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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.)
J. A15014/16
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:
-2-
J. A15014/16
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;
-3-
J. A15014/16
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
-4-
J. A15014/16
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
-5-
J. A15014/16
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:
-6-
J. A15014/16
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.
-7-
J. A15014/16
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.
-8-
J. A15014/16
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):
-9-
J. A15014/16
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.
- 10 -
J. A15014/16
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
- 11 -
J. A15014/16
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
- 12 -
J. A15014/16
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’
- 13 -
J. A15014/16
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
- 14 -