J-A13022-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 AMOS KWEH                           :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                   Appellant         :
                                     :
                                     :
              v.                     :
                                     :
                                     :
 US AIRWAYS AND RYTEC                :   No. 1005 EDA 2016
 CORPORATION, INC. AND DANIEL J.     :
 KEATING COMPANY AND TURNER          :
 CONSTRUCTION COMPANY AND            :
 AMERICAN OVERHEAD DOOR AND          :
 DOCK, INC. AND AMERICAN             :
 INDUSTRIAL DOOR COMPANY A/K/A       :
 AMP ELECTRIC, INC. AND              :
 LOMBARDO AND LIPE ELECTRICAL        :
 CONTRACTORS                         :

          Appeal from the Judgment Entered February 26, 2016
          In the Court of Common Pleas of Philadelphia County
        Civil Division at No(s): September Term, 2014, No. 4769

 AMOS KWEH                           :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                   Appellant         :
                                     :
                                     :
              v.                     :
                                     :
                                     :
 CITY OF PHILADELPHIA, RYTEC         :   No. 1025 EDA 2016
 CORPORATION, INC., AMERICAN         :
 OVERHEAD DOOR AND DOCK, INC.        :
 AND LOMBARDO AND LIPE               :
 ELECTRICAL CONTRACTORS              :
J-A13022-17



             Appeal from the Judgment Entered February 26, 2016
              In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): November Term, 2013, No. 1123

BEFORE:      LAZARUS, J., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 27, 2017

        In this timely, consolidated appeal, underlying plaintiff, Amos Kweh,

appeals from the orders of summary judgment entered in favor defendants

American Overhead Door and Dock, Inc. (American Overhead), Rytec

Corporation, Inc. (Rytec), and US Airways, Inc. (US Airways). 1 Kweh claims

the trial court erred in: applying Assumption of Risk and Choice of Ways

doctrines, determining the overhead baggage door was not defective, and

determining he was barred from recovery from US Airways because he

collected workers’ compensation from them. After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm

in part, reverse in part and remand to the trial court.

        The underlying facts of this matter are taken from the certified record.

On October 13, 2012, Kweh went to his place of employment, U.S. Airways at

the Philadelphia International Airport, to retrieve his laptop computer, which

he had left in his locker. Deposition Kweh, 10/12/2015, at 33-35.         Kweh

worked as a baggage handler. Id. at 36. The path he took to reach his locker

____________________________________________



    Former Justice specially assigned to the Superior Court.

1 All other defendants have been previously removed from the case. Kweh
appeals from the judgment entered in favor of only the three defendants
referenced above.

                                           -2-
J-A13022-17



had doors for both pedestrians and luggage carts. He entered the building

through a pedestrian doorway and retrieved his laptop computer. Id. at 55-

57. As he attempted to return to his car, the pedestrian doorway through

which he entered was blocked by a trash receptacle. Id. at 72.      He then

attempted to exit using one of the overhead baggage doors. Id. at 78. At

that point, the door closed and struck him on the head. Id.

        The overhead baggage doors are “high speed roll-up doors”2 (baggage

door) that operate by sensors. Deposition Gregoriou, 10/29/2015, at 17-19.

Kweh testified at his deposition that he had used the baggage doors as a

pedestrian on other occasions and had witnessed other US Airways employees

do the same. Deposition Kweh, at 68. He further testified there were no signs

forbidding use of the baggage doors by pedestrians. Id. at 103.      He also

denied ever being informed by management of any specific danger posed by

the baggage doors. Id. at 108-110, 259. As Kweh passed under the baggage

door, it closed, striking him across the front of his head and causing him to

fall to the ground and briefly lose consciousness. Id. at 78, 80-82. He was

taken to a hospital, where he was treated and released. Id. at 87. He missed

three weeks of work. Subsequently, he applied for and was paid worker’s

compensation benefits.3




____________________________________________


2   American Overhead Motion for Summary Judgment, 1/4/2016, at ¶ 2.

3   US Airways Motion for Summary Judgment, 1/4/2016, Exhibit E.

                                           -3-
J-A13022-17



     Kweh filed suit against US Airways, Rytec and American Overhead, on

October 3, 2014. As noted above, other entities were also sued. However,

actions against those defendants have terminated.             Rytec was the

designer/manufacturer of the baggage door. American Overhead maintained

the door. Kweh obtained the services of an engineering expert who opined

the baggage door was defectively designed and improperly maintained. See

Kweh’s Memorandum of Law in Opposition to Rytec’s Motion for Summary

Judgment, Exhibit A.

     After the close of discovery, remaining defendants US Airways, Rytec

and American Overhead, filed motions for summary judgment. US Airways’

motion was based on having paid Kweh workers’ compensation benefits.

Rytec and American Overhead argued entitlement to summary judgment

because neither owed any duty to Kweh as the danger posed by the baggage

door was open and obvious, Kweh was ineligible to recover damages pursuant

to the Choice of Way doctrine, and/or Kweh had provided no proof of

malfunction or defect in the baggage door.

     Our scope and standard of review for the grant of summary judgment

is well known:

     Our scope of review of a trial court's order granting or denying
     summary judgment is plenary, and our standard of review is clear:
     the trial court's order will be reversed only where it is established
     that the court committed an error of law or abused its discretion.

     Summary judgment is appropriate only when the record clearly
     shows that there is no genuine issue of material fact and that the
     moving party is entitled to judgment as a matter of law. The


                                     -4-
J-A13022-17


      reviewing court must view the record in the light most favorable
      to the nonmoving party and resolve all doubts as to the existence
      of a genuine issue of material fact against the moving party. Only
      when the facts are so clear that reasonable minds could not differ
      can a trial court properly enter summary judgment.

Murphy v. Karnek, 160 A.3d 850, 857 (Pa. Super. 2017)(citation omitted).

      We will address Rytec’s and American Overhead’s arguments first as

they are similar and were addressed together by the trial court. The trial court

based its grant of summary judgment in favor of Rytec and American

Overhead on three grounds. First, the trial court determined neither owed

Kweh a duty of care as the danger posed by the baggage door was open and

obvious and Kweh voluntarily assumed the risk of injury by using the baggage

door rather than the pedestrian door. Second, the trial court determined Kweh

was contributorily negligent and under the Choice of Ways doctrine he was

unable to recover damages.          Third, the baggage door was neither

malfunctioning nor defective.

      The trial court’s reasoning supporting its determination that the dangers

posed by the baggage door were open and obvious where warning signs were

posted telling employees not to walk through the baggage door, employee

briefings were held similarly informing employees not to walk through the

baggage door, and Kweh demonstrated his knowledge of these open and

obvious dangers by using the pedestrian door to enter the area. In contrast,

and as noted above, Kweh testified no pedestrian warning signs were posted

around   the   baggage    door   and   he    had   never   been   informed   via

employer/employee briefing that the baggage door was inherently dangerous


                                       -5-
J-A13022-17



and not to be used as a pedestrian. Because evidence of warnings regarding

the baggage door was in dispute, the trial court was obliged to accept the

evidence in the light most favorable to Kweh, as the non-moving party.

Accordingly, the reasons cited above for supporting summary judgment in

favor of Rytec and American Overhead must be rejected.

      Further, the trial court’s conclusion that Kweh demonstrated his

knowledge that the baggage door was dangerous by initially using the

pedestrian door is speculative. Contrary to the trial court’s conclusion, Kweh

testified he had used the baggage door as a pedestrian on multiple occasions

prior to the incident of October 13, 2012, without encountering danger.

Further, he witnessed other employees also using the baggage door as

pedestrians, also without ever seeing an injury or hearing of one. Based upon

Kweh’s deposition testimony, it was premature to conclude that Kweh’s initial

choice of ingress was demonstrative of an awareness the baggage door posed

a danger to him and that he voluntarily accepted that danger.

      Accordingly, Rytec and American Overhead are not entitled to summary

judgment based on Kweh’s voluntary assumption of the risk.

      Next, the trial court applied the Choice of Ways doctrine to support

summary judgment in favor to Rytec and American Overhead. The trial court

stated the doctrine as follows:

      “Where a person, having a choice of two ways, one of which is
      perfectly safe, and the other of which is subject to risks and
      dangers, voluntarily chooses the latter and is injured, he is guilty
      of contributory negligence and cannot recover.” Mirabel v.
      Morales, 57 A.3d 144, 153-154 (Pa. Super. 2012) (quoting

                                     -6-
J-A13022-17


       Downing v. Shaffer, 371 A.2d 953, 956 (Pa. Super. 1977). The
       Choice of Ways Doctrine will apply where there is “evidence of (1)
       a safe course, (2) a dangerous course, and (3) facts which would
       put a reasonable person on notice of the danger or actual
       knowledge of the danger.” Id.

Trial Court Opinion at 9-10.

       As discussed above, Kweh’s knowledge of the dangers of the baggage

door was disputed. Accordingly, it cannot be said, as a matter of law, that

Kweh opted for the dangerous path when a safe path was readily available.

       Further, the doctrine, as stated, is in conflict with 42 Pa.C.S. § 7102,

regarding comparative negligence.              The doctrine holds that if a person

voluntarily opts for the dangerous, rather than perfectly safe path he or she

is “guilty of contributory negligence and cannot recover.” Mirabel, supra, 57

A.3d at 154. This renders the doctrine an absolute defense based upon the

concept of contributory negligence. However, 42 Pa.C.S. § 7102 states, in

relevant part,

       In all actions brought to recover damages for negligence resulting
       in death or injury to persons or property, the fact that the
       plaintiff may have been guilty of contributory negligence
       shall not bar a recovery by the plaintiff or his legal
       representative where such negligence was not greater than
       the causal negligence of the defendant or defendants
       against whom recovery is sought, but any damages sustained
       by the plaintiff shall be diminished in proportion to the amount of
       negligence attributed to the plaintiff.

42 Pa.C.S. § 7102(a) (emphasis added).4
____________________________________________


4 As Mirabel did not apply the Choice of Ways doctrine, there was no need to
address the apparent conflict with Section 7102. All cases cited by Mirabel
referencing the Choice of Ways doctrine were decided well before the current
version of Section 7102.

                                           -7-
J-A13022-17



     Assuming, for the sake of argument, that Kweh was aware of the

dangers posed by the baggage door, knew the pedestrian way was perfectly

safe, and opted for the dangerous path, such contributory negligence, by

statute, cannot act as an absolute bar to recovery. Accordingly, absent facts

that are so clear that reasonable minds could not differ, the trial court may

not grant summary judgment and it remains the responsibility of the ultimate

fact finder to weigh evidence and apportion negligence.

     We note that case law also states:

     The “choice of ways” doctrine has a narrow application and it
     should only be applied in “the clearest case.” In cases in which
     “the doctrine has been applied to find the plaintiff was
     contributorily negligent, the danger the plaintiff chose to confront
     was indisputably obvious.”

Mirabel, 57 A.3d at 154 (citations omitted).

     The limited application and reiteration that the doctrine may only be

applied in the clearest of cases provides further support for our conclusion

that the Choice of Ways doctrine is currently factually inapplicable to the

instant matter.

     In light of the above, Rytec and American Overhead are not entitled to

summary judgment based upon the Choice of Ways doctrine.

     Finally, the trial court determined the baggage door was neither

malfunctioning nor defective, thereby preventing Kweh from recovery. This

finding was based upon evidence presented by moving party, American




                                    -8-
J-A13022-17



Overhead,5 that it had performed a safety check of the door two days prior to

the accident and 16 days post-accident and found no need for repairs nor

made any additional safety recommendations.      American Overhead further

declared that the baggage door had required no repairs or additional safety

recommendations for the two months prior to the accident. While American

Overhead’s evidence may be compelling, the grant of summary judgment

ignores the fact that Kweh also presented an expert report 6 that opined the

door was both defectively designed and improperly maintained. In view of

the competing evidence provided by the defense and Kweh and the

requirement that one must view the evidence in the light most favorable to

the non-moving party, the issue of whether the door was defective and/or

improperly maintained remains a disputed issue of fact. Because summary

judgement may only be granted were there are no remaining genuine issues

of material fact, Rytec and American Overhead were not entitled to summary

judgment on the basis that the door was neither defective nor improperly

maintained.

       In light of the above, the order granting summary judgment in favor of

defendants Rytec and American Overhead must be reversed.




____________________________________________


5Joseph Swope, Jr. was the corporate designee providing testimony on behalf
of American Overhead.

6The expert report on behalf of Kweh was authored by Brian O’Donel, P.E., of
Robson Forensic.

                                           -9-
J-A13022-17



      Lastly, Kweh challenges the grant of summary judgment in favor of US

Airways, on the basis that he applied for and received Workers’ Compensation

benefits as a result of the incident. Here, the trial court aptly recognized the

exclusivity of remedy provided by the Workers’ Compensation Act, 77 P.S. §

1 et seq. Specifically, the Act provides:

      The liability of an employer under this act shall be exclusive and
      in place of any and all other liability to such employes, (sic) 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.

77 P.S. § 481(a).

      Further, Section 411 of the Act makes clear that entitlement to such

benefits are conditioned upon the injury occurring during the course of

employment. See 77 P.S. § 411(a).

      The workers’ compensation Agreement for Compensation form attached

to US Airways’ motion for summary judgment states that benefits were due

because of time missed resulting from a laceration Kweh suffered to his head

on October 13, 2012, when “employee was struck on the head by an overhead

door.” US Airways Motion for Summary Judgment, Exhibit E. This form was

signed by Kweh. At the bottom of the form is a notice that any person who

files misleading or incomplete information with the intent to defraud may be

subject to civil and criminal penalties.




                                     - 10 -
J-A13022-17



      While represented by counsel, Kweh applied for and received workers’

compensation benefits in the form of lost wages. The trial court reasoned that

by doing so, he implicitly agreed that the injury he suffered occurred while in

the course of his employment, as required by statute to obtain workers’

compensation benefits. Having represented to his employer and the workers’

compensation insurance carrier that he was entitled to benefits pursuant to

statute, the trial court further reasoned that he was estopped from now

claiming he is entitled to further benefits from US Airways because he was

not, in fact, injured during the course of his employment.

      While no party nor the trial court has provided case law that is directly

on point to this factual scenario, we nevertheless agree with the trial court’s

logical analysis.

      Judicial estoppel is a judicially-created doctrine designed to
      protect the integrity of the courts. Sunbeam Corp. v. Liberty
      Mut. Ins. Co., 781 A.2d 1189, 1192 (Pa. 2001). The purpose of
      judicial estoppel is to ensure that the parties do not play “fast and
      loose” with the facts in order to suit their interests in different
      actions before different tribunals. Id. Judicial estoppel applies
      where a party (1) “assumed an inconsistent position in an earlier
      action; and (2) that position was successfully maintained in that
      action.” In re Adoption of S.A.J., 838 A.2d 616, 621 (Pa. 2003).
      The doctrine of judicial estoppel does not require actual litigation.
      Id. at 623.

      Judicial estoppel prohibits claiming a position inconsistent with
      one held in a previous action. Black v. Labor Ready, Inc., 995
      A.2d 875 (Pa. Super. 2010). In Black, a worker was sent to a
      factory by a temp agency. After being injured, the worker filed a
      WCA claim, seeking benefits from the factory. In its answer, the
      factory claimed the worker was an employee of the temp agency
      and not the factory. In a subsequent civil suit by the worker
      against the factory, the factory attempted to claim WCA immunity

                                     - 11 -
J-A13022-17


        as the employer. The Superior Court applied judicial estoppel to
        state that the factory could not claim to be an employer after
        successfully denying so in previous WCA proceedings. Id.

Trial Court Opinion at 7.

        The same logic in Black, that prevented a company from first denying

it was an employer then asserting it was the employer, applies to a worker

who claims to have been injured in the course of employment and then

attempts to deny that fact. Kweh successfully asserted he was in the course

of employment and received workers’ compensation benefits. He cannot now

claim those payments were gratuitous7 on the part of US Airways and that he

was actually not acting as an employee when he was injured.

        We recognize that one of the purposes of the Workers’ Compensation

Act is to protect employees by establishing quick and certain compensation

for work-related injuries and resultant loss of earnings without wasting time

and expenses on litigation. See Lascio v. Belcher Roofing Corp., 704 A.2d

642 (Pa. Super. 1997). See also, Turner v. Southeastern Pennsylvania

Transp. Authority, 389 A.2d 591 (Pa. Super. 1978) (WCA was intended to

establish independent means of compensating any injured employee without

resort to time-consuming litigation in court). To sanction an applicant who

has collected benefits by asserting his status as an injured employee and then

disclaiming that status in a subsequent suit against his employer would be in




____________________________________________


7   Kweh’s Brief at 22.


                                          - 12 -
J-A13022-17



direct contravention of the stated purpose of the WCA to provide efficient

compensation to injured workers.

       Accordingly, where, as here, an employee claims entitlement to workers’

compensation benefits and is paid those benefits, that employee is estopped

from asserting a contrary position in a subsequent civil action.8 Because Kweh

is estopped from now claiming he was not injured while acting in the scope of

his employment, we need not address the accuracy of that claim.

       In light of the foregoing, we affirm the trial court’s grant of summary

judgment in favor of US Airways. We reverse the grant of summary judgment

as to defendants Rytec and American Overhead.

       Order granting summary judgment as US Airways is affirmed; orders

granting summary judgment as to Rytec and American Overhead are

reversed.      Matter remanded to the trial court for trial.      Jurisdiction

relinquished.




____________________________________________


8 We recognize that Kweh asserted he was invited to obtain benefits by US
Airways and that he was unaware of the consequences of such actions because
he was unrepresented by counsel. However, the trial court found as fact, and
the certified record supports, that Kweh was represented at all relevant time
by the same counsel currently representing him in this civil action.
Accordingly, US Airways did not take unfair advantage of Kweh by providing
him with the workers’ compensation benefits he applied for.

                                          - 13 -
J-A13022-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




                          - 14 -
