Taynton v. Dersham

• Decision Date: 27 October 1986
• Citation: 358 Pa.Super. 178,516 A.2d 1241
• Parties: Robert E. TAYNTON, Jr., Administrator of the Estate of Shelly Lyn Taynton, Deceased, Appellant, v. Ralph W. DERSHAM and Sandra L. Dersham, H/W, t/d/b/a Milton Sports Center, Mark Dersham, David L. Sohmer and Uni-Marts, Inc.
• Court: Pennsylvania Superior Court

Page 1241

516 A.2d 1241

358 Pa.Super. 178

Robert E. TAYNTON, Jr., Administrator of the Estate of Shelly Lyn Taynton, Deceased, Appellant, v. Ralph W. DERSHAM and Sandra L. Dersham, H/W, t/d/b/a Milton Sports Center, Mark Dersham, David L. Sohmer and Uni-Marts, Inc.

Superior Court of Pennsylvania.

Argued April 23, 1986.

Filed Oct. 27, 1986.

Raymond E. Ginn, Wellsboro, for appellant.

Jonathan E. Butterfield, Williamsport, for appellees.

Before WICKERSHAM, BROSKY and WATKINS, JJ.

WICKERSHAM, Judge:

Robert E. Taynton, Jr. appeals from the judgment on the pleadings entered by the Court of Common Pleas of Lycoming County in favor of Uni-Marts, Inc.

Appellant is the administrator of the estate of his daughter, Shelly Lyn Taynton, who was employed by Uni-Marts, Inc., appellee herein, as a retail clerk in one of appellee's convenience stores located in Williamsport. On the early morning of July 5, 1982, Ms. Taynton was at work in the store when she was shot and killed by David L. Sohmer. Appellant commenced this civil action by writ of summons on July 3, 1984, naming as defendants Sohmer, Uni-Marts, Inc., Ralph W. and Sandra L. Dersham, t/d/b/a Milton Sports Center (where Sohmer purchased the gun used in the shooting), and Mark Dersham (the clerk who sold the gun to Sohmer).

Appellant filed a complaint on September 17, 1984 against the defendants listed above. Appellee Uni-Marts, Inc. and the Dershams filed answers containing new matter, to which appellant replied. On October 23, 1984, appellee moved for judgment on the pleadings, on the basis that under the Workmen's Compensation Act, it was immune from suit. Appellant filed an answer to the motion. On March 1, 1985, the lower court entered an order granting judgment on the pleadings in favor of appellee, to which appellant filed this timely appeal. ¹

Appellant raises two issues before us:

1. Is appellee, Uni-Marts, Inc., subject to tort liability under the facts of the instant case on the basis that the doctrine of "Dual Capacity" provides that the Pennsylvania Workers' Compensation Act is not appellant's exclusive remedy under the facts of this case?

2. Whether the exclusivity provisions of the Workers' Compensation Act as applied to a parent and personal representative of a decedent violates Article 1, Section 11 and Article 3, Section 18 of the Pennsylvania Constitution, and the Fourteenth

Amendment to the Constitution of the United States?

Brief for Appellant at 3.

Our court recently summarized our standard of review on an appeal from the granting of judgment on the pleadings:

Initially we note that to determine the propriety of awarding judgment on the pleadings, we must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. West Penn Administration Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, , 433 A.2d 896, 900 (1981) (citations omitted); Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); see also Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985). The parties cannot be deemed to admit either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); West Penn, 289 Pa.Super. at , 433 A.2d at 900.

We will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); see also Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967); Wojciechowski, 345 Pa.Super. at , 497 A.2d at 1343. In conducting this inquiry, the court should confine its consideration to the pleadings and documents attached thereto. Gallo, 328 Pa.Super. at , 476 A.2d at 1324.

Jones v. Travelers Insurance Co., --- Pa.Super. ---, ---, 514 A.2d 576, 578 (1986) (footnote omitted).

With the above standard in mind, we have carefully reviewed the record in this case, the briefs of the parties, and the applicable law, and have concluded that appellant's second contention concerning the constitutionality of the exclusivity provisions of the Workmen's Compensation Act, has been adequately addressed by the opinion of the Honorable Clinton W. Smith, and we see no need to address it further. While we also concur with Judge Smith's handling of the first issue, we will address it for benefit of the bench and bar.

Appellant contends that despite its status as the decedent's employer, appellee is subject to tort liability under the "dual capacity doctrine." Appellant's argument that appellee is not immune from suit by virtue of the Workmen's Compensation Act can be briefly summarized as follows: At the time Shelly Lyn Taynton was shot and killed by David Sohmer, she was present as an employee in appellee's convenience store. Appellant alleges that appellee breached its duty to provide adequate security to prevent violent criminal acts at its store. This duty of security was owed to employees and patrons alike. Therefore, despite the Act, appellee is liable in tort for Ms. Taynton's death by virtue of the "dual capacity doctrine," as recognized in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).

Initially, we must turn to the language of the Workmen's Compensation Act. ² Section 303 of the Act, 77 P.S. § 481, provides as follows:

481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party

1 Section 411(1), (2) of this title.

2 Section 27.1 of this title.

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)¹ and² 1 or occupational disease as defined in section 108.2

(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

77 P.S. § 411(1), referred to in the above section, provides, in pertinent part, as follows:

§ 411. "Injury," "personal injury," and "injury arising in the course of his employment" defined

(1) The terms "injury" and "personal injury," as used in this act, shall be construed to mean an injury to an employe, ... arising in the course of his employment and related thereto, ... and wherever death is mentioned as a cause of compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury. The term "injury arising in the course of his employment," as used in this article, 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 other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer's business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer's business or affairs are being carried on, the employe's presence thereon being required by the nature of his employment.

Thus, as we can see by the above language, the Workmen's Compensation Act provides an exclusive remedy for recovery by employees injured in the course of their employment. The purpose of the Act is to provide the sole and exclusive means of recovery for all injuries arising out of accidents occurring within the course of employment. Hartwell v. Allied Chemical Corp., 320 F.Supp. 75 (W.D.Pa.1970); aff'd, 457 F.2d 1335 (3d Cir.1972). The exclusive liability provision of the Act has obliterated the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer. Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 465 A.2d 1069 (1983); Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), aff'd, 502 Pa. 101, 465 A.2d 609 (1983). Furthermore, the exclusivity of workmen's compensation is not destroyed, nor does the employee acquire additional remedies, merely because the provisions of the Act fail to provide what the employee deems to be adequate or full compensation for the injuries sustained. Kline v. Arden H. Verner Co., 307 Pa.Super. 573, 453 A.2d 1035 (1982), aff'd, 503 Pa. 251, 469 A.2d 158 (1983).

It is admitted that appellee was Ms. Taynton's employer and that she was on her employer's premises acting in the furtherance of her employer's business at the time of her death. There is no allegation that she was killed by Sohmer for reasons personal to her. It was simply her misfortune to be minding the store at the time Sohmer entered. As a result, the exclusive...