Hammerstein v. Lindsay

655 A.2d 597, 440 Pa. Super. 350, 1995 Pa. Super. LEXIS 578

• Court: Superior Court of Pennsylvania
• Decided: March 14, 1995
• Status: Published

Opinions

CAVANAUGH, Judge:

Sharon Hammerstein appeals from an order which granted appellee Williamsport Hospital’s (“the Hospital”) motion for judgment on the pleadings.¹ We affirm.

A review of the factual averments of plaintiff/appellant’s complaint reveals the following. In February of 1992, appellant was employed as a unit clerk in the emergency room of the Hospital. While attending to her duties, she was approached by Dr. Lindsay, who requested that she make an “STD” (sexually transmitted disease) notation on a patient’s chart. Appellant stated that she would do so, but first proceeded to complete the project on which she was working. Dr. Lindsay, apparently angered at the failure of appellant to immediately comply with his request, picked up the patient’s chart and screamed, “I will do it myself.” Shortly thereafter, Dr. Lindsay passed by appellant’s work station and stated in a loud and harsh tone to appellant, “You are a worthless excuse for a secretary.” This comment was heard by both patients and members of the emergency room staff who were in the immediate vicinity. A short time later, Dr. Lindsay stated to a member of the emergency room staff, and in the presence of appellant, that appellant was “uncouth.” Appellant confronted Dr. Lindsay about his comments. Dr. Lindsay replied, “I want a new secretary.... Why don’t you leave, you’re worthless.” Appellant then reported this incident to members of the Hospital’s administration.

Approximately one week after this incident, appellant was again on duty in the emergency room. In response to a page by Dr. Lindsay, another doctor had called appellant’s station. Dr. Lindsay, however, failed to take the call. When the other doctor called again, Dr. Lindsay took the call and told the caller, “Sorry Ted, I have a rude, incompetent bitch for a secretary today.” Appellant then informed members of the Hospital’s administration of this more recent incident. A meeting then took place between Dr. Lindsay and a member of the Hospital administration. Appellant was not allowed to attend this meeting, but was subsequently informed that it had been decided that both Dr. Lindsay and appellant were mutually at fault, and that the matter had been resolved. Nonetheless, Dr. Lindsay continued to make derogatory comments about appellant: he questioned her competence and her ability to perform her duties in the presence of her coworkers; and he told another physician that she had a “personality disorder.” After a period of five months of continuous derogatory comments from Dr. Lindsay, appellant left her job with the Hospital.

On April 23, 1993, appellant filed suit against Dr. Lindsay and the Hospital. With respect to Dr. Lindsay, appellant alleged causes of action for slander/defamation and intentional infliction of emotional distress. As to the Hospital, she alleged that Dr. Lindsay was the agent of the Hospital, and therefore the Hospital was vicariously liable for Dr. Lindsay’s slanderous/defamatory comments, and also for the emotional distress he intentionally inflicted. Appellant also alleged that the Hospital was negligent in failing to supervise its employees, in failing to properly investigate the incidents which occurred between Dr. Lindsay and herself, and in failing to take appropriate steps to remedy this situation. The Hospital filed an answer and new matter, in which it alleged that appellant’s claims were barred by the exclusivity provision of the Workmen’s Compensation Act.² After the pleadings were closed, the Hospital moved for judgment on the pleadings. Although there is no indication in the record that this motion was argued, or that appellant filed either a brief or any other type of response thereto, it appears that appellant’s position was that her cause of action fell within the personal animus exception³ to the exclusivity provision of the Workmen’s Compensation Act. The trial court granted the Hospital’s motion for judgment on the pleadings, specifically stating that the facts averred in appellant’s complaint did not fall within the personal animus exception to the Act. Appellant then filed this appeal, raising the following issue for our review:

Does the personal animus exception to the exclusive remedy provision of the Workmen’s Compensation Act allow an employee to bring a valid cause of action against her employer where she is injured by a co-worker and the injuries are not work-related?⁴

When reviewing the grant of judgment on the pleadings, we employ the following standard:

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034; Giddings v. Tartler, 130 Pa.Cmwlth. 175, 177, 567 A.2d 766, 767 (1989). Thus, “[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.” Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986), quoted in Keystone Automated Equip. v. Reliance, 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), alloc. den., 519 Pa. 654, 546 A.2d 59. An appellate court must accept as true all well-pleaded facts of the party against whom the motion is made, while considering against him only those facts which he specifically admits. Jones v. Travelers Inc. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986); West Penn Administration, Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 467, 433 A.2d 896, 900 (1981). Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979); Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578. Moreover, in conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached to them. Jones, supra, at 217, 514 A.2d at 578; Gallo v. J.C. Penney Casualty Ins. Co., 328 Pa.Super. 267, 270, 476 A.2d 1322, 1324 (1984). It may not consider inadmissible evidence in determining a motion for judgment on the pleadings. 6 Pennsylvania Standard Practice 2d § 31:19 at 172. Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings. Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578; Gallo, supra, 328 Pa.Super. at 270, 476 A.2d at 1324.

Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471-72 (1992).

In Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27 (1992), our supreme court described the personal animus exception and its relation to the Workmen’s Compensation Act. The court stated:

By virtue of the Compensation 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 (1956) ]. This principle of exclusivity is expressly set forth in Section 303 of the Act, which provides: “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees ... otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in [Section 411].” 77 P.S. § 481. However, the Act provides an important exception to this principle of exclusivity. Specifically, the Act provides that the term, injury arising in the course of his employment, “shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment....” 77 P.S. § 411(1). We refer to this loosely as the “personal animus exception.”

Id. 532 Pa. at 136, 615 A.2d at 30 (emphasis in original). See also Vosburg v. Connolly, 405 Pa.Super. 121, 591 A.2d 1128 (1991); Dolan v. Linton’s Lunch, 397 Pa. 114, 152 A.2d 887 (1959). The court went on to note that in order for an employee to set forth a valid cause of action against his employer under the personal animus exception, “an employee must assert that his injuries are not work-related because he was injured by a co-worker for purely personal reasons.” Id., 532 Pa. at 137-38, 615 A.2d at 31 (emphasis in original). Where the animosity between the third party and the injured employee is developed because of work-related disputes, the animosity is developed because of the employment, and the injured employee’s remedy is exclusively under the Workmen’s Compensation Act. Repco Products Corp. v. Workmen’s Comp. App. Bd., 32 Pa.Cmwlth. 554, 557, 379 A.2d 1089, 1090 (1977). Furthermore, “the lack of pre-existing animosity between the combatants strongly suggests that the motive for the attack was work-related and not because of reasons personal to the assailant.” Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 391, 421 A.2d 251, 255 (1980).

Here, appellant has failed to plead facts which would indicate that the incidents which occurred between herself and Dr. Lindsay arose out of personal animus. The conflict between them began when appellant did not promptly comply with a request made by Dr. Lindsay. This incident was clearly work related. All of the subsequent incidents either involved comments by Dr. Lindsay which occurred as a result of the first confrontation, or because of a second incident involving appellant’s handling of a telephone call from another doctor to Dr. Lindsay. Any animosity between appellant and Dr. Lindsay was clearly rooted in their working relationship. There has been no indication that there were personal reasons for Dr. Lindsay’s conduct, or that there was any pre-existing animosity between appellant and Dr. Lindsay. Appellant having failed to plead a cause of action falling within the personal animus exception, the trial court did not err in granting the Hospital’s motion for judgment on the pleadings. Cf. Sabot v. Dept. of Public Welfare, 138 Pa.Cmwlth. 501, 588 A.2d 597 (1991) (absent averment of personal animus, it appeared aide was attacked merely because of her position as hospital employee and that there was no personal animosity against her specifically); Brooks v. Marriott Corp., 361 Pa.Super. 350, 522 A.2d 618 (1987) (allegations that employee was killed because killer had personal animus against her and that this animus was the motivation for the murder, were sufficient to state a cause of action within personal animus exception); Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983) (where employee did not indicate that employer’s action was taken because of personal animosity toward employee, employee did not state cause of action falling within the personal animus exception of the Workmen’s Compensation Act).⁵

Order affirmed. Jurisdiction relinquished.

WIEAND, J. files a Concurring and Dissenting Opinion.

1 . Dr. Lindsay is not an active participant in this appeal, as he did not join the hospital’s motion for judgment on the pleadings below.

2 . See 77 P.S. § 481(a).

3 . See 77 P.S. § 411(1).

4 . The dissent takes issue with “the majority’s holding that plaintiff is barred by the exclusivity clause of the Worker's Compensation Act Irom asserting a cause of action for defamation.” (Wieand, J., concurring and dissenting at 1). This is a misstatement of our holding. Although the Hospital’s motion for judgment on the pleadings alleged that appellant’s claims were barred by the exclusivity clause of the Workmen’s Compensation Act, this issue was not the basis for our holding as it has not been preserved for appellate review.

There is no indication in the record that appellant argued before the trial court, that the exclusivity clause did not bar an action for defamation. Furthermore, the trial court, in disposing of the Hospital’s motion, did not rule on the exclusivity issue, but rather, specifically concluded that appellant failed to aver facts which would bring her cause of action within the personal animus exception to the Act. In any event, appellant framed the issue on appeal narrowly: whether her cause of action fell within the personal animus exception of the exclusivity provision of the Act. We view this course of conduct as an implicit concession by appellant that the exclusivity clause does bar an action for defamation. In these circumstances, we can only conclude that appellant, even if she contested the exclusivity issue below, has abandoned that issue on appeal.

Finally, the dissent’s consideration of the exclusivity issue undermines bedrock principles of appellate review. It is well-settled that this Court may not decide a case on the basis of an issue raised for the first time on appeal. See Com., Dept. ofTransp. v. Boros, 533 Pa. 214, 620 A.2d 1139 (1993) (appellate court may not introduce issue which none of the parties have raised); Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985) (where Superior Court considers an issue sua sponte, it exceeds its scope of appellate review); Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 626 A.2d 595 (1993) (matters raised for the first time on appeal are not properly preserved for appellate review and may not be considered); Harding v. Consolidated Rail Corp., 423 Pa.Super. 208, 620 A.2d 1185 (1993) (only those issues properly raised in the trial court may be reviewed on appeal). Application of this principle should not be viewed as an over-technical enforcement of canons of appellate review, particularly in this case. The dissent’s position represents an unprecedented departure from established policy in this Commonwealth, both statutory and judicial, which espouses the strict exclusivity of workers compensation remedies as the sole avenue of relief for claims for tort relief by an employee against (her) employer. As the issue upon which the dissent would decide this case is not properly before this Court, our decision on this interesting issue (whether the Act's exclusivity provision bars an action for defamation) must await another day, as we may only decide the narrow issue which appellant has placed before this Court.

5 . We note briefly that appellant cites Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 444 (1992), for the proposition that where an employer aggravates a work-related injury, the employee is not barred from pursuing a common law claim against the employer. Appellant maintains on appeal that the Hospital’s failure to adequately investigate and address the situation between herself and Dr. Lindsay, resulted in an aggravation of her injuries, even if they were work-related. Her reliance on Martin, however, is misplaced.

Martin involved a situation where the employer actively mislead its employee as to the extent of his work-related injuries. The court classified the actions of the employer as flagrant misconduct. It concluded that where the aggravation of an employee’s injuries arises from and is related to the fraudulent misrepresentation of the employer, the employee’s remedies are not limited to those provided by the Workmen’s Compensation Act, and the employee is not precluded from bringing a common law action against his employer. The holding of Martin is limited to situations where the employer has engaged in fraudulent misrepresentation. In the present case, appellant has not made such an allegation against the Hospital. Thus, this argument is baseless.