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ARNOLD v. KIMBERLY QUALITY CARE NURSING

May 6, 1991

KATHLEEN P. ARNOLD, LYNN ARNOLD, PLAINTIFFS,
v.
KIMBERLY QUALITY CARE NURSING SERVICE, AND BARBARA PARKS, DEFENDANTS.



The opinion of the court was delivered by: Caldwell, District Judge.

MEMORANDUM

I. Introduction And Background

We are currently considering the motion of defendants, Kimberly Quality Care Nursing Service (Kimberly) and Barbara Parks (Parks), to dismiss certain counts of the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiffs, Kathleen P. Arnold and her husband, Lynn Arnold, initiated this lawsuit based upon alleged sexual harassment by defendant Parks directed at Kathleen Arnold and the subsequent retaliatory conduct of both defendants.

The complaint makes the following pertinent allegations. Kathleen Arnold began employment with Kimberly in October of 1988. In December of 1988, defendant Parks became her supervisor. Arnold alleges that over a period of some seven months Parks subjected her to various forms of sexual harassment, which she reported to Parks' superior. Parks thereafter began issuing written warnings to the plaintiff. Kathleen Arnold's employment was terminated on October 12, 1989, shortly after she informed the defendants that she would be contacting the Pennsylvania Human Relations Commission about her situation.

The complaint sets forth the following claims on behalf of Kathleen Arnold: (1) Count I — a Title VII claim for retaliatory discharge, see 42 U.S.C. § 2000e et seq.; (2) Count II — a claim for assault and battery; and (3) Count III — a claim for intentional infliction of emotional distress. Count IV is a state law claim for loss of consortium on behalf of Lynn Arnold.

Kimberly moves to dismiss Counts II through IV against it, arguing that the Pennsylvania Workmen's Compensation Act bars these claims against an employer. Both defendants move to dismiss Count IV for lack of subject matter jurisdiction.

II. Discussion

A. The Pennsylvania Workmen's Compensation Act

Kimberly asserts that the plaintiffs' claims for assault and battery, intentional infliction of emotional distress, and loss of consortium should be dismissed because the Pennsylvania Workmen's Compensation Act ("the Act") is the exclusive remedy for work related conduct. The Act provides:

  (a) The liability of an employer under this act
  shall be exclusive and in place of any and all
  other liability to such employees . . . on account
  of any injury or death as defined in section
  301(c)(1) and (2). . . .

77 P.S. § 481(a) (Purdon Pamphlet 1990-91).

Kimberly relies upon Pennsylvania cases which have held that this exclusivity provision covers claims for intentional torts arising at the work place and hence prohibits plaintiff from pursuing the common law claims set forth in the instant case. Defendant cites Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548 (1987); Blouse v. Superior Mold Builders, Inc., 363 Pa. Super. 516, 526 A.2d 798 (1987); and James v. International Business Machines Corp., 737 F. Supp. 1420 (E.D.Pa. 1990) (citing Poyser).

We reject Kimberly's argument because it does not consider the Act's exception for injuries caused by third persons arising from purely personal reasons:

  The term `injury arising in the course of
  employment' . . . shall not include an injury
  caused by an act of a third person intended to
  injure the employe because of reasons personal to
  him, and not directed against him as an employe or
  because of his employment; but shall include all
  injuries sustained while the employe is ...

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