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HomeMy WebLinkAbout99-3184 civilEARL KNISLEY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CONSOLIDATED RAIL CORPORATION, DEFENDANT IN RE: 99-3184 CIVIL TERM PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT BEFORE BAYLEY, J. AND OLER, J. OPINION AND ORDER OF COURT Bayley, J., November 16, 1999:- Plaintiff, Earl Knisley, filed an amended complaint against defendant Consolidated Rail Corporation. Plaintiff seeks damages for injuries he alleges he incurred on defendant's property on January 18, 1999, in a fall caused by an accumulation of ice. Plaintiff asserts two causes of action arising out of that accident, (1) common law negligence, and (2) a Federal Employers' Liability Act claim.' Defendant filed preliminary objections in the form of a demurrer only to the FELA claim which was briefed and argued on October 13, 1999. Plaintiff pleaded in his amended complaint: 8. At the time of the accident and the injuries herein after [sic] alleged, Plaintiff was employed by the Defendant as a Conductor. At the time of the accident that [sic] Plaintiff was planing to attend to union business at the Conrail Enola facility. In that the union related business is an essential part of Conrails' interstate commerce, ~ 45 U.S.C. § 51 et seq. 99-3184 CIVIL TERM Plaintiff was engaged in work in furtherance of interstate commerce at the time of his accident. 9. The accident was caused by the Defendant's violation of the Federal Employers' Liability Act in that the Defendant failed to provide the Plaintiff with a reasonably safe place to work. 10. Defendant had a duty to provide the plaintiff with a reasonably safe work place [sic]. (Emphasis added.) In its preliminary objection defendant maintains that plaintiff's averment that "At the time of the accident that [sic] Plaintiff was planning to attend to union business at the Conrail Enola facility," is sufficient to conclude as a matter of law that plaintiff was not on defendant's property for purposes of his employment with the railroad, and therefore, he does not have a claim under the Federal Employers' Liability Act. In a response to defendant's preliminary objection, plaintiff admitted that he was a conductor for defendant and at the time of the accident he was not working as a conductor. A demurrer can be granted only if"[o]n the facts alleged the law states with certainty that no recovery is possible." Moser v. Heistand, 168 Pa. Commw. 109 (1994). In order to recover under the FELA, plaintiff must prove that he was injured while in the scope of his employment, his employment was in furtherance of his employer's business, the employer was negligent, and the employer's negligence caused the injury for which the compensation is sought. Rose v. Shaplin Marine Transport, 895 F.Supp. 856 (S.D.W.Va. 1995). In Lafferty v. Pennsylvania Railroad Company, 124 F.Supp. 324 (E.D.Pa. 1954), and Hill v. Gulf, Mobil & Ohio Railroad Company, 288 Miss. 811, 12 So.2d 157 (1960), it was held in each case that a railroad employee who -2- 99-3184 CIVIL TERM was injured on the railroad's premises while conducting union activities was not on the premises as a necessary incident to the discharge of the duties of employment within the contemplation of the Federal Employers' Liability Act, and therefore, the employee had no right of action under that Act to recover damages for injury. Plaintiff herein seeks to differentiate these cases because they both involved allegations of a railroad's liability based on an intentional tort, as contrasted to this case which involved an accidental tort. At this juncture that appears to be a distinction without a difference. The United States District Court in Lafferty and the Supreme Court of Mississippi in Hill had a record upon which to base their holdings. In contrast, we have limited factual averments regarding plaintiff's union activities at the time of the accident. There are insufficient facts as to the particulars of those activities upon which a demurrer can be granted? AND NOW, this Accordingly, the following order is entered. ORDER OF COURT ~(,.O day of November, 1999, the preliminary objection of -3- defendant to the FELA count in plaintiff's amended complaint, IS DISMISSED. Edgar B. Bayley, J.~ 2 Plaintiff attached an affidavit to his brief in which he avers facts that he maintains show that his union activities on the day of his fall on defendant's property were for the purpose of his employment with the railroad. The affidavit is useless because an attachment to a brief is not part of the record. Pa. Rule of Civil Procedure 1017; McAIIonis v. Pryor, 301 Pa~ Super. 473 (1982). 99-:3184 CIVIL TERM Gerard J. Martillotti, Esquire For Plaintiff Craig J. Staudenmaier, Esquire For Defendant :saa -4-