Tort Liability for Compensable Injury under the Workers’ Compensation Act  

Franczyk v. The Home Depot, Inc., 2021 WL 4352306 (Pa. Super. 2021) (unreported), allocatur granted March 16, 2022, appeal docket 11 WAP 2022

Lindsay Franczyk (“Franczyk” or “Appellee”) filed a complaint against her employer, the Home Depot, and store managers, Philip Rogers and Thomas Mason, (collectively, “Home Depot” or “Appellants”) alleging that Home Depot failed to maintain a safe work environment when she was bitten by a dog brought in by a customer. Superior Court summarized the relevant facts as follows:

Appellee [Franczyk] alleged that on December 9, 2016, while she was working as an employee at the Home Depot, a female customer entered the store with a dog. Appellee claimed that Home Depot has a posted store policy prohibiting customers from bringing their pets into the store. Notwithstanding the stated store policy, Appellee insisted that her supervisors regularly permitted customers to bring pets into the store. On the date in question, while Appellee was acting within the course and scope of her employment, the customer’s dog bit Appellee on her arm. Another customer witnessed the incident. Appellee did not approach the dog’s owner following the bite; instead, Appellee initially reported the incident to her direct supervisor, Laura Gillespie, and then to store managers, Appellants Philip Rogers and Thomas Mason. According to Appellee, Mr. Rogers and Mr. Mason spoke to the dog owner but permitted her to leave the store without obtaining any of her identifying information. Mr. Rogers and Mr. Mason also spoke to the customer who witnessed the incident and similarly let that customer leave without obtaining her identifying information.

Appellee claimed that neither Mr. Rogers nor Mr. Mason offered her an opportunity to seek medical treatment and informed her that if she did not report for work in two days for her next shift, Appellee would cost the store $130,000.00. Appellee was ultimately diagnosed with cubital tunnel syndrome because of the dog bite and sustained pain and suffering. Appellee alleged Appellants were negligent in their investigation in the incident, which deprived Appellee of an opportunity to seek damages against the dog owner or to report the dog bite to the Department of Health.

Slip op. at 1-2. In their new matter, Home Depot argued that Franczyk’s claim was barred by the exclusivity provision of the Workers’ Compensation Act (WCA), 77 P.S. § 481, which provides:

481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party

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

(b) In the event injury or death to an employe is caused by a third party, then such employe, [her] legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Home Depot noted that Franczyk had filed a claim for benefits under the WCA, and that she was reimbursed for all medical expenses and lost wages as a result of that claim. Home Depot filed a motion for summary judgment arguing that negligence claim was barred by the exclusivity provision of the WCA and that Franczyk did not dispute that she sustained the dog bite during the course and scope of her employment at the Home Depot. The trial court denied Home Depot’s motion for summary judgement, reasoning that:

[Appellee] testified in her deposition that after being bitten by the dog, and reporting the incident to her direct supervisor, she pointed out the dog and its owner to [Appellants] Rogers and Mason, who escorted the dog owner out of the store and talked to her. [Appellee] was instructed to remain at the service desk while [Appellants] Rogers and Mason went to speak to the dog owner. [Appellants] failed to obtain any identifying information from the dog owner or any witnesses to the dog bite. [Appellee] filed the above-captioned lawsuit against [Appellants] claiming negligence for [Appellants] Rogers and Mason’s failure to properly investigate the incident and allowing the dog owner and witnesses to leave the premises without obtaining identifying information. [Appellants] filed for Summary Judgment based on 77 P.S. § 481(a), which provides that Workers Compensation is the sole relief available against any employer for a work-related injury sustained by an employee. However, when the injuries are the result of the negligence of a third party, the employee may also bring an action against the third party. …

* * *

Simply put, [Appellants] cannot [fail] to obtain any identifying information from the third party, and then turn around and tell [Appellee] that her only other remedy in this case is against that third party who she has no way to identify. At a minimum, there exists a genuine question as to whether the failure to obtain that information rises to the level of negligence and summary [judgment] is inappropriate.

Slip op. at 10. Home Depot appealed and Superior Court granted review as to the following issue:

Whether the trial court committed reversible error in denying [Appellants’] motion for summary judgment pursuant to the Pennsylvania [WCA], 77 P.S. § 481(a) as Appellee’s injury on December 9, 2016 occurred in the course and scope of her employment for which she received workers’ compensation benefits?

Slip op. at 5. Superior Court summarized Home Depot and Franczyk’s arguments as follows:

Appellants argue that under the WCA, a workers’ compensation action is the only remedy available to Appellee for the alleged injuries she sustained on December 9, 2016. Appellants assert that once an employee has availed herself of the benefits and protections of the WCA, the employee must operate within the confines of the statute. Appellants emphasize that it is undisputed that the dog bite incident occurred during the course and scope of Appellee’s employment at the Home Depot. Appellants also highlight that Appellee filed for, and was granted, workers’ compensation benefits in connection with this incident. Appellants conclude there is no genuine issue of material fact as to the applicability of the WCA or Appellee’s employment status at the time of the incident, and this Court should reverse the order denying Appellants’ motion for summary judgment.

In response, Appellee argues that Appellants’ failure and refusal to determine the identity of the customer whose dog bit Appellee prevented her from seeking recovery against the actual tortfeasor for the injuries, losses and damages she suffered, consistent with Appellee’s rights under Section 481(b) of the WCA. According to Appellee, “[b]y enacting Section 481(b) of the [WCA], the Pennsylvania Legislature emphatically reaffirmed and guaranteed the rights of employees to file suit and seek redress against such nonemployer third parties.” (Appellee’s Brief at 15). Nevertheless, Appellee asserts that the rights described in Section 481(b) “can only be enforced and prosecuted if the injured employee knows the identity of the third-party tortfeasor who caused such injury. Where the inured employee does not know the identity of such third-party tortfeasor, the injured employee is thereby deprived of the ability to enforce…her Section 481(b) right.” (Id.) Appellee stresses that she is not basing her claims against Appellants upon any adverse condition of the Home Depot store or the dog bite she suffered; rather, Appellee’s negligence claim stems from Appellants’ failure to investigate the dog bite, which caused Appellee to lose the ability to enforce her rights guaranteed under both Section 481(b) of the WCA and Pennsylvania’s common law. Relying on Dittman v. UPMC, 649 Pa. 496, 196 A.3d 1036 (2018), Appellee contends that Appellants had a common law duty to protect and preserve her right and ability to seek redress against the third-party tortfeasor.

Slip op. at 6-7.

Superior Court agreed with the trial court’s reasoning, concluding that:

Appellee alleged that after the dog bite, she reported the incident to her direct supervisor, and then to Appellants Mason and Rogers, who were managers of the store. Although Appellants Mason and Rogers spoke to both the owner of the dog who bit Appellee and the customer who witnessed the dog bite, they permitted both customers to leave the store without obtaining any of their identifying information. These actions effectively stripped Appellee of her ability to file a claim against the third-party dog owner, as contemplated by our legislature in Section 481(b). See 77 P.S. § 481(b). Appellee insists that her negligence claim against Appellants is not based on the actual dog bite, but on Appellants’ interference with her right to commence an action against the third-party tortfeasor. We agree with the trial court that Appellants are estopped from claiming immunity under the WCA when they are responsible for Appellee’s inability to seek redress from the wrongdoer. On this record, we cannot say that the trial court committed an error of law or abused its discretion in denying Appellants’ motion for summary judgment. See Hall [v. CNX Gas Co., LLC, 137 A.3d 597 (Pa.Super. 2016), appeal denied, 639 Pa. 382, 160 A.3d 787 (2016)]. 

Slip op. at 11.

Home Depot petitioned the Supreme Court for review, arguing, inter alia, that Superior Court’s decision conflicts with its decision in Kalik v. Mash, 982 A.2d 85 (Pa. Super. 2009) in which Superior Court held that a co-worker was immune from tort liability where an employee was acting within the scope of his employment when an accident occurred and the resulting injury was compensable under the Workers’ Compensation Act.

The Pennsylvania Supreme Court granted allocatur to consider the following issues:

(1) Where an employee suffers a workplace injury fairly attributable to a nonemployer third party, is the employee precluded by 77 P.S. § 481’s exclusive remedy provision from bringing a tort claim against the employer for affirmative conduct that impedes the employee’s ability to seek relief against the third-party?

(2) Does the Superior Court’s decision in this case conflict with its decision in Kalik v. Mash, 982 A.2d 85 (Pa. Super. 2009)?


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