*1
be
jury
that a
will
ordinarily
assumption
sound
ing” that the
applied.
could not be
faithfully its instructions
to follow
able
Bruton,
U.S.,
S.Ct.,
at 1628.
supra,
at
2062-2063,
controlling guarantees any “particularized demonstrate failed to wealth hearsay statement respect trustworthiness” with Indeed, the fact that the declarant Bujanowski, Ronald Jr. under oath at testifying recanted his statement when promptly inherently unreliable hearing magnifies the preliminary admit- allow his statement to be statement. To nature of the evidence, urges, as the Commonwealth ted as substantive but would hearsay rule of evidence only violate would confront and right constitutional their deny appellees has identified them as witness who only cross-examine the are to be tried. they for which burglaries in the participants trial court to exclude Therefore, decision of the correct and must be evidence was statement as substantive affirmed. affirmed.
Order POPOVICH, J., in the result. concurs Santiago, Appellants, and Laura
Luis SANTIAGO v. NATIONAL MUTUAL CASUALTY
PENNSYLVANIA INSURANCE COMPANY. Pennsylvania.
Superior Court of Argued April 1992. Aug.
Filed *3 Older, for Philadelphia, appellants. Stephen M. McKenna, Philadelphia, appellee. for Michael P. CERCONE, McEWEN, and JJ. CIRILLO Before CIRILLO, Judge: of Common from an order of the Court appeal is an
This defendant/Pennsyl- County granting of Montgomery Pleas Company’s prelimi- Insurance Casualty Mutual vania National by plaintiffs filed dismissing complaint and nary objections affirm. and wife. We Santiago, Laura husband Luis and Techni- Quality as a Control employed was Santiago Luis 13, 1986, Control. On October Contamination cian United to his left wrist. He injury a work-related Santiago suffered on After having ganglion cyst a his wrist. diagnosed was as wrist, began a Santiago his surgery performed upon was Santiago weekly disabili- therapy received physical program. Act Compensation ty pursuant [the benefits Workmen’s Act],1 these benefits. and continues receive injury, Santiago psychi-
As Luis developed a result of his Dystrophy Sympathetic atric condition known as Reflex (RSD). alleges RSD is Santiago In his Luis complaint, injury accompa- a direct to a nerve and is usually caused conditions” “psychological psychiatric nied and by varying withdrawal. including instability, anxiety, emotional social sought September care Santiago psychiatric 1989, Santiago his wife in order to deal with his condition left marriage. pressures outside 1987, Santiago’s reports Since have indicated psychiatric depression thoughts, aggravat- suicidal apparently chronic work, by Santiago’s inability his physical pain, ed occasions, sense and helplessness. of frustration On several for beginning Santiago hospitalized psy- July chiatric care.
Santiago’s employer maintained workmen’s Mutual coverage through Pennsylvania insurance National Casualty Company [Pennsylvania National]. Insurance Penn- sylvania Santiago’s psychiatric National treatment paid 1989, at August until which time National payment. payment terminated As a result of termination of care, with psychiatric Santiago petition filed a claim February 26,1990. Bureau on This *4 is petition currently pending before Workmen’s Mickey. Referee Carol A. complaint, Santiago their Mr. Mrs. that allege and Thom- Inc., Associates, Murray
as informed [Murray] Ringler their counsel, Black, Esq., Robert H. that he had been [Black] by [Pennsylvania “commissioned the Defendant to National] Plaintiff, for wages work out structured settlement Luis seq. §§ 1. 77 P.S. 1 at ¶ 46). entered into Murray Black and (Complaint,
Santiago.” February Negotiations of 1990. negotiations settlement three weeks. approximately continued for hereto, acting was as an Murray times relevant During all Black ... and had informed authorized of Defendant agent wage During to settle the claim. authority that he had several offers Murray presented ... negotiating period concerning settlements by proposed made Defendant Plaintiff, but at no time discussed Santiago’s wages, Luis bills____ negoti- At the end of the of psychiatric the issue Plaintiff, an offer Santiago, accepted ... Luis ating period Murray pro- informed that the made Defendant. Black Murray to Plaintiff. re- acceptable was posed settlement settle, authority had to that he confirmed to Black that he begin and that he would approval had full from Defendant Black informed Plaintiff final on the settlement. paperwork ... had been reached and would be that the settlement thereafter, final, subject approval of the Court. Soon did not Murray to Black that represented Baker [Michelle] settle, therefore, the settlement authority have to ... to Defendant unless acceptable would not be agreement any to waive claim for voluntarily agree would plaintiff psychiatric and future treatment. present ¶¶ 47-51). (Complaint, agreement of the terms of the Santiago
Black advised Thereafter, offer. Black Santiago accepted the settlement Mi- Pennsylvania representative, National’s was advised Baker, to Murray authority that did have Esq., chelle would honor Pennsylvania the claim and that National settle if to the waiver. Santia- only Santiago agreed the agreement agreement impractica- rendered the go believed this condition ble, Santiago National Black informed the offer with this condition. accept was unable to medical care Santiago sought emergency In March of there, in his arm. Hospital pain Bucks for the While at Lower empty a door to an attempted hang himself behind Santiago life, Santiago attempting to take his own room. As a result County Emergency immediately Montgomery admitted *5 discharged approxi- He was care. psychiatric Services summary, Dr. Oscar discharge In his one month later. mately Santiago that D. noted Saldana if exist it would not problems all his emotional that claim[ed] continuously on his excruciating he felt pain for the weren’t lasted for seems to have depression His left shoulder.... way gave that to following the accident years least four medical condition. present Pennsylva- action Santiago against filed this Luis Laura the alleges attempt that suicide Santiago nia National. collapse the of depression caused the result of exacerbated Pennsylvania with Na- anticipated agreement settlement the fraud, negli- Santiago alleged misrepresentation, tional. Luis infliction of distress and intentional gent infliction of emotional representa- Baker’s alleges distress. He also that emotional Murray authority settle claim were tions that lacked the insur- Santiago, intent deceive and that made with the of faith in the this claim. carrier exhibited bad ance Pennsylvania Na- Santiago damages requested punitive loss Santiago claimed bad faith conduct. Laura tional’s consortium. objections filed
Pennsylvania
preliminary
National
A.
Smyth
Honorable
sustained
complaint.
Joseph
complaint.
appeal,
dismissed the
On
issue
objections and
in finding
court
presented is whether
the trial
erred
alleged
remedy
barred
the exclusive
causes
action
were
Compensation Act.
provisions
of the
plaintiff
a
presented
question
may
are
with the
whether
We
in intentional tort
sounding
assert causes of action
carrier
the im-
upon
insurance
based
compensation
worker’s
par-
of a
claim. The
proper handling
compensation
worker’s
compensation
is
dispute
principle
do not
worker’s
ties
303(a)
remedy
sole
and that under section
employee’s
Act,
481(a),
is statutorily protected
the employer
P.S.
Further,
do
parties
law tort claims.
from common
employers’
protections
immunities and
under
dispute that the
the of the Act extend to
exclusivity provision
insurance carrier.2 The confusion arises in the wake of the
Pennsylvania Supreme Court’s decision in Martin v. Lancas-
*6
Inc.,
al.,
Battery
ter
Co.
et
11,
530 Pa.
In an
from an order
appeal
sustaining preliminary
demurrer,
objections in the nature of a
appellate
court
court;
applies
employed by
the same standard
the trial
all
material facts
forth in
complaint
set
as well as all inferenc
reasonably
es
deducible therefrom are admitted as true for
of review. The
purposes
question presented by the demurrer
whether,
averred,
is
on the facts
says
certainty
the law
with
recovery
possible.
that no
is
Where
doubt exists as to
any
sustained,
whether a demurrer should be
it should be resolved
the demurrer. Guinn v. Alburtis Fire
overruling
favor of
Co.,
270,
(1990);
Kyle v. McNa
134 Pa.Cmwlth.
In reviewing preliminary objections,
facts that
only
material,
pleaded,
are well
and relevant will be considered as
true,
together with such reasonable inferences that may be
facts,
objections
drawn from those
and preliminary
will be
are clear and free from doubt. Ohio
only
they
sustained
if
Co.,
Casualty
Ins.
v.
Group
Argonaut
Co.
Ins.
92 Pa.Cmwlth.
(1985).
560,
objection
Under the issues; performance act or every must define the pleader See complaint. in the end must be set forth to that essential 21:32; 1019; Practice 4 Standard Pa.R.C.P. v. Kiefer, 262 Pa.Su County Corporation also Hotels see Pike (1978) (at minimum, must pleader a per. based). action is When which his cause of upon forth facts set accept generally must objections, court ruling preliminary on facts, not the clearly pleader’s but pleaded true all well and as *7 of law. See 5 Standard Pennsylva or averments conclusions Stores, Keirs National See also v. Weber § nia Practice 25:8. (1986). Inc., 111, 352 PaJSuper. National initiated settle- argues Pennsylvania that
Santiago knowledge fragile psychologi- had of his negotiations and ment Murray’s through represen- that state. He further claims cal Mur- tations, that through representations and later Baker’s his claim on less had he was induced to settle authority, no ray Additionally, Santiago avers that Penn- favorable terms. than or known that the break- knew should have sylvania National condi- agreement aggravate in would his the settlement down he he which claims Santiago injuries redress tion. seeks fraudulent and National’s as a result of suffered conduct, scope of the is outside the faith conduct which bad no and which resulted Act, remedy, provides for which Act injury. work-related aggravating his injuries his com that averred Santiago argues in the course of did not arise not work-related and are plaint therefore, suffi contends, that this Santiago employment. Act, scope places his claim outside ciently this common pursue be entitled consequently he should agree. We cannot claim the carrier. law 186
The Workmen’s Compensation Act
is the sole
[the Act]
and exclusive means of recovery against employers for all
injuries
out of
arising
accidents occurring within the course of
481(a).3
employment.
77 P.S.
exclusivity
provision
Act essentially “bars tort ac
tions flowing from any work-related injury.” Kline v. Arden
Co.,
H. Verner
(1983).
251, 256,
503 Pa.
158,
469 A.2d
See
also Alston v. St. Paul
Companies,
Ins.
396,
389 Pa.Super.
affirmed, A.2d
612 A.2d
(1992).
Alston,
supra, plurality
this court4 held that
employer’s workmen’s compensation insurer was entitled to
the same immunity from suit as the
an action
involving
processing of the compensation claim. Alston
injured
employer’s
and his
carri-
insurance
er,
(St. Paul)
St. Paul Insurance Companies
began paying
benefits.
St. Paul contracted with Vocational Services to
obtain Alston’s medical
records and monitor his recovery.
Rohrer,
Janet
a rehabilitation nurse employed by Vocational
Services, met with Alston and indicated that she would sched-
an appointment
ule
Williams,
Alston to meet with John T.
Id.,
M.D.,
whom she characterized as a “miracle worker.”
Pa.Superior Ct. at
Dr. Alston, Williams examined without the benefit of Al- ston’s medical records x-rays, or and told Alston that he was ready to return to work. Dr. Williams notified Ms. Rohrer that he sign would an affidavit of recovery. Having secured *8 481(a) provides part: 3. Section liability The of an under this act shall be exclusive and in place any liability of and all employe, legal represen- other to such tative, wife, parents, dependents, husband or anyone next of kin or damages any otherwise entitled to action at law or otherwise on any injury 301(c)(1) (1) account of or death as defined in section occupational or disease as defined in section 108. 481(a). 77 P.S. opinion by 4. The lead Judge joined authored President by Cirillo was Olszewski, Judges Popovich. Judge Tamilia and Judge Johnson and Rowley dissenting filed Judge joined. statements in which Melinson Judge Brosky concurring filed a dissenting Judge statement. participate McEwen did not in the decision.
187
regarding
Alston
recovery,
approached
of
Paul
St.
an affidavit
Alston
of his
benefits.
sum settlement
lump
a
petition
a
to
and St. Paul filed
offer as insufficient
rejected the
were discontinued
benefits. Alston’s benefits
terminate
St. Paul’s
months,
which time a referee denied
at
nineteen
he was award-
reinstated and
Alston’s benefits were
petition.
bene-
affirmed the
the W.C.A.B.
appeal,
fees. On
ed counsel
fees on its
attorney’s
but reversed the award
fits award
Id.
“reasonable contest.”
finding of
Paul,
Servic-
against
a
action
St.
Vocational
Alston filed civil
Williams,
the defen-
es,
complaint
in his
alleging
Dr.
which
through
in a course of tortious conduct
engaged
dants
deny Alston’s benefits due
fraudulently
to
they conspired
was ad-
conspiracy
that this
alleged
Act. Alston
under the
misrepre-
and intentional
negligent
the defendants’
vanced
in favor of
Summary judgment
granted
Id.
was
sentations.
affirmed,
legal
stating:
court
“The
defendants and this
employers
compensa-
and their
which is afforded
immunity
negligence,
to acts of
but also to
only
insurers extends not
tion
misconduct,
intentional,
and willful
based on
wanton
claims
Id.,
today.”
us
389
as
in the case before
such
those advanced
403,
v.
Rosipal
A.2d at 667. See also
Pa.Superior Ct. at
Ward,
570, 573-74,
521 A.2d
Montgomery
Pa.Super.
(1987),
granted
Pa.
50-51
allocatur
(1988) (“In
538 A.2d
appeal dismissed
work-
would have been no
injury,
absence
there
civil
out of which the instant
compensation proceedings
men’s
cause of
has failed
state
appellee
action arose....
allegations
all
have as the
in her
as
complaint
action
compensable under the
injury
ultimate basis an
within
and her claims must be considered
Compensation Act
Act.”)
framework of the
Court,
Pennsylvania Supreme
taken to the
An
appeal
provi-
exclusivity
that held the
affirmed.
Court
which
Act
a tort
“prohibit
of the Workmen’s
sions
injuries
insurance carrier
agents
action
employee’s
actions
allegedly
caused
their
Alston,
Pa.
Here, as in the action was brought against employer’s compensation carrier tortious conduct course of handling the worker’s In compensation claim. both plaintiffs cases the sought compensatory punitive damages for negligent and intentional misrepresentation, and in both cases the actions were dismissed on the basis the exclusivity provisions A of the Act. distinction does exist with respect the “lump sum” settlement negotiations in each case. Alston, insufficient, settlement offer was refused as prompting the carrier to file a petition to terminate benefits providing Here, the basis for Alston’s claim. the settle- ment offer was initially accepted but rejected later when a waiver was added to the terms of the agreement, prompting weakening Santiago’s psychological health and attempt suicide, and forming the basis of Santiago’s claim. We are unable to significant discern a distinction between the action Alston and that precluded in precluded Judge Smyth However, this case. the supreme court decided Martin in interim, and we must determine whether Martin affects the application of the exclusivity provision in this case. Co., Inc.,
In Poyser v.
Newman &
Court. What he asking is us to do engraft is to upon 303(a) 481(a) section of the Act [77 P.S. an exception ] legislature did not put see fit to in.
Id.,
Mart,in,
448;
606 A.2d at
see also McGinn v.
alloc, denied,
517 Pa.
Pa.Super.
(1988)
that
(employee’s allegations
A.2d
defendant’s
fraudulent
would be
misrepresentation
intentional
she
fired from her
if she
advice
job
sought independent medical
scope
protection guaranteed
was outside the
the em-
Act).
under
ployer
the Worker’s
interpret
supreme
holding
our
court’s
Martin
its
We
denying
allowing
order
allocatur
as
a limited excep-
Valloti
exclusivity
tion to the
of the
of the Act.
application
provisions
reluctant, however,
are
to extend that
exception
We
Valloti,
In both Martin circumstances in this
case.
concealed, altered,
intentionally misrepresented
or
injury
information related to the work-related
resulted
which
injury.
of the
Neither case concerned the
aggravation
part
employer’s
of the claim on the
of the
improper
Alston,
carrier,
This, too,
swpra.
as was the
here and in
case
Co.,
Kuney
v. PMA Insurance
was the case in
(1990).
Kuney,
Pennsylvania Supreme
Court addressed an
employer’s
issue similar to the one before us: whether an
actions,
immunity
guaranteed by
from tort
*11
Act,
insur-
Compensation
protects
employer’s
ance carrier if it is
that the carrier
in fraud
alleged
engaged
deprive
injured employee
compensation
and deceit to
an
of his
Kuney
injury
job
sought
benefits.
sustained an
on the
and
PMA,
employer’s compensation
benefits from
insurance
PMA
A
carrier.
contested the claim.
referee determined
Kuney’s injury
compensable
injury
that
was a
work-related
disability
and that he
entitled to total
benefits. The
referee also determined that PMA had no reasonable basis to
claim,
Kuney
contest the
and therefore awarded
interest on all
past-due compensation, litigation expenses, and counsel fees.
PMA
decision to the
appealed
referee’s
Workmen’s Com-
pensation Appeal Board
The W.C.A.B. reversed
[W.C.A.B.].
in part, concluding that PMA did have a reasonable basis to
Kuney appealed,
contest the claim.
and the Commonwealth
reversed the decision of the
Court
WCAB
reinstated
Kuney
Compensation
v. Workmen’s
Appeal
Kuney’s
award.
Board,
(1989).
628,
127 Pa.Cmwlth.
During Kuney against this instituted a civil action PMA, seeking damages injuries allegedly for sustained as a of his mishandling result of PMA’s fraudulent claim. PMA preliminary objections. filed The trial court sustained the for objections Kuney’s remedy on the basis that sole stemming provided from PMA’s conduct was injuries Co., reversed, Kuney v. PMA Ins. A panel Act. of this court 191 (1988), Act 598, and held that the Pa.Super. 379 claimant from actions where the immunity civil provide did not refusing claim bad faith the insurer acted alleged conduct as a of the insurer’s injuries suffered result that injury. from the work-related separate apart were deci- panel’s Court reversed the Pennsylvania Supreme for sion, provided specific the Act remedies explaining that interest including percent ten alleged, had injuries Kuney 717.1, § as well as unpaid compensation, 77 P.S. due and on act, for of the up percent to ten for violations penalties thereunder, or regulations promulgated of rules and violations provides Act further procedure. for violations rules in cases of twenty percent increased be penalties may Moreover, delay. or 77 P.S. 991. unreasonable excessive attorneys costs to be assessed statute allows fees and claim with- compensation an which contests a insurer 175, at Kuney, 578 A.2d basis. out a reasonable Co., Arden H. Quoting Kline v. Verner Pa.Super. (1982), Pa. A.2d aff'd court supreme our stated: him within injuries bring an sustains which employee When Act, he is to be the amount the Workmen’s Act. That upon the compensated depends provisions is not exclusivity exclusive Its remedy. is his *12 employee acquire does not additional destroyed and the fail to of the Act merely provisions remedies because full compensation to be or adequate what he deems provide injuries for sustained. 175, A.2d at Pa. at 578 1287.
525 of the fraud in carrier’s claiming For actions claim, provisions. the Act remedial provides compensation In Kuney, Pennsylvania Supreme §§ See P.S. 701-797. provided Act heavily upon relied fact that the itself Court a Kuney to have suffered as injuries alleged for the remedies court his claim. The of PMA’s fraudulent denial of result stated: statutory penalty statute is its feature of the
One salient
a tort
that
argues
permitting
appellant
provisions.
compen-
that the
with the fact
would be inconsistent
action
adjudi-
comprehensive system
a
provides
statute
sation
including specific
compensation disputes,
cating workers’
injury.
alleged
for the
remedies
175,
supreme
Our
Kuney, Pa. at
578 A.2d
Companies,
v.
Insurance
Taras Wausau
Recently,
court illustrated the
this
Pa.Super.
as a result of the
arising
between actions
fine distinctions
ultimate
claims which have as their
mishandling
carrier’s
claim,
are
and actions which
underlying
work-related
basis
under the Act and seek
injury compensable
an
upon
not based
There,
Taras was involved
separate injury.
for a
redress
of his
during
scope
accident
the course
an automobile
injuries, as well as
physical
Taras suffered
employment.
Wausau,
compensa-
employer’s
anxiety
depression.
carrier,
and coordinated his
benefits for Taras
provided
tion
Id.
at
type which compen- Act, they nor are otherwise in the provided dies and Thus, Kuney behind the rationale the Act. sable under the Act so as exclusivity provision applying Alston claimants, is carriers from suits immunity to provide in this instance. inapplicable Co., 455 Pa. Travelers Insurance
Id.;
v.
Tropiano
see also
(1974)
medical treatment
(injuries
caused
type
not the
of the carrier are
direction
administered at the
liability).
from
immune
carrier should be
injuries for which the
analogous
more
Santiago seeks are
damages which
instant case is
Alston. The
Kuney
and
sought
those
Martin, Tropiano,
from
distinguishable
factually
legally
and
Taras,
Kuney and Alston.
reconcilable with
and
and is
follows:
Taras,
distinction as
the critical
explained
the court
[Kuney
carriers
acts of the
While the tortious
injury, they were
original
come after the
may
Alston
have
]
Alston,
Rather,
Kuney
of it.
independent
intertwined
completely
carriers were
acts of the
tortious
acts related to the
injury, as their tortious
original
with the
injury.
original
for the
denial of benefits
fraudulent
Taras,
sufficiently
It is
Following provide in this case and apply of the Act exclusivity provisions injury the direct National. Unlike immunity administration or coordination from the carrier’s resulting Taras, Santiago’s aver- Tropiano medical treatment is remedy of his claim and his concern the ments Santiago, of the Act. by provisions addressed the specifically therefore, of the statute within the framework operate must seeking from exclusivity provision, under the precluded, and is supra. Kuney, in tort the insurance carrier. against redress certainty states with that Santia- We conclude that the law of the exclusivity provision under the claims are barred go’s Union, supra. International Act. Compensation Workmen’s We, therefore, sustaining Penn- affirm the trial court’s order dismissing the objections sylvania preliminary National’s complaint. affirmed.
Order McEWEN, J., a concurring opinion. files McEWEN, concurring: Judge, this join majority Opinion, disquiet compels I the While has made Pennsylvania Supreme Court expression. statutory declaration of the exclusiv- abundantly clear that the Act1 in the set forth ity provisions employee claim an any by the precludes presentation remedy employ- the afforded the employer beyond the against further decided that the Act. That Court has by ee of a common precludes presentation exclusivity provision even employer employee law tort claim a deliberate and to the is caused injury employee when the safety employ- for the of its disregard employer of the wanton Co., Inc., A.2d v. Neuman and 514 Pa. Poyser ees. 481(a). P.S. (1987). immunity Act itself extended the and exclu- employer’s enjoyed by employer benefits sivity It remained for compensation insurance carrier.2 workmen’s however, Court, to confer the workmen’s Supreme upon immunity liability from tort compensation insurance carrier alleged engaged to have fraud though even the insurer of his deprive injured employee so as to and deceit v. PMA Insurance Kuney benefits. workers’ (1990). And, Co., most recently immunity employer Court extended the of the Supreme employer’s parties insurance carrier who serve the of the insurance carrier when the and its interest *15 Act. Alston v. a claim carrier are confronted with under the al., Paul Insurance et Companies, St. 612 A.2d (1992). disparity employer The economic between the and the em- alia, form, inter of ployee availability the of resources and of immediacy colloquially employer described as “the need — a basic of the legislature has the hammer” —was consideration designed it law. As a compensation when the workmen’s result, on legislature proceeded the the one hand to relieve an fault, and, hand, of the need to on the other employee prove restrict the remedies of the the employee employer and to limit the from the recovery employer. legislature thereby equitable adjustment effected what it viewed as an of disparate the economic of positions employer the and the employee. decision, judicial
As a result of following principle the has impressed been the upon compensation workmen’s law as legislature: enacted the the of employer employer carrier the agents representatives
and the or of the carrier are immune from tort to an however liability employee flagrant and willful their behavior in causing injury or the for compensation. claim readily might reject Maguire
However one as Molly rhetoric that the decisions confer cry upon employer license p.s. § 2. 501. deny dispatch would with
of and while one oppressor, employer permit has been awarded claim that mistreatment3, it not seem unreason willful does flagrant and go beyond adjust mere to conclude that the decisions far able of disparate positions economically ment I echo the call Alston Thus it is that employee. legislation corrective Ralph Cappy J. eminent Justice interpreta concern this “well-intentioned because of his to injustice”. also may only absurdity tion lead but COMMONWEALTH v.
Nancy ROSARIO, Appellant. Evette
Superior Pennsylvania. Court
Argued June 1992. Sept.
Filed 1992. Sept. Reargument Denied *16 penal- provided by arguably meager are rather the Act sanctions flagrant misbehavior or the carrier. ties and willful