482 A.2d 1055 | Pa. Super. Ct. | 1984
Lead Opinion
OPINION
Joseph V. Dunn, Jr., prior to the time of his death, was employed by the Defendant, United Insurance Company of America (hereinafter “United”). On June 23, 1979, he sustained a heart attack from which he was recovering. On September 28, 1979, United, acting through either or both Harry Fleisher and William Formwalt, co-employees, contacted Mr. Dunn at his home and advised him that his position of employment with the Defendant was to be changed and requested that he attend a meeting on October
Louise M. Dunn, in her capacity as Administratrix of the Estate of Joseph V. Dunn, Jr., deceased, filed this suit on September 24, 1980, in the Court of Common Pleas of Philadelphia County claiming damages against United, Fleisher and Formwalt for personal injuries as a result of the death of her husband, Joseph V. Dunn, alleging that the death was a result of wrongful, unjust and unlawful provocation and that the Defendants willfully conspired to deprive the Plaintiff of his position of employment. The Defendants filed an Answer and New Matter raising the defense of the Worker’s Compensation Act.
The Defendant, United, next filed a Motion for Summary Judgment and in the reply thereto it was admitted that the Plaintiff had received Worker’s Compensation benefits pursuant to the Order of Referee Perry. The trial court granted United’s Motion for Summary Judgment and this appeal follows.
The Plaintiff argues that this matter is controlled by the case of Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695, which held that where an injury to an employee occurs as a
“Though, we find a cause of action stated against both defendants, we are foreclosed, by the record from giving the lower court definitive guidance. The record is somewhat contradictory and incomplete as to what action was taken pursuant to the [Worker’s Compensation Act] ... We are unable, from the state of the record, to determine whether Gillespie is barred by any agreement, from proceeding in tort against Transport. Nor is the record dispositive as to whether appellant and/or defenses by their failure to appeal rulings concerning a workman’s compensation claim ...
When an injury had been compensated under the Act, then the Act, 77 P.S. § 481, would prohibit the claiming against the employer.”
The Gillespie court was confronted with the situation wherein it was unclear on the record whether there was compensation paid for a compensable injury pursuant to the Act. However, 77 P.S. § 481(a), which states in pertinent part 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 employees, his legal representative, husband or wife, parents, dependants, next of kin or any one otherwise on account of any injury or occupational disease as defined in § 108.” (Emphasis added),
bars any claim for personal injury in a third-party action against an employer for injuries that are compensable.
In the instant case, the Referee found that the Decedent’s injury was compensable under § 301(c)(1) of the Act. No appeal was taken, therefore, the Referee’s finding is a final determination of the issue of compensability. Section 481 as quoted herein, makes the compensation award the exclusive remedy against the employer in this case and the
The dissent cites Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 388, 421 A.2d 251, 254 (1980); Gillespie v. Vecenie, 292 Pa.Super. 11, 15, 436 A.2d 695 (1981) and Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983) in support of its position of reversal of the trial court.
The dissent’s reliance upon these three decisions is misplaced. First, in none of the cited cases was there a finding by a competent tribunal that the injury received by the plaintiff was, in fact, compensable. In the instant case, such a finding was made which the dissent neglects to discuss.
Further, Mike, supra, was a case that arose prior to the 1974 amendment to the Compensation Act upon which this decision relies. In addition, Gillespie, specifically states that the record is unclear with regard to a determination of compensability and, therefore, the matter should proceed at the trial level and, Scantlin, supra, was an affirmance of a judgment on the pleadings wherein the plaintiff pled injury as a result of a noncompensable action by the employer and this Court sustained the decision of the trial court in dismissing the complaint because the plaintiff did not aver that his injury was intentional and a product of personal animosity.
In the instant case, there having been a finding by a competent tribunal of compensability the claim against the employer is barred.
Thus, we will affirm the decision of the trial court on United’s Motion for Summary Judgment.
Judgment affirmed.
Jurisdiction relinquished.
. See also, the case of Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983) and Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983) two recently filed opinions of the Supreme Court of Pennsylvania.
Dissenting Opinion
dissenting:
I am unable to agree with the majority that summary judgment was proper in this case.
1
The purpose of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., is to compensate employees for on-the-job injuries. As the Supreme Court has said:
By virtue of the ... Act, an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.
Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956).
Consistent with this purpose, under the Act
“injury arising in the course of his employment” ... [does] not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him.
77 P.S. § 411(1).
Thus, as we have said, “an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between employer and employee” is specifically excluded from the Act’s coverage. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 388, 421 A.2d 251, 254 (1980).
As it stands, appellant’s complaint does not allege that the acts of Fleisher and Formwalt, in which United is claimed to have conspired, were motivated by “personal animosity against the employee.” See Mike v. Borough of Aliquippa, supra. Compare, Gillespie v. Vecenie, 292 Pa.Super. 11, 15, 436 A.2d 695, 697 (1981) (third amended complaint alleged “pure personal hatred toward the plaintiff ...,” “personal animosity ... in no way resulted [sic] out of a relationship between an employer and an employee ...”), with Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983) (complaint dismissed; personal reasons not alleged). Nevertheless, appellant’s reply to the motion for summary judgment made appellant’s theory of recovery sufficiently clear, for it alleged that “there may be a common law recovery in tort against the employer where injury caused by an act of a third person intended to injure the employee because of reasons personal to him is present.” Reply to Motion for Summary Judgment, ¶ 7.
2
The majority does not examine the adequacy of appellant’s complaint. Rather, assuming the complaint to be
In Mike, an Aliquippa police officer was attacked and severely beaten by two local constables. The officer received benefits under the Workmen’s Compensation Act and then sued the Borough for negligence in failing to provide a safe place to work. The jury found that the reasons for the constables’ attack on the officer were personal. See 77 P.S. § 411(1), supra. On appeal the Borough argued, as United does here, that the suit was barred because the officer had accepted workmen’s compensation benefits. In an unanimous opinion by HESTER, J., we rejected that argument. Quoting Flaherty v. United Engineers and Contractors, 213 F.Supp. 835, 838 (E.D.Pa.1961), we said:
It is true that Section 303 of the Workmen’s Compensation Act, 77 P.S. § 481, provides that acceptance of compensation shall operate as a surrender by the parties of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment other than as provided in Article III of the Act. But Section 301(c) as amended, 77 P.S., § 411, included in Article III, according to the Dolan decision specifically excludes injuries resulting from personal animosity. It would follow therefore that [plaintiff] may be able to collect damages from [employer] if he can prove that his injuries resulted from the personal animosity of [his assailant]. He is not estopped to proceed with his suit on this ground. 213 F.Supp. at 838.
Mike v. Borough of Aliquippa, supra, 279 Pa.Super. at 392, 421 A.2d at 256.
The only authority the majority cites in support of its conclusion that appellant, having received workmen’s compensation benefits, is barred from suing United, is Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695 (1981). Consideration will show, however, that Gillespie is consistent with
Gillespie was an appeal from dismissal of a complaint. In reversing, we held that the complaint sufficiently alleged that the attack by a fellow employee had been for personal reasons. Relying on Mike, we further held that the employer could be joined on the theory that it had not provided a safe place to work. We then noted that the record contained a notice of denial of workmen’s compensation because the “disability [was] not related to employment.” 292 Pa.Super. at 17 & n. 3, 436 A.2d at 698 & n. 3. We also referred to a “Compensation Agreement” contained in the record, and stated that we could not “from the state of the record, ... determine whether Gillespie [was] barred, by an agreement, from proceeding in tort against [his employer].” Id., 292 Pa.Superior Ct. at 17, 436 A.2d at 698. We concluded by saying that “the record [is not] dispositive as to whether appellant and/or [the employer] have waived rights and/or defenses by their failure to appeal rulings concerning the Workmen’s Compensation claim.” Id.
When an injury has been compensated under the Act, then the Act, 77 P.S. § 481, would prohibit the claiming against the employer. An employee may sue a third party whose conduct caused an injury; but neither the employee nor the third party may join an employer in such suit. See Atkins v. Urban Redevelopment Auth., 263 Pa.Super. 37, 396 A.2d 1364 (1979).
Gillespie, supra, 292 Pa.Superior Ct. at 18, 436 A.2d at 698.
For the majority, this last statement ends our inquiry. I am not so persuaded. First, the majority fails to acknowledge that by holding that an employee could sue his employer for failing to provide a safe place to work, Gillespie followed Mike. Second, the statement in Gillespie that
was obviously meant to clarify the previously stated position that an employer cannot be vicariously liable for the intentional acts of his employee. When an employee’s intentional act motivated by personal reasons, was foreseeable by the employer, the employer may be liable on a negligence theory for not providing a safe work place. Id.
In short: When an employee’s injuries were the result of the personal animosity of a fellow employee, the employer may not be held vicariously liable for the intentional tort of its employee, but it may be held liable if, as in Mike and Gillespie, its failure to provide a safe place to work is proved. If, as appellant alleges she can prove here, the employer participated in the employee’s intentional conduct, the employer may be held liable, not vicariously for its employee’s intentional tort, but for its own intentional tort.
There is one respect in which this case differs from Mike and Gillespie. In Mike and Gillespie the claim was that the employer had been negligent. Here, the claim is that as the employer, United, conspired with its employees to commit an intentional tort, as a result of which appellant’s husband died. Thus this case is more compelling than
The order of the trial court should be reversed and the case remanded for proceedings consistent with this opinion.
. Appellee's motion for summary judgment and the trial court’s order were limited to summary judgment as to the employer and were not directed to the two employees named in the complaint.
. Contrary to the majority’s view, at 1057, the record in Gillespie was clear that Gillespie had been denied workmen's compensation. What was unclear was whether Gillespie and his employer had entered into an agreement under which Gillespie was precluded from suing the employer in tort.
. In a footnote to the above-quoted statement in Gillespie we stated: "For a contrary result, prior to the 1974 Amendment to the Act, see Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); and Burke v. Duquesne Light Co., 231 Pa.Super. 412, 332 A.2d 544 (1974).” Our citation to Socha and Burke stands only for the proposition that as a result of the 1974 amendments to the Act, Act of December 5, 1974, P.L. 782, No. 263, a third party sued by an employee may not join the employer in an action. In both Socha and Burke the employee had sued a third party for injuries and the third party was able to join the employer as an additional defendant. The 1974 amendments to the Act include the addition of Section 303(b), 77 P.S. § 481(b), which provides: “In the event injury or death to an employe is caused by a third party, then such employe, ... may bring [an] action at law against such third party, but the employer, ... shall not be liable for damages, ..See Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). Section 303(b) does not preclude recovery by an employee from an employer; indeed, it has nothing to do with an employee's suit against an employer. The majority states, at 1057, that in its view the fact that the Act as amended in 1974 applies to this case means that the result here should differ from that in Mike. The majority does not explain why this should be so, and it cites no authority for its view except the above-quoted statement from Gillespie, which, as dictum, is not persuasive.
. The majority claims that "in none of the ... cases [I have cited] was there a finding by a competent tribunal that the injury was, in fact, compensable." At 1057. It is true that in Gillespie the workmen’s compensation referree found thát Gillespie’s injuries were not covered under the Act. In both Mike and Scantlin, however, the employee did receive workmen’s compensation. It is not possible to tell from those opinions whether a "competent tribunal” awarded those benefits or whether they were paid in the ordinary course. Insofar as the present case is concerned, this matter need not detain us, for appellant argues that her husband’s death was not an injury within the meaning of the Act, and that accordingly, the exclusive remedy provision of the Act does not apply here.
