By Kevin L. Connors, Esquire

As all might be aware, employers in Pennsylvania are generally entitled to the statutory immunity from tort liability when employees are injured in the course and scope of their employment. This doctrine prohibits an injured employee from suing both under the Pennsylvania Workers’ Compensation Act, and under common law tort principles.

In Neidert v. Charlie, decided by the Pennsylvania Superior Court in 2016, the Court addressed the dual capacity doctrine for workers’ compensation claims.

In Neidert, the Plaintiff was injured in using in the building that was owned by his boss and employer, with the Plaintiff pursuing a tort case for damages under the theory that the employer was not entitled to the immunity traditionally granted to employees by the Workers’ Compensation Act, as the Plaintiff claimed that his employer stood in a dual capacity with respect to the building and the business operation and that, since the employer was the building owner that the Plaintiff was owed a separate duty with respect to building conditions and safety.

There was no dispute that the Plaintiff was acting in the course and scope of his employment when injured, or that the Plaintiff had applied for and actually received workers’ compensation benefits, including a settlement of his workers’ compensation claim.

Alleging negligence against the employer as the building owner, the building owner then filed a Motion for Summary Judgment, which the Trial Court denied.

Proceeding to Trial, the building owner made an oral motion for a compulsory non-suit, with the Trial Court granting the motion.

Timely post-trial motions were filed by the Plaintiff, seeking to remove the non-suit, as well as seeking a new trial.

Denying the Plaintiff’s post-trial motions, the appeal was eventually heard by the Superior Court, which addressed two issues for review.

On appeal, the Plaintiff attempted to argue that the Trial Court had originally committed an error of law, in that it had originally denied the employer’s Motion for Summary Judgment, asserting the statutory immunity principles of the Pennsylvania Workers’ Compensation Act, with a different Trial Court Judge at Trial, then granting the employer’s Motion for Compulsory Non-Suit, as the Trial Court Judge determined that the Plaintiff could not meet his burden of proving the dual capacity exception to the employer’s entitlement to statutory immunity under the Pennsylvania’s Workers’ Compensation Act.

A prior Judge, deciding the Motion for Summary Judgment, had denied the Motion, on grounds that discovery was incomplete, with the Plaintiff then attempting to argue, on appeal to the Superior Court, that the Judge presiding over the actual Trial should have been bound by the earlier Judge’s decision with respect to the denial of the Motion for Summary Judgment.

On review before the Superior Court, in the course of reviewing “dual capacity” doctrine principles, the Superior Court held that “under this doctrine, an employer that is normally immune from tort liability by the exclusive remedy principles can become liable in tort to his own employee if he occupies, in addition to his capacity as an employer, a second capacity that confers obligations independent of those imposed on him as an employer.”

Basically, the Superior Court in Neidert noted that the Pennsylvania Supreme Court had only ever applied the “dual capacity” doctrine in one case, being Tatrai v. Presbyterian University Hospital, 439 A.2d 1162 (Pa. 1982).

Tatrai involved a hospital employee, who became ill at work, and was then instructed to go to the general emergency room at the hospital for medical care, when there is no doctor in Employee Health Services.

The employee was then injured on an x-ray table in the hospital emergency room, when a foot stand broke loose, causing the Plaintiff to fall to the floor.

In Tatrai, the Supreme Court reasoned that the employee, at the time of her injury in the general hospital emergency room, was in the same position as any other member of the public receiving medical treatment because the emergency room was open to the general public.

For that reason, the Supreme Court held that the hospital owed the employee the same duty that it owed the general members of the public who came to the hospital emergency room for medical care.

Accordingly, the hospital was not immune under the Workers’ Compensation Act from suit by the injured employee, under negligence principles, for the accident occurred in the general hospital’s emergency room, since the hospital held itself out to the public as a healthcare provider.

Specifically, the Supreme Court had ruled:

• There is no reason to distinguish (the employee) from any other member of the public injured during the course of treatment. The risk of injury which (the employee) suffered was a risk to which any member of the general public receiving like treatment would have been subjected. The occurrence of the injury was not made more likely by the fact of her employment.

In Neidert, the Trial Court had concluded that the evidence presented at Trial failed to place the Plaintiff’s claim within the narrow confines of the dual capacity exception to statutory immunity, as the role of the employer, was indistinguishable from his roles as employer and building owner.

A secondary issue addressed by the Superior Court in Neidert was the fact that the employer’s Motion for Summary Judgment was initially denied by the Trial Court, albeit by a Judge different than the Trial Judge, with the Plaintiff claiming that the Trial Court had incorrectly applied “the law of the case” doctrine.

The “law of the case” doctrine refers to a family of rules embodying the concept that a Trial Court involved in the later phases of a litigated matter should not reopen questions decided by another Judge of the same Court or by a higher Court in earlier phases of the litigation, predicated upon the principles of judicial economy, but also to protect the settled expectations of the parties, to insure uniformity of decisions, to maintain consistency during the course of a single case, to effectuate a proper extreme line in administration of justice, as well as to bring litigation to a conclusion.

Addressing the “law of the case” issue in Neidert, the Superior Court held that this doctrine does not always apply, as there are certain procedural postures where motions might differ in kind, such that a Judge ruling on a later motion hearing, a compulsory non-suit motion made at Trial, is not precluded from granting relief that another Judge might have denied in an earlier Motion, herein being a Motion for Summary Judgment.

The Superior Court held that a later-filed motion should not be entertained or granted when a motion of the same kind had previously been denied, absent intervening changes in the facts or the law warranting a new look at the previously-decided question.

Specifically, the Superior Court explained that Motions for Summary Judgment and a Motion for a Compulsory Non-Suit “are not motions of the same kind”, further concluding that the Trial Court did not violate the law of the case doctrine in considering and granting the Motion for Compulsory Non-Suit when an earlier Motion for Summary Judgment had been denied.

The take away from this case is that the “dual capacity” exception to the statutory immunity afforded to employers shielding them from tort liability for injuries to their employees does not exist where the employee is actually engaged in the performance of the job at the time of injury.

ConnorsO’Dell LLP

Trust us, we just get it!

It is trust well spent!

Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.

With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at kconnors@connorsodell.com (Phone: 610-524-2100 Ext. 112).