J-A29001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDROMEDA J. COOK                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                Appellant                      :
                                               :
                                               :
         v.                                    :
                                               :
                                               :
SUGARHOUSE HSP GAMING, L.P.,                   :   No. 2661 EDA 2016
SUGARHOUSE HSP GAMING PROP.                    :
GP. L.P., MARY FREEMAN AND                     :
CHRISTOPHER REEVES                             :

                    Appeal from the Order August 1, 2016
    In the Court of Common Pleas of Philadelphia County Civil Division at
                  No(s): September Term, 2014 No. 1077


BEFORE:       LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 18, 2017

       Andromeda J. Cook appeals from the trial court’s order denying her

post-trial motions, after a non-jury trial based upon stipulated facts, and

entering judgment in her favor and against Appellee, Mary Freeman, in the

amount of $5,000. After careful review, we affirm.

       From August 21, 2010 through June 14, 2013, Cook was employed by

SugarHouse Casino as a Player Services Member.1 In September 2014, Cook

filed a complaint alleging: (1) assault and battery against Freeman, a patron

of Defendant SugarHouse Casino; (2) racial and sexual harassment against
____________________________________________


1 Cook alleged in the complaint that she was constructively discharged after
the alleged actions occurred. See Plaintiff’s Second Amended Complaint,
1/8/15, at ¶ 13.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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SugarHouse co-workers and managers; and (3) intentional infliction of

emotional distress (IIED) against all defendants.2             SugarHouse filed

preliminary objections claiming: that Cook’s IIED claim fails as a matter of

law for insufficient facts to support the claim, Cook’s IIED claim is preempted

by Pennsylvania Workers’ Compensation Act (WCA);3 Cook failed to exhaust

administrative remedies (i.e., the Pennsylvania Human Relations Act (PHRA))

with regard to her common law claims against Defendant Reeves; and Cook

failed to set forth facts to support liability for sexual harassment claims against

Reeves under the PHRA. The court overruled the preliminary objections.

        On December 8, 2014, Cook filed an amended complaint, adding a claim

of negligent infliction of emotional distress (NIED) for SugarHouse’s failure to

protect her from sexual and racial harassment by her co-employees and

assault and battery committed by Freeman.            Cook later filed a second

amended complaint, specifically stating that she did not seek any relief under

federal law, see Plaintiff’s Second Amended Complaint, 1/8/15, at ¶ 11, but,

with regard to the co-worker SugarHouse defendants, she had exhausted her

administrative remedies by filing complaints with the PHRC and Equal

Employment Opportunity Commission (EEOC) with respect to her race
____________________________________________


2 In October 2014, after SugarHouse filed a motion to remove the case to
federal court based upon Cook’s sexual harassment claim, the case was
removed to the United States District Court for the Eastern District of
Pennsylvania. However, on November 12, 2014, by order, the case was
remanded to the Philadelphia Court of Common Pleas.

3   77 P.S. §§ 1-1041.


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discrimination, hostile work environment, and sexual harassment claims. Id.

at ¶ 32. Cook also included direct claims against Defendant Michael McDevitt,

a SugarHouse security guard, who had not been named in her original

complaint.

      On May 1, 2015, SugarHouse filed its Answer and New Matter to Cook’s

second amended complaint. On October 23, 2015, Cook filed her Answer to

New Matter.   On December 11, 2015, SugarHouse filed a motion to strike

Cook’s Answer to New Matter alleging that it was untimely. On February 26,

2015, the court granted SugarHouse’s motion to strike Cook’s Answer to New

Matter and deemed SugarHouse’s New Matter to be admitted. Cook filed a

motion to reconsider the court’s order; the court granted, in part, and denied,

in part, the motion to reconsider, vacating the third paragraph of the February

26th order that ordered “SugarHouse Defendants’ New Matter is deemed to be

admitted,” now ordering that “only statements of fact contained in defendants’

New Matter are deemed admitted by [Cook].” Trial Court Order, 3/31/16.

      On February 1, 2016, SugarHouse filed a summary judgment motion

claiming that Cook’s claims were preempted by the PHRA and the WCA. After

a hearing, the court granted the motion, dismissing Counts I and III of Cook’s

complaint and finding that: Cook’s NIED and sexual harassment claims were

preempted by the PHRA; that there was insufficient evidence to support a

prima facie IIED claim where “no reasonable jury could find that the conduct

Cook complained about r[ose] to the level of outrageousness required of the




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IIIED tort[;]” and that the NIED claim is barred by the WCA’s exclusivity

provision.

       On July 6, 2016, the case proceeded to a non-jury trial against Freeman;

the parties stipulated as to the facts of the case. After trial, the court entered

the following dispositional order:             “Finding for Plaintiff and against Def.

Freeman in am[oun]t of $5,000.00 based on stipulated [f]acts of the

[p]arties.”      Trial Worksheet/Verdict, 7/6/16.          Cook filed timely post-trial

motions which the court denied on August 1, 2016.4                She files this timely

appeal, raising the following issues for our consideration:5

       (1)    Does a trial court err by entering summary judgment based
              upon averments in a new matter that are deemed to be
              admitted as a result of the court’s order striking Plaintiff’s
              untimely Answer to New Matter, when Defendant fails to
              establish any prejudice as a result of the untimely
              Answer?[6]

       (2)    When the Defendant/Employer knew that employees under
              its supervision had abused and sexually harassed the
              Plaintiff, does a trial court err, and is Plaintiff therefore
              entitled to a new trial against all parties as to both liability

____________________________________________


4 On August 17, 2016, the court entered judgment on the verdict. See
Pa.R.C.P. 227.4.

5We note that the trial court did not order Cook to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

6 When Cook appealed the court’s final order granting judgment in her favor,
the prior interlocutory summary judgment order entered in favor of
SugarHouse became final and can now be raised properly in this appeal.
Scampone v. Grane Healthcare Co., 169 A.3d 600 (Pa. Super. 2017).




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              and damages, by entering summary judgment and refusing
              to enter judgment notwithstanding the verdict?7

       In her first issue on appeal, Cook claims that the trial court improperly

deemed the allegations in her untimely Answer to New Matter as “admitted”

when the record established that those facts were in dispute and Defendants

did not assert any prejudice because of the untimely filing. Moreover, she

claims the trial court compounded this error by relying, in part, upon those

deemed admissions, when it granted summary judgment in favor of

SugarHouse.

       Pennsylvania Rule of Civil Procedure 1026 provides:

       Except as provided by Rule 1042.4 [responsive pleading with
       regard to professional liability claim] or by subdivision (b) of this
       rule, every pleading subsequent to the complaint shall be filed
       within twenty days after service of the preceding pleading, but no
       pleading need be filed unless the preceding pleading contains a
       notice to defend or is endorsed with a notice to plead.

Pa.R.C.P. 1026(a).

       Here, Cook argues that the court improperly struck her Answer to

SugarHouse’s New Matter where there was no evidence that SugarHouse

suffered any prejudice from the late filing of her pleading. Cook also notes

that because SugarHouse waited almost six months to file its motion to strike,

this is proof that SugarHouse suffered no prejudice from the untimely filing.




____________________________________________


7Cook’s arguments in her appellate brief are confined solely to the court’s
determination that her NIED claims are preempted by the WCA and PHRC.
Thus, we have confined our review to those claims.

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To support her argument, Cook relies on Allison v. Merris, 493 A.2d 738 (Pa.

Super. 1985), in which our Court reiterated:

      P[ennsylvania] R[ule of] C[ivil] P[rocedure] 1026 provides that a
      pleading shall be filed within 20 days after service of a preceding
      pleading. This rule is not mandatory but permissive. We have
      held that late pleadings may be filed “if the opposite party is not
      prejudiced and justice requires.      Much must be left to the
      discretion of the lower court.”

Id. at 740 (citation omitted), citing Paulish v. Bakaitis, 275 A.2d 318, 321-

22 (Pa. 1971). After Allison was decided, our Supreme Court clarified the

standard to apply when a party has filed a late responsive pleading under Rule

1026. In Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167 (Pa. 1996),

the Court noted that while a trial court has broad discretion to grant a motion

to strike due to the untimely filing of an opposing party’s responsive pleading,

our Court and the Commonwealth Court have disagreed over when the trial

court actually abuses its discretion.     Choosing to follow Superior Court

precedent, the Peters Creek Court set forth the following standard when a

party moves to strike a pleading: “the party who files the untimely pleading

must demonstrate just cause for the delay. It is only after a showing of

just cause has been made that the moving party needs to demonstrate that

it has been prejudiced by the late pleading.” Id. at 170 (emphasis added).




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       Here, we recognize that Cook filed her Answer to New Matter almost 6

months after SugarHouse filed its Answer and New Matter.8 As noted, our

Supreme Court in Peters Creek has unequivocally held that in situations

where a party fails to meet a filing deadline, the proper standard to be applied

is that a party who filed an untimely filing must first “demonstrate just cause

for the delay,” prior to any showing by the moving party that it suffered any

prejudice by the late pleading. Id. Instantly, Cook gives no explanation for

the more than five month delay in filing her Answer to New Matter.

Accordingly, we need not assess whether Defendants were prejudiced by the

delay.    Cook has failed to meet her burden on the issue.      Peters Creek,

supra.

       Therefore, the trial court properly struck Cook’s Answer to New Matter

as untimely and deemed all averments of fact admitted in SugarHouse’s New

Matter.    See Pa.R.C.P. 1029(b)(“[a]verments in a pleading to which a

responsive pleading is required are admitted when not denied specifically or

by necessary implication.”); Pa.R.C.P. 1029(a) (responsive pleading shall

admit or deny each “averment of fact in the preceding pleading or any part

thereof to which it is responsive.”).


____________________________________________


8 We note that Defendants’ Answer and New Matter contained a Notice to
Plead, requiring Cook to respond within 20 days or suffer judgment against
her. See Pa.R.C.P. 1026(a) (providing that every pleading subsequent to
complaint shall be filed within twenty days after service of preceding pleading,
but no pleading need be filed unless preceding pleading contains notice to
defend or is endorsed with notice to plead).

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      In her final issue, Cook asserts that the trial court improperly granted

summary judgment on her NIED claims by concluding that the claims were

preempted by the WCA and the PHRA.           She claims that this case is an

exception to the general rule of preemption where she avers that she endured

sexual, racial and other harassment during her employment, causing her

undue mental distress and rendering her unable to continue working at

SugarHouse.

      In Pennsylvania, the Workers' Compensation Act provides the exclusive

remedy for employee work-related injuries. See 77 P.S. § 481(a). The legal

immunity which is afforded to employers and their compensation insurers

extends not only to acts of negligence, but also to claims based on intentional,

wanton and willful misconduct. Alston v. St. Paul Inc. Cos., 567 A.2d 663

(Pa. Super. 1989) (en banc). The WCA, however, has carved out an exception

to the general rule promulgated in section 481 where an injury is inflicted by

third persons as a result of non-employment related matters.          Id. That

exception, known as the “third-party attack” or “personal animus exception”

is available only when the plaintiff can prove that the injury caused by the act

of a third party intended to injure the employee because of reasons personal

to him, and not directed against him as an employee or because of his

employment. Id. See 77 P.S. § 411(1); Kohler v. McCrory Stores, 615

A.2d 27 (Pa. 1992).

      Here, Cook has not alleged any facts to support the personal animus

exception or averred that her NIED claim is premised upon a non-work related

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incident. See Krasevic v. Goodwill Indus. of Cent. Pa., Inc., 764 A.2d

561, 566-67 (Pa. Super. 2000) (“a presumption nonetheless remains that an

attack is work-related when, as here, it occurs on the employer’s premises,

and that the lack of previous personal animus strongly indicates a work-

related cause.”).      In fact, Cook alleges that SugarHouse’s conduct that

“allowed and tacitly promoted the continuation of McDevitt’s sexually

harassing behavior, compound[ed] the severity and insufferability of [Cook’s]

working condition and work environment,” Plaintiff’s Second Amended

Complaint, at ¶ 36, and she was constructively discharged from her job at

SugarHouse as a result of the events. Id. at ¶ 13.

       Because Cook has not rebutted the presumption of exclusivity where

her allegations are work-related, we agree with the trial court that Cook’s

remedy for her NEID/IIED9 claims against SugarHouse is limited to that

provided by the WCA.
____________________________________________


9  While Cook’s second amended complaint appears to add a count for
negligent infliction of emotional distress, the language of the count is clearly
asserting a claim of intentional infliction of emotional distress. Negligent
infliction of emotional distress, by definition, is inflicted unintentionally. See
Restatement (Second) of Torts, 313. Here, her complaint lists the following
under the NIED count heading:

       Defendants intentionally inflicted emotional distress upon [Cook]
       as a result of the following[.]

Plaintiff’s Second Amended Complaint, at ¶ 45 (emphasis added). Moreover,
Cook also alleges that Defendants’ conduct was “intentional, extreme,
clearly outrageous, reckless, wantonly callous, and deliberate, and
demonstrate[s] the Defendants’ failure to create a safe environment in which



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       In her final claim on appeal, Cook baldly asserts that the $5,000 award

against Freeman “was unreasonably low, contrary to the evidence, and shocks

the conscience.” Appellant’s Brief, at 31.

       Here, the parties agreed on the facts of the case prior to the non-jury

trial; this is known as a case submitted on stipulated facts. See Pa.R.C.P.

1038.1 (“A case may be submitted on stipulated facts for decision by a judge

without a jury.     The practice and procedure as far as practicable shall be in

accordance with the rules governing a trial without jury.”). See Motorists

Mut. Ins. Co. v. Pinkerton, 830 A.2d 958 (Pa. 2003).10

       Instantly, Cook has failed to include the notes of testimony from the

parties’ non-jury trial. Without them, our Court’s ability to review this claim

is hampered. See Pa.R.A.P. 1921, Note (“An appellate court may consider

only the facts which have been duly certified in the record on appeal.”);

Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (“Simply

put, if a document is not in the certified record, the Superior Court may not
____________________________________________


[Cook] could work free of sexual harassment, physical threats and other
offensive conduct.” Id. at ¶ 46 (emphasis added).

        Ironically, in her original complaint where she alleged intentional
infliction of emotional distress, Cook used the same language, verbatim, to
describe Defendants’ conduct as she used in her second amended complaint
to describe the count of negligent infliction of emotional distress. We also
note that having found the alleged intentional acts committed by SugarHouse
preempted by the WCA, a negligent infliction of emotional distress claim,
which is comprised of lesser culpability, would certainly also be preempted.
10 We note that the common law procedure of a “case stated” has been
abolished.   See Pa.R.C.P. 1038.2; see also Explanatory Comment to
Pa.R.C.P. 1038.1 (1996).

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consider it.”). In addition to a deficient record, we also note that Cook does

not dispute the agreed-upon facts. We conclude, therefore, that the trial court

did not abuse its discretion in applying the law to the stated facts.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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