United States District Court, Middle District of Pennsylvania
May 6, 1991
KATHLEEN P. ARNOLD, LYNN ARNOLD, PLAINTIFFS,
KIMBERLY QUALITY CARE NURSING SERVICE, AND BARBARA PARKS, DEFENDANTS.
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)
We reject Kimberly's argument because it does not consider
the Act's exception for
injuries caused by third persons arising from purely personal
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 actually
engaged in the furtherance of the business or
affairs of the employer. . . .
77 P.S. § 411(1) (Purdon Pamphlet 1990-91) (quoted in pertinent
In Schweitzer v. Rockwell International, ___ Pa.Super. ___,
586 A.2d 383 (1990), the Pennsylvania Superior Court
interpreted this section to preserve an employee's claim
against her employer for assault and intentional infliction of
emotional distress arising from her supervisor's sexual
harassment. The plaintiff alleged that her supervisor had made
lewd remarks and had touched her breasts. Along with a claim
for a retaliatory transfer when she complained about the
supervisor's conduct, she sought to hold the defendant
vicariously liable for the supervisor's sexual harassment. The
defendant claimed that the exclusivity provision of the Act
barred the latter claim. The superior court, however, rejected
The court first noted that, under Mike v. Borough of
Aliquippa, 279 Pa. Super. 382, 421 A.2d 251 (1980), a fellow
employee may be a "third person" within the statutory meaning.
It then concluded that an employer could be sued based upon
allegations of "harassment personal in nature and not part of
the proper employer/employee relationship." Schweitzer, ___ Pa.
Super. at ___, 586 A.2d at 391. The court distinguished Poyser,
supra, because "[n]o third person/fellow employee [was]
involved" in that case. Id. at ___, 586 A.2d at 392 (brackets
Schweitzer was followed in Gruver v. Ezon Products, Inc., No.
1:CV-90-2078, slip op. at 8 (M.D.Pa. Mar. 22, 1991) (Rambo, J.)
("harassment of a sexual nature in the work place has nothing
to do with work, but rather stems from reasons personal to the
party foisting his attentions on a co-worker" and hence a claim
for intentional infliction of emotional distress would not be
dismissed on the ground of the exclusivity of the worker's
compensation Act) and Borton v. Unisys Corp., 1991 WL 915
(E.D.Pa.) (a common law claim for intentional infliction of
emotional distress based upon sexual harassment "motivated by
personal animosity and . . . not aris[ing] from the employment
relationship" is not barred by the exclusivity provision). See
also Garvey v. Dickinson College, 761 F. Supp. 1175 (M.D.Pa.
1991) (McClure, J.). In contrast, James, supra, involved a
situation where the alleged sexual and racial discrimination
was motivated by discrimination in employment and, in any
event, did not deal with the third party exception.
Schweitzer, Gruver and Borton are convincing. Although the
complaint here could have been more specific, it fairly
alleges, as in those cases, sexual harassment by a supervisor
arising from purely personal motives and having no connection
to the work place, at least until Kathleen Arnold began to
complain to Parks' supervisor about the harassment. Thus,
despite the allegation, as pointed out by the defendants, that
Parks was acting at all times within the scope of her agency
for Kimberly, (complaint, ¶ 3), such harassment comes within
the third party exception to the worker's compensation act. A
claim based on that harassment cannot be dismissed on the
ground of the exclusivity of the Act. Therefore, we deny
Kimberly's motion to dismiss Counts II, III and IV of the
B. Pendent Party Jurisdiction
The defendants contend that the court lacks subject matter
jurisdiction over Lynn Arnold's state law claim for loss of
consortium in Count IV of the complaint. They point out that he
has no federal claim himself and that Count IV is derivative of
his wife's state claims, not her Title VII federal claim.
Hence, with no independent basis of jurisdiction, we cannot
entertain the claim and we must dismiss it. Defendants cite, in
part, Schnabel v. Building
And Construction Trades Council, 563 F. Supp. 1030 (E.D.Pa.
1983) and Fritts v. Niehouse, 604 F. Supp. 823 (W.D.Mo. 1984).
Defendants' reliance on these cases is misplaced. As
plaintiffs have pointed out, our jurisdiction over Lynn
Arnold's claim is controlled by 28 U.S.C. § 1367, the
codification of section 310 of the Judicial Improvements Act of
1990. Section 1367 applies to actions, like this one, initiated
after December 1, 1990. See section 310(c) of the Judicial
Under the new name "supplemental jurisdiction," section 1367
deals generally with issues of pendent and ancillary
jurisdiction. It provides, in pertinent part, as follows:
(a) Except as provided in subsection (b)*fn1
and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the
district courts have original jurisdiction, the
district court shall have supplemental
jurisdiction over all of the claims that are so
related to claims in the action within such
original jurisdiction that they form part of the
same case or controversy under Article III of the
United States Constitution. Such supplemental
jurisdiction shall include claims that include
joinder or intervention of additional parties.
(c) The district court may decline to exercise
supplemental jurisdiction over a claim under
subsection (a) if —
(1) the claim raises a novel or complex issue of
(2) the claim substantially predominates over
the claim or claims over which the district court
has original jurisdiction,
(3) the district court has dismissed all claims
over which it has original jurisdiction, or
(4) in exceptional circumstances, there are
other reasons for declining jurisdiction.
28 U.S.C. § 1367 (footnote added).
In their reply brief, defendants make several specific
arguments that this section is inapplicable to the instant case
but the basic thrust of their position is that the section does
not, and was not intended to, recognize pendent plaintiff
jurisdiction.*fn2 We disagree.
The section specifically includes within the supplemental
jurisdiction of the district courts "claims that include
joinder or intervention of additional parties." This language
is broad enough to include a pendent plaintiff who is named in
the original complaint, not just one, as the defendants argue,
who may subsequently be joined, or seek to join, or who
intervenes. See, e.g., Fed.R.Civ.P. 20(a) ("All persons may
join in one action as plaintiffs if they assert any right to
relief jointly, severally, or in the alternative in respect of
or arising out of the same transaction. . . ."). The Third
Circuit has placed this interpretation on section 1367(a) in
connection with pendent party defendants named in the original
complaint. See Brown v. Grabowski, 922 F.2d 1097, 1121 n. 17
(3d Cir. 1990). See also Rosen v. Chang, 758 F. Supp. 799
(D.R.I. 1991). And we see no reason to distinguish between
pendent party plaintiffs and pendent party defendants in this
Resort to the legislative history is not necessary but we
note that it is consistent with our position. One of the
purposes of the section was to make pendent party jurisdiction
available in cases brought in federal court. See 136 Cons.Rec.
S17580 (daily ed. Oct. 27, 1990) ("Section  implements a
recommendation of the Federal Courts Study Committee by
authorizing federal courts to assert pendent jurisdiction over
parties without an independent federal jurisdictional base.")
(brackets added). See also H.Rep. No. 734, 101st Cong., 2d
Sess. at p. 28, reprinted in 1990 U.S.
Code Cong. & Admin.News 6802, 6860, 6874, which stated that the
effect of the section was to permit jurisdiction in cases like
Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104
L.Ed.2d 593 (1989). In Finley, the Supreme Court, although in
the context of the joinder of two defendants subsequent to the
filing of the initial complaint, discussed pendent party
jurisdiction generally and held that it could not be exercised
over the joined defendants under the Federal Tort Claims Act,
28 U.S.C. § 1346. Finley was interpreted as possibly precluding
pendent party jurisdiction in most instances. See 13B Wright,
Miller & Cooper, Federal Practice and Procedure § 3567.2 (Supp.
Thus, in accordance with section 1367(a), we must determine
whether Lynn Arnold's claim is "so related to claims in the
action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United
States Constitution." Such a determination can be made under
the standard set forth in United Mine Workers v. Gibbs,
383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), although that
case dealt with pendent claim jurisdiction.
Gibbs . . . held that "[p]endent jurisdiction, in
the sense of judicial power, exists whenever there
is a claim `arising under [the] Constitution, the
Laws of the United States, and Treaties made, or
which shall be made, under their Authority . . .,'
US Const, Art, III, § 2, and the relationship
between that claim and the state claim permits the
conclusion that the entire action before the court
comprises but one constitutional `case.'" 383 US,
at 725 [86 S.Ct. at 1138,] (emphasis in original).
The requisite relationship exists, Gibbs said, when
the federal and nonfederal claims "derive from a
common nucleus of operative fact" and are such that
a plaintiff "would ordinarily be expected to try
them in one judicial proceeding." Ibid.
Finley v. United States, 490 U.S. 545
, 548-49, 109 S.Ct. 2003,
2006, 104 L.Ed.2d 593, 601 (1989) (brackets in Gibbs and also
added in part by Finley).
This standard is satisfied here. First, Lynn Arnold's
nonfederal claim derives from a common nucleus of operative
fact with his wife's federal claim under Title VII. The
identical issue was presented in Bowersox v. P.H. Glatfelter
Co., 677 F. Supp. 307 (M.D.Pa. 1988). In that action, the
pendent plaintiff husband was seeking damages for the loss of
his wife's consortium in the same suit in which she brought a
Title VII claim. The court stated:
The facts which Allen Bowersox must prove in order
to sustain his claim have at least a common
nucleus with the facts supporting Joanne
Bowersox's Title VII claims, even though the loss
of consortium claim does not parallel the Title
VII claims as extensively as does the claim for
intentional infliction of emotional distress. The
common nucleus of operative fact between the loss
of consortium claim and the Title VII claims is
simply that Joanne Bowersox was allegedly the
subject of sexual harassment by her supervisor and
that the harassment resulted in injury to her.
Id. at 315.
We thus reject the defendants' argument that the claims do
not arise from a common nucleus of operative fact merely
because Pennsylvania courts, which, of course, normally deal
for the most part with state law claims, would consider that,
under state law, the husband's cause of action is derivative of
his wife's state law claim. See, e.g., Manzitti v. Amsler,
379 Pa. Super. 454, 550 A.2d 537 (1988). As a matter of federal law,
and for the purposes of the federal jurisdictional issue we
must decide, it also derives, or is so related to her federal
claim, that it shares a common nucleus of operative fact with
the federal claim.
Second, this is the type of claim that the plaintiffs would
be expected to try together. Id. at 460 n. 2, 550 A.2d at 540
Finally, since defendants have not cited any federal statute
which explicitly divests us of jurisdiction to entertain the
loss of consortium claim in the context of this litigation, we
conclude that section 1367(a) authorizes us to exercise
jurisdiction over that claim.
Defendants argue that, if we conclude we do have jurisdiction
over Lynn Arnold's claim, we should exercise the discretion
granted us by section 1367(c) to decline to do so. They cite
Davis v. Devereux Foundation, 644 F. Supp. 482 (E.D.Pa. 1986);
Polay v. West Co., 629 F. Supp. 899 (E.D.Pa. 1986); and Duva v.
Bridgeport Textron, 632 F. Supp. 880 (E.D.Pa. 1985), in support
of this position. These Title VII cases, all decided before the
enactment of section 1367, refused to entertain pendent claim
jurisdiction over the plaintiff's state law claims either
because entertaining such claims was perceived to violate
congressional policy concerning speedy resolution of Title VII
claims and the nature of the relief to be granted under that
statute, see Davis, or doing so would subvert the Title VII
administrative mechanism and greatly expand the issues to be
tried. See Duva and Polay. The latter case also refused to
entertain an intentional infliction of emotional distress claim
because it would have required resolution of an unsettled issue
of state law. Duva was also concerned with unsettled state law
The court in Bowersox discussed these cases and all of these
matters, see 677 F. Supp. at 314-15, and decided to exercise
jurisdiction. In connection with the discretionary authority
conferred upon us by section 1367(c), we agree with the
reasoning of Bowersox and we will not exercise our discretion
to dismiss Lynn Arnold's loss of consortium claim. Based upon
Bowersox, we also reject the defendants' request, first set
forth in their reply brief, that we dismiss Kathleen Arnold's
pendent state law claims.