HomeMy WebLinkAbout97-5119 civilCRAIG L. BRYMESSER
Ve
LARRY Z INN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-5119 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, J., GUIDO, J.
ORDER OF COURT
AND NOW, this /~~ day of FEBRUARY, 1998, after
argument the Defendant's Preliminary Objections are granted in
part and denied in part. Plaintiff's claim for punitive damages
(Paragraph 14) and Count II of the complaint are STRICKEN°
Defendant's Preliminary Objections to Count I of the complaint
are DENIED and he is directed to file an answer thereto.
By the .
Edward E. Guido, Judge
Peter J. Russo, Esquire
For the Plaintiff
Drew P. Gannon, Esquire
For the Defendant
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CRAIG L. BRYMESSER
Vo
LARRY Z INN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-5119 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS.
BEFORE HESS, J., GUIDO, J..
OPINION AND ORDER OF COURT
On September 19, 1997, Plaintiff filed the instant action
claiming damages for injuries he sustained at work. The
complaint claims compensator~ and punitive damages based upon the
intentional tort of battery and a claim of negligence. On
October 15, 1997, Defendant filed Preliminary Objections in the
nature of a demurrer asking that the complaint be dismissed, or,
in the alternative, that the claim for punitive damages be
stricken. Both parties filed briefs and this matter was argued
before the Court on January 28, 1998.~ It is now ready for
disposition.
FACTS
While engaged at his duties as a mechanic at Roadway
Express, Plaintiff was kicked in the buttocks by the Defendant
who was a co-worker.2 Although Defendant delivered the kick "only
.. 3 the
intending to humiliate and embarrass the plaintiff,
~In his brief, and at argument in this matter, the Plaintiff
agreed to withdraw the claim for punitive damages. It will,
therefore, be stricken.
2Complaint paragraphs 3~ 5 & 6.
3Complaint paragraph 7.
NO. 97-5119 CIVIL TERM
unforeseen (albeit foreseeable) consequences were serious bodily
injuries to Plaintiff.4
DISCUSSION
A demurrer can only be sustained where, after accepting as
true all well pleaded material and relevant facts, the complaint
clearly fails to establish the pleader's right to relief. Lumax
Industries, Inc. v. Aultman, 543 Pa. 38, 669 A.2d 893 (1995).
Using that standard, the negligence claim set forth in Count II
of the complaint is clearly barred by Section 205 of the
Pennsylvania Worker's Compensation Act. 77 P.So §72. Section
205 provides:
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 disable or killed, except for
intentional wrong. 77 P.S. § 72
The act further provides that all work related injuries are
compensable if sustained while the employee is "engaged in the
furtherance of the business or affairs of the employer."s 77
P.S. § 411(1). Since paragraph 5 of the complaint specifically
alleges that Plaintiff was "Engaged in his work duties" at the
time the injury was sustained, he would be entitled to
4Complaint paragraphs 7 & 12.
SAdmittedly, 77 P.S. §411(1) provides an exception for an
"injury caused by an act of a third person intended to injure the
employee because of reasons personal to him .... " However, since
plaintiff has specifically alleged in paragraph 7 of the
complaint that the injuries were not intended, this exception
cannot apply.
NO. 97-5119 CIVIL TERM
compensation under th'e act. Therefore, a negligence claim
against his co-worker would be barred by Section 205. Albricjht
v. Fa~an, 448 Pa. Super. 395, 671 A.2d 760 (1996).
Just as clearly as Section 205 of the act would bar the
Plaintiff's negligence claim, it does not operate as a bar to
the claim for battery. Co-employees are immunized from liability
"for any act or omission.., except for intentional wron_~s." 77
P.S. § 72. Not only is battery an intentional tort, it is
exactly the kind of conduct which the act intended to exclude
from the umbrella of co-employee immunity. See McGinn v..
Valloti, 363 Pa. Super. 88, 525 A.2d 732, 735, (1987), Vosburq v.
Connolly, 405 Pa. Super. 121, 591 A.2d 1128 (1991). Therefore,
defendant's preliminary objections to Count I of the complaint
are denied.
ORDER OF COURT
,,
AND NOW, this /~~ day of FEBRUARY, 1998, after
argument the Defendant's Preliminary Objections are granted in
part and denied in part. Plaintiff's claim for punitive damages
(Paragraph 14) and Count II of the complaint are STRICKEN.
Defendant's Preliminary Objections to Count I of the complaint
are DENIED and he is directed to file an answer thereto.
By the Court,
Peter J. Russo, Esquire
For the Plaintiff
Drew P. Gannon, Esquire
For the Defendant
/s/ Edward E. Guido,J.
Edward E. Guido, Judge