J. A15014/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE MIKULSKY AND                      :     IN THE SUPERIOR COURT OF
STANLEY MIKULSKY,                           :           PENNSYLVANIA
                                            :
                           Appellants       :
                                            :
                   v.                       :
                                            :
NORTHTEC, INC. AND                          :         No. 1785 EDA 2015
ESTEE LAUDER, INC. AND                      :
ESTEE LAUDER COMPANIES, INC.                :


                    Appeal from the Order, April 27, 2015,
               in the Court of Common Pleas of Bucks County
                       Civil Division at No. 2009-00584


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 14, 2016

      Christine Mikulsky (“Mikulsky”) and Stanley Mikulsky appeal the order

of the Court of Common Pleas of Bucks County that granted the summary

judgment    motion      of    Northtec,   Inc.;   Northtec,   LLC   (“Employer”);

Estee Lauder, Inc.; and Estee Lauder Companies and dismissed all claims

filed against appellees.

      Mikulsky worked for Employer as a compounder.1 Employer was in the

business of producing cosmetics for other companies.           On December 15,

2007, Mikulsky, who was not scheduled to work that day, attended


1
  Mikulsky testified that, as a compounder, she would “mix the powders,
different ingredients to make the blushes or the face powers [sic] or the eye
shadows.” (Notes of testimony, 5/13/08 at 7.)
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Employer’s warehouse sale.     Mikulsky received an invitation to the sale in

her pay envelope.       Employees were invited to attend the sale from

7:00 a.m. to 3:00 p.m.      Mikulsky arrived on the day of the sale with a

friend. While waiting in line to enter the warehouse, Mikulsky left the line

and went back to her car to get a pair of gloves. As she stepped from the

sidewalk into the parking lot, she tripped over a concrete parking bumper

and fell. (Notes of testimony, 5/13/08 at 7-12.) Mikulsky alleged that, as a

result of the fall, she broke her right elbow and injured her right shoulder.

Mikulsky did not return to work following the fall.

      On March 6, 2008, Mikulsky petitioned for workers’ compensation

benefits and sought full disability benefits from December 15, 2007 forward,

the payment of medical bills, and counsel fees to be paid by Employer.

(Claim Petition, 3/6/08 at 2.) Employer answered and denied all allegations.

      On October 13, 2008, Mikulsky and Employer entered into a

Compromise and Release Agreement (“Agreement.”)          The parties agreed

that Employer would pay Mikulsky the sum of $65,000 which “represents

payment of all future indemnity claims for the work related injury of

12/15/2007.”     (Agreement, 10/13/08 at 3 ¶13.)       The Agreement also

provided that “[t]he release portion of this Agreement shall apply to all

injuries alleged to be related to the December 15, 2007 injury.” (Id. at 4 ¶4

(continued).)    The Agreement also contained the following relevant

miscellaneous provisions:



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             The parties enter into this Agreement in
             consideration of $65,000.00. This $65,000.00 figure
             resolves any and all issues related to the claimant[’]s
             December 15, 2007 injury.

             As of the moment that the Judge approves this
             Agreement in the form of a bench order, the
             employer’s obligation to pay indemnity, past, present
             and future (weekly wage loss benefits) shall be
             absolutely and forever extinguished.

             ....

             This Agreement resolves any and all issues that have
             been and/or can be plausibly raised as a result of the
             claimant’s December 15, 2007 injury.

Id. at 4-5 ¶18 (continued).

      The workers’ compensation judge approved the Agreement by order

dated October 14, 2008.

      On January 22, 2009, appellants filed a complaint in the trial court and

alleged that on or about December 15, 2007, the date of Mikulsky’s injury,

and for some time before that, appellees negligently, carelessly, and

recklessly maintained their property where the warehouse was located and

created an unreasonable risk of harm to pedestrians, invitees, guests, and

visitors.   (Complaint, 1/22/09 at 2 ¶9.)    As a result of the negligence of

appellees, Mikulsky alleged that she suffered the following injuries:

             comminuted right lateral condyle fracture, requiring
             open reduction and internal fixation; rotator cuff tear
             of the supraspinatus and upper infraspinatus with
             retraction beyond the midhumeral head with
             significant atrophy and fatty replacement; weakness
             and restricted range of motion of right elbow and
             right shoulder; various cuts, scrapes and bruises;


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             severe damage to her nerves and nervous system
             and various other ills and injuries.

Complaint, at 4 ¶15. As a result of these injuries, Mikulsky stated that she

could not work and suffered a severe loss of earnings and impairment of her

earning capacity and power. Stanley Mikulsky included a loss of consortium

claim.   In each count of the three-count complaint, appellants sought in

excess of $50,000 in damages.

     Following discovery, appellees, on November 7, 2014, moved for

summary judgment.     Appellees alleged that the warehouse property was

owned by Keystone Crossing, III, LLC.        Appellees further alleged that

appellee Northtec, Inc., was not in existence as it had been dissolved in

1997. Further, appellees Estee Lauder, Inc., and Estee Lauder Companies,

LLC, were not lessees of the warehouse, parking lot, or property and had no

control over those places. Further, appellees asserted that because Mikulsky

signed the Agreement which resolved any and all issues against Employer,

Mikulsky could not pursue a civil action against Employer and the other

appellees.

     On April 27, 2015, the trial court granted summary judgment and

dismissed all claims against appellees.   The trial court granted the motion

because Mikulsky had previously released Employer from liability for all

injuries related to the December 15, 2007 incident, when she executed the

Agreement. Also, the trial court determined that the Estee Lauder appellees




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were not liable to her because they were not her employer and did not have

any ownership or control of the warehouse and the surrounding area.

      Appellants raise the following issues for this court’s review:

            1.    Was [Mikulsky] acting within the course of her
                  employment and furthering her employer’s
                  business or affairs when she was injured while
                  attending her employer’s warehouse sale of
                  cosmetics on her day off, when [Employer] did
                  not require her to attend the sale, the sale was
                  not a tradition in her workplace, the sale was
                  not designed to promote good relations among
                  the employees, she was not injured while
                  engaging in an activity or maintaining a skill
                  necessary to the performance of her job?

            2.    Is the present tort action barred by a
                  Compromise and Release Agreement under
                  Section 449(a) of the Workers’ Compensation
                  Act, which did not admit any liability for a
                  work-related injury or that [Mikulsky] was
                  acting in the course of her employment when
                  she was injured, did not obligate the employer
                  to pay any wage losses or medical bills, and
                  did not bar the injured employee from pursuing
                  claims arising outside of the Workers’
                  Compensation Act?

Appellant’s brief at 4 (footnote omitted).

      This court reviews a grant of summary judgment under the following

well-settled standards:

                  Pennsylvania law provides that summary
                  judgment may be granted only in those
                  cases in which the record clearly shows
                  that no genuine issues of material fact
                  exist and that the moving party is
                  entitled to judgment as a matter of law.
                  The moving party has the burden of
                  proving that no genuine issues of


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                  material fact exist.     In determining
                  whether to grant summary judgment,
                  the trial court must view the record in
                  the light most favorable to the non-
                  moving party and must resolve all doubts
                  as to the existence of a genuine issue of
                  material fact against the moving party.
                  Thus, summary judgment is proper only
                  when the uncontraverted allegations in
                  the pleadings, depositions, answers to
                  interrogatories, admissions of record,
                  and submitted affidavits demonstrate
                  that no genuine issue of material fact
                  exists, and that the moving party is
                  entitled to judgment as a matter of law.
                  In sum, only when the facts are so clear
                  that reasonable minds cannot differ, may
                  a trial court properly enter summary
                  judgment.

                  [O]n appeal from a grant of summary
                  judgment, we must examine the record
                  in a light most favorable to the
                  non-moving party.         With regard to
                  questions of law, an appellate court’s
                  scope of review is plenary. The Superior
                  Court will reverse a grant of summary
                  judgment only if the trial court has
                  committed an error of law or abused its
                  discretion.    Judicial discretion requires
                  action in conformity with law based on
                  the facts and circumstances before the
                  trial    court     after    hearing    and
                  consideration.

            Gutteridge v. A.P. Green Services, Inc., 804 A.2d
            650, 651 (Pa.Super. 2002).

Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super. 2008)

(citation omitted).

      Pennsylvania Rule of Civil Procedure 1035.2 provides:



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           After the relevant pleadings are closed, but within
           such time as not to unreasonably delay trial, any
           party may move for summary judgment in whole or
           in part as a matter of law

           (1)   whenever there is no genuine issue of
                 any material fact as to a necessary
                 element of the cause of action or defense
                 which could be established by additional
                 discovery or expert report, or

           (2)   if, after the completion of discovery
                 relevant to the motion, including the
                 production of expert reports, an adverse
                 party who will bear the burden of proof
                 at trial has failed to produce evidence of
                 facts essential to the cause of action or
                 defense which in a jury trial would
                 require the issues to be submitted to a
                 jury.

Pa.R.C.P. No. 1035.2.

     Initially, appellants contend that Mikulsky was not in the course and

scope of her employment when she was injured.

     Section 303(a) of the Workers’ Compensation Act (“Act”), 2 77 P.S.

§ 481(a), provides:

           The liability of an employer under this act 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 as
           defined in section 301(c)(1) and (2) or occupational
           disease as defined in section 108.



2
  Act of June 2, 1915, P.L. 736, as amended. This section was added by
the Act of June 24, 1996, P.L. 350.


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77 P.S. § 481(a).

      The terms “injury,” “personal injury” and “in the course and scope of

employment” are defined in Section 301(c) of the Act, 77 P.S. § 411(1), as

follows:

            (1)     The terms “injury” and “personal injury,” as
                    used in this act shall be construed to mean an
                    injury to an employe . . . arising in the course
                    of his employment and related thereto. . . .
                    The term “injury arising in the course of his
                    employment,” as used in this article . . . shall
                    include all . . . injuries sustained while the
                    employe is actually engaged in the furtherance
                    of the business or affairs of the employer,
                    whether upon the employer’s premises or
                    elsewhere, and shall include all injuries caused
                    by the condition of the premises or by the
                    operation of the employer’s business or affairs
                    thereon, sustained by the employe, who,
                    though not so engaged, is injured upon the
                    premises occupied by or under the control of
                    the employer, or upon which the employer’s
                    business or affairs are being carried on, the
                    employe’s presence thereon being required by
                    the nature of his employment.

77 P.S. § 411(1).

      Appellants undertake a lengthy analysis as to whether Mikulsky was

injured in the course of her employment.        Appellants ignore the fact that

Mikulsky   received    $65,000    in   the   Agreement   in   lieu   of   workers’

compensation benefits.     In order to be eligible for workers’ compensation

benefits, a claimant must establish that he was (1) in an employment

relationship, (2) injured, (3) the accident or injury arose in the course of

employment, and (4) the injury was related to the employment. Verbilla v.


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Workmen’s Compensation Appeal Board (Schuykill Nursing Ass’n),

668 A.2d 601, 603-604 (Pa.Cmwlth. 1995).

      Here, Mikulsky petitioned for benefits when she filed a claim petition

and alleged that she was entitled to workers’ compensation benefits because

she was injured at an Employer-sponsored event at Employer’s warehouse.

Mikulsky sought full disability benefits from December 15, 2007, the date of

her fall, forward as compensation for her inability to perform her job due to

her   injuries.   Curiously,   Mikulsky   asserted   that   her   injuries     were

work-related when she petitioned for benefits.          Now, however, after

accepting the $65,000, she asserts that she was not injured in the course

and scope of her employment.

      Similarly, Mikulsky executed the Agreement in which she received

$65,000.    Paragraph 13 of the Agreement states that the “[t]he sum of

$65,000 represents payment of all future indemnity claims for the work

related injury of 12/15/2007.”            (Agreement, at 3 ¶13 (emphasis

added).)   Mikulsky signed the Agreement and admitted that she had read

the Agreement and agreed to its contents. (See Agreement at 6.)

      The fact that Mikulsky brought a claim petition that was settled and

was compensated for an admitted work-related injury presupposes that

Mikulsky was acting in the course and scope of her employment.               As this

court stated in Wasserman v. Fifth & Reed Hospital, 660 A.2d 600, 604

(Pa.Super. 1995):



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            As part of the quid pro quo of the Workers’
            Compensation Act (the “Act”), an employee
            surrenders the right to sue an employer in tort for
            injuries received in the course of employment to
            obtain the benefit of strict liability. 77 P.S. § 481(a).
            If an injury is compensable under the Act, the
            compensation provided by that Act is the employee’s
            exclusive remedy.

      By admitting that she suffered a work-related injury, Mikulsky

admitted that she was injured in the course and scope of her employment as

an injury would not be compensable under the Act, if it were not

work-related, and an injury would not be work-related if it did not occur

during the course and scope of her employment. Mikulsky cannot claim that

she suffered an injury in the course and scope of her employment for

workers’ compensation purposes and then claim that she did not suffer an

injury in the course and scope of her employment for her personal injury

action in the trial court when there is only one injury. It would appear that

Mikulsky is judicially estopped from taking such a position.

            Judicial estoppel is 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. Unlike collateral estoppel
            or res judicata, it does not depend on relationships
            between parties, but rather on the relationship of
            one party to one or more tribunals. In essence, the
            doctrine prohibits parties from switching legal
            positions to suit their own ends.

Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d 1189, 1192 (Pa.

2001). This court cannot accept appellants’ contention.



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      Appellants next contend that the release does not bar their suit in

negligence brought in the trial court. Appellants argue that the Agreement

was expressly limited to the “impairment of [Mikulsky’s] earning power for

the remainder of her life” (Agreement, at 3 ¶13) and did not purport to

serve as compensation for her pain, suffering, and other damages not

contemplated by the Act.

      First, appellants cite no authority for the proposition that an

employee/claimant can recover under the Act for loss of earning power and

then sue in a court of common pleas for damages related to pain and

suffering.     In   fact,   this   court    has     held   that   under   the   Act,    an

employee/claimant surrenders the right to sue an employer in tort for

injuries received in the course of employment to obtain the benefit of the

Act’s strict liability with certain exceptions not applicable here.                    See

Wasserman. As we have determined that Mikulsky admitted that she was

injured in the course of her employment, she does not have the right to sue

in tort.

      Furthermore, even if appellants could proceed in tort, Mikulsky

executed the Agreement which contained the following language:                     “The

release portion of this Agreement shall apply to all injuries alleged to be

related to the December 15, 2007 injury.”                     (Agreement, at 4 ¶4

(continued).) The Agreement also states that “This Agreement resolves any

and all issues that have been and/or can be plausibly raised as a result of



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the claimant’s December 15, 2007 injury.”           (Agreement, at 4 ¶18

(continued).)   Appellants argue that this language only applies to injuries

that would come under the Act.

        In Zuber v. Boscov’s, Civil Action No. 15-3874, 2016 WL 1392263

(E.D. Pa. April 8, 2016), Craig Zuber (“Zuber”) commenced an action against

Boscov’s, a department store, in federal district court and alleged violations

of the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.A. §§ 2601-

2654.    Boscov’s moved to dismiss on the basis that Zuber had previously

executed a workers’ compensation release with Boscov’s on April 8, 2015,

which barred the claims under the FMLA. Zuber was employed by Boscov’s

as a manager at the Fairgrounds Farmers Market in Reading, Pennsylvania.

On August 12, 2014, Zuber suffered an eye injury while at work which

required medical attention. He returned to work on August 14, 2014. He

suffered complications from the eye injury and obtained a doctor’s note for a

leave of absence from August 17, 2014, through August 24, 2014.         Zuber

returned to work on August 26, 2014. He was discharged from employment

on September 10, 2014, for an alleged security breach.        At some point

Zuber filed a claim petition for workers’ compensation benefits relating to

the eye injury. The workers’ compensation claim was resolved pursuant to a

compromise and release agreement. Id. at *1. Zuber received $10,000 in

exchange for “forever relinquishing any and all rights to seek any and all

past, present and/or future benefits, including, but not limited to, wage loss



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benefits, specific loss benefits, disfigurement benefits, and/or medical

benefits for or in connection with the alleged 8/12/2014 work injury claim.”

Id. at *2.

      In addition, the release stated:

             Employer and Employee intend for the herein
             Compromise and Release Agreement to be a full and
             final resolution of all aspects of the 8/12/2014
             alleged work injury claim and its sequela whether
             known or unknown at this time in exchange for
             Employer paying Employee the one-time lump sum
             payment . . . . Employee is forever relinquishing any
             and all rights to seek any and all past, present
             and/or future benefits including, but not limited to,
             wage     loss    benefits,   specific  loss    benefits,
             disfigurement benefits, medical benefits or any other
             monies of any kind including, but not limited to,
             interest, costs, attorney’s fees and/or penalties for or
             in connection with the alleged . . . work injury claim
             as well as any other work injury claim(s) Employee
             may have with or against Employer up through and
             including 4/7/2015.


Id. at *2.

      Boscov’s argued that the language of the release was broad enough to

encompass claims under the FMLA for the same injury. The Federal District

Court for the Eastern District of Pennsylvania found that the language in the

release (especially the phrase “sequela whether known or unknown at the

time” and that Zuber was forever relinquishing any and all rights to seek any

past, present, or future benefits) was sufficiently broad to encompass his

FMLA claim.    The district court granted Boscov’s motion to dismiss on the

basis that Zuber’s execution of the release in relation to his workers’


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compensation claim served as a waiver of any claim under the FMLA.              Id.

at *3.

         It is a well-settled principle that federal court decisions, except for the

United States Supreme Court, are not binding on this court but can be used

as persuasive authority.       Bochetto v. Piper Aircraft Co., 94 A.3d 1044

(Pa.Super. 2014). Although Zuber is a federal case, this court takes note of

the fact that the court in Zuber looked to the language of the release to

determine whether a release issued in a workers’ compensation proceeding

could act as a bar to other litigation.          Here, the release portion of the

Agreement resolved “any and all issues that have been and/or can be

plausibly raised as a result of the claimant’s December 15, 2007 injury.”

(Agreement, 10/13/08 at 4-5 ¶18 (continued).) Employing the reasoning of

Zuber, the release here is sufficiently broad to encompass the action

brought by appellants.       The trial court did not commit an error of law or

abuse its discretion when it granted the motion for summary judgment.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/14/2016




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