J-A10032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SENETHAVISAY PHANSACKDY                  :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellant             :
                                          :
              v.                          :
                                          :
 REILLY FOAM CORPORATION                  :
                                          :
                    Appellee              :         No. 2713 EDA 2018


                 Appeal from the Order Dated July 26, 2018
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2017-19519


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.:                           FILED MAY 20, 2019

      Appellant, Senethavisay Phansackdy, appeals from the order entered in

the Montgomery County Court of Common Pleas, which granted the motion of

Appellee, Reilly Foam Corporation, for judgment on the pleadings. We affirm.

      In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

      Appellant raises one issue for our review:

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND
         ERRED AS A MATTER OF LAW BY GRANTING [APPELLEE’S]
         MOTION FOR JUDGMENT ON THE PLEADINGS DESPITE
         [APPELLANT’S] ASSERTION THAT [APPELLEE] FLAGRANTLY
         AND    INTENTIONALLY    ALTERED    MANUFACTURING
         EQUIPMENT TO INCREASE PRODUCTION AT THE EXPENSE
         OF WORKER SAFETY, AND PROVIDED NO TRAINING OR
         SAFETY INSTRUCTION TO WORKERS ASSIGNED TO WORK
         ON THE ALTERED AND DANGEROUS MACHINERY THEREBY
         ASSURING THAT A SERIOUS INJURY WAS LIKELY TO
         OCCUR, WHICH CONDUCT FAR EXCEEDS THE SCOPE AND
J-A10032-19


         INTENT OF THE PENNSYLVANIA WORKERS’ COMPENSATION
         ACT AS DETERMINED BY THE SUPREME COURT OF
         PENNSYLVANIA,    AND   MUST   QUALIFY  FOR   THE
         INTENTIONAL TORT EXCEPTION TO EMPLOYER IMMUNITY
         REGARDLESS OF WHETHER [APPELLANT’S] INJURY IS AN
         AGGRAVATION OF A PRIOR WORK INJURY OR A NEWLY
         SUSTAINED INJURY.

(Appellant’s Brief at 3-4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gail

Weilheimer, we conclude Appellant’s issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed December 17, 2018, at 3-7)

(finding: Appellant’s claims against her employer are barred by exclusivity

provision of Pennsylvania Workers’ Compensation Act (“WCA”); exclusivity

provision of WCA does not contain exception for intentional torts; Appellant’s

complaint sets forth that Appellee’s conduct was intentional with knowledge

that injury suffered by Appellant was likely to result from removal of safety

interlock on piece of machinery; nevertheless, exclusivity is triggered where

cause of action arises from employee who sustained injury while engaged in

furtherance of business or affairs of employer; Appellant’s claim of fraudulent

misrepresentation also fails to pierce exclusivity provision of WCA because

Appellant failed to aver that incident at issue aggravated any pre-existing

condition). Accordingly, we affirm on the basis of the trial court’s opinion.

      Order affirmed.


                                     -2-
J-A10032-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/19




                          -3-
                                                                                 2017-19519-0030
                                                                                 Circulated          Opinion,
                                                                                            05/09/2019        Page 1
                                                                                                       04:06 PM



IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
                                           CIVIL DMSION

SENETHAVISAY PHANSACKDY
                                                                               Common Pleas Court No:
                                                                                          2017-19519
       v.
                                                                                     Superior Court No:
REILLY FOAM CORPORATION                                                                 2713 EDA 2018


                                             OPINION
WEILHEIMER, J.                                                                      December.    f� 2018
       The underlying Plaintiff/Employee, Senethavisay Phansackdy, instantly appeals to the Superior

Court of Pennsylvania (uSuperior Court") from the July 26, 2018 Order entered by this Court of Common

Pleas of Montgomery County ("trial court"), granting Defendant's May 1, 2018 "Motion for Judgment on

the Pleadings."(See Order, 7/26/18 (#18).) For the reasons that follow, said trial court Order should be

affirmed.

                                  FACTUAL & PROCEDURAL msTORY

       The instant matter commenced on December 21, 20161 when Plaintiff/Employee, Senethavisay

Phansackdy ("Appellant"), filed Complaint in Civil Action alleging products liability, battery and

fraudulent misrepresentation against her employer, Defendant/Employer Reilly Foam Corporation

("Appellee"). (See Complaint, 8/2/2017 (#0).)
       The underlying facts which resulted in the instant civil action occurred on May 6, 2015, in

Eagleville, Montgomery County, Pennsylvania. (Jd.) �P<,,t\ant-alleged that her right hand was crushed

while she was operating machinery at the Reilly Foam facility. (Id. at 1 10.) At the time of her accident,

Appellant was working in the course of her employment. (Id.)
       After the relevant pleadings closed, Appellee filed its motion for judgment on the pleadings on

May 1, 2018. (See "Motion for Judgment on the Pleadings", S/1/18 (#11).) On May 30, 3018, Appellant

1
 Appellant originally filed her Complaint in Philadelphia County. On June 13, 2017, the Philadelphia
Court entered an Order transferring this matter to Montgomery County Court of Common Pleas.
                                                                                     2017-19519-0030 Opinion, Page 2


replied to said motion. (See Appellant's Response, 5/30/18 (#14).) Subsequently on July 26, 2018, the

trial court granted Appellee's motion. (See Order, 7/26/18 (#18).)

          On August 6, 2018, Appellant filed its motion for reconsideration of said July 26, 2018 Order.

(Motion for Reconsideration, 8/6/18 (#19).) The trial court scheduled oral argument on Appellant's

Motion for Reconsideration. (See Order, 8/15/18 (#23).)2 On August 23, 2018, Appellant filed her timely

Notice of Appeal from the trial court's July 26, 2018 Order. (See "Notice of Appeal", 8/23/18 (#24).)

          The trial court required a clarification of the errors complained of on appeal, and thus, directed

Appellant to file a Concise Statement of Issues Complained of on Appeal, within twenty-one (21) days, in

accordance with Pa. R.A.P. I 925(b). (See Order 9/7/l 8, (#26).)

          On September 27, 2018, Appellant filed her Concise Statement of Issues Complained of on

Appeal in wherein Appellant raised nine (9) issues. The legal issues named on appeal can be summarized

as follows:

              I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
                 MATIER OF LAW IN GRANTING APPELLEE'S MOTION FOR
                 JUDGMENT ON THE PLEADINGS

              2. TIIE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
                 MATTER OF LAW IN DETERMINING THAT APPELLANT,S CLAIM
                 THAT SHE WAS INJURED AS A RESULT OF INTENTIONAL TORT
                 AND FRAUDULENT MISREPRESENTATION COMMITIED BY HER
                 EMPLOYER IS PRECLUDED BY THE EXCLUSIVITY PROVISION OF
                 THE PENNSYLVANIA WORKERS' COMPENSATION ACT

              3. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
                 MATTER OF LAW IN DETERMINING THAT APPELLANT'S CLAIM
                 TIIAT SHE WAS INJURED AS A RESULT OF INTENTIONAL TORT
                 AND FRAUDULENT MISREPRESENTATION COMMITIED BY HER·
                 EMPLOYER IS PRECLUDED BECAUSE SHE DID NOT SUSTAIN AN
                 AGORAVATION OF A PRE-EXISTING CONDITION

              4. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
                 MATIER OF LAW BY FAILING TO ACKNOWLEDGE THAT
                 COURTS IN OTHER JURISDICTIONS AROUND THE COUNTRY
2
    The trial court subsequently cancelled oral argument after receiving notice of appeal. (See Order,
8/29/18 (#25).)

                                                       2
                                                                                     2017-19519-0030 Opinion, Page 3


                  HAVE HELD THAT INTENTIONAL ACTS ARE NO SUBJECT TO THE
                  EXCLUSIVITY PROVISIONS UNDER WORKERS COMPENSATION
 (Appellant's Concise Statement, 9/27/18 (#28).)

                                                DISCUSSION

  I.      STANDARD OF REVIEW
       The scope and standard of review in appeals of a grant or denial of a motion for judgment on the

pleadings is well settled. The Superior Court applies the same standard as the trial court and confines its

consideration to the pleadings and documents properly attached thereto. Okeke-Henry v. Sw, Airlines,

Co., 163 A.3d 1014, 1017 (Pa. Super. 2017) (citations and quotation marks omitted). The Court will

review to determine whether the trial court's action respecting the motion for judgment on the pleadings

was based on a clear error of law or whether there were facts disclosed by the pleadings which should

properly go to the jury. (Id.)

       The Court will affirm the grant of judgment on the pleadings if the moving party's right to succeed is

certain and the case is so free from doubt that trial would clearly be a fruitless exercise. Municipality of

Mt. Lebanon v. Reliance Ins. Co., 778 A.2d 1228, 1231 (Pa.Super.2001) (citations and quotation marks

omitted).


 II.      THE TRIAL COURT DID NOT ERR AS A MATTER OF LAW WHEN                                IT GRANTED
          APPELLEE'S MOTION FOR JUDGMENT ON THE PLEADINGS

       Entry of judgment on the pleadings is permitted under Pennsylvania Rules of Civil Procedure 1034,

which provides for such judgment after the pleadings are closed, but within such time as not to delay trial.

A motion for judgment on the pleadings is similar to a demurrer. See Kelly v. Hazelton Gen. Hosp., 837

A.2d, 490, 493 (Pa.Super. 2003).

       It may be entered where there arc no disputed issues of fact and the moving party is entitled to

judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its

consideration to the pleadings and relevant documents. Cole v. Lawrence, 701 A.2d 987, 988

                                                       3
                                                                                                  2017-19519-0030 Opinion, Page 4
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!;            (Pa.Super.1997); see also Pa.R.C.P. 1017 (stating "pleadings' are limited to: (1) a complaint and an
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��            answer thereto; (2) a reply if the answer contains new matter, a counterclaim or a cross-claim; (3) a
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              counter-reply if the reply to a counterclaim or cross-claim new matter; (4) a preliminary objection and a
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��            response thereto.") The trial court found that, assuming all facts averred in the pleadings are true; the law
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              precludes recovery from Appellee as Appellant fails to state a claim for which relief may be granted.
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�§                   A. Appellant's Claims are Barred by the Exclusivity Provision of the Worken'
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                        Compensation Act
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jl t             The trial court granted Appellee's motion finding that Appellant's claims against her employer were
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[�            barred by the exclusivity provision of 77 P.S. § 481, which provides that the Pennsylvania Workers'
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!J            Compensation Act (''the Act") is the employee's exclusive remedy against her employer for injuries
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��               Under the Act, employers are generally immune from suit by their employees regarding work related
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0     '€      injuries. Id. The Pennsylvania Legislature adopted said Act to balance competing policy interests between
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�8            workers and industry. The Legislature ordered employers to provide compensation to injured employees
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(     �       regardless of fault pursuant to 77 P.S. § SOI, and in exchange they are vested with two important rights:
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00    15      exclusivity and immunity from suit pursuant to 77 P.S. § 481. Thompson v. Workers' Comp. Appeal Bd.
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�... (.)5     (USF&G Co.), 781 A.2d 1146, (Pa. 2001).
8�                The Act provides the following definitions regarding "exclusivity" of remedy regarding the employer
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                  Exclusiveness of remedy; actions by and against third party; contnct indemnifying third party
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 ��               The liability of an employer under this act shall be exclusive and in place of any and all other liability
iJ                to such employes (sic) ... in any action at law or otherwise on account of any injury or death....
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�1                "Injury," "penonal injury," and "injury arising in the coune of his employment" deftned
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                                                                                     2017-19519-0030 Opinion, Page 5


    The tenns "injury" and "personal injury:• as used in this act, shall be construed to mean an injury to
    an employe (sic), regardless of his previous physical condition, arising in the course of his
    employment and related thereto.... The tenn "injury arising in the course of his employment," as used
    in this article, ... shall include all other injuries sustained while the employe (sic) is actually engaged
    in the furtherance of the business or affairs of the employer ....

    77 P.S. § 411(1).

   "As the above statutory language retlect[s], the focus of the exclusivity provision of the Act is to limit

the liability of an employer on account of injury arising in the course of the employee's employment with

the employer. In other words, the exclusivity is triggered if, when the cause of action arises, the plaintiff

was an employee who 'sustained' 'injury' while 'actually engaged in furtherance of the business or affairs

of the employer."' Minto v. J.B. Hunt Transp., Inc., '\j I A.2d 1280, 1284 (Pa. Super. 2009).

   The Act bars actions in tort by an employee against her employer, with certain limited exceptions.

Hershey v. Ninety-Five Assoc., 604 A.2d 1068, 1069 (Pa.Super, 1992). Pennsylvania courts have been

extremely reluctant to grant Workers' Compensation exceptions, See e.g., Kuney 11. PMA Insurance Co.,

525 Pa. 171, 578 A.2d 1285, 1286 (Pa. 1990) (immunity from tort action extends to worker's

compensation insurer despite its alleged fraudulent and deceitful conduct to deprive injured employees of

their worker's compensation benefits) and Shaffer v. Procter & Gamble, 604 A.2d 289 (Pa. Super.1992)

(Workers' Compensation Act precluded intentional infliction of emotional distress claim based on

employer's harassment of injured employee in connection with treating the work-related injury).

   Moreover, in Poyser     11.   Newman & Co., Inc., the Pennsylvania Supreme Court determined the

plaintiff's intentional torts claims against her employer were barred by Section 481. 522 A.2d 548 (Pa.

1987). In the Poysner complaint, the plaintiff claims that he was injured by machinery after his employer

ordered certain saftey devices to be removed. Id. at 549. The Court upheld the dismissal of plaintiff's

claims because the exclusivity provision of the Workers' Compensation Act did not include an exception

for intentional torts. Id. at 551. In doing so, the Court reinforced that the Act was the exclusive remedy

from his employer for "any work-related injury". Id. at 550.


                                                      s
                                                                                                2017-19519-0030 Opinion, Page 6
Is
�.._                Similarly to the plaintiff in Poysne,. Appellant's Complaint sets for the material facts, when viewed
       ,12

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             as true, that Appellee's conduct was intentionally done with knowledge that the injury suffered by
18
��           Appellant was likely to result from the removal of the safety interlock on the aforesaid machinery. (See

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             Complaint, 8/2/2017 (#0).) Nevertheless, exclusivity is triggered because the cause of action arises from
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�i           an employee who "sustained" "injury" while "actually engaged in furtherance of the business or affairs of
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-� �         the employer" as Appellant admits that the subject incident occurred while she was acting within the
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��                  Appellant's claim for fraudulent misrepresentation also fails to pierce the exclusivity provision.
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-� �         Where an employee can demonstrate ( 1) fraudulent misrepresentetion, which (2) leads to the aggravation
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s<ii -8�     of an employee's pre-existing condition, he may proceed against an employer in a common law fraudulent
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j�           misrepresentation action, outside of the Workers' Compensation Act. 77 P.S. § 481(a); see e.g., Wendler
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lCD.S!       11.   Design Decorators, Inc., 168 A.2d 1172 (Pa. Super. 2001)( holding that both fraud and delay leading
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       8     provision of Workers' Compensation Act, was not applicable, and thus, exclusivity provision barred
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�""          wrongful death and survival action brought by administratrix of estate of employee, who suffered fatal
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�o-I         injuries in course of employment; administratrix was not seeking relief for an aggravation of employee's
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                    In Martin v. Lancaster Battery Co. Inc., et al., the Pennsylvania Supreme Court held that where an
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             of a work-related injury, the employee is not barred from pursuing a common law claim against the
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             employer. Martin, 606 A.2d 4"'1:,t�a. 1992) (emphasis added).

                   The employer in Martin was charged with the responsibility of monitoring the level of lead in the

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       t     employee's blood. The employer intentionally withheld and altered Martin's blood test results, causing

gi           aggravation of Martin's injury and resulting in his common law claim against Lancaster Battery.
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                                                                                  2017-19519-0030 Opinion, Page 7


   Appellant failed to make any avenncnts that the subject incident aggravated a pre-existing condition.

Thus, pursuant to Exclusivity Provision of the Workers' Compensation Act, the law precludes recovery

and, as such, Appellant fails to state a claim for which relief may be granted.

                                              CONCLUSION

       Wherefore the reasons stated above, the trial court's July 26, 2018 Order is proper and should be

affirmed.

                                                             BY TIIE COURT:




                                                                                                 J.



Copies sent OD December r1      , 2018, to:
Superior Court Prothonotary
Court Administration - Civil Division
Plaintiff Counsel, Brian M. Penis, Esq.
� Co�vid R. Bronstein, Esq.
      4V            "",,




                                                      7
