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