Franczyk, L. v. The Home Depot, Aplts.

[J-62-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
LINDSAY FRANCZYK, : No. 11 WAP 2022
:
Appellee : Appeal from the Order of the
: Superior Court entered September
: 24, 2021 at No. 1090 WDA 2020,
v. : affirming the Order of the Court of
: Common Pleas of Allegheny County
: entered May 15, 2020 at No. GD-18-
THE HOME DEPOT, INC. D/B/A HOME : 010285.
DEPOT, PHILIP ROGERS, AND THOMAS :
MASON, : ARGUED: November 29, 2022
:
Appellants :
OPINION
JUSTICE WECHT DECIDED: APRIL 19, 2023
Pennsylvania’s Workers’ Compensation Act1 creates a comprehensive statutory
remedy for workplace injuries. The Act reflects a compromise that has prevailed in
Pennsylvania for decades: in exchange for their mandatory contributions to a no-fault
insurance program, employers avoid the risks and uncertainties of defending against
lawsuits arising from such injuries. However, while the Act generally precludes
employees from bringing workplace injury claims against their employers, it preserves the
employees’ rights to bring negligence claims against third parties who bear some
1 Act of June 2, 1915, P.L. 736, No. 338, art. 1, 101, codified as amended at 77 P.S.
§§ 1, et seq. (“WCA” or “the Act”).
responsibility for employee injuries. When an employee recovers on such a claim, the
employer may seek “subrogation,” recouping its workers’ compensation expenses up to
the amount recovered from the third party.
The WCA’s linchpin is its “exclusivity provision,” which provides that “[t]he liability
of any employer under this act shall be exclusive and in place of any and all other liability
to such employees . . . in any action at law or otherwise on account of any injury or
death . . . or occupational disease.”2 Over the long history of the Act, our courts have
recognized only a few narrow exceptions to this exclusivity. In the instant case, the trial
court recognized a novel exception and denied the employer’s motion for summary
judgment. The Superior Court affirmed the trial court’s decision. We disagree. The
exception proffered by the lower courts cannot be reconciled with the Act’s design,
purpose, or plain language. Thus, we reverse.
Plaintiff-Respondent Lindsay Franczyk, was working at a Home Depot store when
a customer’s dog bit her.3 Franczyk reported the bite promptly to her supervisors, Philip
Rogers and Thomas Mason (collectively with Home Depot, “Defendants”4). Defendants
investigated, but they barred Franczyk from “hav[ing] any further contact or interaction
with the dog owner or any witnesses.”5 Defendants located and questioned two
2 Id. § 481(a).
3 Because this case arises in the context of Defendants’ motion for summary
judgment, our account accepts Franczyk’s pleaded allegations as true and grants her the
benefit of all favorable inferences. See Summers v. Certainteed Corp., 997 A.2d 1152,
1159 (Pa. 2010).
4 We use “Defendants” to refer interchangeably either to all three Defendants or to
Rogers and Mason as the individual agents of Home Depot as context requires.
5 Complaint ¶16.
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individuals who (separately) had brought dogs into the store, and also spoke to an
eyewitness, but ultimately allowed all of them to leave the store without taking any
identifying or contact information. Franczyk later was diagnosed with cubital tunnel
syndrome, which required surgical repair. Franczyk claimed and received WCA benefits.
Franczyk sued Defendants. In her relevant claim, Franczyk asserts that
Defendants failed to investigate the incident sufficiently, and that they negligently allowed
the dog owner and witnesses to leave without obtaining identifying information. She
contends that these acts and omissions denied her the opportunity to file a third-party suit
against the dog owner.
After the pleading and discovery phases of the litigation concluded, Defendants
filed a motion for summary judgment, claiming immunity under the WCA’s exclusivity
provision, which states:
§ 481. Exclusiveness of remedy; actions by and against third party;
contract indemnifying third party
(a) The liability of an employer under this act shall be exclusive and in place
of any and all other liability to such employes [sic6] . . . entitled to damages
in any action at law or otherwise on account of any injury or death as defined
in section 301(c)(1) and (2) or occupational disease as defined in
section 108.
(b) In the event injury or death to an employe is caused by a third party,
then such employe . . . may bring [her] 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
6 Although peculiar and seemingly archaic, the statute’s generic use of “employe”
rather than the more common “employee” is not technically erroneous. See Harmon v.
Unemployment Comp. Bd. of Rev., 207 A.3d 292, 310 n.1 (Pa. 2019) (Wecht, J.,
concurring) (discussing Bryan Garner’s identification of the usage’s potential French
origin in Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE (2d. ed. 1995)).
[J-62-2022] - 3
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.7
Defendants contended that, because Franczyk’s injury occurred in the course of her
employment, Section 481 bars her claim notwithstanding Defendants’ failure, if any, to
act more diligently in securing the information she needed to bring a third-party claim.
The trial court denied summary judgment. Citing a Florida decision, the court
explained:
Defendants should be estopped from raising the exclusivity provision of the
Workers’ Compensation Act . . . . Simply put, Defendants cannot fail to
obtain any identifying information from the third party, and then turn around
and tell [Plaintiff] that her only other remedy in this case is against that third
party who she has no way to identify. At a minimum, there exists a genuine
question as to whether the failure to obtain that information rises to the level
of negligence and summary judgment is inappropriate.8
The trial court offered no further account or definition of the duty that it believed would
anchor a claim for negligence, nor any further legal authority for such a duty.
The Superior Court affirmed in a unanimous, nonprecedential decision.9 That
court observed that the Act’s exclusivity provision is not absolute under all circumstances.
For example, WCA exclusivity did not bar a common-law suit for “fraudulent
misrepresentation” where neither the toxic exposure causing injury nor the original injury
7 77 P.S. § 481.
8 Trial Court Opinion, 12/17/2020, at 3-4; see Quality Shell Homes & Supply Co.,
Inc. v. Roley, 186 So.2d 837 (Fl. Ct. App. 1966) (holding that an employer’s misleading
assertion that a workplace injury was not covered by workers’ compensation and refusal
voluntarily to remit payment estopped it from raising exclusivity to preclude the
employee’s civil claim).
9 Franczyk v. The Home Depot, Inc., 1090 WDA 2020, 2021 WL 4352306(Pa. Super. Sept. 24, 2021) (memorandum).
[J-62-2022] - 4
itself was the basis for the claim.10 Rather, the injury asserted was an aggravation of the
original workplace injury that might have been prevented or mitigated but for the
employer’s failure to share material information with the plaintiff.11 As well, suit was not
barred when an intellectually disabled employee was sexually assaulted by a coworker
after the employer allegedly had failed to provide sufficient protections against such
assault.12
Like the trial court, the Superior Court embraced Franczyk’s view that she did not
seek to recover from Defendants for the dog bite itself, but rather for the economic harm
she suffered when she lost the opportunity to file a third-party claim against the tortfeasor
dog owner. The Superior Court concluded that Defendants were “estopped” from seeking
WCA protection when their acts “effectively stripped [Franczyk] of her ability to file a claim
against the third-party dog owner, as contemplated by our legislature.”13 Accordingly, the
Superior Court ruled that the trial court neither erred nor abused its discretion in denying
summary judgment.
In resolving the questions before us,14 we begin with the WCA’s text. The statute’s
plain language is our polestar in discerning the General Assembly’s intent. Only if we find
10 Id., at *4 (citing Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992)).
11 Id.12 Id. (citing Krasevic v. Goodwill Indus. Of Central Pa., Inc., 764 A.2d 561(Pa. Super. 2000)).
13 Id., at *5.
14 Specifically, we granted review to consider the following questions:
(1) Where an employee suffers a workplace injury fairly attributable to a
non-employer third party, is the employer precluded by 77 P.S. § 481’s
exclusive remedy provision from bringing a tort claim against the employer
[J-62-2022] - 5
the relevant provision to be ambiguous—i.e., if it is susceptible to two or more reasonable
understandings15—will we look elsewhere for evidence of the legislature’s intentions.16
We consider statutory language in its full context, not in isolation, and we “must not
overlabor to detect or manufacture ambiguity where the language reveals none.”17
When we interpret the WCA, we find ourselves on familiar ground. This Court has
explained:
The exclusivity clause of the [WCA], 77 § P.S. 481, reflects the historical
quid pro quo between an employer and an employee whereby the employer
assumes liability without fault for a work-related injury, but is relieved of the
possibility of a larger damages verdict in a common[-]law action. The
employee benefits from the expeditious payment of compensation but
forgoes recovery of some elements of damages. The comprehensive
system of substantive, procedural, and remedial laws comprising the
[workers’] compensation system should be the exclusive forum for redress
of injuries in any way related to the work place.18
The Act provides:
Every employer shall be liable for compensation for personal injury to . . .
each employe, by an injury in the course of [her] employment, and such
for affirmative conduct that impedes the employee’s ability to seek relief
against the third party?
(2) Does the Superior Court’s decision in this case conflict with its decision
in Kulik v. Mash, 982 A.2d 85 (Pa. Super. 2009)?
Franczyk v. Home Depot, Inc., 274 A.3d 1228 (Pa. 2022) (per curiam). Because we agree
with Defendants that the Act precludes Franczyk’s claims, the narrower question
concerning Kulik, which pertains to co-employee immunity from individual liability under
the WCA, is moot.
15 See A.S. v. Pennsylvania State Police, 143 A.3d 896, 905-06 (Pa. 2016).
16 See Thomas Jefferson Univ. Hosps., Inc., v. Pennsylvania Dept. of Labor & Indus.,
162 A.3d 384, 389 (Pa. 2017); see generally 1 Pa.C.S. § 1921.
17 Sivick v. State Ethics Comm’n, 238 A.3d 1250, 1264 (Pa. 2020).
18 Ducjai v. Dennis, 656 A.2d 102, 109 (Pa. 1995) (cleaned up).
[J-62-2022] - 6
compensation shall be paid in all cases by the employer, without regard to
negligence, according to the [statutory] schedule . . . .19
The WCA also defines “personal injury” and “injury in the course of . . .
employment”:
The terms “injury” and “personal injury,” as used in this act, shall be
construed to mean an injury to an employe, regardless of [her] previous
physical condition, . . . arising in the course of [her] employment and related
thereto . . . . The term “injury arising in the course of [her] 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 [her],
and not directed against [her] as an employe or because of [her]
employment; nor shall it include injuries sustained while the employe is
operating a motor vehicle provided by the employer; . . . but shall include all
other injuries sustained while the employe is actually engaged in the
furtherance of the business or affairs of the employer . . . .20
These definitions make clear that the General Assembly anticipated and addressed
claims arising from injuries occasioned by certain third-party acts and omissions.
The exclusivity provision also reflects the General Assembly’s anticipation of third
party-occasioned injuries, and it immunizes employers against any sort of responsibility
to the third party in a third-party action:
(a) The liability of an employer under this act shall be exclusive and in place
of any and all other liability to such employees . . . in any action at law or
otherwise on account of any injury or death as defined in section
[411(a)] . . . .
(b) In the event injury or death to an employe is caused by a third party,
then such employe . . . may bring their action at law against such third party,
but the employer, his insurance carrier, their servants and agents,
19 77 P.S. § 431. Defendants correctly note that, “[o]nce an employee has availed
herself of the benefits and protections of the Act, the employee must operate within the
confines of the statute and the employee waives the right to trial by jury with respect to
that particular claim.” Defendants’ Br. at 17 (citing Grant v. GAF, Corp., 608 A.2d 1047,
1059 (Pa. Super. 1992)) (emphasis omitted).
20 77.P.S. § 411(1).
[J-62-2022] - 7
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 . . . .21
Consistent with the compromise that the WCA reflects, the plain statutory language
is a powerful headwind against which Franczyk struggles here. Section 411’s definition
of “injury in the course of [her] employment” suggests a categorical ban against any
worker’s claim for damages that is not among those specifically excepted. While these
exceptions address some scenarios involving third parties, none of them apply under the
circumstances of this case as presented. Our law is clear that, when a statute specifically
excludes certain categories or classes from its reach, we will interpret the silence as to
other categories or classes as intentional.22 Thus, to the extent that Franczyk’s allegedly
impeded third-party claim seeks to recover for her physical injuries as such, the Act clearly
precludes Defendants’ liability beyond that provided by the Act.
Conversely, Defendants have the wind at their backs. They find no shortage of
cases that have reaffirmed the breadth of the exclusivity provision’s application, and in
sweeping terms. In particular, Defendants observe that even an employer’s intentional
act does not necessarily trigger an exception to exclusivity. In Poyser v. Newman & Co.,23
for example, the employee sued the employer, arguing that the employer had willfully
disregarded safety regulations. This Court acknowledged that courts in other jurisdictions
21 Id. § 481.
22 Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020) (“Under the doctrine of
expressio unius est exclusio alterius, ‘the inclusion of a specific matter in a statute implies
the exclusion of other matters.’”).
23 522 A.2d 548 (Pa. 1987).
[J-62-2022] - 8
had created an exclusivity carve-out for an employer’s intentional wrongdoing, but it
emphasized that those exceptions were rooted in statutory provisions for which our WCA
has no analog. That the legislature had excluded certain wrongful third-party conduct
from the exclusivity provision made clear that it “had the issue of intentional harm in
mind.”24 The legislature chose not to extend protections associated with such harm to
the context of an employer that itself engaged in wrongful conduct.25
In Kuney v. PMA Insurance Co.,26 this Court similarly rejected an asserted
exception to exclusivity for wrongful conduct. There, the employee alleged that PMA, the
employer’s insurer, had refused to pay the employee’s claim without any reasonable basis
for such refusal. The workers’ compensation judge agreed, and directed PMA to pay the
employee. The Commonwealth Court ultimately upheld that determination. But the
employee also filed a separate civil suit against PMA, alleging that PMA’s bad faith
caused emotional harm distinct from the workplace injuries for which he received total
disability benefits.27 The trial court sustained PMA’s preliminary objections based upon
WCA exclusivity. The Superior Court reversed.
24 Id. at 551.
25 Id. at 551. We appeared to recognize a non-statutory carve-out of sorts for
fraudulent misrepresentation in Martin, supra. As we explain below, a critical
consideration in that case was that the particular injury alleged was distinct from the
underlying workplace injury.
26 578 A.2d 1285 (Pa. 1990) (“Kuney II”).
27 The majority in Kuney II did not acknowledge the nature of the distinct harm upon
which Kuney’s civil suit was based. However, both the Superior Court and the dissenting
justices in Kuney did so, albeit in general terms. See Kuney v. PMA Ins. Co., 550 A.2d
1009, 1010 (Pa. Super. 1998) (“Appellant argues that this action . . . is directed at the
employer’s insurance carrier . . . for injuries caused by the carrier, separate and apart
from those which were incurred at his workplace.”); Kuney II, 578 A.2d at 1288
[J-62-2022] - 9
On PMA’s appeal, this Court restored the trial court’s order sustaining the
preliminary objections.28 “When the allegations of a claim have as their ultimate basis an
injury compensable under the [WCA],” we explained, “the claim must be considered within
the framework of the statute.”29 “Reduced to its essence, the [employee’s] claim is that
the insurance company wrongfully delayed his receipt of compensation benefits. This is
clearly a matter pertaining to a workers’ compensation claim and must therefore be
adjudicated within the framework of the statute. . . .”30
Defendants also cite cases addressing alleged wrongdoing in connection with an
employer’s effort to avail itself of its right to subrogation against an employee’s recovery
in an authorized third-party action. Subrogation stems from Section 671 of the Act, which
entitles an employer to recoup up to the amount of its or its insurance company’s claim
expenditures from any third-party recovery obtained by the employee.31
(Papadakos, J., dissenting) (“The Act does not . . . apply to the economic and emotional
harm suffered by a clamant due to the intentionally wrongful, obdurate, and fraudulent
behavior of a [workers’] compensation carrier occurring after the employee has been
separated from his place of employment.”).
28 A workers’ compensation insurer is entitled to the same immunities and protections
as the insured employer. See 77 P.S. § 501(a)(1).
29 Kuney II, 578 A.2d at 1287.
30 Id. In the Kuney litigation, the employee was not wholly without a remedy. The
Act provides penalties for wrongfully denied or delayed payments. See id. (citing 77 P.S.
§§ 717.1, 991, 996).
31 See 77 P.S. 671 (“Where the compensable injury is caused in whole or in part by
the act or omission of a third party, the employer shall be subrogated to the right of the
employe . . . against such third party to the extent of the compensation payable under this
article by the employer . . . .”).
[J-62-2022] - 10
In Curtis v. Simpson Chevrolet,32 the employee was injured when the brakes failed
on a truck that the employee was driving. He collected workers’ compensation benefits
and separately settled a third-party claim. The employee resisted subrogation against
the third-party settlement because, on the employee’s account, subrogation is an
equitable remedy and the subrogors had “unclean hands,” precluding subrogation.33 In
particular, the employee maintained that subrogors failed to satisfy their “affirmative duty
to assist [him] in his efforts to recover against third parties.”34 The court rejected the
argument, explaining that “the plain wording of the statute . . . does not give the employer
a mere right to be subrogated but says that the employer ‘shall be subrogated.’ There
are no exceptions. . . . Pennsylvania’s legislature clearly intended [that] an employer was
to be repaid from a third-party recovery,” even if “it shares responsibility with the third
party for the injury.”35
Taken as a whole, Defendants’ argument is that the language of the WCA means
what it says when it speaks most broadly about the liability protections of the Act’s
32 348 F. Supp. 1062 (E.D. Pa. 1972).
33 See generally Estate of Pedrick, 482 A.2d 215 (Pa. 1984) (noting that unclean
hands bar recovery in equity).
34 Curtis, 348 F. Supp. at 1064.
35 Id. In Kelly v. WCAB (A-P-A Transport Corp.), 527 A.2d 1121 (Pa. Cmwlth. 1987),
our Commonwealth Court ruled similarly. There, the employee collected workers’
compensation benefits and litigated a third-party claim to a settlement. The employer
asserted its subrogation interest. The employee argued that the employer was not
entitled to subrogation because, during the third-party litigation, the employer withheld
critical records and maintained that the employee was not injured, diminishing the amount
the employee was able to recover. The Commonwealth Court disagreed and upheld the
employer’s right to subrogation.
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exclusivity provision. Even non-, mis-, and malfeasance generally have not thwarted
application of the exclusivity provision.
Franczyk delays addressing these precedents in favor of addressing at length the
nature of the duty that she contends Defendants breached.36 On Franczyk’s account, her
claim is not for the underlying injury but rather for the distinct harm she suffered when
Defendants failed to take reasonable steps to enable her to pursue a third-party claim
against the dog owner.37
Franczyk relies upon our recent decision in Dittman v. UPMC.38 In that case,
electronic data collected by UPMC from its employees allegedly was compromised. This
Court held that that an employer has a duty to take reasonable steps to secure the
personal information that it solicits from its employees. Franczyk derives from Dittman
the more sweeping proposition that “an employer has a duty to protect and preserve the
interests of its employees”—here, an employee’s interests in a third-party claim arising
out of a workplace injury.39
36 See Franczyk’s Br. at 13-25.
37 In doing so, Franczyk appears to concede by implication that, if her claim arises
from the workplace injury as such, then Defendants are protected by WCA exclusivity.
38 196 A.3d 1036 (Pa. 2018).
39 Franczyk’s Br. at 13. Specifically, Franczyk argues:
[T]his Honorable Court specifically held in Dittman that “[c]ommon law
duties stated in general terms are framed in such fashion for the very reason
that they have broad-scale application.” Dittman, 196 A.3d at 1046 . . . .
This Honorable Court further reasoned in Dittman that “[l]ike any other
cause of action at common law, negligence evolves through either directly
applicable decisional law or by analogy, meaning that a defendant is not
categorically exempt from liability simply because appellate decisional law
has not specifically addressed a theory of liability in a particular context.”
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In Dittman, we relied upon the five “Althaus factors,” which we look to when we are
asked to recognize a duty that is novel to Pennsylvania common law. These factors are
“(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the
nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences
of imposing a duty upon the actor; and (5) the overall public interest in the proposed
solution.”40 In Dittman, we analyzed these factors at length, considering their interplay
under the narrow circumstances of that case.
Franczyk addresses the Althaus factors in turn. We find ample reason to be
skeptical of her limited analysis of each factor, and she provides no authority other than
Dittman that supports anything remotely akin to the duty that she would impose.41
Id. (citing Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 599
(Pa. 2012)).
Franczyk’s Br. at 14-15 (Franczyk’s emphasis removed; citations normalized). Notably,
this Court has ruled that an employer has no affirmative duty to inform an employee of all
available workers’ compensation benefits. See Miller v. Keystone Ins. Co., 636 A.2d
1109, 1113 (Pa. 1994) (rejecting that the employer has an affirmative duty to apprise a
compensation claimant of any or all available benefits and reaffirming the Court’s holding
in Taglianetti v. W.C.A.B. (Hosp. of the Univ. of Pa.), 469 A.2d 548 (Pa. 1983), to like
effect). The Dittman passage states general principles of negligence and the common
law. It does not explain how those general principles impose the duty she asserts.
40 Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000).
41 Franczyk’s effort to apply (in particular) the fifth factor leaves out critical context.
Regarding “the overall public interest in the proposed solution,” id. at 1169, Franczyk
posits that, absent the asserted duty, a large number of similarly situated employees will
be “left at the mercy of Section 481(a) of the [WCA] and therefore unable to recover the
full amount of damages . . . occasioned by their injuries.” Franczyk’s Br. at 24. She
submits that “the refusal to impose such a necessary duty upon employers would permit
such employers to disregard and/or suppress the rights of their employees with impunity.”
Id. But as to the countervailing consequences, Franczyk cites only the minimal “burden”
upon employees of making reasonable efforts to obtain sufficient information to enable a
third-party claim. Given questions concerning just what efforts would be reasonable in
the face of a recalcitrant third party, it is difficult to take even this contention at face value.
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Defendants challenge Franczyk on the question of duty,42 but we will assume without by
any means deciding that, in a world without the WCA, an employer would have precisely
the duty that Franczyk describes. To posit the existence of a common-law claim is not to
preclude its restriction by statute. Restriction of otherwise applicable common-law claims
is precisely what the Act’s exclusivity provision does.
Franczyk’s effort to meet the question presented on its terms is limited, but she
cites our decision in Martin v. Lancaster Battery Co., Inc.,43 which is the precedent most
favorable to her view.44 In that case, employees were exposed to lead in connection with
the manufacture of batteries. Federal regulations required that the employer regularly
test employees’ blood for lead. For several years, the employer withheld or altered test
results indicating blood toxicity. The severity of the plaintiff-employee’s conditions could
have been substantially reduced but for the employer’s deception. The trial court
sustained the employer’s WCA exclusivity-based preliminary objections, but the Superior
Court reversed. We affirmed the Superior Court’s decision. The trial court had relied
upon Poyser,45 but we found that case distinguishable. While in Poyser the alleged
unsafe work conditions had been associated with the employer’s fraudulent
But equally important is a consideration she omits: the likelihood that imposing such a
burden would lead to precisely the sort of litigation the WCA seeks to avoid, because
once an employer’s “reasonableness” becomes a factor determinative of liability, a trial
likely follows.
42 See Defendants’ Br. at 13 n.11 (“Here, the alleged conduct does not rise to the
level of tortious conduct, even if believed, and the law expressly bars the negligent tort
action that [Franczyk] is attempting to create.”).
43 606 A.2d 444 (Pa. 1992).
44 See Franczyk’s Br. at 37-38.
45 See supra n.23 and accompanying text.
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misrepresentations to federal regulators, in Martin the fraudulent misrepresentation was
made directly to the employee.
More importantly for purposes of this discussion, we drew a distinction between
the original workplace injury and the aggravation that the employee attributed to the
employer’s deception. We acknowledged other jurisdictions’ decisions rejecting a claim
outside of their respective workers’ compensation schemes, even in cases of such
fraudulent misrepresentations. But we underscored that those cases were “generally
concerned with employees receiving duplicate monetary awards for single injuries.”46 In
Martin, though, the employee was not seeking compensation for the initial exposure but
rather for the distinct (and preventable) aggravation of the original injury—an injury unto
itself. We explained:
[W]hen the Legislature enacted the [WCA] in this Commonwealth, it could
not have intended to insulate employers from liability for the type of flagrant
misconduct at issue herein by limiting liability to the coverage provided by
the [Act]. There is a difference between employers who tolerate workplace
conditions that will result in a certain number of injuries or illnesses and
those who actively mislead employees already suffering as the victims of
workplace hazards. . . . The aggravation of the [physical] injury arises from
and is related to the fraudulent misrepresentation of the employer.47
Although Defendants provide a lengthy analysis based upon authority drawn from
Pennsylvania decisions and from cases in other jurisdictions, that discussion arguably
gilds the lily. At a minimum, the WCA has anticipated and foreclosed virtually any sort of
negligence claim against an employer “on account of” a physical injury that occurs in the
46 Martin, 606 A.2d at 447.
47 Id. at 448 (citing McGinn v. Valloti, 525 A.2d 732 (Pa. Super. 1987) (similarly
excluding “fraudulent concealment of diseases already developed” from WCA
exclusivity)).
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workplace. It is less clear that the negligence claim so excluded must be a claim for
personal injury. The legislature’s goal was not to immunize, but merely to cabin, an
employer’s obligation to employees for workplace injuries, in recognition of the fact that
injuries are an inevitable incident of the workplace. The means chosen to limit that
exposure was a system to ensure prompt, reasonable compensation to injured
employees while protecting the employer from the burden of case-by-case litigation.
Against this statutory backdrop, it is only by categorically divorcing her claim from the
injury upon which it is predicated, as in Martin, that Franczyk can hope to establish that
her claim lies wholly outside the Act’s strictures.
In this attempt, Franczyk fails. Martin’s truly separable injury is not present here.
Pennsylvania case law shows this by example. As noted above, the Kuney Court applied
exclusivity where the claim was not nominally for the injury itself, but rather for the
insurer’s refusal to pay what the employee was due. We found the formalistic distinction
insufficient to sever the asserted duty from the injury that touched off the dispute. While
the alleged harm was the denial of timely compensation for the underlying personal injury,
the compensation, as such, was still determined by the workplace injury itself.
The Superior Court also has looked past the way a claim is framed in order to
determine its true basis. Thus, in Santiago v. Pennsylvania National Mutual Casualty
Insurance Co.,48 the court held that WCA exclusivity barred a lawsuit that sought relief for
an insurer’s bad faith in settlement negotiations, which allegedly so adversely affected
the employee’s psychological health that he attempted to take his own life. Citing Kuney,
the court noted that, even though the tortious acts complained of in that case occurred
48 613 A.2d 1235 (Pa. Super. 1992).
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after the workplace injury and thus stated a distinct harm, those acts and the consequent
injury were “completely intertwined with the original injury.”49
Franczyk, too, presents a claim based upon an injury described as distinct from,
and arising after, the workplace injury itself, and she also asserts wrongful conduct
pertaining to that harm. But, as in Kuney and Santiago, the asserted injury—by whatever
name—is “intertwined” inextricably with the workplace injury. Franczyk’s asserted loss is
her third-party claim, but the only principled way to determine the damages would be to
make an educated guess as to what a jury might have awarded her in compensatory and
non-monetary damages.50 This would require a trial within a trial, with Franczyk asking
49 Id. at 1243 (discussing Kuney II, supra; quoting Taras v. Wausau Ins. Cos., 602
A.2d 882, 887-88 (Pa. Super. 1992)).
50 Invoking Martin, Chief Justice Todd’s concurrence would focus upon the
intentionality of the employer’s conduct, deeming that factor sufficient to support today’s
ruling without regard to the necessity of an injury severable from the underlying workplace
injury. See Conc. Op. at 3-5. The Concurrence suggests that such an approach is
necessary in order to leave the door open for future suits against an employer that
intentionally interferes with an employee’s ability to pursue a third-party claim for a
workplace injury. See id. at 5 (“[I]n the appropriate case there may . . . be a distinction
between an employer’s negligent investigation of a work injury, which results in the mere
impairment of the employee’s right to sue a third-party tortfeasor, and an employer’s
intentional interference with that right.”). But the Concurrence understates the degree to
which the two bases for Martin’s holding intertwine. And here the Concurrence must
consider Kuney II, discussed above, which could be read as more restrictive than Martin
or our decision in this case. In Kuney II, the employee alleged that the employer’s
insurer—standing in the employer’s stead pursuant to 77 P.S. § 501(a)(1)—engaged in
bad faith conduct that caused emotional injuries distinct from the workplace injury. This
Court found that no exception to the exclusivity provision applied, explaining that, “[w]hen
the allegations of a claim have as their ultimate basis an injury compensable under the
[WCA], the claim must be considered within the framework of the statute.” 578 A.2d
at 1287; cf. Ducjai, 656 A.2d at 109 (“The comprehensive system of substantive,
procedural, and remedial laws comprising the [workers’] compensation system should be
the exclusive forum for redress of injuries in any way related to the work place.”).
Tellingly, the Kuney II majority implicitly rejected the dissenting justices’ contention that
the WCA should not preclude claims for distinct emotional harm caused by “bad faith
misrepresentation, fraud, intentional infliction of emotional distress, and outrageous
[J-62-2022] - 17
the jury to imagine itself empaneled in a personal injury case. For practical purposes,
Franczyk would sue the absent dog owner for personal injury, and Defendants would be
forced to defend against that claim in the dog owner’s stead. Thus, Defendants would
litigate precisely the sort of claim that the WCA is supposed to prevent.51 The architects
of the WCA held that the employer need not even indemnify a third party, let alone defend
it.52
The proposed subversion of the WCA’s goals would not end there. Because the
WCA generally allows an employer to subrogate against any recovery that the employee
obtains from a third-party in a personal injury suit arising from the workplace injury even
in the presence of employer misconduct, if Franczyk prevailed against Defendants, either
the jury or the judge then might have to consider the effect upon the verdict of Defendants’
right to subrogation. This would call into question whether the court must reduce the
conduct arising outside the course of appellee’s employment.” Kuney II, 578 A.2d
at 1288-89 (Papadakos, J., dissenting) (cleaned up). Indeed, Martin arguably softened
Kuney II in preserving the claim of fraudulent misrepresentation presented there. In a
case that doesn’t call upon us to do so, we see no reason to invite any further expansion
of the Martin exception beyond its facts. But nothing in this Opinion aims to abrogate
Martin, which, as the Concurrence notes, carves out an exclusivity exception for
circumstances not present in this matter. Thus, while the range of third-party claims that
remain permissible is very limited, a circumstance that the WCA compels, such claims
are not entirely foreclosed. Moreover, this Opinion does not presume to anticipate or
foreclose claims arising in future cases that an appellate court finds more like Martin than
Kuney II or this case.
51 While this interior trial would comprise the heart of Franczyk’s claim, Defendants
would not likely defend against only that aspect of the claim. They also would likely
defend separately against one or more of the elements of negligence asserted on the
basis of an alleged breach of the duty to act affirmatively in furtherance of Franczyk’s
claim. Thus, Defendants’ trial burden would be that much greater.
52 See 77 P.S. § 481(b).
[J-62-2022] - 18
verdict by an amount equivalent to the hypothetical subrogation interest against the same
verdict if it had been entered against the dog owner. The Act does not anticipate this
byzantine scenario, which would compound Defendants’ litigation burden and inject
additional uncertainty into the process.53
Rather than manufacture such trouble, we will apply the plain language of the
WCA, the legislative intent it bespeaks, and our most illuminating case law. If the result
in this case is not entirely equitable for Franczyk, that is an unavoidable incident of the
balance that the General Assembly struck. It is in the nature of global policy compromises
that, in any given case, either party may receive more or less than what equity alone
might call for. The General Assembly made a calculated if generalized judgment about
the public interest writ large, and it is not our place to subvert legislative intent based upon
the outcome or equities of any one case.
We reverse the Superior Court’s order affirming the trial court’s denial of summary
judgment. We remand for the entry of summary judgment in favor of Defendants.
Justices Donohue, Dougherty, Mundy and Brobson join the opinion.
Chief Justice Todd files a concurring opinion.
53 Franczyk’s proposed cause of action also would create perverse incentives for
employees. When injured by a third party on the job, employees would have little
incentive to look after their own interests. Better to hang back and put the onus on the
employer: if the employer obtains the information, then the employee can pursue her
claim. If not, the employee can sue the employer, who may have deeper pockets and be
less equipped to defend than the third party. Because we reject Franczyk’s claim,
employers’ and employees’ interests in preserving third-party claims align—employees
for obvious reasons, employers because if the employee recovers a third-party judgment,
the employer can recoup at least some of its expenses through subrogation.
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