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HomeMy WebLinkAbout2006-1173 Civil DIANE McMILLIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SHIRLEY PORTER, : DEFENDANT : 06-1173 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., October 26, 2009:-- Plaintiff, Diane McMillin, and defendant, Shirley Porter, were employees of HMS Host Corporation at its Plainfield Service Plaza on the Pennsylvania Turnpike in Cumberland County. On June 9, 2004, they both drove to work. Plaintiff parked her vehicle in her employer’s parking lot. At 6:35 a.m., she was walking in the parking lot when she was struck by a vehicle operated by defendant. Plaintiff instituted this suit for damages caused by that accident. Defendant filed a motion for summary judgment 1 maintaining that she is entitled to immunity under the Workers’ Compensation Act. __________ 1 Albright v. Fagan, As set forth in 671 A.2d 760 (Pa. Super. 1996): “Where an employee’s injury is compensable under the Act, the compensation provided by the statute is the employee’s exclusive remedy against his or her employer.” 77 P.S. § 481(a). “Thus, an injured employee cannot maintain a tort action against his or her employer if the injury is compensable under the provisions of the Act.” Gertz v. Temple Where University, 443 Pa.Super. 177, 181-82, 661 A.2d 13, 15 (1995). an employee’s injury is compensable, the exclusivity provision of the Act immunizes fellow employees from liability for their negligence. See: 77 P.S. § 72. (Emphasis added.) 06-1173 CIVIL TERM The issue was briefed and argued on October 14, 2009. HMS Host Corporation requires its employees working at the Plainfield Plaza to park in its employee parking lot. At her deposition, plaintiff testified that it normally took her approximately ten minutes to walk from the parking lot to the HMS Host building, and she would have arrived at her desk to begin work at approximately 6:45 a.m. The normal work schedule of plaintiff was 7:00 a.m. to 3:30 p.m.; however, she was required to “punch in” a time clock with an employee card on the “micro system” and was paid from the moment she arrived at work. Although her scheduled shift began at 7:00 a.m., she usually arrived at work at approximately 6:30 a.m., and her supervisor was aware of that fact and would sign her “micro payroll and check logs.” After parking her car in the employee parking lot she would walk through the lot, through the walkway and into the front of the building, swipe her employee timecard, and head immediately to her desk. Plaintiff filed a workmen’s compensation claim against her employer as a result of the accident on June 9, 2004. Following a hearing, a referee made the following conclusions of law: 1. The parties are bound by the provisions of the Pennsylvania Workers’ Compensation Act, as amended. The Claimant failed to meet her burden of proof under her 2. Claim Petition as she was outside the course of her employment at the time the June 9, 2004 MVA took place, as she was in the process of commuting to work when she was struck by the oncoming car some 15 to 25 minutes prior to the beginning of her assigned shift. Claimant’s accident was clearly not caused by a condition of the premises where it took place. -2- 06-1173 CIVIL TERM 3. Claimant failed to offer medical evidence in support of a compensable period of disability as her disability was caused by her underlying left shoulder condition, and not the June 9, 2004 motor vehicle accident. For the reasons stated above, Claimant’s Reinstatement//Claim/Penalty petitions Petition are denied and dismissed. 2 (Emphasis added.) Accordingly, the referee decided the case on the merits notwithstanding having found that the accident was not caused by a condition of the employer’s premises where it took place, and it occurred outside the course of McMillin’s employment. sub judice, In the case McMillin initially maintains that, based on the Worker’s Compensation referee’s conclusions, Porter is collaterally estopped from claiming Erie Insurance Exchange v. Muff, immunity under the Workers’ Compensation Act. In 851 A.2d 919 (Pa. Super. 2004), the Superior Court of Pennsylvania stated: The doctrine of collateral estoppel, which is sometimes referred to as issue preclusion, operates to prevent questions of law or issues of fact which have once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit. Collateral estoppel is applicable when: (1) the issue in the prior adjudication was identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; (4) the party against whom it is asserted had a full and fair opportunity to litigate the issue in a prior action; and (5) the determination in the prior proceeding was essential to the judgment. Cohen v. Workers’ Compensation Appeal Board, 909 A.2d 1261 (Pa. Commw. __________ 2 This is a final decision. -3- 06-1173 CIVIL TERM 2006). Porter is not collaterally estopped by the conclusion of the Worker’s Compensation referee that the accident was not caused by the condition of the employer’s premises where it took place, and it occurred outside the course of McMillin’s employment, because she was not a party to the Worker’s Compensation case and had no opportunity to litigate the issue. Furthermore, since the Worker’s Compensation referee also decided the case on the merits, the conclusion that the accident was not caused by a condition of the employer’s premises where it took place, and it occurred outside the course of McMillin’s employment, was not essential to the judgment which denied McMillin compensation because she did not prove that any disability was caused by the June 9, 2004 motor vehicle accident. We must now determine whether McMillin was acting in the course and scope of employment at the time of her injury so as to fall into coverage of the Workers’ Compensation Act. This is a question of law to be determined on the basis of the facts Wasserman v. which are not in dispute in this motion for summary judgment. See Fifth & Reed Hospital, 660 A.2d 600 (Pa. Super. 1995). When coming to work in her vehicle McMillin was required to use the employee parking lot provided by her employer. Thus, the parking lot was an integral part of her Epler v. North American Rockwell employer’s business and part of its premises. See Corporation, 482 Pa. 391 (1978). Injuries occurring to an employee upon the parking lot of an employer are compensable under the Workers’ Compensation Act when the Id. employee’s presence on the lot is temporally proximate to the hours of work. -4- 06-1173 CIVIL TERM “[E]ven though not actually engaging in the employer’s work, an employee will be -5- 06-1173 CIVIL TERM considered to have suffered an injury in the course of employment if the injury occurred on the employer’s premises at a reasonable time before or after the work period.” Motion Control Ind. v. W.C.A.B. (Buck), 145 Pa. Commw. 399 (1992). Plaintiff maintains that because defendant had not yet parked and gotten out of her vehicle at the time of the accident she was still commuting so the “going and coming rule” should apply. “Generally, the ‘going and coming rule’ holds that an injury . . . sustained by an employee traveling to and from a place of employment does not Wachs occur in the course of employment; thus, it is not compensable under the Act.” v. Workers’ Compensation Appeal Board (American Office Systems), 884 A.2d 858 (Pa. 2005). The rule does not apply in the present case because the injuries to plaintiff that occurred in the employee parking lot are compensable under the Workers’ Compensation Act if her presence on the lot was temporally proximate to the hours of work, i.e., was a reasonable time before her work period. The fact that defendant had not yet parked in the lot and gotten out of her car does not bring this case within the “going and coming rule.” Thomas Jefferson University Hospital v. Workmen’s Compensation In Appeal Board, 144 Pa. Commw. 302 (1991), an employee’s injury occurred fifteen Newhouse v. Workmen’s minutes before the time she was to begin work. In Compensation Appeal Board (Harris Cleaning Services, Inc.), 109 Pa. Commw. 96 (1987), an employee’s injury occurred fifteen minutes after “punching out” at work. In Fashion Hosiery Shops v. Commonwealth of Pennsylvania; Workmen’s -6- 06-1173 CIVIL TERM Compensation Board, 55 Pa. Commw. 465 (1980), the employee’s injury occurred Albright v. Fagan, between fifteen and thirty minutes before the time to begin work. In 671 A.2d 760 (Pa. Super. 1996), Albright’s injury occurred after he had finished his shift and was walking toward his automobile in an employee parking lot. He was struck by a vehicle operated by Fagan who worked for the same employer and was leaving the employer’s premises after completing his shift. In all of these cases the appellate court concluded that the Workers’ Compensation Act applied as an accident occurred within a reasonable time before beginning or leaving work. In the present case, McMillin’s injury occurred at 6:35 a.m. She had parked her car in her employer’s parking lot and was walking toward the place where she worked which would normally take her approximately ten minutes. Although her normal work schedule started at 7:00 a.m., when she would arrive at her place of work she would punch in a time clock before she went to her desk and would be paid from that moment. We find that the accident between McMillin and Porter in their employer’s parking lot was temporally proximate to the beginning of plaintiff’s work, i.e., it was within a reasonable time before the time she would begin work. Therefore, the Workers’ Compensation Act is applicable and the exclusivity provision of the Act immunizes 3 Porter from any liability for negligence. __________ 3 It is unfortunate that the Worker’s Compensation referee erred in concluding that the accident occurred outside McMillin’s course of employment at a time when she was in the process of commuting to work. Fortunately, that conclusion did not prevent the referee from deciding her claim on the merits. -7- 06-1173 CIVIL TERM ORDER OF COURT IT IS ORDERED AND NOW, this day of October, 2009, that summary IS GRANTED judgment to defendant, Shirley Porter, on the complaint of plaintiff, Diane McMilllin. By the Court, Edgar B. Bayley, J. Timothy A. Shullenberger, Esquire For Diane McMillin Joseph Murphy, Esquire For Shirley Porter :sal -8- DIANE McMILLIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SHIRLEY PORTER, : DEFENDANT : 06-1173 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT IT IS ORDERED AND NOW, this day of October, 2009, that summary IS GRANTED judgment to defendant, Shirley Porter, on the complaint of plaintiff, Diane McMilllin. By the Court, Edgar B. Bayley, J. Timothy A. Shollenberger, Esquire For Diane McMillin Joseph Murphy, Esquire For Shirley Porter :sal