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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RUTH EVANS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL HOSTETTER AND : No. 39 MDA 2022
BENJAMIN LEPPER :
Appeal from the Order Entered November 30, 2021
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2018-CV-03269-CV
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 17, 2023
Appellant, Ruth Evans, appeals from the order entered by the Dauphin
County Court of Common Pleas on November 30, 2021, sustaining Appellees’,
Michael Hostetter and Benjamin Lepper, preliminary objections in the nature
of a demurrer and dismissing Appellant’s Second Amended Complaint. After
review, we are constrained to affirm the trial court’s conclusion that the
coworker immunity provision of the Workers’ Compensation Act (“WCA”),1 77
P.S. § 72, bars Appellant’s claims.
Appellant avers that she suffered injuries on December 26, 2017, while
working as a security officer at Hershey Entertainment and Resorts
(“Hershey”). She claims that, while on her way to clock out of her shift,
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* Retired Senior Judge assigned to the Superior Court.
1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
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Appellees “ran into her and landed on top of her causing serious and
permanent injuries.”2 She contends that her injuries were “proximately
caused by the negligent conduct of [Appellees,]” which involved “wildly
running about and horsing around[.]”3 As a result of her injuries, Appellant
could not work for four months and returned to only limited duty, “which
negatively affected her income.”4 Appellant acknowledges that she received
Workers’ Compensation benefits and noted that “any recovery in this action”
would be subject to a lien for the benefits.5
Following proceedings not relevant to this appeal, Appellant filed her
Second Amended Complaint in July 2021. Appellees each filed Preliminary
Objections on July 20, 2021, asserting that the coworker immunity provision
of the WCA barred Appellant’s claims. Appellees argued that they were “in
the same employ” as Appellant, for purposes of immunity under the WCA,
since they were all employees of Hershey.6
In response, Appellant acknowledged that Appellees “were employees
of [Hershey]” prior to the incident but questioned whether they continued to
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2 Second Am. Compl., 7/6/2021, at ¶8.
3 Id. at ¶¶ 17, 8.
4 Id. at ¶ 9.
5 Id. at ¶ 14.
6 [Appellee Hostetter’s] Reply Brief to [Appellant’s] Brief in Support of
Response to [Appellees’] Briefs in Support of Preliminary Objections, 9/24/21,
at 4 (quoting 77 P.S. § 72).
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be “employees" at the moment of the injury.7 Specifically, Appellant focused
on whether Appellees were acting “in the course and scope of their
employment” when they injured Appellant.8 Appellant asserted that the grant
of preliminary objections would be premature, arguing instead that additional
discovery was needed to determine if Hershey considered Appellees to be
employees at the time of the incident or to be “acting outside the course and
scope of their employment.”9
Following argument, the trial court sustained Appellees’ Preliminary
Objections and entered judgment in favor of Appellees in single-sentence
orders on November 30, 2021. Appellant filed her Notice of Appeal on
December 21, 2021. Subsequently, the trial court filed its Pa.R.A.P. 1925(a)
Opinion, without requesting Appellant to file a Rule 1925(b) Statement of
Errors Complained of on Appeal.
Before this Court, Appellant asks “[w]hether [Appellant’s] complaint
should be dismissed for legal insufficiency as her claims against [Appellees]
are barred by the [WCA], 77 P.S. § 72?”10
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7 Response of [Appellant] to [Appellee Hostetter’s] Preliminary Objections to
[Appellant’s] Second Amended Complaint, 8/5/21, at ¶ 8; see also Response
of [Appellant] to [Appellee Lepper’s] Preliminary Objections to [Appellant’s]
Second Amended Complaint, 8/5/21, at ¶ 17.
8 Id.
9 Brief in Support of [Appellant’s] Response to [Appellees’] Briefs in Support
of Preliminary Objections, 9/14/21, at 4.
10 Appellant’s Br. at 3.
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A.
Appellant challenges the trial court’s orders sustaining Appellees’
preliminary objections in the nature of a demurrer, pursuant to Pa.R.Civ.P.
1028(a)(4).11 “Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint.” Catanzaro v. Pennell, 238 A.3d at 507
(Pa. Super. 2020) (citation omitted). The trial court must resolve preliminary
objections “solely on the basis of the pleadings; no testimony or other
evidence outside of the complaint may be considered[.]” Hill v. Olfat, 85
A.3d 540, 547 (Pa. Super. 2014) (citation omitted). The court must admit as
true all material facts set forth in Appellant’s pleadings and all reasonably
deducible inferences. Id. Moreover, preliminary objections seeking dismissal
of a cause of action “should be sustained only in cases in which it is clear and
free from doubt that the pleader will be unable to prove facts legally sufficient
to establish the right to relief.” Catanzaro, 238 A.3d at 507 (citation
omitted).
“In reviewing the propriety of the court's grant of preliminary objections
in the nature of a demurrer, [appellate courts] apply the same standard as
the trial court[.]” Id. As the question involves a pure question of law
regarding the legal sufficiency of the complaint, our standard of review is de
novo. Id.
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11 Pa.R.Civ.P. 1028(a)(4) provides: “Preliminary objections may be filed by
any party to any pleading and are limited to the following grounds: . . . legal
insufficiency of a pleading (demurrer)[.]”
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B.
Appellant asserts that the trial court erred in relying on the coworker
immunity provision of the WCA to dismiss her Second Amended Complaint.
The coworker immunity provision, set forth in Section 205 of the WCA, grants
immunity to defendant employees who negligently injure a plaintiff employee
when “in the same employ” as the plaintiff employee and provides:
Liability of fellow employe[e]
If disability or death is compensable under this act, a person shall
not be liable to anyone at common law or otherwise on account of
such disability or death for any act or omission occurring while
such person was in the same employ as the person disabled or
killed, except for intentional wrong.
Id. § 72 (emphasis added) (Section 205 of the WCA).
The Pennsylvania Supreme Court recognized that the General Assembly,
in adopting Section 205 in 1963, “abrogated the common-law liability of one
employee to another for negligence[.]” Jadosh v. Goeringer, 275 A.2d 58,
60 (Pa. 1971). The Court explained that under this provision an employee, in
exchange for compensation for employment-related injuries, “surrenders the
right to sue employers or fellow employees for negligence, but he no longer
need prove negligence . . . and he, too, can no longer be sued for negligence
by a fellow employee.” Id. at 60–61.
The dispositive phrase of Section 205, for purposes of this case, is
whether Appellees were “in the same employ” as Appellant. The Supreme
Court addressed this phrase in Apple v. Reichert, 278 A.2d 482 (Pa. 1972).
In Apple, the Court rejected an attempt to equate “in the same employ” with
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the more commonly used terms of “course or scope of employment.” It held
that “[s]ince the language of the statutory provision sets up a clear and simple
test—‘the same employ’—and such words as scope of employment and course
of employment are not used, we are not free to speculate that a more
restrictive intention was envisioned by the legislature.” Id. at 484. The Court
summarized Section 205 as “clearly phrased to protect all co-employe[e]s in
all situations where negligent conduct of one employe[e] may cause injury to
a fellow employe[e], provided only that the injury in question is one that is
compensable under the Act.” Id. at 485.12
In applying Apple, this Court has recognized the Supreme Court’s broad
interpretation of “in the same employ” as distinct from course and scope of
employment, as well as Section 205’s effect of “protect[ing] all co-
employe[e]s in all situations.” Id. at 484-85. See Babich v. Pavich, 411
A.2d 218, 220 (1979) (setting forth Apple’s “clear and simple test [of] ‘the
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12 While explicitly distinguishing “in the same employ” from scope and course
of employment, the Supreme Court nevertheless commented on the factual
situation before it, observing that the defendant employee in Apple was acting
within the “scope of her employment” and that both parties were “acting in
furtherance of their duties” when the defendant employee negligently injured
the plaintiff employee. 278 A.2d at 484. Given the Court’s unambiguous
statutory analysis prohibiting incorporation of “course and scope of
employment” into “in the same employ,” we conclude that the Court’s
discussion of the parties’ scope of employment and duties is dicta.
Accordingly, we cannot rely on this discussion to analyze the facts of the
instant case. Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11
(Pa. 2015) (“[D]icta is an opinion by a court on a question that is directly
involved, briefed, and argued by counsel, and even passed on by the court,
but that is not essential to the decision. Dicta has no precedential value.”)
(citation and internal quotation marks omitted).
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same employ’” rather than considering the course or scope of employment);
Albright v. Fagan, 671 A.2d 760, 762-63 (Pa. Super. 1996) (citing Apple’s
protection of “all co-employees in all situations” and rejecting plaintiff’s
argument that co-worker immunity did not apply where defendant “was not
furthering the interests of employer”); DeLong v. Miller, 426 A.2d 1171-72
(Pa. Super. 1981) (recognizing that Apple distinguished Section 205’s use of
“in the same employ” from course or scope of employment). As set forth
below, we agree with these cases and conclude that we are bound by the plain
language of the statute as interpreted by the Supreme Court in Apple.13
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13In so doing, we acknowledge that other decisions of this Court have ignored
Apple’s statutory construction of the term “in the same employ” and instead
have relied on the Supreme Court’s dicta, finding that the defendant employee
was acting ”in furtherance of her duties” to her employer and within the “scope
of her employment” when the defendant employee injured the plaintiff
employee. In particular, these cases have concluded that the coworker
immunity provision of the WCA is limited to cases where the defendant
employee negligently injured the plaintiff employee while the defendant
employee was “in the course of her performance of duties for the employer.”
See, e.g., Employers Mutual Casualty Co. v. Boiler Erection & Repair
Co., 964 A.2d 381, 390 n.6 (Pa. Super. 2008) (quoting Bell v. Kater, 943
A.2d 293, 297 (Pa. Super. 2008)); see also 39 Standard Pennsylvania
Practice 2d § 167:455 (citing Bell for the same proposition). These cases,
however, conflict with the holding of Apple. Given the confusion that these
cases have created, we urge the Pennsylvania Supreme Court to re-visit the
holding in Apple.
We also note that Bell has no precedential value regarding its interpretation
of Section 205 because the Superior Court held that the defendant waived her
defense of coworker immunity. Bell, 943 A.2d at 298.
Other cases have erroneously conflated the term “in the same employ” with
the “course” or “scope of employment” in contradiction to the clear dictates of
(Footnote Continued Next Page)
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C.
Appellant asserts that the courts should not interpret Section 205’s term
“in the same employ” to preclude plaintiffs from bringing actions against
employees “who are not engaged in the course and scope of their employment
or even working at the time but happen to be on the premises of the
employer[.]” Appellant’s Br. at 10 (emphasis omitted). In so doing, Appellant
asserts that the meaning of “the phrase ‘in the same employ’ remains an
unresolved legal question in the Commonwealth.” Appellants’ Br. at 7
(emphasis omitted). 14
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Apple. See, e.g., Flanders v. Hoy, 326 A.2d 492 n.4 (Pa. Super. 1974) (en
banc) (“The ‘course of employment’ standard rather than the narrower ‘scope
of employment’ standard should be used in Pennsylvania to determine
whether the defendant employee was ‘in the same employ’ when the accident
occurred.”); Kulik v. Mash, 982 A.2d 85, 86 (Pa. Super. 2009) (utilizing
“scope of employment” in relation to coworker immunity under Section 205);
see also 39 Standard Pennsylvania Practice 2d § 167:453.
Since the holding in Apple is contrary to these Superior Court cases, concepts
of precedent require us to follow the holding in Apple and prevent us from
following the Superior Court decisions.
14 In its 1925(a) opinion, the trial court recited the standard set forth in Bell
and addressed whether Appellees were in the course and scope of their
employment when engaging in horseplay. Nevertheless, without reference to
course and scope of employment, the court also held that Appellees were “in
the same employ” as Appellant “[s]ince [Appellees] were employees of
[Hershey] at the time of the incident and were on the job site with
[Appellant] . . . .” Tr. Ct. Op. at 4. As discuss infra, while we affirm the trial
court’s ultimate decision to sustain Appellee’s Preliminary Objections based
upon Appellees’ employment status, we disagree with the court’s reference to
the Appellees’ course and scope of employment. See In re Jacobs, 15 A.3d
509 n.1 (Pa. Super. 2011) (“[This Court is] not bound by the rationale of the
trial court[] and may affirm on any basis.”).
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Absent further guidance from the Supreme Court, we are bound by the
statutory language as interpreted in Apple. As the Supreme Court held, the
General Assembly used the distinct phrase “in the same employ” in Section
205, rather than importing the well-established concepts of course and scope
of employment. We cannot ignore the Legislature’s decision to omit the terms
”course and scope of employment.” See Discovery Charter Sch. v. Sch.
Dist. of Philadelphia, 166 A.3d 304, 321 (Pa. 2017) (recognizing that “we
must listen attentively to what the statute says, but also to what it does not
say”) (citation omitted).
Accordingly, we are constrained to conclude that the phrase “in the
same employ” and thus, the coworker immunity provision of the WCA, is not
restricted only to those cases in which the defendant employee injures the
plaintiff employee when the defendant is acting in the “course and scope of
employment.” Instead, it applies broadly “to protect all co-employe[e]s in all
situations where negligent conduct of one employe[e] may cause injury to a
fellow employe[e], provided only that the injury in question is one that is
compensable under the Act.” Apple, 278 A.2d at 485. Pursuant to Apple,
we interpret the term “in the same employ” to require simply that the plaintiff
and defendant be “co-employees,” which can be satisfied by working for the
same employer.
D.
Applying the “in same employ” standard to the case at bar, the trial
court concluded that Appellees, like Appellant, were “employees” of Hershey.
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Appellant challenges this categorization.15 She contends that Appellees were
not employees because “they were 1) not on the clock or even working at the
time of the incident; 2) not security officers which the [Appellant] was at the
time; and 3) not even remotely within the course and scope of their
employment but rather were horsing around and running about wildly[.]”16
Appellant’s Br. at 12.
In her first factual contention, Appellant reiterates her argument that
Appellees’ status as Hershey employees depended on whether they had
clocked out at the moment they injured Appellant.17 We reject Appellant’s
argument because, as a matter of law, Appellees were “in the same employ”
as Appellant at the time they injured Appellant, regardless of whether they
had clocked out.
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15As relevant to other requirements of Section 205, Appellant does not dispute
that her injury is “compensable” given that she received benefits, and she
averred that Appellees acted negligently rather than intentionally. Tr. Ct. Op.
at 3 (finding that Appellant received compensation and that she alleged
negligent not intentional conduct).
16 Appellant fails to develop her second contention that Appellees were not “in
the same employ” because Appellees were not employed as security officers
at Hershey as was Appellant. Accordingly, we conclude that she waived this
issue. Pa.R.A.P. 2119(a) (requiring that Appellant’s argument contain “such
discussion and citation of authorities as are deemed pertinent.”); see Karn v.
Quick & Reilly Inc., 912 A.2d 329, 336 (2006) (“[A]rguments which are not
appropriately developed are waived.”) (citation omitted).
17Although included in Appellant’s pleadings, the trial court did not address
Appellant’s assertion that Appellees were not employees because they had
potentially ended their shift prior to the injury.
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Pennsylvania courts have repeatedly found injuries compensable and
immunity applicable where injuries have occurred a reasonable time before or
after an employee’s shift. In Epler v. North American Rockwell Corp, 393
A.2d 1163, 1165-66 (Pa. 1978), the Supreme Court found an injury
compensable where an employee suffered fatal injuries crossing a public road
to reach the employee parking lot after clocking out. The Court explained that
injuries are compensable if sustained at a time that is “reasonably proximate
to work hours[.]” Id. at 1165. Similarly, and as applicable to coworker
immunity, this Court in Albright held that a defendant-coworker was immune
from liability pursuant to Section 205 when he injured his coworker with his
vehicle in the employee parking lot immediately after both finished their shifts.
671 A.2d at 763; see also Kulik v. Mash, 982 A.2d 85, 89 (Pa. Super. 2009)
(finding that the WCA barred a plaintiff’s claim against his coworker for a
parking lot injury sustained prior to a shift). In essence, the question is
whether the employee is acting as an employee or has transitioned due to the
passage of time or other events into a customer of the employer or a member
of the public.18
As applied to this case, the injury occurred on Hershey’s property near
where Hershey employees clocked out of their shifts at a time when Appellees
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18In contrast, courts have found injuries not to be compensable under the
WCA when an employee suffers injuries while on employer’s property as a
customer or member of the public. See, e.g., Kmart Corp. v. WCAB
(Fitzsimmons), 748 A.2d 660, 666-67 (Pa. 2000) (finding WCA inapplicable
where employee suffered injuries while eating at public restaurant located on
employer’s property).
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and Appellant were clocking out of their shifts. Appellant does not allege that
the incident occurred hours after Appellees ended their shifts, such that it
could be found not to be “reasonably proximate to work hours.” Epler, 393
A.2d at 1165. Accordingly, we reject Appellant’s challenge that Appellees
were not employees when they injured Appellant.
Second, Appellant asserts that Appellees’ bizarre behavior and
horseplay negate application of the term “in the same employ” for purposes
of coworker immunity. She contends that the legislature did not intend and
the WCA does not support “the insulation of co-workers for engaging in
fighting or horseplay and injuring an employee[.]” Appellant’s Br. at 17. As
did the trial court, we reject this argument.
Appellant’s allegation of negligent horseplay does not remove this case
from the coworker immunity provision of Section 205. Instead, the language
“in the same employ” in Section 205 focuses on the employment status of the
defendants and not on their negligent actions that injured a plaintiff. Thus,
Appellees’ actions of engaging in horseplay is irrelevant to whether they were
“in the same employ” as Appellant.
E.
Accordingly, we affirm the trial court’s order sustaining Appellees’
Preliminary Objections and dismissing Appellant’s Second Amended
Complaint, although applying a different interpretation of Section 205 of the
WCA, 77 P.S. § 72.
Order affirmed.
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Judge Colins joins the memorandum.
Judge McLaughlin concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2023
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