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HomeMy WebLinkAbout01-4178 Civil MUHAREM NEZIC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC. and MICHAEL LEE MOUNTZ, DEFENDANTS 01-4178 CIVIL TERM IN RE: MOTION OF DEFENDANT ROSS STORES. INC. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT BAYLEY, J., November 14,2005:-- On July 9, 2001, plaintiff, Muharem Nezic, filed a complaint against defendants Ross Stores, Inc., and Michael Lee Mountz. Plaintiff alleged in the complaint that on October 29,1999, while at work at Ross Stores, Inc., where he and Mountz were employed, Mountz intentionally assaulted him, causing serious injury. Plaintiff further alleged that, "Upon information and belief, Mountz's beating of Plaintiff was motivated by his personal animus toward Plaintiff and not for any employment-related reasons." The pleadings are closed. Discovery, including depositions, has been taken. Ross Stores, Inc., filed a motion for summary judgment which was briefed and argued on October 20, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . . . must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material 01-4178 CIVIL TERM fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). The Workers' Compensation Act, 77 P.S. S 1 et seq., provides an exclusive remedy for an employee who seeks recover for an injury sustained in the course of employment. See, Kohler v. McCrory Stores, 532 Pa. 130 (1992). As a result of the injuries plaintiff incurred on July 9, 2001, during the course of his employment, he filed a claim for worker's compensation benefits. Benefits were awarded and received by plaintiff. Ross Stores, Inc., maintains in this motion for summary judgment that plaintiff has not adduced sufficient evidence that Ross is not immune from liability under the Workers' Compensation Act. Plaintiff maintains that an exception at 77 P.S. Section 411 (1) appl ies. It provides: The term "injury arising in the course of his employment," as used in this article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment. . .. (Emphasis added.) In Hammerstein v. Lindsay, 655 A.2d 597 (Pa. Super. 1995), the Superior Court of Pennsylvania, commenting on an opinion of the Supreme Court of Pennsylvania in Kohler v. McCrory Stores, supra, stated: [t]hat in order for an employee to set forth a valid cause of action against his employer under the personal animus exception, "an employee must -2- 01-4178 CIVIL TERM assert that his injuries are not work-related because he is injured by a co- worker for purely personal reasons." Id. 532 Pa. at 137-38, 615 A.2d at 31 (emphasis in original). Where the animosity between the third party and the injured employee is developed because of work-related disputes, the animosity is developed because of the employment, and the injured employee's remedy is exclusively under the Workmen's Compensation Act. Repco Products Corp. v. Workmen's Camp. App. Bd., 32 Pa.Cmwlth. 554, 557, 3790 A.2d 1089, 1090 (1977). Furthermore, "the lack of pre- existing animosity between the combatants strongly suggests that the motive for the attack was work-related and not because of reasons personal to the assailant." Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 391, 421 A.2d 251, 255 (1980). Besides pleading in his complaint only a conclusion, as contrasted to facts, that Mountz's assault on him "was motivated by his personal animus towards [him] and not for any employment-related reasons," plaintiff has testified in depositions contrary to that allegation: Q: Did you and Mr. Mountz get along before this incident? A: [Plaintiff] saw [Mountz], but they never had a conversation. Q: [You] never spoke before? A: No. Q: Did [you] have any interactions in the workplace before this incident? A. No, because [we] did not officially meet. *** Q: Had you ever spoken to him? A: Not really, no. Q: Okay A: I mean, other than what I had to while working with him. But prior to that, I hadn't spoken to him before. Q: Do you recall ever having any personal conversations with him outside the job? A: No. Never. Q: Would it be fair to say that all of your conversations with him related to work? A. Right. Of course. -3- 01-4178 CIVIL TERM *** Q: Okay. Now, all of the conversations that you just said you had, you talked to him many times about this particular work issue, were they all related to work or was there any personal conversation involved? A: No, this definitely - oh, I never talked to him about anything outside of work. This all - definitely all had to do with work at the time, you know, what we were doing, you know, work-wise. (Emphasis added.) *** Q: Okay. But I just want to go back to this one question that I asked you before, about your conversations with him that initiated this physical altercation between the two of you, did they all have to do with work or [Mountz's] job performance, or was there anything personal in nature? A: There was nothing persona [sic] - absolutely nothing personal about it. It all had to do with work. (Emphasis added.) *** Q: I just wanted to clarify. Is the only communication that you and Mr. Nezic has [sic], was it only about work-related things? A: If you are asking me if I discussed anything other than work with that man, it was only work. I've not once talked to him about anything other than work. Notwithstanding, plaintiff argues in his brief: Although there is no dispute that the assault on Plaintiff by Defendant Mountz occurred at their place of employment and was initiated by a dispute over roller space, the underlying reason for the assault was due to personal animosity that Defendant Mountz had toward Plaintiff due to communication problems caused by the language barrier. Defendant Mountz admits that the language difficulties caused him problems with his job and were more than an annoyance to him. In his deposition, Defendant Mountz stated: Q. Okay. And did you feel that the behavior you complained to him about was intentional on his part, that he was doing something to hum up the work, shall we say? A. That I do not - I don't think so. I don't think so. -4- 01-4178 CIVIL TERM Q. Okay. Could it have... been a communications problem because of the language? A. I think it was solely a communication problem - yeah, I definitely think it was just a communication problem. I don't think it was anything to hurt the company or anything just to hurt me or anything. Q. However, when he did these things, for whatever reason, did that reflect back on your performance with the company? A. Yeah. I mean, if I got questioned or yelled at for not having the orders, you know, there or where this was or where that was, you know, and having to constantly you know, explain, you know, well, this happened again, you know. It did affect - it did affect my performance. I think it definitely affected me. Q. So it was more than just an inconvenience or annoyance to you? A. Yeah. At most, all Mountz said is that a communication problem affected the work performance of plaintiff, which in turn affected his own work performance. Any communication problem, as plaintiff testified, was not personal, "It all had to do with work." The testimony of Mountz, coupled with all other evidence adduced by plaintiff including his own deposition testimony, does not raise a factual issue whereby a jury could find that the injury to plaintiff falls within the personal animus exception to Section 411 (1) of the Workers' Compensation Act. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of November, 2005, the motion of defendant, Ross Stores, Inc., for summary judgment, IS GRANTED. By the Court, -5- 01-4178 CIVIL TERM Andrew J. Ostrowski, Esquire 4311 North 6th Street Harrisburg, PA 17110 For Plaintiff Edgar B. Bayley, J. -6- 01-4178 CIVIL TERM Joseph N. Bongiovanni, IV, Esquire 1880 John Kennedy Blvd. 1 ih Floor Philadelphia, PA 19103 For Ross Stores, Inc. Roger M. Morgenthal, Esquire For Michael Lee Mountz :sal -7- MUHAREM NEZIC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC. and MICHAEL LEE MOUNTZ, DEFENDANTS 01-4178 CIVIL TERM IN RE: MOTION OF DEFENDANT ROSS STORES. INC. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of November, 2005, the motion of defendant, Ross Stores, Inc., for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. Andrew J. Ostrowski, Esquire 4311 North 6th Street Harrisburg, PA 17110 For Plaintiff Joseph N. Bongiovanni, IV, Esquire 1880 John Kennedy Blvd. 1 ih Floor Philadelphia, PA 19103 For Ross Stores, Inc. Roger M. Morgenthal, Esquire For Michael Lee Mountz :sal