Hershey v. Ninety-Five Associates

¶1This is an appeal from an order granting appellees’ motion for summary judgment. The only issue on appeal is whether the trial court erred in finding that appellant’s exclusive remedy is workman’s compensation and, therefore, erred in granting the motion for summary judgment. For the reasons set forth below, we affirm.

¶2On April 9, 1987, appellant was working her regular shift as night auditor at the Howard Johnson Hotel. At approximately 6:40 a.m. appellant was counting the money in the cash drawer when an unidentified male jumped over the counter. The man grabbed appellant by the hair, put a razor to her throat, and dragged her into the back offices. Thereafter, appellant was struck repeatedly as the assailant attempted to remove her clothing. Fortunately, appellant *160was then able to escape the assailant. Apparently, however, before leaving the hotel, the assailant took some money from the cash drawer. It is undisputed that appellant had no prior relationship with the assailant, and that she had never seen him before.

¶3Appellant filed a suit against appellees for personal injury allegedly caused by the appellees’ negligence which resulted in her assailant’s opportunity to attack. Thereafter, appellees filed a motion for summary judgment asserting that appellant’s common law action against appellees was barred under the Pennsylvania Workmen’s Compensation Act. The motion for summary judgment was granted, and appellant filed this appeal.

¶4The only issue before us on appeal is whether appellant’s common law action against her employer for personal injuries sustained when she was sexually assaulted by an unknown assailant while in the course of her employment on her employer’s premises is barred under the provisions of the Pennsylvania Workmen’s Compensation Act.

¶5As a general rule, the Pennsylvania Workmen’s Compensation Act provides the exclusive remedy for employees who seek recovery for injuries sustained in the course of their employment. Wagner v. Natural Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980). The Act provides a specific exception, however, in cases wherein the injury is caused intentionally by third parties. Section 301(c) of the Act provides in pertinent part that

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 employee because of reasons personal to him, and not directed against him as an employee or because of his employment ...

¶6In such cases, the employee can pursue her common law remedies against her employer, and attempt to prove that the employer was negligent in failing to take precautions necessary to prevent a foreseeable attack by the third *161party. This provision of the Act, however, has been narrowly construed by our courts to allow recovery only in cases where the third party’s actions were motivated by a history of personal animosity toward that particular employee. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980).

¶7In Brooks v. Marriott Corp., 361 Pa.Super. 350, 522 A.2d 618 (1987), we discussed the exception for injuries inflicted by third parties as provided for in Section 411:

This exception to the coverage of the Act applies to situations in which the third-party’s acts were motivated by a feeling of animus against the particular person injured. If the third-party would have attacked a different person in the same position as the injured employee, that attack falls outside the exception and is covered exclusively by the Act.

¶8In the Brookscase, the employee was stabbed and beaten to death by an unknown person while working at his employer’s restaurant following the robbery of the restaurant. The employee’s personal representative sued the employer, and alleged that the employee was attacked for reasons which were personal to the attacker, and not because of her status as an employee of the restaurant. The Brookscourt reversed the grant of preliminary objections against the estate, but stated that to prevail at trial appellant would have to prove that the deceased was killed after the accomplishment of the robbery for reasons not connected with her status as an employee, and that the attacker had personal animus toward the victim which was the motivation for the stabbing.

¶9In a case which was very similar to the instant case, the Commonwealth Court affirmed the trial court’s grant of summary judgment on the basis that the employee’s remedy was limited to the Workmen’s Compensation Act. In Holland v. Norristown State Hospital, 136 Pa.Cmwlth. 655, 584 A.2d 1056 (1990), a state hospital security employee was assaulted and raped by a committed psychopath during the course of her employment. The victim contended that the *162rape was directed at her as a woman, and not as an employee, and therefore her recovery was not limited to the Workmen’s Compensation Act. The Commonwealth Court disagreed, and held that

In the present case, there is no allegation of a preexisting personal animosity between the patient and Holland. Although Holland was most likely attacked because she was a woman, the patient would have attacked any woman in that situation. She was attacked not because the patient’s animosity was personal to her but because of her position as an employee of Norristown, and as such, her remedy is limited to compensation under the Act.

¶10Id.,136 Pa.Cmwlth. at 664, 584 A.2d at 1060.

¶11In the instant case, appellant argues that the fact that her assailant attempted to rape her established that the attack upon her was motivated by a feeling of animus or personal animosity.1 Appellant argues that because of the nature of sexual assaults, proof of past personal animus is not required. She contends that she should be given a chance to prove at trial that rape is generally directed at the victim with personal enmity, and that therefore, the Workmen’s Compensation Act is not her exclusive remedy. We disagree and find that appellant cannot rely upon the sexual nature of her attack to establish that the attack occurred for reasons personal to her assailant. Appellant admits that she did not know her attacker, and that she had no prior contact with him. As such, appellant is not in a position to prove that the attack was a result of a preexisting animosity between appellant and her assailant. Any evidence, whether it be by expert testimony at trial or by the testimony of the victim herself, regarding the “personal” nature of sexual assaults would not satisfy appel*163lant’s burden of proving that her attack was a result of the assailant’s personal animus against the victim. Appellant is unable to prove that the assailant would not have attacked any woman who had been standing behind the desk when he entered appellee’s hotel on April 9, 1987. Accordingly, the trial court correctly granted the motion for summary judgment and found that appellant’s exclusive remedy was the Workmen’s Compensation Act.

¶12Order affirmed.

¶13OLSZEWSKI, J., dissents.