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12/31/97 ROMAN MOSAIC AND TILE CO. AND NORTHERN

December 31, 1997

ROMAN MOSAIC AND TILE CO. AND NORTHERN INSURANCE CO. OF NEW YORK, APPELLANTS
v.
AETNA CASUALTY AND SURETY CO. AND PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE CO., APPELLEES



Appeal from the ORDER DATED July 31, 1996, Docketed August 01, 1996, in the Court of Common Pleas, Delaware County, Civil Division, No. 93-16690.

Before: Cavanaugh, Schiller And Montemuro,** JJ. Opinion BY Cavanaugh, J.

** Retired Justice assigned to the Superior Court.

The opinion of the court was delivered by: Cavanaugh

Filed December 31, 1997

OPINION BY CAVANAUGH, J.:

The issue presented in this appeal is one of first impression in Pennsylvania and requires us to determine whether an insurer has the duty to defend and indemnify an insured against claims of sexual harassment and gender discrimination in the workplace under a "personal injury" provision contained in the insured's comprehensive general liability policy which provides coverage for injuries arising out of the offenses of false imprisonment, invasion of privacy, and defamation. For the reasons that follow, we find no duty to defend or indemnify and we affirm the trial court's order which granted summary judgment to the insurers.

The genesis of the present case is a lawsuit filed in the United States District Court for the Eastern District of Pennsylvania against appellant Roman Mosaic and Tile Company (Roman Mosaic) by Constance Jesiolowska, a former Roman Mosaic employee. *fn1 Ms. Jesiolowska's complaint against Roman Mosaic contained six separate counts. Count I alleged violations of Title Seven of the Civil Rights Act of 1964. Count II alleged violations of the Pennsylvania Human Relations Act . Counts III through VI, respectively, alleged breach of employment contract, constructive discharge and wrongful termination, intentional infliction of emotional distress and outrageous conduct. In support of these claims the complaint contained the following factual allegations:

Factual Allegations

1. Plaintiff was an employee of Defendant Roman Mosaic and Tile Company since 1980 and through June 1989, and was reinstated to her employment in July 1990 and continued her employment through February 1991.

2. Plaintiff was under the direct supervision of Blase Primo, Supervisor for Defendant.

3. During her employment, Plaintiff was subjected to sexual harassment and discrimination on the basis of her gender, female, unlawful and in violation of Sections 703(a) and 703(k) of Title VII, 42 U.S.C. Section 2000E-2(a); Defendant employer has permitted employees to urinate in her work shoes, to make derogatory remarks based on Ms. Jesiolowska's gender, such as referring to her as a "slut", "fat pig" and "whore". Further, Defendant has permitted employees to physically harass Plaintiff by throwing a wheelbarrow at her, by placing her in a wire cage and dragging it around the job site, and placing her in a metal drum and rolling it around the work site. These and other instances have occurred since at least 1982 and continued to the present.

4. Since at least June 1989, and for years previously, Defendant employer has selected Constance I. Jesiolowska, the only female Tile Mechanic in its employ for layoff from her position of Tile Mechanic because of her sex "female", and by refusing to recall her to work, while at the same time. [sic] Defendant employer retained and/or recalled similarly situated males, and Tile Mecanics after discharging Ms. Jesiolowska[.] Further, Ms. Jesiolowska was selected for layoff on a more frequent basis than any other employee on the basis of her gender.

5. The above conduct resulted in the wrongful termination of Plaintiff's position with Defendant employer.

6. The above conduct constituted breach of the Plaintiff's employment contract with Defendant employer, particularly as it concerns Plaintiff's medical benefits and pension rights ...


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