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July 14, 1987

Leanne Snyder, et al.
Congoleum/Kinder, Inc., et al.

The opinion of the court was delivered by: HUYETT


 Plaintiff, *fn1" LeAnne Snyder, has brought this action seeking compensatory and punitive damages from her employer (Congoleum) and the employer's workmen's compensation carrier (Liberty). Defendants have filed motions to dismiss the complaint in its entirety for failure to state a claim on which relief can be granted. Defendants argue that the Workmen's Compensation Act provides the exclusive remedy for plaintiff's injuries. For the reasons which follow, I will grant the motion of defendant Congoleum. The motion of defendant Liberty will be denied.


 In deciding a motion to dismiss, I must accept as true all well pleaded factual allegations made in the complaint and must resolve all reasonable inferences to be drawn from those allegations in the light most favorable to the plaintiff. Under the federal rules, the complaint need only set forth a short and plain statement of claims sufficient to give defendant fair notice of the nature of the claim and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Bogosian v. Gulf Oil, 561 F.2d 434, 446 (3d Cir. 1977). "[A] complaint should not be dismissed for a failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. at 45-46 (footnote omitted). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 Plaintiff originally suffered a work-related injury on or about September 10, 1985 while acting within the scope and course of her employment. *fn2" (Complaint, para. 10). Plaintiff was hospitalized and underwent surgery for that injury. (Id. P 12). Plaintiff was discharged from the hospital on November 6, 1985. (Id.).

 According to the complaint, at some time following her release from the hospital, Liberty contacted plaintiff's treating physician and inquired as to when plaintiff would be capable of returning to her regular job or to limited, light-duty work. (Id., P 14). The physician stated that he would return plaintiff to light-duty work provided that work within plaintiff's physical limitations was available. (Id., P 15). Plaintiff further alleges that an employee of Liberty stated that Congoleum had such work available as of the end of November, 1985. (Id. P 16). Plaintiff, therefore, returned to work on December 2, 1985. (Id. P 18). Upon reporting to work, plaintiff was instructed to begin work at her prior position as head bed cutter, a job which plaintiff alleges involved activities greatly exceeding those permitted by her physician. (Id. P 19-20). After working at this position for approximately four hours, plaintiff reinjured her back. (Id. P 21).

 The complaint sets forth claims against Liberty for negligence in returning her to work, negligent misrepresentation, fraud in returning her to work, conspiracy to defraud, battery, and bad faith. Plaintiff asserts claims against Snyder for battery and conspiracy to defraud. Claims for loss of consortium and punitive damages are also asserted.

 The Workmen's Compensation Act as an Exclusive Remedy

 Pennsylvania, like other states, has enacted a comprehensive Workmen's Compensation Act (the Act) to provide prompt, guaranteed payments to injured workers. In exchange for this certain compensation, the employer was given immunity from common law suits by employees. 77 Pa.Stat.Ann. § 481(a); *fn3" Wilson v. Asten-Hill Mfg. Co., 791 F.2d 30, 32 (3d Cir. 1986). The employer's immunity from suit extends to its insurer. 77 Pa.Stat.Ann. § 501. As the Third Circuit has repeatedly explained:

The statutory scheme . . . operates on a law of averages. In some instances where he could prove negligence, an employee may receive less compensation than he would recover in damages in a common law suit. In other situations, an employer may have to pay compensation where he would not be liable for any sum at common law. Despite inequities in specific cases, the underlying assumption is that, on the whole, the legislation provides substantial justice.

 Wilson, 791 F.2d 30, 32 (quoting Weldon v. Celotex Corp., 695 F.2d 67, 70 (3d Cir. 1982)).

 At issue in this case is whether the plaintiff's claims against the employer and insurer fall within an exception to the exclusivity provisions of the Act. Plaintiff argues that her claims fall within the statutory exception for injury caused by a third person. Plaintiff further argues that her claims fall within a judicially created intentional tort exception. Finally, plaintiff argues that her claims against Liberty survive because the alleged tortious ...

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