J-A15039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CASEY LUTJENS & STEPHANIE               :    IN THE SUPERIOR COURT OF
 LUTJENS, HIS WIFE                       :         PENNSYLVANIA
                                         :
                   Appellants            :
                                         :
              v.                         :
                                         :
                                         :
 HEINZ BAYER,                            :
                                         :    No. 3165 EDA 2018
                    Appellee             :




            Appeal from the Order Entered September 28, 2018
   In the Court of Common Pleas of Northampton County Civil Division at
                       No(s): CP-48-CV-2016-5543


BEFORE:    BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                         FILED AUGUST 27, 2019

      Before this Court is the appeal of Casey and Stephanie Lutjens

(Appellants) from the order granting the motion of summary judgment

brought by Heinz Bayer and dismissing Appellants’ action against Bayer on

the grounds that the action was barred by the exclusive remedy provision of

Section 303(a) of the Workers’ Compensation Act (WCA), 77 P.S. § 481(a).

For the reasons set forth below, we affirm.

      The facts regarding the incident that led to this lawsuit are not in

dispute.   On January 21, 2015, Casey Lutjens (Lutjens) was working as a

screen printer at the worksite of his employer, General Medical Manufacturing,

LLC (GMM), in a building in Bangor, Pennsylvania that Bayer personally owned


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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(Building). During a scheduled afternoon break during his shift, Lutjens, along

with Geraldine Hawk, another GMM employee, exited the Building onto the

landing of the exterior wooden stairway. The landing was an area that was

commonly used by GMM employees for breaks, and a cigarette “butt bucket”

had been placed outside by GMM for the use of its employees. One or both of

Lutjens and Hawk leaned against the railing on the landing, and the railing

gave way, resulting in Lutjens and Hawk falling to the asphalt parking lot

below. Both Lutjens and Hawk sustained serious injuries as a result of their

fall, and each applied for workers’ compensation benefits. By stipulations in

the workers’ compensation actions, GMM accepted their injuries as work

related and agreed to pay wage-loss and medical benefits to Lutjens and

Hawk.

      Appellants instituted this action on June 22, 2016 by filing a complaint

against Bayer in the trial court. Following preliminary objections, Appellants

filed an amended complaint on August 5, 2016. In the amended complaint,

Appellants alleged that the stairs, landing, and railing on the exterior of the

Building were not properly built or maintained, resulting in the dangerous

condition that led to Lutjens’ injury.     First Amended Complaint ¶¶4, 22.

Appellants alleged that Bayer had actual knowledge of and failed to take

proper action to remedy the dangerous condition. Id. ¶¶4, 6-9, 12, 22. The

amended complaint alleges that Lutjens suffered various injuries as a result

of his fall, including skull base fracture, subdural hemorrhage, severe head

and brain trauma, rib fractures, chronic post-traumatic headaches, post-

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concussion syndrome, longitudinal fracture of his left temporal bone, hearing

and memory loss, balance issues, limitation of motion, and mental anguish

and anxiety. Id. ¶¶6-8, 14. The amended complaint contains two claims of

negligence against Bayer, one on behalf of Lutjens for his injuries and one on

behalf of his wife, Stephanie Lutjens, for loss of consortium. Id. ¶¶22-28.

      On September 29, 2016, Bayer filed an answer and new matter, and

Appellants filed a reply to the new matter on October 12, 2016. On December

15, 2016, Appellants and Bayer stipulated to consolidate the instant action

with a separate lawsuit brought by Hawk. On January 4, 2017, Appellants,

Hawk, and Bayer entered into a stipulation authorizing Bayer to amend his

new matter in which he could assert a defense that he was immune from suit

under the exclusive remedy provision on the basis that he was Lutjens’ and

Hawk’s employer under the WCA. Stipulation, 1/4/17, ¶¶8-9. Bayer filed his

amended answer and new matter on January 20, 2017, and Appellants filed a

reply on February 8, 2017.

      On June 29, 2018, following the close of discovery, Bayer filed the

instant summary judgment motion. In his motion, Bayer asserted that he was

the sole shareholder and president of GMM and in that capacity he oversaw

and controlled the operations of GMM. Summary Judgment Motion ¶6. Bayer

further contended that there is no question that Lutjens’ injury was work-

related under the WCA, observing that Lutjens applied for and received

workers’ compensation benefits and the record establishes that the accident

occurred during a scheduled, paid break in a location where employees

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commonly congregated during their breaks. Id. ¶¶8-13, 17-23. Bayer thus

argued that the suit brought by Lutjens against him is a claim by an employee

against his employer seeking compensation for a workplace injury, which is

barred by the exclusive remedy provision of the WCA. Id. ¶¶15, 38. Bayer

further contended that he does not owe a separate duty to Lutjens on the

basis that he was also the owner of the Building, as GMM’s obligation to

provide a safe workplace for its employees was identical to a building owner’s

obligation with respect to the safety of tenants. Id. ¶¶24-32.

     In their response, Appellants did not dispute that Lutjens was injured

during the course of his work day, however they contended that Lutjens

worked for GMM, not Bayer, and that he was not in the performance of his

work duties for GMM when the accident occurred.       Response to Summary

Judgment Motion ¶¶1, 5, 9, 16, 18, 20-22, 26, 29, 31, 38. Appellants asserted

that the landing where the injuries were sustained was part of the Building’s

common space that was shared with another tenant that also rented space in

the Building and that the landing and wooden stairs also served as an entrance

for customers and visitors to the Building. Id. ¶¶7, 17, 22-23. Because the

injury occurred on the Building’s common space, Appellants argued that Bayer

owed Lutjens a separate duty as landlord that was distinct from any duty owed

by GMM as Lutjens’ employer. Id. ¶¶15, 17, 24-27, 30-32, 38. Appellants

further contended that the evidence produced by Bayer did not demonstrate

that he was in fact the owner of GMM, as deposition testimony established

that Bayer only was present at GMM’s offices a few hours per week and the

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management was largely overseen by other individuals, and no evidence had

been submitted to conclusively establish Bayer’s ownership interest in GMM.

Id. ¶¶6, 12, 27-29.

      On September 28, 2018, the trial court entered an order granting

Bayer’s   summary     judgment   motion.    In   the   statement   of   reasons

accompanying the order, the trial court determined that the fact that Lutjens

and Hawk were on a break did not alter the conclusion that their injuries were

compensable under the WCA, noting that in 1912 Hoover House

Restaurant v. Workers’ Compensation Appeal Board (Soverns), 103

A.3d 441 (Pa. Cmwlth. 2014), a claimant who was injured while taking a

smoke break was nevertheless awarded workers’ compensation benefits.

Order, 9/28/18, Statement of Reasons ¶8. Next, the trial court concluded

that the evidence showed that Bayer was Lutjens’ and Hawk’s employer based

on the evidence marshalled by the parties. Id. ¶9. Finally, the trial court

rejected any application of the “dual capacity” exception to the exclusive

remedy bar to common law actions against an employer, noting that Lutjens

and Hawk remained in the course and scope of their employment as they were

on a regularly scheduled break and on the premises when the injuries

occurred. Id. ¶¶11-13. Appellants filed a timely notice of appeal of the trial




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court’s order.1 Hawk did not appeal the order, and she is not participating in

this appeal.2

       Appellants present the following questions for our review on appeal:

       1. Did the trial court err in granting [Bayer]’s Motion for Summary
       Judgment and finding that [Appellants’] claims were barred by the
       [WCA] when a genuine issue of material fact exists as to whether
       [Bayer] was Casey Lutjens’ employer at the time of the incident?

       2. In the event the Defendant is determined to be Casey Lutjens’
       employer, did the trial court err in finding that [Appellants’] claims
       do not fall within the “dual capacity” exception to [WCA] immunity
       as a matter of law when evidence exists that Casey was not
       engaged in the performance of his job-related duties at the time
       of the incident, the incident did not occur on GMM’s premises, and
       [Bayer] occupied a second capacity as property owner and
       landlord which conferred on him a duty to maintain the common
       exterior area where the incident occurred independent of any
       obligations imposed upon him as the employer?

Appellants’ Brief at 5 (trial court disposition omitted).

       Appellate review of a summary judgment ruling entails a question of

law, and therefore our standard of review of the trial court’s grant of summary

judgment is de novo and the scope of review is plenary. Starling v. Lake

Meade Property Owners Association, Inc., 162 A.3d 327, 340 (Pa. 2017);

Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011).               Our Supreme


____________________________________________


1 Appellants filed their statements of errors complained of on appeal on
November 20, 2018. On December 5, 2018, the trial court entered a
statement in lieu of opinion, in which it indicated that it was relying on the
reasons stated in its earlier order granting summary judgment.
2According to a November 21, 2018 letter submitted to this Court by Hawk’s
counsel, Hawk settled the case and filed a praecipe to settle, discontinue, and
end the matter with the trial court.

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J-A15039-19



Court has explained the legal standard for a court reviewing a summary

judgment motion as follows:

      Summary judgment is appropriate only in those cases where the
      record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment as
      a matter of law . . . . The reviewing court must view the record
      in the light most favorable to the nonmoving party, resolving all
      doubts as to the existence of a genuine issue of material fact
      against the moving party. When the facts are so clear that
      reasonable minds cannot differ, a trial court may properly enter
      summary judgment.

Starling, 162 A.3d at 340 (citation omitted).

      In their first issue, Appellants contend that the trial court erred in

granting summary judgment in favor of Bayer because the evidence presented

did not establish that Bayer was Lutjens’ employer and he therefore could not

avail himself of the exclusive remedy provision of the WCA.         Appellants

contend that Bayer and GMM held themselves out separately, with Bayer as

the owner of the Building responsible for the maintenance of the structure,

including its entrances and exits, and GMM as the legal entity that employed

Lutjens, held a workers’ compensation insurance policy, and paid Lutjens’

benefits. Appellants further argue that Bayer did not establish that he was

the sole member of GMM through documentary evidence showing his

ownership interest in the LLC, relying solely on Bayer’s oral assertion that he

owned the company. Appellants contend that, to the contrary, the undisputed

evidence shows that Bayer’s role in the management of GMM was limited and

that other managers were responsible for the day-to-day operations and

management of GMM.

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      Section 303(a) of the WCA, the exclusive remedy provision, provides as

follows:

      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). As this Court has explained, this provision “generally bars

all common law suits against an employer, because the [WCA] is the exclusive

remedy for injuries sustained when an individual is acting within the scope of

his employment.” Neidert v. Charlie, 143 A.3d 384, 388 (Pa. Super. 2016);

see also Soto v. Nabisco, Inc., 32 A.3d 787, 790 (Pa. Super. 2011). The

exclusive remedy provision of the WCA

      reflects the historical quid pro quo between an employer and
      employee whereby the employer assumes liability without fault for
      a work-related injury, but is relieved of the possibility of a larger
      damage verdict in a common law action. The employee benefits
      from the expeditious payment of compensation, but forgoes
      recovery of some elements of damages.

Alston v. St. Paul Insurance Cos., 612 A.2d 421, 424 (Pa. 1992).

      It is undisputed that GMM, as Lutjens’ legal employer and the party

liable for his workers’ compensation benefits, could claim the exclusive

remedy bar of Section 303(a) to claim immunity in an action brought against

it by Appellants. However, in this matter, Appellants brought suit, not against

GMM, but rather Bayer. Thus, this appeal requires that we resolve the issue

of whether Bayer individually is Lutjens’ employer based on his sole ownership

of and his role at GMM. The trial court found that the evidence established


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that Bayer was Lutjens’ employer and therefore the suit was barred by Section

303(a).3 Order, 9/28/18, Statement of Reasons ¶¶8-9.

____________________________________________


3 The trial court also held that Bayer was immune from suit because he was
Lutjens’ coworker, appearing to invoke the co-employee immunity provision
of Section 205 of the WCA, 77 P.S. § 72. Order, 9/28/18, Statement of
Reasons ¶¶8-9. Bayer likewise argues on appeal that the trial court order
granting summary judgment in his favor can be affirmed on the separate
ground of co-employee immunity. While it is arguable that Bayer, as a GMM
manager, could be considered a co-employee of Appellant, see 77 P.S. § 22
(defining employee in WCA to include “every executive officer of a corporation
elected or appointed in accordance with the charter and by-laws of the
corporation”); but see David B. Torrey, et al., 6 West’s Pennsylvania Practice,
Workers’ Compensation § 2.9 (3d ed.) (“A sole proprietor . . . cannot be at
once both master and servant . . .”), co-employee immunity is not applicable
in this matter. Section 205 of the WCA provides:
    If disability or death is compensable under this act, a person shall not
    be liable to anyone at common law or otherwise on account of such
    disability or death for any act or omission occurring while such person
    was in the same employ as the person disabled or killed, except for
    intentional wrong.
77 P.S. § 72. This immunity, however, applies only where the co-employee’s
liability is based on his conduct as a co-employee. Employers Mutual
Casualty Co. v. Boiler Erection and Repair Co., 964 A.2d 381, 390 n.6
(Pa. Super. 2008).
    [T]he mere fact that both parties held positions of employment with the
    same employer at the time of the accident is not sufficient to show that
    they were in the ‘same employ’ at the time of the accident. Rather, the
    act or omission must occur while both employees are in the
    performance of their duties as employees. In order to establish
    immunity under the [WCA], the defendant is required to establish that
    her act or omission occurred while she was in the ‘same employ’ as the
    plaintiff, that is, in the course of her performance of duties for the
    employer.
Id. (quoting Bell v. Kater, 943 A.2d 293, 297 (Pa. Super. 2008)) (quotation
marks omitted; emphasis added). Thus, even assuming that the evidence
establishes that Bayer, as a GMM manager, is Lutjens’ co-employee under the
WCA, Appellants’ complaint focuses on decisions Bayer made as the owner of



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       “[A] determination regarding the existence of an employer/employee

relationship is a question of law that is determined on the unique facts of each

case.” Universal Am-Can, Ltd. v. Workers’ Compensation Appeal Board

(Minteer), 762 A.2d 328, 330–31 (Pa. 2000); see also JFC Temps, Inc. v.

Workmen’s Compensation Appeal Board (Lindsay), 680 A.2d 862, 864

(Pa. 1996). An employer is defined as synonymous with the term “master,”

and the right to control the work of another and the manner in which the work

is performed are deemed the most relevant factors in determining whether an

employer-employee relationship exists under the WCA.           77 P.S. § 21;

Universal Am-Can, 762 A.2d at 333; Gillingham v. Consol Energy, Inc.,

51 A.3d 841, 855 (Pa. Super. 2012) (“A master is one who stands to another

in such a relation that he not only controls the results of the work of that

other, but also may direct the manner in which such work shall be done.”)

(citation omitted).      “[I]t is the existence of the right to control that is

significant, irrespective of whether the control is actually exercised.”

Universal Am-Can, 762 A.2d at 333 (emphasis in original). An employer-

employee relationship exists under the WCA “where the alleged employer

possesses the right to select the employee; the right and power to discharge

the employee; the power to direct manner of performance; and the power to

control the employee.” Schriver v. Workers' Compensation Appeal Board


____________________________________________


the Building, and Bayer did not show that he was responsible for the condition
of the wooden deck and landing pursuant to his duties as a GMM employee.

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(Department of Transportation), 176 A.3d 459, 463 n.11 (Pa. Cmwlth.

2017).

       The precise issue of whether the individual owner of an LLC (or other

business entity) can assume the LLC’s status as an employer under the WCA

and thus remain immune from common law suit brought by an injured

employee has not been addressed by the appellate courts of this

Commonwealth.4 The Pennsylvania Supreme Court, however, has addressed

in two cases the analogous issue of whether an injured employee may sue at

common law the parent or subsidiary corporation of the employee’s corporate

employer. In the first of these cases, Mohan v. Publicker Industries, Inc.,

222 A.2d 876 (Pa. 1966), the husband of a woman who died while nominally

employed by Publicker Industries brought a wrongful death and survivorship

action against Publicker’s subsidiary, Continental Distilling. 222 A.2d at 877.

The Court determined that, even though the employee was receiving

paychecks from Publicker and there were other formal indicia that Publicker

was her employer, the work the employee performed was controlled by

Continental    and    was    done    in   Continental   plants   and   therefore   the

“overwhelmingly meaningful factors reveal[] the right of control, which is the

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4 Contrary to Bayer’s argument on appeal, Neidert does not establish that
the owner of a company that employs an injured worker is an employer under
the WCA, because in that case the plaintiff conceded that the defendant was
immune from suit under the WCA as the plaintiff’s co-employee. 143 A.3d at
386-87. This Court thus did not address the issue of whether the defendant
was also the plaintiff’s employer under the WCA based on his ownership
interest.

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classic test of the master-servant relationship, to be in Continental.” Id. at

878-79.   Thus, the Court determined that Continental was entitled to the

exclusivity remedy bar of the WCA.      Id. at 879.   The Court set forth the

following test for future cases:

      in a situation wherein the issue is which of two corporations, one
      of which is a wholly-owned subsidiary of the other, is the employer
      of an injured employee, ...the courts must analyze the issue of
      control in terms of function in order to determine for which
      corporation an employee in reality works. In other words, where
      there is established a parent[-]subsidiary relationship between
      corporations operating as separate entities and engaged in the
      performance of different functions, the proper manner by which
      the question of which corporation has the right of control over a
      certain employee should be determined is to focus on the
      functions performed by each corporation and by the employee.

Id.

      Following Mohan, in Kiehl v. Action Manufacturing Co., 535 A.2d

571 (Pa. 1987), two injured workers at a munitions factory sued in tort the

parent corporation, which operated four munitions factories, rather than their

direct employer, which the parent had formed to operate the specific factory

in which the employees worked. Id. at 571-72. The Court determined that

the trial court erred in solely looking to the WCA’s traditional master-servant

analysis and that, pursuant to Mohan, an analysis of the functions performed

by the parent and subsidiary was required before proceeding to the traditional

control test. Id. at 573. The Court emphasized that under the functional

analysis of Mohan, the fact that a certain entity pays the injured employee

and other superficial indicia of the employment relationship is not dispositive



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of which party is in fact the employer under the WCA. Id. at 574. Applying

Mohan, the Court found that the two corporations had distinct operational

functions as the parent had formed the subsidiary in order to operate a factory

with a different function from the other factories that the parent owned and

ran. Id. Furthermore, the Court noted that the injured workers reported to

work at the subsidiary, produced detonators for the subsidiary, operated

machinery owned by the subsidiary, and were under the direct supervision of

the subsidiary’s management.       Id.   The Court thus rejected the parent

corporation’s argument that the two companies were a single entity “as an

attempt to ‘pierce the corporate veil’ which it has carefully erected by forming

[the subsidiary] as a separate corporation,” stating that allowing the parent

to invoke the exclusive remedy bar “would permit a parent company to assert

itself as an immune unit if sued by an employee of any of its subsidiaries for

[independent] acts of negligence, and project itself as a separate entity if sued

by a member of the general public for the same conduct.” Id. at 574-75.

      In this case, there is no dispute that Bayer was the principal manager

at GMM with the power to act on behalf of the company, hire and fire GMM

employees, overrule other managers, and interact with customers. Summary

Judgment Motion, Ex. C, Bayer Dep. at 49, 51; id., E, Lutjens Dep. at 18-19,

68-69, 139; id., Ex. G, Hawk Dep. at 15-16, 21, 37-39; Response to Summary

Judgment Motion, Ex. C, Bayer Dep. at 136-37. Lutjens admitted during his

deposition that he viewed Bayer as the “big boss” with the “final say on all

issues relative to the company.” Summary Judgment Motion, Ex. E, Lutjens

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Dep. at 68-69.      Furthermore, Bayer presented unrefuted evidence that he

owned all of the membership interest in GMM and that he served as the

president of the company. Summary Judgment Motion, Ex. C, Bayer Dep. at

49, 51.     Appellants did not present any evidence that contradicted this

testimony.5

       In addition to his role at GMM, Bayer personally owned the Building.

Summary Judgment Motion, Ex. C, Bayer Dep. at 49-51. Bayer personally

insured the Building and GMM paid him rent for a portion of the Building.

Response to Summary Judgment Motion, Ex. J, General Liability Policy; id.,

Ex. L, GMM & Bayer Federal Income Tax Returns.         Though GMM was the

primary tenant of the Building, Bayer also leased a portion of the Building to

another company, Windjammer, which paid him rent personally, and Bayer

used another portion of the Building for a separate business venture of his

called Lace Wing Fashion Design. Id., Ex. F, Mary Catherine Pinkerton Dep.

at 28-29; id., Ex. L, Windjammer 1099 Forms.




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5 Appellants argue, under the rule established in Borough of Nanty-Glo v.
American Surety Company of New York, 163 A. 523 (Pa. 1932), that the
trial court erred in relying upon the testimonial evidence submitted by Bayer
in granting summary judgment in his favor when issues of witness credibility
and weight are properly reserved for the fact-finder at trial. Appellants,
however, did not raise any objection based on Nanty-Glo in their opposition
to Bayer’s summary judgment motion or in their statement of errors
complained of on appeal.        This contention is thus waived.      Pa.R.A.P.
1925(b)(4)(vii); Lineberger v. Wyeth, 894 A.2d 141, 143 (Pa. Super. 2006)
(Nanty-Glo argument raised for the first time on appeal is waived).

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      We agree with the trial court’s conclusion that Bayer was Lutjens’

“employer” under the WCA’s traditional test of an employment relationship

under the WCA because he had the power to hire, fire, and direct the activities

of GMM employees. Furthermore, under the analysis set forth by our Supreme

Court in Mohan and Kiehl, Bayer functionally served as Lutjens’ employer.

While, as Appellants note, Bayer was only present for limited hours at the

GMM worksite     and other    GMM managers       performed the     day-to-day

supervision of GMM’s employees and operations, see Response to Summary

Judgment Motion, Ex. C, Bayer Dep. at 135-38, Bayer’s delegation of a portion

of the management of GMM to others is not contrary to the conclusion that

Bayer was the “big boss” of GMM with the power to direct the activities of

GMM employees and hire and fire employees. Similarly, the fact that Bayer

owned the Building and sublet portions of the Building to other tenants does

not contradict that he also was Lutjens’ employer under the WCA and

therefore was immune to tort suit.

      In their second issue, Appellants argue that, even if Bayer is Lutjens’

employer under the WCA, Bayer also occupied a separate role as the owner

of the Building and therefore Appellants can still recover against him pursuant

to the “dual capacity” exception to the exclusive remedy bar.       Appellants

assert that Lutjens was not performing work for GMM or on the GMM worksite

when he was injured and he was injured while in a common area of the

Building that also served as an entrance for the general public and other

tenants.   Appellants further contend that Bayer had a clear duty as a

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commercial landlord to members of the general public and his tenants to

ensure that no unsafe conditions were present, and that Bayer’s duties as

landlord were separate and distinct from his role at GMM.

      “Under the [dual capacity] doctrine, an employer, who is normally

shielded from tort liability by the exclusive character of workers’ compensation

remedies, may become liable in tort to his employee if he occupies, in addition

to his capacity as an employer, a second capacity that confers on him

obligations independent of those imposed on employers.”            Gresik v. PA

Partners, L.P., 33 A.3d 594, 599 n.7 (Pa. 2011); see also Neidert, 143

A.3d at 388.    It is generally recognized, however, that the dual capacity

doctrine has limited application in Pennsylvania, as this Court has generally

taken an “unfavorable view” of the dual capacity doctrine. Neidert, 143 A.3d

at 388; see also Soto, 32 A.3d at 791.

      Our Supreme Court has found that the dual capacity doctrine operated

as an exception to the exclusive remedy bar in only one case, Tatrai v.

Presbyterian University Hospital, 439 A.2d 1162 (Pa. 1982). In Tatrai,

an operating room technician at a hospital became ill during work and she

went to the emergency room of the hospital for treatment. Id. at 1163. When

the technician was placed on an x-ray table, the foot-stand of the table broke

and the technician was injured as she fell to the floor.     Id.    The majority

opinion of Justice Nix concluded that the injury was not within the course of

employment because the incident was “an event totally extraneous to the

employment scheme.” Id. at 1165. Further, the majority determined that

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the fact that the injury occurred on the premises did not alter the conclusion

that the injury was not exclusively compensable under the WCA because the

technician’s visit to the emergency room was not in furtherance of the affairs

of her employer and not required by reason of employment. Id. at 1165-66.

The concurrence of Justice Roberts, which drew the joinder of three other

justices, agreed with the majority but on the separate basis that the hospital

did not have an employer-employee relationship with the technician at the

time of the injury but rather a hospital-patient relationship with an entirely

distinct set of obligations. Id. at 1166-67.

      Following Tatrai, the Supreme Court adopted the rule advocated by the

concurrence, holding that the dual capacity exception is applicable where the

employer and employee interact in such a way that the employer owes a

different duty to the employee than arises through the employment

relationship. Lewis v. School District of Philadelphia, 538 A.2d 862, 869

(Pa. 1988); Budzichowski v. Bell Telephone Company of Pennsylvania,

469 A.2d 111, 114-15 (Pa. 1983). However, the Court also emphasized, in

accordance with the majority opinion in Tatrai, that the dual capacity

exception has no application where “the employee’s compensable injury

occurred while he was actually engaged in the performance of his job.” Lewis,

538 A.2d at 869; see also Heath v. Church’s Fried Chicken, Inc., 546 A.2d

1120, 1121 (Pa. 1988); Snyder v. Pocono Medical Center, 656 A.2d 534,

537 (Pa. Super. 1995), aff’d, 690 A.2d 1152 (Pa. 1997).




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      This Court most recently addressed the application of the dual capacity

exception in Neidert. In that case, the plaintiff was injured using a trap door

in the floor of a bar in which he was employed; the plaintiff was awarded

workers’ compensation benefits, but he also sued the defendant, who was the

plaintiff’s supervisor, and who also owned the building in which the bar was

located and all of the stock in the company that operated the bar. 143 A.3d

at 386.   The plaintiff did not dispute that the defendant was plaintiff’s

supervisor and owned his employer, but argued that his suit was permitted

under the dual capacity exception because the defendant also owned the

building where the injury occurred. Id. at 387, 389. This Court observed that

the operation of the trap door was part of the plaintiff’s job duties, for which

he had received safety instructions from the defendant. Id. at 389-90. As

there was no dispute that the plaintiff was injured while engaged in the

performance of his job, we concluded that the injury was not “an event totally

extraneous to the employment scheme” and therefore the dual capacity

exception did not apply. Id. at 390 (quoting Tatrai, 439 A.2d at 1165).

      We conclude that the trial court correctly determined that the dual

capacity exception is inapt here.       First, Appellants are estopped from

contending in the present proceeding that Lutjens’ injury was totally

extraneous to the employment scheme because he was not in the course and

scope of his employment when injured.          Under the doctrine of judicial




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estoppel,6 “a party to an action is estopped from assuming a position

inconsistent with his or her assertion in a previous action, if his or her

contention was successfully maintained.” Bienert v. Bienert, 168 A.3d 248,

255 (Pa. Super. 2017) (citations omitted). As noted above, Lutjens entered

into a stipulation with GMM in the workers’ compensation proceeding, in which

the parties agreed that he was “injured in the course and scope of his

employment with” GMM.7 Summary Judgment Motion, Ex. F, Stipulation ¶2.

A workers’ compensation judge granted Lutjens’ claim petition in accordance

with the stipulation and ordered Appellant to pay wage-loss and medical

benefits. Id., Ex. F, Order; see also Response to Summary Judgment Motion

¶13.    Lutjens’ contention that his injury was in the course and scope of

employment when injured was successfully maintained in the workers’

compensation proceeding, and therefore, under the doctrine of judicial

____________________________________________


6 Our Supreme Court has described judicial estoppel as “an equitable,
judicially-created doctrine designed to protect the integrity of the courts by
preventing litigants from ‘playing fast and loose’ with the judicial system by
adopting whatever position suits the moment.” Sunbeam Corp. v. Liberty
Mutual Insurance Co., 781 A.2d 1189, 1192 (Pa. 2001) (citation omitted).
7 We further note that Appellants pleaded in their complaint in the instant
action that Lutjens was “in the course and scope of his employment with” GMM
when the incident occurred. First Amended Complaint ¶7. A party may not
contradict an admission in an earlier pleading; however, this rule applies only
to a statement of fact, rather than a conclusion of law, made in a pleading.
Cogley v. Duncan, 32 A.3d 1288, 1292-93 (Pa. Super. 2011). As the issue
of whether an appellant was injured in the course and scope of employment
is a question of law, Wachs v. Workers’ Compensation Appeal Board
(American Office Systems), 888 A.2d 858, 862 (Pa. 2005), Appellants’
allegation that Lutjens was acting in the course and scope of his employment
when injured was not a binding admission.

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estoppel, Lutjens may not assume a position inconsistent with his earlier

contention in this proceeding. See Black v. Labor Ready, Inc., 995 A.2d

875, 879 (Pa. Super. 2010) (holding that defendant was estopped from

invoking the exclusive remedy bar where it had successfully maintained in an

earlier workers’ compensation proceeding that it was not the plaintiff’s

employer and therefore was not liable for the plaintiff’s work injury).

      Even if Appellants were not estopped from arguing that injury occurred

outside the course and scope of employment, we would still find this argument

unpersuasive. Under the WCA, an employee who is not actively engaged in

the performance of his job duties at the time of his injuries may still be entitled

to workers’ compensation benefits if injured during “intervals of leisure within

regular working hours of the working day . . . which allow the employee to

administer to his personal comfort [to] better enable him to perform his job.”

Starr Aviation v. Workers’ Compensation Appeal Board (Colquitt), 155

A.3d 1156, 1160 (Pa. Cmwlth. 2017) (citation omitted); see also 1912

Hoover House Restaurant, 103 A.3d at 447. Thus, courts have determined

that an employee will not be denied compensation when injured while

engaging in such activities as cigarette breaks, using bathroom facilities, and

brief periods of recreation during the course of a workday.            See, e.g.,

Dzikowska v. Superior Steel Co., 103 A. 351, 352 (Pa. 1918) (laborer who

stepped out of the work area to have a cigarette and burned himself when the

match he lit caused his apron to catch fire was appropriately awarded

compensation under the WCA as a cigarette break was not an unreasonable

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departure   from   the   course   of   employment);   1912   Hoover    House

Restaurant, 103 A.3d at 448 (employee who was bitten by a dog while on

an authorized cigarette break in an area designated for breaks outside of

workplace was in the course and scope of employment); The Baby’s Room

v. Workers’ Compensation Appeal Board (Stairs), 860 A.2d 200 (Pa.

Cmwlth. 2004) (furniture delivery person who, upon completion of delivery

and while walking back to truck, sustained injury by jumping and touching a

basketball rim was in the course and scope of employment); Montgomery

Hospital v. Workers’ Compensation Appeal Board (Armstrong), 793

A.2d 182, 188 (Pa. Cmwlth. 2002) (employee who sustained injury while using

bathroom at work was in the course and scope of employment).

      In this case, Lutjens’ injury incurred during an afternoon break that was

provided to all GMM employees, occurred at the same time every day, lasted

10 to 15 minutes, and the employees remained on the clock during the break.

Summary Judgment Motion, Ex. E, Lutjens Dep. at 32-33, 65; Id., Ex. G,

Hawk Dep. at 22-26, 81; see also Answer and Amended New Matter ¶58;

Reply to Answer and Amended New Matter ¶58. The wooden stairway where

the incident occurred was commonly used for cigarette breaks with a

designated butt bucket for the disposal of cigarette butts provided by GMM.

Id., Ex. E, Lutjens Dep. at 65-67, 132, 139; Id., Ex. G, Hawk Dep. at 26, 77,

79.   Moreover, as the entrance to the workplace, the wooden stairs and

landing are considered part of the employer’s premises under the WCA, even




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though it was shared common space used by other tenants and guests.8 Epler

v. North American Rockwell Corp., 393 A.2d 1163, 1166-67 (Pa. 1978);

Piedmont Airlines, Inc. v. Workers’ Compensation Appeal Board

(Watson), 194 A.3d 737, 740-41 (Pa. Cmwlth. 2018). Because Lutjens was

injured while engaged in a short break from his work that had been expressly

authorized by his employer to allow him to attend to his personal comfort, his

injury occurred during the course and scope of his employment and was

compensable under the WCA. See Starr Aviation, 155 A.3d at 1159-60;

1912 Hoover House Restaurant, 103 A.3d at 448.              Therefore, Lutjens’

injury did not occur during “an event totally extraneous to the employment

scheme,” and the dual capacity exception has no application. Tatrai, 439

A.2d at 1165; Neidert, 143 A.3d at 390.9

____________________________________________


8 We note that this issue is not dispositive of the question of whether Lutjens’
injury was compensable under the WCA because an injured employee may
receive workers’ compensation benefits where the employee is engaged in a
short departure from work and the injury occurred off the employer’s
premises. Starr Aviation, 155 A.3d at 1159.
9Appellants further argue that Lutjens was not injured during the course and
scope of his employment because (1) the scheduled breaks were not
mandated by GMM and he sometimes worked through the breaks, and (2)
Bayer testified at his deposition that he informed GMM employees on one
occasion that that they should not smoke on the landing and that congregating
on the landing blocked the Building exit and presented a safety hazard.
Response to Summary Judgment Motion, Ex. C., Bayer Dep. at 45-46. Both
of these arguments lack merit. First, the issue here is not whether Lutjens
worked through his breaks or was mandated to leave his work site at the time
he was injured, but rather whether, at the time he was injured, he was
engaged in an “interval[] of leisure within regular working hours . . . to
administer to his personal comfort [to] better enable him to perform his job.”



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       Moreover, Appellants’ dual capacity argument also fails because Bayer,

as the owner of the building, did not owe a distinct duty to Lutjens that was

separate from his responsibility as an employer to maintain a safe workplace.

Under the WCA, an employer is liable for injuries that occur on the employer’s

premises to employees in the course of their employment. 77 P.S. § 411(1);

Hoffman v. Workers’ Compensation Appeal Board (Westmoreland

Hospital), 741 A.2d 1286, 1288 (Pa. 1999) (“Thus, as [the claimant] was

injured while present at [the e]mployer’s premises in the course of her

employment,      she    should    have    been     afforded   workers’   compensation

benefits.”). While Bayer may have owed duties to his tenants or their invitees

for dangerous or defective conditions on the leased premises, see generally

Cholewka v. Gelso, 193 A.3d 1023, 1031 (Pa. Super. 2018), given Bayer’s

status as Lutjens’ employer, these obligations would merely be duplicative of

the obligations imposed on Bayer by the WCA relating to employees who

sustain injuries during the course and scope of their employment.
____________________________________________


Starr Aviation, 155 A.3d at 1160 (citation omitted). The evidence here
establishes that an afternoon break was provided for such a purpose and that
Lutjens was on such a break at the time he was injured. Second, a workers’
compensation claim may be denied as outside the course of employment
where the injured employee’s actions violated a positive work order or rule,
but only where the employer demonstrates that the injured employee actually
knew of the order or rule. Miller v. Workers’ Compensation Appeal Board
(Millard Refrigerated Services), 47 A.3d 206, 209 (Pa. Cmwlth. 2012). In
this case, Bayer did not testify that he personally informed Lutjens that he
could not stand on the landing, and Lutjens testified that he was never
instructed to not stand on the landing and the only thing Bayer ever told the
smokers on the landing was that they should put their cigarette butts in the
butt bucket. Summary Judgment Motion, Ex. E, Lutjens Dep. at 131-32.

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     For the foregoing reasons, we conclude that the trial court properly

concluded that Bayer was entitled to judgment as a matter of law and

therefore granted summary judgment in his favor.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/19




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