. Kinney filed a response in opposition on January 31, 2013. On March 21, 2013, the trial court denied NCC's motion for summary judgment. NCC timely filed a notice of appeal on April 18, 2013. The next day, the court ordered NCC to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and NCC timely complied. On May 13, 2013, this Court issued an order directing NCC to show cause why this Court should not dismiss the appeal as interlocutory. NCC responded on May 22, 2013. On May 28, 2013, this Court discharged the rule to show cause, permitting the appeal to proceed and advising the parties to address the issue in their briefs. NCC complied with this Court's directive, and we discuss our jurisdiction over the order in question as the first issue on appeal.[3]

NCC raises three issues for our review:

Page 752

WHETHER THE INSTANT APPEAL SHOULD BE REVIEWED ON THE MERITS BY THIS HONORABLE COURT, AS THE TRIAL COURT'S DENIAL OF [NCC'S] MOTION FOR SUMMARY JUDGMENT EFFECTIVELY DISPOSED OF, AS A MATTER OF LAW, ALL CLAIMS AS AGAINST ALL PARTIES IN THE DECLARATORY JUDGMENT ACTION?
DID THE TRIAL COURT ERR IN RULING THAT APPELLEE, MR. JOHN KINNEY, AND THE OTHER APPELLEE EMPLOYEES, SHOULD NOT BE RESTRICTED TO OBTAINING RELIEF UNDER THE WORKERS' COMPENSATION ACT, BY CONCLUDING THAT THE " EMPLOYMENT CONTRACT" EXCEPTION TO THE " COMING AND GOING" RULE DID NOT APPLY DUE TO A LACK OF SIGNIFICANT EMPLOYER CONTROL OVER THE COMMUTING PROGRAM, WHERE SUCH A HEIGHTENED STANDARD IS NOT CONTEMPLATED BY THE LAW?
DID THE TRIAL COURT ERR IN RULING THAT THE RIDE SHARING ACT PRECLUDES THE OPERATION OF THE WORKERS' COMPENSATION ACT, WHERE THE RIDE SHARING ACT EXPLICITLY STATES THAT THE WORKERS' COMPENSATION ACT SHALL APPLY WHEN THE MOTOR VEHICLE USED IN A RIDE SHARING ARRANGEMENT IS OWNED OR LEASED BY AN EMPLOYER?

(NCC's Brief at 4) (emphasis in original).

Initially we observe:

" Our scope of review of an order granting summary judgment is plenary." Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 2000 PA Super. 400, 764 A.2d 1100, 1103 (Pa.Super. 2000), appeal denied, 566 Pa. 664, 782 A.2d 546 (2001). " [W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact." Id. " We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered." Caro v. Glah, 2004 PA Super. 490, 867 A.2d 531, 533 (Pa.Super. 2004) (citing Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002)).
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of [his] cause of action. Grandelli v. Methodist Hosp., 2001 PA Super. 155, 777 A.2d 1138, 1145 n.7 (Pa.Super. 2001). Summary judgment is proper " if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." Pa.R.C.P. 1035.2. Thus, a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no ...

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