Grabowski, M. v. Carelink Community

J-A04044-20

2020 PA Super 56

MICHELLE GRABOWSKI : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

CARELINK COMMUNITY SUPPORT :

SERVICES, INC. : No. 2611 EDA 2018

Appeal from the Order Entered August 2, 2018

In the Court of Common Pleas of Montgomery County Civil Division at

No(s): 2016-29778

BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

OPINION BY COLINS, J.: FILED MARCH 09, 2020

Appellant Michelle Grabowski (Plaintiff) appeals from an order of the

Court of Common Pleas of Montgomery County (trial court) granting judgment

on the pleadings in favor of the defendant Carelink Community Support

Services, Inc. (Employer) in this work-place personal injury action. For the

reasons set forth below, we affirm.

The following facts were established as undisputed on Employer’s

motion for judgment on the pleadings. Plaintiff was an employee of Employer,

working as a residential counselor at Employer’s inpatient psychiatric and

mental health service facility. Complaint ¶¶4-5; Answer and New Matter,

Answer ¶¶4-5. On December 20, 2014, Plaintiff was injured at Employer’s

facility while performing her job duties when she was attacked by a resident

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* Retired Senior Judge assigned to the Superior Court.

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of Employer’s facility whom she was assisting. Complaint ¶¶6-8; Answer and

New Matter, Answer ¶¶6-7. Between December 20, 2014, and August 1,

2016, Plaintiff received workers’ compensation payments totaling $75,365.88

for her injuries in this attack. Answer and New Matter, New Matter ¶¶4-5 &

Ex. A; Reply to New Matter ¶¶4-5. On August 1, 2016, Plaintiff entered into

a compromise and release agreement (C&R Agreement) with Employer under

which she was paid an additional lump sum of $40,000 to settle all claims with

respect to her rights to workers’ compensation benefits for the December 20,

2014 attack. Answer and New Matter, New Matter ¶5 & Ex. A; Reply to New

Matter ¶5; C&R Agreement ¶10. Following a hearing on August 2, 2016, a

workers’ compensation judge (WCJ) issued a decision and order approving the

C&R Agreement. 8/4/16 WCJ Decision.

On December 19, 2016, Plaintiff filed a negligence action against

Employer alleging that Employer was liable for the attack because it did not

have safety procedures, equipment and a building design sufficient to protect

Plaintiff from “potentially violent patients.” Complaint ¶¶10-11. Plaintiff

averred in her complaint that she was attacked “while working in the course

and scope of her employment” and that the attacker “[w]ithout leave or notice

or provocation, … did lay violent hands upon the Plaintiff; fondling and groping

her before knocking her to the floor and assaulting her in a sexual nature.”

Id. ¶¶7-8. Employer filed preliminary objections to the complaint, asserting

that the action was barred by the Workers’ Compensation Act (WCA) and the

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workers’ compensation proceeding concerning Plaintiff’s December 20, 2014

injuries. The trial court overruled the preliminary objections without prejudice

to Employer raising the same issues on a motion for judgment on the

pleadings or for summary judgment. Trial Court Order, 5/18/17.

On June 7, 2017, Employer filed an answer and new matter endorsed

with a Notice to Plead directing Plaintiff to respond to its new matter within 20

days. Employer admitted that the incident on which Plaintiff based her claims

occurred while she was working in the scope of her employment, Answer and

New Matter, Answer ¶¶5-7, but denied Plaintiff’s averments of negligence. In

its new matter, Employer pled the facts concerning Plaintiff’s receipt of

workers’ compensation benefits and the C&R Agreement and asserted that

Plaintiff’s action was barred by the workers’ compensation proceeding and its

immunity under the exclusive remedy provision of the WCA, 77 P.S. § 481.

Answer and New Matter, New Matter ¶¶2-11 & Ex. A. Plaintiff did not respond

to Employer’s new matter within 20 days.

On July 7, 2017, Employer filed a motion for judgment on the pleadings

seeking judgment on the grounds that Plaintiff’s action was barred by its

immunity under the WCA and the workers’ compensation proceeding. On July

20, 2017, Plaintiff filed an untimely reply to new matter admitting the facts

concerning her receipt of workers’ compensation benefits and the C&R

Agreement and that her injury occurred in the course and scope of her

employment, but denying the other new matter averments concerning

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Employer’s WCA immunity as legal conclusions. Reply to New Matter ¶¶2-11.

On July 25, 2017, Plaintiff filed a timely response to Employer’s motion for

judgment on the pleadings. In this response, Plaintiff admitted and attached

as exhibits the C&R Agreement and WCJ’s decision approving the C&R

Agreement, but argued that her claim against Employer was not barred

because it fell within the WCA’s “personal animus” or “third party attack”

exception. On August 2, 2018, the trial court entered an order granting

Defendant’s motion for judgment on the pleadings on the grounds that the

action was barred by the WCA. This timely appeal followed.

Plaintiff states the issues that she raises in this appeal as follows:

1) Whether the Trial Court improperly granted judgment on the

pleadings even though there are disputed issues of fact regarding

the incident in question, especially the motivation behind the

assault on the Plaintiff/Appellant.

2) Whether the Trial Court erred in determining that

Plaintiff/Appellant’s Complaint was not factually and legally

sufficient to set forth a claim for damages outside the

Pennsylvania Workers’ Compensation Act pursuant to the

“Personal Animus”/ “Third Party Attack” exception of the Act. See,

77 Pa. Stat. Ann. § 411.

3) Whether the Court failed to properly recognize and apply the

“Personal Animus” exception of the Pennsylvania Workers’

Compensation Act to the facts of this action. Specifically, that the

very nature of a sexual assault cannot be considered a work-

related experience.

Appellant’s Brief at 4 (footnote omitted). Although Plaintiff states these as

three issues, they are more properly analyzed as arguments and alternative

phrasing of a single issue: whether the trial court correctly held that, under

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the undisputed facts established by the pleadings, the attack on Plaintiff did

not fall within the WCA’s “personal animus” or “third party attack” exclusion

and that Plaintiff’s action was therefore barred by Employer’s immunity under

the WCA.1 Employer argues that the trial court correctly held that the personal

animus/third party attack exception did not apply to Plaintiff’s claims and that

Plaintiff’s action is also barred as a matter of law by her receipt of workers’

compensation benefits for this attack and the approved C&R Agreement.

Our standard of review of the trial court’s grant of judgment on the

pleadings is de novo and our scope of review is plenary. Rice v. Diocese of

Altoona-Johnstown, 212 A.3d 1055, 1061 (Pa. Super. 2019). Judgment on

the pleadings is properly entered where the pleadings and documents

admitted in the pleadings establish that there are no disputed issues of fact

and that the defendant is entitled to judgment as a matter of law or where

accepting the well-pleaded factual averments of the plaintiff’s complaint as

true, the defendant is entitled to judgment as a matter of law. Kote v. Bank

of New York Mellon, 169 A.3d 1103, 1107 (Pa. Super. 2017); Front Street

Development Associates, L.P., v. Conestoga Bank, 161 A.3d 302, 307-

08 (Pa. Super. 2017).

Under the WCA, an employer is required to pay workers’ compensation

benefits to an employee who sustains an injury in the course of her

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1Indeed, Plaintiff discusses these issues under a single argument section.

Appellant’s Brief at 11-17.

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employment. 77 P.S. § 431; Whitmoyer v. Workers’ Compensation

Appeal Board (Mountain Country Meats), 186 A.3d 947, 948 (Pa. 2018);

LeDonne v. Workers’ Compensation Appeal Board (Graciano Corp.),

936 A.2d 124, 129 (Pa. Cmwlth. 2007). Workers’ compensation replaces

common law tort actions between employees and employers as a means for

obtaining compensation for work injuries. Markle v. Workmen's

Compensation Appeal Board (Caterpillar Tractor Co.), 661 A.2d 1355,

1357 (Pa. 1995).

The Legislature ... enacted the [WCA] to provide employees with

compensation for injuries sustained within the scope of their

employment. In exchange for the right to compensation without

the burden of establishing fault, employees gave up their right to

sue the employer in tort for injuries received in the course of

employment.

Abbott v. Anchor Glass Container Corp., 758 A.2d 1219, 1223 (Pa. Super.

2000) (quoting Snyder v. Specialty Glass Products, Inc., 658 A.2d 366

(Pa. Super. 1995)).

Section 303(a) of the WCA provides in relevant part:

The liability of an employer under [the WCA] shall be exclusive

and in place of any and all other liability to such employes, his

legal representative, husband or wife, parents, dependents, next

of kin or anyone otherwise entitled to damages in any action at

law or otherwise on account of any injury or death . . . .

77 P.S. § 481(a). Accordingly, where an injury is covered by the WCA,

workers’ compensation is the employee’s sole remedy against her employer

and the employee may not bring a tort action against her employer. 77 P.S.

§ 481(a); Kohler v. McCrory Stores, 615 A.2d 27, 30, 32 (Pa. 1992);

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Burrell v. Streamlight, Inc., 222 A.3d 1137, 1139 (Pa. Super. 2019); Soto

v. Nabisco, Inc., 32 A.3d 787, 790-91 (Pa. Super. 2011).2

The WCA excludes from its coverage injuries intentionally inflicted by

third-parties for personal reasons that are unrelated to the employee’s

employment. 77 P.S. § 411(1); Kohler, 615 A.2d at 30-31; Krasevic v.

Goodwill Industries of Central Pennsylvania, Inc., 764 A.2d 561, 565

(Pa. Super. 2000); LeDonne, 936 A.2d at 129. Section 301(c)(1) of the WCA

provides in relevant part:

The term “injury arising in the course of his employment,” as

used in this article, shall not include an injury caused by an act

of a third person intended to injure the employe because of

reasons personal to him, and not directed against him as an

employe or because of his employment . . . .

77 P.S. § 411(1). Where an injury is excluded from workers’ compensation

coverage by this “personal animus” or “third party attack” exception, the

employer is not immune from tort liability for the injury, but is also not liable

for workers’ compensation benefits. Kohler, 615 A.2d at 32-33; Krasevic,

764 A.2d at 565-67 (affirming personal injury damages judgment against

employer where personal animus/third party attack exception applied);

LeDonne, 936 A.2d at 131 (affirming denial of compensation because

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2 An exception to this immunity exists where the employer has failed to obtain

workers’ compensation insurance. 77 P.S. § 501(d); Liberty v. Adventure

Shops, Inc., 641 A.2d 615, 616 (Pa. Super. 1994); Lozado v. Workers’

Compensation Appeal Board (Dependable Concrete Work and

Uninsured Employers Guaranty Fund), 123 A.3d 365, 372 (Pa. Cmwlth.

2015) (en banc). That exception is inapplicable here.

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personal animus/third party attack exception applied). Either an injury is

work-related and the employee is entitled only to workers’ compensation or it

falls within this exception and the employee’s sole remedy is a common law

action; “[i]t cannot be both.” Kohler, 615 A.2d at 32.

If the employee was acting in the course of her employment when the

injury occurred, the injury is presumed to be work-related and the burden is

on the party asserting the personal animus/third party attack exception to

prove that the exception applies and the injury is therefore not covered by the

WCA. Heath v. Workers’ Compensation Appeal Board (Pennsylvania

Board of Probation and Parole), 860 A.2d 25, 29-30 (Pa. 2004) (burden

to prove exception is on employer in workers’ compensation proceeding);

Kohler, 615 A.2d at 32-33 & n.5 (burden to prove exception is on plaintiff in

common law tort action). Because Plaintiff pled in her complaint that she was

attacked “while working in the course and scope of her employment,”

Complaint ¶7, the burden was on Plaintiff to show that the personal

animus/third party attack exception applied.

Employer argues that the workers’ compensation proceeding in which

Plaintiff received benefits for the December 20, 2014 attack precludes her

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from satisfying that burden and therefore bars her action as a matter of law.

We agree.3

Mere passive receipt of workers’ compensation benefits for an injury

does not bar an employee from suing her employer for negligence. Kohler,

615 A.2d at 32; Mike v. Borough of Aliquippa, 421 A.2d 251, 256 (Pa.

Super. 1980). In such a case, the employee’s damages can be reduced in the

tort action by the amount of the workers’ compensation benefits or the

employee can be required to repay the workers’ compensation benefits from

the damages award. Kohler, 615 A.2d at 32; Mike, 421 A.2d at 256. The

rationale for this rule is that allowing receipt of benefits to bar a common law

action “would permit employers to limit their potential liability for unsafe

workplaces by simply offering benefits to an employee while he is injured and

unaware that his proper remedy is through a negligence action.” Kohler, 615

A.2d at 32.

Where, however, there a final adjudication in a workers’ compensation

proceeding that the injury is covered by the WCA, the employee is estopped

from claiming that the personal animus/third party attack exception applies.

Kohler, 615 A.2d at 32-33; Dunn v. United Insurance Co. of America,

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3 While the trial court did not base its judgment on the pleadings on this

ground, we may affirm a trial court’s decision if there is a proper basis for the

result reached, even if it is different than the basis relied upon by the trial

court. Generation Mortgage Co. v. Nguyen, 138 A.3d 646, 651 n.4 (Pa.

Super. 2016); In re Estate of Rood, 121 A.3d 1104, 1105 n.1 (Pa. Super.

2015).

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482 A.2d 1055, 1057 (Pa. Super. 1984). This estoppel applies not only where

there is an adjudication of a workers’ compensation claim petition filed by the

tort plaintiff, Dunn, 482 A.2d at 1056-57, but also where a workers’

compensation decision is issued in proceedings on other types of petitions and

the employee is represented by counsel in those proceedings. Kohler, 615

A.2d at 32-33. In Kohler, our Supreme Court held that the plaintiff was

estopped from proving that his injury fell within the personal animus/third

party attack exception by an adjudication of a petition for termination,

suspension, or modification of compensation benefits, where the plaintiff was

represented by counsel in those proceedings and the workers’ compensation

referee “specifically found that [plaintiff] sustained a work-related injury and

expressly concluded that both parties are bound by the provisions of the

[WCA].” Id.

In addition, the doctrine of judicial estoppel bars a party from asserting

a position that is inconsistent with a position that she previously successfully

asserted in litigation. In re Adoption of S.A.J., 838 A.2d 616, 620 (Pa.

2003); Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010).

“The purpose of judicial estoppel is ‘to uphold the integrity of the courts by

preventing parties from abusing the judicial process by changing positions as

the moment requires.’” Bienert v. Bienert, 168 A.3d 248, 255 (Pa. Super.

2017) (quoting Gross v. City of Pittsburgh, 686 A.2d 864 (Pa. Cmwlth.

1996)). Judicial estoppel does not require that the issue have been actually

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litigated to conclusion or determined by a court or other tribunal on the merits

if the party successfully obtained a benefit by assertion of the position that

she now seeks to dispute. In re Adoption of S.A.J., 838 A.2d at 623 & n.

4; Black, 995 A.2d at 876, 878-79 (defendant was judicially estopped from

claiming WCA immunity where it had asserted that it was not the plaintiff’s

employer in workers’ compensation proceedings and obtained a stipulation

approved by a WCJ that another company was the employer and that the

workers’ compensation claim against it would be withdrawn); Ligon v.

Middletown Area School District, 584 A.2d 376, 379-80 (Pa. Cmwlth.

1990) (plaintiff barred by judicial estoppel from asserting that defendant with

whom he had entered into settlement at trial was immune from suit).

Here, Plaintiff did not merely passively receive workers’ compensation

benefits. Plaintiff also affirmatively sought and obtained $40,000 in additional

benefits through the C&R Agreement based on the position that the attack

was a work injury and that agreement was approved by a WCJ adjudication.

A petition to terminate Plaintiff’s workers’ compensation benefits and a

petition to suspend her benefits had been filed by Employer and were pending

at the time that Plaintiff entered into the C&R Agreement. 8/4/16 WCJ

Decision at 1, Findings of Fact (F.F.) ¶¶2, 7. The C&R Agreement gave Plaintiff

benefits that she would not receive if the termination petition or suspension

petition was granted and that she could not receive if the attack was excluded

from WCA coverage by the personal animus/third party attack exception.

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Plaintiff was represented by counsel in entering into the C&R Agreement and

her fee agreement with counsel described the representation as “my

workman’s compensation claim arising out of an incident occurring on

December 20, 2014 versus CARELINK.” C&R Agreement Employee’s

Certification ¶4; 8/4/16 WCJ Decision at 1, 13 (emphasis added).

Moreover, not only did Plaintiff successfully obtain benefits inconsistent

with her position in this litigation, but there was also an adjudication that the

December 20, 2014 attack was covered by the WCA. Under Section 449 of

the WCA, a WCJ was required to hold a hearing on the C&R Agreement and

render a decision approving or disapproving the C&R Agreement. 77 P.S. §

1000.5(b). The C&R Agreement compromised Plaintiff’s rights under the WCA,

and the WCJ decision approved the C&R Agreement “as a resolution of the

parties’ respective rights under the Pennsylvania Workers’ Compensation Act.”

8/4/16 WCJ Decision at 5; C&R Agreement ¶¶6-8, 10. The WCJ’s decision

incorporated as findings of fact the C&R Agreement, which stated that the

$75,365.88 in workers’ compensation benefits that Plaintiff had already

received were paid for an accepted work injury and that the $40,000 was a

payment of workers’ compensation benefits for that injury. 8/4/16 WCJ F.F.

¶4; C&R Agreement ¶¶1, 4-8, 13. Moreover, the WCJ found that “[t]he parties

are bound by the Pennsylvania Workers’ Compensation Act, as amended.”

8/4/16 WCJ Decision Conclusion of Law ¶1. See Kohler, 615 A.2d at 32

(express conclusion “that both parties are bound by the provisions of the

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[WCA]” showed that decision was an adjudication that the injury was covered

by the WCA). In addition, the WCJ made Plaintiff’s right to payment under

the C&R Agreement enforceable under the WCA by providing in her decision

that “Employer is ORDERED to make payment pursuant to the terms of the

Compromise and Release Agreement.” 8/4/16 WCJ Decision at 5.

Because Plaintiff, represented by counsel, actively sought and

successfully obtained $40,000 from Employer in the workers’ compensation

proceeding that she could receive only if the attack was work-related and

there was a final adjudication in the workers’ compensation proceeding that

the attack was covered by the WCA, she was estopped from proving that the

personal animus/third party attack exception to Employer’s workers’

compensation immunity applies to her claims in this case. Kohler, 615 A.2d

at 32-33; see also Black, 995 A.2d at 878-79. Plaintiff’s action against

Employer was therefore barred by Employer’s immunity under the WCA as a

matter of law and judgment on the pleadings was properly granted. Kohler,

615 A.2d at 32-33 (upholding trial court’s dismissal of plaintiff’s complaint on

a demurrer).

Moreover, even if Plaintiff’s action against Employer were not barred by

estoppel, her arguments would fail on the merits. A party asserting the

personal animus/third party attack exception must show, not merely that

there was an intentional assault, but that the victim was attacked for purely

personal reasons that were not related to the victim’s employment. 77 P.S. §

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411(1); Krasevic, 764 A.2d at 566; Scantlin v. Ulrich, 465 A.2d 19, 21 (Pa.

Super. 1983).

Plaintiff’s complaint averred that she was attacked in the performance

of her job duties by a patient with whom she was required to work and that

the attack was sudden and for no known reason. Complaint ¶¶5-8. Where

an employee is the victim of a sudden attack by a non-co-worker for unknown

reasons and the attack occurred while the employee was performing her job,

the personal animus/third party attack exception does not apply. Hershey v.

Ninety–Five Associates, 604 A.2d 1068, 1069-70 (Pa. Super. 1992); Sabot

v. Department of Public Welfare, 588 A.2d 597, 598, 600 (Pa. Cmwlth.

1991); Holland v. Norristown State Hospital, 584 A.2d 1056, 1057, 1059-

60 (Pa. Cmwlth. 1990). If the employee “is simply an innocent victim of an

attack, the attack will be considered an unexpected happening that arose in

the course of employment” that is covered by the WCA. M & B Inn Partners,

Inc. v. Workers’ Compensation Appeal Board (Petriga), 940 A.2d 1255,

1259 (Pa. Cmwlth. 2008).

Plaintiff argues that the personal animus/third party attack exception

applies to her claims because sexual attacks cannot be considered work-

related under this Court’s decisions in Krasevic and Schweitzer v. Rockwell

International, 586 A.2d 383 (Pa. Super. 1990) and a federal trial court

opinion, Pryor v. Mercy Catholic Medical Center, 1999 WL 956376 (E.D.Pa.

Oct. 15, 1999). That, however, is not the law. None of these cases hold that

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sexual assaults are necessarily excluded from WCA coverage or that a sudden

assault by a non-employee with whom the plaintiff was required to interact in

the performance of her job falls within the personal animus/third party attack

exception. Rather, Krasevic, Schweitzer, and Pryor all involved sexual

conduct by co-workers that either involve a pattern of behavior directed

specifically at the plaintiff or some evidence that the attacker had a personal

fixation on the plaintiff.4

In Krasevic, this Court held that the WCA did not bar common law tort

liability where the plaintiff was raped in a bathroom by a co-worker who had

previously groped her and had a personal fixation on her that was unrelated

to work. 764 A.2d at 563, 567. In Schweitzer, the plaintiff was subjected

by a supervisor to demands for a sexual relationship, groping, and lewd

comments about her body, and the Court held that these acts fell within the

personal animus/third party attack exception because the harassment was

personal in nature. 586 A.2d at 385, 391. In Pryor, the plaintiff was

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4 Plaintiff also relies for this argument on another federal decision, Huggins

v. Coatesville Area School District, 2008 WL 4072801 (E.D. Pa. Aug. 27,

2008). Huggins, however, is completely irrelevant to Plaintiff’s argument, as

it involved racial harassment by a supervisor, not sexual conduct or an assault,

and the court held that the plaintiff had not satisfied the personal animus/third

party attack exception because his allegations did not show that the conduct

was personal in nature rather than employment-related. 2008 WL 4072801

at *1-*3, *11-*12.

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subjected to repeated instances of sexually explicit remarks, fondling, physical

restraint, and lewd sex acts by a co-worker. 1999 WL 956376 at *1-*4.

In contrast, the personal animus/third party attack exception has

repeatedly been held inapplicable to sexual assaults on the employer’s

premises where the assailant was a stranger or a non-co-worker with whom

the employee was required to interact in the performance of her job.

Hershey, 604 A.2d at 1068, 1070 (holding that WCA immunity barred hotel

employee’s tort action for sexual assault by stranger who jumped over the

counter while she was working and that plaintiff “cannot rely upon the sexual

nature of her attack to establish that the attack occurred for reasons personal

to her assailant”); M & B Inn Partners, Inc., 940 A.2d at 1256, 1259

(personal animus/third party attack exception did not apply to sexual

harassment of hotel employee by hotel guest and hotel employee was entitled

to workers’ compensation benefits for that harassment); Sabot, 588 A.2d at

598, 600 (WCA immunity barred hospital psychiatric aide’s tort action for

sexual assault committed by hospital inmate who had a criminal record for

prior sexual attacks where there was “no averment that [inmate’s]

relationship to [the plaintiff] was in any way unrelated to her position as a

Hospital employee”); Holland, 584 A.2d at 1057, 1059-60 (WCA immunity

barred hospital security attendant trainee’s tort action for assault and rape by

a committed psychiatric patient).

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Plaintiff also argues that the judgment on the pleadings could not be

granted because the applicability of the personal animus/third party attack

exception is an issue of fact that must be determined by the trier of fact. This

argument likewise fails. In the cases on which Plaintiff relies, there was

evidence of an existing personal animosity between the victim and attacker,

McBride v. Hershey Chocolate Corp., 188 A.2d 775, 777-78 (Pa. Super.

1963); Repco Products Corp. v. Workmen’s Compensation Appeal

Board (Habecker), 379 A.2d 1089, 1091-92 (Pa. Cmwlth. 1977), or the

court held that the party asserting the exception did not satisfy its burden of

proof because there was no such evidence. M & B Inn Partners, Inc., 940

A.2d at 1259. Where, as here, the complaint alleges that the plaintiff was

attacked by a non-co-worker while performing her work duties and alleges no

motivation for the attack, dismissal at the pleading stage on WCA immunity

grounds is proper. Sabot, 588 A.2d at 597-98, 600 (affirming grant of

demurrer); see also Scantlin, 465 A.2d at 19, 21 (affirming judgment on

pleadings where plaintiff averred an intentional injury in the complaint but did

not aver any motivation by the person who inflicted the injury). Accordingly,

the trial court correctly concluded that, accepting the averments of Plaintiff’s

complaint as true, the personal animus/third party attack exception did not

apply and Plaintiff’s claims were barred by WCA immunity as a matter of law.

Plaintiff argues in her reply brief and asserted at oral argument that

even if her complaint was insufficient, the trial court should have granted her

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leave to amend. Plaintiff, however, did not raise the trial court’s failure to

grant leave to amend the complaint in her concise statement of errors

complained of on appeal filed in response to the trial court’s Pa.R.A.P. 1925(b)

order or even in her principal brief.5 This argument is therefore waived.

Pa.R.A.P. 1925(b)(4)(vii) (issues not included in Rule 1925(b) concise

statement are waived); Getty v. Getty, 221 A.3d 192, 196 n.5 (Pa. Super.

2019) (same); Brown v. Halpern, 202 A.3d 687, 709 n.13 (Pa. Super.

2019)(arguments raised for the first time in a reply brief are waived).6

In sum, the record on Employer’s motion for judgment on the pleadings

established that Plaintiff’s tort action against Employer is barred as a matter

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5 Plaintiff’s concise statement listed as errors only the following issues, which

are the same issues as she set forth in her brief in this Court:

1.) The Court improperly granted judgement on the pleadings

even though there are disputed issues of fact regarding the

incident in question, especially the motivation behind the assault

on the Plaintiff.

2.) The Plaintiff’s Complaint was factually and legally sufficient to

set forth a claim for damages outside the Pennsylvania Workers

Compensation Act pursuant to the “Personal Animus”/ “Third Party

Attack” exception of the Act. See, 77 Pa. Stat. Ann. § 411.

3.) The Court failed to properly recognize and apply the “Personal

Animus” exception of the Pennsylvania Workers Compensation Act

to the facts of this action. Specifically, the very nature of a sexual

assault cannot be considered a work-related occurrence.

Plaintiff’s/Appellant’s Concise Statement of Errors (footnote omitted).

6 Indeed, Plaintiff has not stated what averments she could make concerning

the attacker’s motivation in an amended complaint and it appears that no

discovery could supply evidence concerning his motivation, as Plaintiff advised

the Court at oral argument that the attacker is deceased.

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of law by Employer’s immunity under the WCA. We therefore affirm the trial

court’s order granting judgment on the pleadings in favor of Employer.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/20

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