J.A21002/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JUSTIN BADA AND KIMBERLY BADA, H/W: IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellants :

:

v. :

:

COMCAST CORPORATION :

:

:

JUSTIN BADA AND KIMBERLY BADA, H/W:

 :

Appellants :

v. :

:

COMCAST CC OF WILLOW GROVE AND : No. 2479 EDA 2014

COMCAST OF SOUTH JERSEY, LLC :

:

Appeal from the Order Entered July 17, 2014

In the Court of Common Pleas of Philadelphia County 

Civil Division No(s).: January Term, 2013 No. 2242

 March Term, 2013 No. 1031

BEFORE: ALLEN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2015

Appellants, Justin Bada and Kimberly Bada, husband and wife, appeal 

from the order of the Philadelphia County Court of Common Pleas granting 

summary judgment in favor of Appellees, Comcast CC of Willow Grove and 

 

*

Former Justice specially assigned to the Superior Court.
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Comcast of South Jersey, LLC in these consolidated cases.1 Appellants 

contend the trial court erred in granting summary judgment based upon the 

exclusivity rule of the New Jersey Worker’ Compensation Act2(“Act”). We 

affirm.

We adopt the facts and procedural history as set forth by the trial 

court in its opinion. See Trial Ct. Op., 1/22/15, at 3-6. On July 17, 2014, 

the trial court granted summary judgment in favor of Appellees.3 Appellant 

Justin Bada’s negligence claim against his employer and his wife’s loss of 

 

1 The trial court consolidated these cases. See Order, 5/2/13. Comcast 

Corporation was dismissed by agreement of the parties. See Stipulation of 

Dismissal of Comcast Corp., 8/28/13. 

2 N.J. Stat. Ann § 34:15-8.

3

Following oral argument on Appellees’ motion for reconsideration of the 

trial court’s denial of the motion for summary judgment, summary judgment 

was granted. The trial court opined:

This [c]ourt denied [Appellees’] motion . . . based upon 

this [c]ourt’s analysis and determination of a substantial 

question of fact existing as to who was, in fact, 

[Appellant’s] employer at the time of this incident.

* * *

Now, in reviewing this motion for reconsideration and 

the response thereto, it is clear that [Appellant Bada], did, 

in fact, admit, for purposes of this motion, that the moving 

[Appellees] w[ere], in fact, his employer[s] at the time of 

this accident.

N.T., 7/17/2014, at 11, 12. 
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consortium claim were barred by the Act. This timely appeal followed.4 

Appellants filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal and the trial court filed a responsive opinion. 

Appellants raise the following issue5for our review: 

Whether the Lower Court erred when it granted 

Comcast’s Motion for Summary Judgment based on the 

exclusivity rule of the New Jersey Workers’ Compensation 

Act[6]since, when the evidence is viewed in the light most 

favorable to . . . Appellants, the present case falls squarely 

within the “intentional wrong” exception to that rule?

Appellants’ Brief at 6.

Appellants argue that the exclusivity provision of the Act is inapplicable 

in the instant case based upon “an exception to that rule for injuries that 

result from ‘intentional wrongs’ on the part of the employer.” Id. at 11. 

This determination is based upon a two part test, viz., a conduct prong and 

and a context prong. Id. at 15, 16, 19. In order to satisfy the conduct 

prong, Appellants contend a jury must resolve the issue of whether there 

was “an objectively reasonable basis for expecting that [the accident] almost 

certainly would occur.” Id. at 17 (citing Van Dunk v. Reckson Assocs. 

 

4 We note that Appellees filed an application to quash the appeal which was 

denied by this Court. See Order, 3/23/15.

5 Appellants raised additional issues in their Rule 1925(b) statement which 

are not addressed in their brief. Therefore, they are abandoned on appeal. 

See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 429 

(Pa. 2007) (plurality). 

6 See N.J.Stat.Ann. § 34:15–8.
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Realty Corp., 45 A.3d 965, 978 (N.J. 2012)). Appellants aver the facts of 

the case “could certainly lead a jury to conclude that Mr. Bada’s supervisor 

knew it was a ‘virtual certainty’ that using a ladder that evening could cause 

someone to be injured.” Id. at 19.

Appellants argue “[o]nce the conduct prong is satisfied, the next phase 

of the inquiry calls for the [c]ourt to determine whether the employer’s 

actions ‘constitute a simple fact of industrial life or are outside the purview 

of the conditions the [New Jersey] Legislature could have intended to 

immunize under the Workers’ Compensation bar.” Id. at 19 (citing Laidlow 

v. Hariton Mach. Co., 790 A.2d 884, 898 (N.J. 2002)). They conclude this 

prong was satisfied based upon the facts of this case because “there can be 

no question that Mr. Bada’s supervisor and the senior field technician knew 

that the ladder was going to topple.” Id. at 20.

Our review is governed by the following principles:

The standards which govern summary judgment are 

well settled. When a party seeks summary judgment, a 

court shall enter judgment whenever there is no genuine 

issue of any material fact as to a necessary element of the 

cause of action or defense that could be established by 

additional discovery. A motion for summary judgment is 

based on an evidentiary record that entitles the moving 

party to a judgment as a matter of law. In considering the 

merits of a motion for summary judgment, a court views 

the record in the light most favorable to the non-moving 

party, and all doubts as to the existence of a genuine issue 

of material fact must be resolved against the moving 

party. Finally, the court may grant summary judgment 

only when the right to such a judgment is clear and free 

from doubt. An appellate court may reverse the granting 
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of a motion for summary judgment if there has been an 

error of law or an abuse of discretion. . . .

Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015) 

(citation omitted).

The Act provides, in pertinent part, as follows:

Election surrender of other remedies

Such agreement shall be a surrender by the parties thereto 

of their rights to any other method, form or amount of 

compensation or determination thereof than as provided in 

this article and an acceptance of all the provisions of this 

article, and shall bind the employee and for compensation 

for the employee’s death shall bind the employee’s 

personal representatives, surviving spouse and next of kin, 

as well as the employer, and those conducting the 

employer's business during bankruptcy or insolvency.

If an injury or death is compensable under this article, a 

person shall not be liable to anyone at common law or 

otherwise on account of such injury or death for any act or 

omission occurring while such person was in the same 

employ as the person injured or killed, except for 

intentional wrong.

N.J. Stat. Ann. § 34:15-8 (emphasis added). The New Jersey Supreme 

Court opined:

The Act’s remedy is exclusive, except for injuries that 

result from an employer’s “intentional wrong”; for those, 

an injured employee is permitted to maintain a commonlaw tort action against the employer. . . . As the case law 

demonstrates, an employer’s deliberate intent to injure is 

not the sine qua non; instead a substantial certainty 

that injury or death will result must be 

demonstrated.

 * * *
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Millison [v. E.I. du Pont de Nemours & Co., 501 A.2d 

505 (N.J. 1985)] instructed courts, when assessing claims 

of intentional wrong, to engage in a two-step analysis. 

First, a court considers the “conduct prong,” examining the 

employer’s conduct in the setting of the particular case. 

Second, a court analyzes the “context prong,” considering 

whether “the resulting injury or disease, and the 

circumstances in which it is inflicted on the worker, [may] 

fairly be viewed as a fact of life of industrial employment,” 

or whether it is “plainly beyond anything the legislature 

could have contemplated as entitling the employee to 

recover only under the [ ] Act.”

Van Dunk, 45 A.3d at 966, 972 (some emphases added and some citations 

omitted).

In general, the same facts and circumstances will be 

relevant to both prongs of Millison. However, as a 

practical matter, when an employee sues an employer for 

an intentional tort and the employer moves for summary 

judgment based on the Workers’ Compensation bar, the 

trial court must make two separate inquiries. The first is 

whether, when viewed in a light most favorable to the 

employee, the evidence could lead a jury to conclude that 

the employer acted with knowledge that it was 

substantially certain that a worker would suffer injury. If 

that question is answered affirmatively, the trial court 

must then determine whether, if the employee’s

allegations are proved, they constitute a simple fact of 

industrial life or are outside the purview of the conditions 

the Legislature could have intended to immunize under the 

Workers’ Compensation bar. Resolving whether the 

context prong of Millison is met is solely a judicial 

function. Thus, if the substantial certainty standard 

presents a jury question and if the court concludes that the 

employee’s allegations, if proved, would meet the context 

prong, the employer’s motion for summary judgment 

should be denied; if not, it should be granted.

Laidlow, 790 A.2d at 898.

The facts in Van Dunk are as follows:
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On August 10, 2004, at the Giralda Farms construction 

site, James[7] was excavating a trench to relocate a 

dewatering sump in a retention pond. Prior to that date, 

the project had been plagued by thunderstorms and heavy 

rain that had required work to be redone, without 

additional compensation to James. Rain was expected 

again later that day; as a result, [J.D.] Potash[8]and 

[Glenn] Key[9]sought to complete the sump relocation 

before the rain arrived. The sump relocation involved the 

following steps: digging a sloped trench; laying down first 

a filter fabric and then a layer of stone; placing a pipe on 

the stone; placing more stone on the sides and top of the 

pipe; and then wrapping additional filter fabric around the 

stone. As the trench excavation continued and its slope 

reached a depth of greater than five feet, Van Dunk and 

other workers began laying down the filter fabric from 

locations outside the trench. Eventually, the deepest 

part of the trench reached a depth of eighteen to 

twenty feet.

OSHA[10]safety regulations mandate that workers 

cannot enter a trench that is deeper than five feet if 

protective systems are not in place. A protective system is 

defined as “a method of protecting employees from caveins, from material that could fall or roll from an excavation 

face or into an excavation, or from the collapse of adjacent 

structures.” James’s Safety Program similarly requires use 

of protective systems to guard against cave-ins. Proper 

sloping and use of trench boxes are common protective 

systems, but for various reasons, Key determined that 

OSHA-compliant sloping could not be utilized at the 

trench’s location, and a trench box was not employed.

 

7

James Construction Company, Inc. (“James”) was Van Dunk’s employer. 

Van Dunk, 45 A.3d at 967.

8

Potash was James’ president. Id.

9 Key was the project superintendent. 

10 Occupational Safety and Health Administration.
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Key and his workers experienced difficulty when laying 

down the filter fabric from their locations outside the 

trench. Despite their efforts, the fabric would not lay flat. 

It became tangled and a crease developed. Van Dunk 

volunteered to go into the trench to straighten the filter 

fabric, but Key told him not to do so because of the 

possible risks attributable to the ground conditions. 

However, as problems persisted with laying the filter 

fabric, in what Key later described as a moment of 

“frustration” he told Van Dunk to go in and straighten 

the fabric. Van Dunk went into the trench, walked to the 

deeper end, and began adjusting the fabric. He was in the 

trench for less than five minutes when a loud noise was 

heard and a trench wall caved in, burying Van Dunk to his 

chest. He sustained multiple serious injuries. He was 

rescued by coworkers who immediately responded to help 

him, some of whom jumped in to dig him out, and by 

police and emergency personnel.

Id. at 967-68 (citations and footnotes omitted and emphases added). 

The Van Dunk Court declined to find an intentional wrong and opined: 

The existence of an uncontested finding of an OSHA 

safety violation in the wake of this workplace injury does 

not establish the virtual certainty that Millison demands. 

An intentional wrong must amount to a virtual certainty

that bodily injury or death will result. A probability, or 

knowledge that such injury or death “could” result, is 

insufficient. Thus, the question here is whether in light of 

the clear violation of the OSHA safety requirements 

pertaining to trenches deeper than five feet, there was 

substantial certainty of injury or death. On the facts 

presented, we cannot reach that conclusion without 

causing a substantial erosion of the legislative preference 

for the workers’ compensation remedy.

Id. at 978 (citation omitted and emphasis added). In Van Dunk, the New 

Jersey Supreme Court opined: “No doubt, the circumstances in this matter 

are tragic. Although the proofs plaintiff advances could support a finding of 

gross negligence, that finding is insufficient to circumvent the statutory bar 
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and maintain an action against plaintiff’s employer.” Van Dunk, 45 A.3d at 

967.

Instantly, the trial court opined:

[Appellant] worked outdoors and that would include 

working in inclement weather as a regular part of his job. 

He was not ordered by his supervisor, John Gonzalez, to 

climb the ladder. Mr. Gonzalez, in fact, sent a more 

experienced colleague, Chris Aten, to assist [Appellant] at 

the location. He was injured when it was determined that 

climbing the ladder under these conditions would not be 

safe. [Appellant] admitted he never climbed the ladder 

and had been requested by Mr. Aten “to brace the side of 

the ladder while he unhooked it and lowered the extension 

ladder.”

[Appellant] was never forced to climb the ladder 

or engage in any activity where serious injury or 

death was substantially certain. Based upon the facts, 

it can be reasonably concluded that [Appellant’s] injury 

occurred solely within the course and scope of his 

employment and within the bounds of industrial life. As a 

result, his claim falls squarely within the confines and 

remedies available to him as an incident contemplated by 

the legislature under the [Act]. In light of this, [Appellees] 

are entitled judgment in their favor.

Trial Ct. Op. at 11 (citations to record omitted and emphasis added). We 

agree no relief is due.11

Appellant testified via videotape deposition regarding the weather on 

the date of the incident. “In the morning, it was overcast, and I think it was 

 

11 We note that Appellant Kimberly Bada’s derivative loss of consortium 

claim is barred due to the applicability of the Act. See Cominsky v. 

Donovan, 846 A.2d 1256, 1260 (Pa. Super. 2004) (citing Scattaregia v. 

Shin Shen Wu, 495 A.2d 552 (Pa. Super. 1985) (holding “loss of 

consortium claim is dependent upon the injured spouse’s right to recover”)).
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possibly drizzling, with some wind. But as the day got later, the wind and 

the rain got severely worse.” N.T., 3/11/14, at 114. When asked if he 

complained to his employer about having to work in inclement weather, he 

stated “it’s the nature of the job and we understand that there’s going to be 

rainy days” and it is also part of the nature of the job that there may be 

wind. Id. at 119.

He testified that Appellees never disengaged any safety mechanisms 

on any equipment that he had during his employment. Id. at 165. Based 

upon the weather and location of the pole he had to work on, Appellant 

called his supervisor because he “didn’t feel safe . . . .” Id. at 173, 176. 

John Gonzalez, the supervisor, told Appellant that he would call Chris Aten.12 

Id. at 177. Gonzalez said to get back to him after Chris arrived. Id. at 180. 

Appellant explained what transpired after Mr. Aten arrived:

He said stand next to him. He told me he was going to 

put up the ladder and he’d see what happened.

He put up the ladder. And almost as immediately as 

the hooks went over the strand, another big wind gust 

came in and the ladder was buckling in the center, like, 

where the extension piece is, I guess where the extension 

piece crosses over the lower part of the extension ladder.

And he said something along the lines of, Oh, no. 

This─we can’t do this. This─ain’t safe.

 * * *

 

12 Mr. Aten “was a co-worker of [his] from Comcast, a fellow technician.” 

Id. at 156.
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And then he asked me to brace the side of the ladder 

while he unhooked it and lowered the extension ladder. 

And at that point, I was to his left. And I braced my hands 

against the side of the ladder like such, where I─because 

it’s an extension ladder, I could not close my thumbs on it, 

as we were taught, because you can get your thumbs 

caught in there (indicating). So, as a safety practice, I put 

my hands flat against it just to kind of brace against the 

incoming wind. 

And that was the assistance he asked of me. And I 

thought, you know, he probably needed that, because at 

that point, once he unhooked it again, that ladder could 

blow over. And his truck was facing that way too. Who 

knows? It could have hit the truck, broke the windshield 

or something. So, I though, you know, this is something 

where I need to held him.

At that point, that’s when he─almost as soon as he 

unhooked the ladder, the wind blew. And the next thing I 

know, I’m being pushed over, the ladder falls on me, and 

I’m laying on my side, half in a puddle, half on the ground.

Id. at 199, 200-01. His deposition testimony continued:

[Counsel for Appellees:] Other than the fact that you 

thought it was too─that the conditions were unsafe to do 

the job. So, other than that, was there anything about the 

way that Chris was trying to get the ladder up that you

thought was not the proper methodology for getting a 

ladder up over a strand?

A: No. Other than the conditions, he’s─always been pretty 

good with the ladder. I mean, as I said previously, that’s 

why they called him Ninja.

 * * *

Q: From what you could tell, as soon as Mr. Aten 

determined that it was unsafe, did he try to stop 

proceeding with the job?

A: Yes.
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Q: And then describe for me that exact moment. So he’s 

decided it’s unsafe.

Then what happened?

A: That’s when he has to lower the ladder.

Q: So, what did he do?

A: That’s when he asked me to brace the side of the ladder 

while he unhooked it from the strand and lowered the 

extension part.

 * * *

Q: And he unhooked it from the strand?

A: Yes.

Q: While you were bracing it?

A: Yes.

Q: And then what happened?

A: That’s when it was blown over by the wind and I got hit 

by it. And I was─you know, the next thing I know, I’m on 

the ground and the ladder’s on the ground and─you know.

 * * *

Q: And did you go to a doctor that day?

A: I believe─yeah. I believe I went to a couple of places 

that day. I believe they sent me to Dr. Glenn’s office, who 

checked me out and then sent me for an x-ray. And I 

think I─I even probably─I think I took a urinalysis or 

something at that point, too. 

Q: When you said “they sent me,” who’s “they”?

A: The supervisor who I had told.

Q: And who’s Dr. Glenn?
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A: That was the─I guess the head practitioner of the 

doctor’s office that I was sent to. I believe the doctor I 

first saw was Dr. Bozik, if that’s how you pronounce it.

 * * *

Q: . . . What injuries do you attribute to the incident?

 * * *

A: . . . To the best of my knowledge, my anterior cruciate 

ligament was torn in my left knee. There was damage to 

my meniscus.

Q: In your left knee?

A: In my left knee as well.

I had pain in my right knee. Through different x-rays 

and whatnot, there was determined to never be─to not be 

any─anything significant to require any type of major 

treatment.

To this day, the pain comes back right─like, here and 

there, but not─not anything significant.

I had a forearm contusion, which basically that─went 

away about a week after. It was just kind of, like, a bruise 

and─then I have two─how did the doctors put it? I think 

they call it bulging disks in my lower spine. . . .

I’m not sure of the back terminology as much. But 

there were two─two disks in my lower back that were also 

bulging and I’ve had pain. I’ve had times where I’ve had 

numbness that’s shot down my right leg.

I currently have pain within and throughout my left 

knee. I have numbness on the bottom front of my left 

knee. You know, a radiating back pain, which also kind of 

goes hand in hand with that numbness that I sometimes 

feel in my right leg.
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Q: Are there any other injuries that you attribute to the 

incident?

A: As far as I know, no.

Id. at 209, 213, 214, 237, 242-43.

The Van Dunk court found that although the circumstances in that 

case were tragic, they were not sufficient to circumvent the statutory bar of 

the Act. See Van Dunk, 45 A.3d at 967. Instantly, Appellants have not 

demonstrated that Appellees’ conduct constituted an intentional wrong 

creating a substantial certainty that injury or death would result. See id.; 

Laidlow, 790 A.2d at 898. Therefore, we find the facts in the case sub 

judice were insufficient to satisfy the exception to the exclusivity provision of 

the Act. See Van Dunk, 45 A.3d at 966, 972. We discern no abuse of 

discretion by the trial court in granting Appellees’ motion for summary 

judgment. See Kapfhammer, 109 A.3d at 246-47.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2015
\\l\\l\11111111 II 11111111 Ill \II 

13030103100043 1 

terminating the litigation. 

its June 5, 2014 Order and entered summary judgment in favor of defendants, thereby 

On July 17, 2014, after oral argument on the reconsideration motion, this Court vacated 

reconsideration was subsequently granted at the defendants' request. 

Court, a fact which was pertinent to the determination to initially deny the defendants' motion, 

was initially denied by this Court on June 5, 2014, however, due to an error of fact made by this 

this Court's Order granting summary judgment in favor of the defendants. Summary judgment 

This is the appeal of Plaintiffs, Justin Bada and Kimberly Bada, husband and wife, from 

OPINION OF THE TRIAL COURT 

NO.: 2479 EDA 2014 

SUPERJOR COURT APPEAL 

COMCAST CC OF WILLOW GROVE NO. 1031 

v. 

JUSTIN BADA AND KIMERBL Y BADA MARCH TERM, 2013 

COMCAST CORPORATION, et al NO. 2242 

v. 

flECEIVED 

JAN 21 2015 

J.EVERS 

DAY FORWARD 

JUSTIN BADA AND KIMBERLY BADA JANUARY TERM, 2013 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

Circulated 08/14/2015 02:06 PM
2 

5. The Court erred in granting Defendants' Motion for Summary Judgment 

where Plaintiff Kimberly Bada's claims are derivative of Plaintiff Justin 

Bada's claims, and for the reasons set forth above, the Court erred in 

4. The Court erred in granting Defendants' Motion for Summary Judgment 

pursuant to Rule 1035.3 of the Pennsylvania Rules of Civil Procedure, as 

well as supporting Pennsylvania case law, where Defendants have 

improperly supported their motion for summary judgment solely with 

deposition testimony, thereby raising a genuine issue of material fact 

because the cause of action is dependent upon the credibility of the 

witnesses who will testify at trial, especially that of Plaintiff Bada's 

supervisor, John Gonzalez, who issued Plaintiff Bada's orders on the day of 

the incident. 

3. The Court erred by applying the wrong test to the facts of this case and 

stating that New Jersey law requires that plaintiff prove "actual intent or 

subjective desire to injure" in order to recover for intentional wrong 

pursuant to an exception to the Workers' Compensation bar, when in fact 

New Jersey law requires only "substantial certainty" that injury will occur, 

and not "actual intent" or "subjective desire" to injure. Hearing Transcript 

dated July 17, 2014 at 16: 10-15. See Laidlaw v. Hariton Machinery Co., 

Inc., 170 N.J. 602,613,790 A.2d 884, 891 (2002); Millison v. E.l. du Ponte 

de Neumours & Co., 101 NJ, 16 l, 178-79,501 A.2d 505 (1985). 

2. The Court erred in granting Defendants' Motion for Summary Judgment 

where Plaintiffs' claims fall squarely within the " intentional tort" exception 

to the New Jersey Workers' Compensation Act ("WCA") because the 

totality of the facts of this case indicate that (1) a jury could reasonably 

conclude that Defendants acted with knowledge that Plaintiff Justin Eada's 

injury was substantially certain to occur, and (2) it may be determined, as a 

matter of law, that Defendants' actions were plainly beyond anything the 

legislature could have contemplated as entitling the employee to recover 

only under the New Jersey WCA. 

l. The Court erred in granting Defendants' Motion for Reconsideration of June 

5, 2014 Order Denying Motion for Summary Judgment, and vacating the 

Court's Order of June 5, 2014 and entering summary judgment in favor of 

Defendants (hereinafter collectively referred to as "granting Defendants' 

Motion for Summary Judgment") where there was (1) no clear error of law 

or fact resulting in manifest injustice; (2) no newly discovered evidence that 

was not available when the Court denied the motion; and (3) no intervening 

change in controlling law. See Harsco C01p. v. Zlotnickt, 779 F.2d 906, 909 

(3d Cir. 1985); Max's Seafood Cafe, by Lou Ann, Inc. v. Quinteros, 176 F.3d 

669, 677 (3d Cir. 1999). 

On appeal, the Plaintiffs have raised the following issues: 

Circulated 08/14/2015 02:06 PM
3 

of "Technical Supervisor" for 11 years. In his role as a Technical Supervisor, Gonzalez is 

supervisor. Gonzalez is also an employee of Comcast of South Jersey, LLC, and has held the title 

At the time of the incident giving rise to this litigation, John Gonzalez was Bada's 

on the Plaintiffs W-2 as his employer. 

"wage payor agent" of Comcast of South Jersey, LLC, and Comcast of Willow Grove was listed 

Internal Revenue Code, Comcast Cable Communications Management was identified as the 

under the fictitious name "Comcast of Willow Grove". In this capacity, and pursuant to of the 

various Comcast corporate entities, including Comcast of South Jersey, LLC. It does business 

located in Philadelphia, Pennsylvania, This company provides payroll reporting services for the 

Comcast Cable Communications Management is a Delaware entity with an address 

accident which occurred on March 10, 2011. 

license to provide cable services in Monroe Township, New Jersey, the location of Bada's 

Mr. Bada 's employer, Comcast of South Jersey, LLC, is a legal entity holding a franchise 

technician for a little more than a year. 

work throughout parts of southern New Jersey. As of March 20 l 0, Bada had been a field 

field technician, based out of Comcast's Vineland, New Jersey office. Mr. Bada performed field 

At the time of the incident, Mr. Eada's title with Comcast was Communication Tech 3, a 

of New Jersey. Although they are still married, they have been separated for nearly two years. 

Jersey, LLC, was injured while working. Mr. Bada, and his wife, Kimberly Bada, are residents 

Plaintiffs claim that on March 10, 2011, Justin Bada, an employee of Comcast of South 

fact or in law, and summary judgment was properly entered in Defendants' favor. 

For the reasons set forth herein, the issues raised by Plaintiffs are not supported either in 

granting Defendants' Motion for Summary Judgment as to Plaintiff Justin 

Bada's claims. 

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4 

Due to inclement weather, Bada was concerned about climbing his ladder to perform the 

repair. See N. T. Rada Dep., 182: 13-18. Bada called his supervisor (Gonzalez) to inform him that 

responsible for supervising and supporting field technicians, providing them with technical 

assistance and recertifying them on ladders and various field jobs. See N. T. Gonzalet Dep., 

20:4-14. 

Chris Aten, one of Bada's fellow technicians, was at the job site at the time of Bada's 

injury. Aten is also an employee of Comcast of South Jersey, LLC. Ateri's, and Gonzalez' W2's for the year of the incident also list Comcast of Willow Grove as their employer. The en-or 

of fact made by this Court stemmed from the confusion in the pleadings, motions and deposition, 

leading this Court to conclude that a material issue of fact existed as to the entity who would be 

deemed Mr. Bada's employer at the time of injury, which would determine whether this matter 

was strictly a worker's compensation claim or potentially impose third party liability. 

This issue was resolved at oral argument on the reconsideration motion, as Mr. Bada's 

counsel confirmed that Comcast of South Jersey, LLC, was, in fact, his employer. See July 17, 

2014 Transcript, Page 10, Lines 14-22. Once this issue was clarified, it was necessary for this 

Court to determine if Mr. Bada 's injury was compensable under an exception to the New Jersey 

Worker Compensation Act. 

On March 10, 2011, Bada was working in the Williamstown, New Jersey area. See N.T. 

Eada Dep., 142:22-143:6. Toward the end of his work day, Bada received instructions regarding 

a job to perform at the intersection of Williamstown Road and Corkery Lane in Williamstown, 

New Jersey. See N.T. Rada Dep., 151:3-152:23. The job involved re-hanging a downed wire or 

wires that connected customers' houses to a pole at the street. See N. T. Eada Dep., 168:4- 

169:17. 

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he did not think it was safe to do the work, and requested that the job be postponed until the 

morning or re-assigned to a bucket truck. See N. T. Bada Dep., 176:6-14. According to Bada, 

Gonzalez informed him that that the job had to be completed that night because the customer had 

phone service ("CDV" in Comcast parlance). See N.T. Baria Dep.177:17-23. Bada testified that 

customers with CDV cannot have a delay in repairs because a lack of phone service could "pose 

a health risk" as these customers need to be able to call 911 or "Life Alert." See N. T. Bada Dep., 

178:7-15,· 181:5-13. 

Gonzalez also told Bada that he did not have a maintenance tech (the type of Comcast 

technicians with bucket trucks) on duty. Id. at 177:17-19. However, Gonzalez did not ignore 

Eada's request and did not force Bada to ascend the ladder; rather, Gonzalez told Bada that he 

would have another employee, Aten, come to the job location to assist Bada, telling him to "have 

him [Aten] check it out" and then get back to Gonzalez. Id. at 180:11-15. 

After Aten had arrived, he and Bada spoke about the job, and Bada reiterated his 

concerns about the weather and the need for a bucket truck. N.T. Bada Dep., 196:12-25. In 

response, Aten told him that they would use the ladder to test the wind for safety. N.1: Bada 

Dep., 197:11-13 and 197:24-198:5. Bada explained that he "yielded to [Aten's] expertise, 

because he had been a tech a lot longer." N. T. Bad a Dep., 198:8-9. According to Bad a, once the 

ladder was up, Aten decided that it was too windy to do the job, and they began to lower the 

ladder. N. T. Bada Dep., 199: 7-19,· 213:3-11. The only assistance Aten asked of Bada was "to 

brace the side of the ladder while he unhooked it and lowered the extension ladder." N.T. Bada 

Dep., 200:22-201:10. 

Neither Bada nor Aten testified that either of them ever got on the ladder and no one 

directed Bada to climb the ladder. Mr. Bada, and his co-worker simply put the ladder up and 

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then, due to conditions took it back down. According to Bada, as the ladder was lowered, it was 

blown over by a "stronger gust" of wind, N. 7: Bada Dep., 209:21, and Bada fell to the ground. 

N. T. Bada Dep., 214:10-13. Bada testified that the ladder pushed him, although he could not 

determine "what part of the injury was from a ladder impact and which part of the injury was 

from, like, a twist and pull of being pushed over." N.T. Bada Dep., 215:4-9 mu/ 20-24. Bada 

reported the injury to his employer and applied for worker's compensation benefits. N.T. Bada 

Dep., 267:23-25. Bada expects to receive compensation from this process and stated that 

worker's compensation has been paying his medical expenses. N.T. Btula Dep., 302:5-8; N.T. 

Btula Dep., 255:10-256:12. 

Procedurally, these cases were filed by plaintiffs in January and March of 2013. They 

were consolidated by Court Order on May 2, 2013. Comcast Corporation was dismissed from the 

case via a Stipulation of Dismissal. Discovery closed on April 7, 2014 and on April 30, 2014, 

Defendants moved for summary judgment on all claims brought against them by Plaintiffs. 

Thereafter, this Court issued an Order denying the Defendants' Motion for Summary Judgment. 

On June 13, 2014, Defendants moved for reconsideration of the Court's June 5, 2014 

which was granted by this Court. On July 17, 2014, after oral argument, summary judgment was 

entered in favor of the Defendants. On August 13, 2014, the Plaintiffs filed a timely Notice of 

Appeal. 

As stated above, the Plaintiffs claim that this Court 1) erred in granting Defendant's 

Motion for Reconsideration; 2) erred in determining Eada's injury fell within the intentional tort 

exception of the New Jersey Worker Compensation Act; 3) erred by applying the wrong test to 

the facts in granting summary judgment; 4) erred in granting summary judgment under Rule 

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"After the relevant pleadings are closed, but within such time as not to 

unreasonably delay trial, any party may move for summary judgment in 

whole or in part as a matter of law (1) whenever there is no genuine issue of 

any material fact as to a necessary element of the cause of action or defense 

which could be established by additional discovery or expert report, or (2) 

if, after the completion of discovery relevant to the motion, including the 

summary judgment is as follows: 

to judgment in their favor as a matter of law. Pursuant to Pa.R.Civ.P. 1035.2, the standard for 

determine if any genuine issues of material fact existed and, if not, were the Defendants entitled 

With the Court's acknowledgment of an error of fact on the record, it then looked to 

summary judgment in favor of the Defendants. 

After oral argument, this Court vacated its original denial of summary judgment and entered 

Defendants' Motion for Summary Judgment which warranted reconsideration of the legal issues. 

This Court determined that it had committed a clear error of fact in its initial denial of the 

the original motion was decided, or (3) there has been intervening change in controlling law. Id. 

of fact resulting in manifest injustice, (2) newly discovered evidence has become available when 

A Motion for Reconsideration may be granted if the court {l) made a clear error of law or 

Richfield Co. v. J.J. White, u«, 302 Pa.Super. 276, 448 A.2d 634, 636 (1982)). 

Custom Homes, Inc., 2003 PA Super 8, ~ 24, 815 A.2d 643, 648 (2003) (citing Atlantic 

inherent power to reconsider its own rulings." Joseph F. Cappelli & Sons, Inc. v. Keystone 

This Court has the authority to grant a Motion for Reconsideration as "[a] court has the 

properly granted summary judgment in favor of the Defendants on all claims. 

Defendants' request for reconsideration of its' prior order was properly granted, and, thereafter, 

Each of Plaintiffs' claims of error are without legal basis. This Court determined the 

claim. 

1035.3 and the Nanty-Glo rule; and, 5) erred in dismissing Mrs. Bada's derivative consortium 

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exclusive, except for injuries that result from an employer's 'intentional wrong."' Van Dunk v. 

The New Jersey Supreme Court has held that the compensation act's "remedy is 

"If an injury or death is compensable under this article, a person shall not be 

liable to anyone at common law or otherwise on account of such injury or 

death for any act or omission occurring while such person was in the same 

employ as the person injured or killed, except for intentional wrong," 

N.J, Stat. Ann.§ 34:15-8. [Emphasis added.] 

from their employer outside of the Act itself. Section 34: 15 of the WCA provides, in part, 

The New Jersey WCA establishes a very high bar for employees to recover damages 

New Jersey's Worker Compensation Act (WCA) applies. 

claims. Counsel for all parties in their various pleadings and motions have acknowledged that 

has its address in Philadelphia, New Jersey worker's compensation law applies to the Badas' 

Although jurisdiction in this matter properly lies in Pennsylvania as one of the defendants 

omitted). 

doubt." Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal citation 

may only grant summary judgment where the right to such judgment is clear and free from all 

doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, 

Lance v. Wyeth, 85 A.3d 434, 449 (Pa. 2014). "In so doing, the trial court must resolve all 

light most favorable to the non-moving party, and doubts are resolved against the moving party." 

judgment stage, "[fjacts and reasonable derivative inferences are generally considered in the 

Atcovltz v. Gu/pit Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002). At the summary 

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 

Summary judgment is appropriately granted where the record demonstrates there is no 

production of expert reports, an adverse party who will bear the burden of 

proof at trial has failed to produce evidence of facts essential to the cause of 

action or defense which in a jury trial would require the issues to be 

submitted to a jury." Pa. R. Civ. P. 1035.2. 

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Reckson Assoc. Realty Corp., 45 A.3d 965, 966 (N.J. 2012). The "intentional wrong" standard 

goes well beyond negligence or recklessness of a known risk and requires that a "substantial 

certainty" for injury is likely to take place. Jd,J at 97 I - 72. 

The Defendants properly set forth this standard in their Motion for Summary Judgment. 

The Plaintiffs now claim on appeal that this Court mistakenly applied an even stricter standard of 

"actual intent or subjective desire to injure." Plaintiffs have drawn this conclusion by taking the 

Court's comments in rendering its decision out of context. Plaintiffs are correct that New Jersey 

law does not require an intentional act standard and this Court did apply the correct standard of 

"substantial certainty" in rendering its decision. See July 17, 2014 Transcript, Page 13, Line 22 

to Page 16, Line 25. 

In order to determine whether the circumstances of Bada's injury met this "substantial 

certainty" standard, the New Jersey Supreme Court has established a two-step analysis which is 

comprised of a "conduct prong" and a "context prong." Van Dunk, supra., at 972. The "conduct 

prong" looks simply to "the employer's conduct in the setting of the particular case." Id. The 

"context prong" looks to whether "the resulting injury or disease, and the circumstances in which 

it is inflicted on the worker, [may] fairly be viewed as a fact of life of industrial employment, or 

whether it is plainly beyond anything the legislature could have contemplated as entitling the 

employee to recover only under the Compensation Act." Id. Moreover, "determining whether 

the context prong has been satisfied 'is solely a judicial function."? Mull v. Zeta Consumer 

Products, 176 N.J. 385, 392, 823 A.2d 782, 786 (2003). 

There are numerous cases where the employer's conduct was found not to rise to levels 

of "substantial certainty" in terms of either the conduct or context prongs: Tomeo v. Thomas 

Whitesell Const. Co., Inc., 823 A.2d 769 (N.J. 2003) (affirming summary judgment for 

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employer despite the fact that employer deactivated safety lever on a snow blower); Morales v. 

Schneider, 2013 WL 6569790 (N.J. Super. Ct. App. Div. Dec. 16, 2013) (per curiam) (affirming 

summary judgment for employer after employee was injured when colleague "drove for 'more 

than a full block' [ against traffic]," resulting in an accident that caused "grievous injuries" to 

plaintiff); Estate of Se/lino v. Pinto Bros. Disposal, LLC, 2013 WL 5300076 (N.J. Super. Ct. 

App. Div. Sept. 23, 2013) (per curiam) (affirming summary judgment for employer even though 

it had tampered with truck safety feature in manner than contributed to accident). 

Van D1111k clearly illustrates the difficulty of satisfying both the conduct and context 

prongs to overcome the prohibitions of the Worker Compensation Act. In Van Dunk, a worker 

who was directed by a supervisor to enter a trench that the supervisor had, earlier that day, 

directed the worker to avoid when the employee volunteered to straighten out some fabric inside 

the trench and was injured. This incident resulted in the issuance of a "willful violation" citation 

from OSHA and the court even noted the employer's actions could rise to a level of "gross 

negligence." Id., at 979. Despite this, the Court found that the incident did not meet the 

'conduct> prong because the employee only needed to enter the trench briefly, and "[e]ven 

considering the other facts known to [the supervisor] at the time that could indicate the 

possibility of a cave-in, none singly or in combination provide an objectively reasonable basis 

for expecting that a cave-in almost certainly would occur during the brief time plaintiff was sent 

into the trench." Id., at 979. 

Further, the court found that Van Dunk's incident also failed to satisfy the 'context' 

prong as "one cannot reasonably conclude that the type of mistaken judgment by the employer 

and ensuing employee accident that occurred on this construction site was so far outside the 

bounds of industrial life as never to be contemplated for inclusion in the Act's exclusivity bar," 

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and "not every intentional, or indeed willful violation of OSHA safety requirements constitutes 

[such a wrong]." Id. at 980. 

Mr. Bada worked outdoors and that would include working in inclement weather as a 

regular part of his job. N. T. Bada Dep., 119: 17-19. He was not ordered by his supervisor, John 

Gonzalez, to climb the ladder. Mr. Gonzalez, in fact, sent a more experienced colleague, Chris 

Aten, to assist Mr. Bada at the location. He was injured when it was determined that climbing the 

ladder under these conditions would not be safe. Mr. Bada admitted he never climbed the ladder 

and had been requested by Mr. Aten "to brace the side of the ladder while he unhooked it and 

lowered the extension ladder." N. T. Bada Dep., 200:22-201: I 0. 

Mr. Bada was never forced to climb the ladder or engage in any activity where serious 

injury or death was substantially certain. Based upon the facts, it can be reasonably concluded 

that Mr. Bada 's injury occurred solely within the course and scope of his employment and within 

the bounds of industrial life. As a result, his claim falls squarely within the confines and 

remedies available to him as an incident contemplated by the legislature under the New Jersey 

Worker Compensation Act. In light of this, Defendants are entitled to judgment in their favor. 

Plaintiffs have also raised the issue that the Defendants improperly supported their 

Motion for Summary Judgment solely with deposition testimony. 

Plaintiffs argued that there is a genuine issue of material fact due to the credibility of the 

Defendants' employee, John Gonzalez, and that credibility issues must be determined at trial. In 

support of this position, the Plaintiffs relied upon, but have misread the holding of, Borough of 

Nanty-Glo v. Am. Sur. Co. of New York, 309 Pa. 236, 238, 163 A. 523 (1932). The Nanty-Glo 

rule has no application in the instant matter. 

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The Superior Court, in discussing the Nanty-Glo rule, has determined that "[tjhe NantyGlo rule means the party moving for summary judgment may not rely solely upon its own 

testimonial afjidavils or depositions, or those of its witnesses, to establish the non-existence of 

genuine issues of material fact. Testimonial affidavits of the moving party or his witnesses, not 

documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary 

judgment, since the credibility of the testimony is still a matter for the [factfinder]." Denrmitt v. 

New York Life Ins. cs; 2013 PA Super 161, 73 A.3d 578, 595 (2013). [Emphasis added.] 

Here, the Defendants have offered both testimonial and documentary evidence from 

witnesses other than their own and the Plaintiff himself in support of their Motion for Summary 

Judgment. This Court primarily looked to the testimony of Mr. Bada in making its ruling and 

not solely upon the testimony of Mr. Gonzalez. As such, this clearly shows that the Nanty-Glo 

rule is not applicable in this case. In light of the foregoing, Plaintiffs' argument on this issue is 

without merit. 

Lastly, Plaintiffs argue that summary judgment should not have been granted as to 

Kimberly Bada's loss of consortium claim, which is derivative to Mr. Bada's claims. 

Under both Pennsylvania and New Jersey law, a derivative loss of consortium claim fails 

if the originating claim fails. Sciarrotta v. Global Spectrum, 944 A.2d 630, 633 (N.J. 2008); 

Barchfeld v. Nunley by Nunley, 577 A.2d 910, 912 (Pa. Super. Ct. 1990) (''[A)n action for Joss 

of consortium is derivative of the injured spouse's claim."). Since Mr. Bada's claims cannot 

survive summary judgment, Kimberly Bada's loss of consortium claim must also be dismissed. 

Bergen v. Able Energy, Inc., 2009 WL 222943 (N.J. Super. Ct. App. Div. Feb. 2, 2009) (per 

curiam) (affirming summary judgment of tort claims and loss of consortium claim because the 

tort claims are barred by Worker's Compensation Act). 

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Date: January 20, 2015 

BY THE COURT: 

upheld on appeal. 

For all of the forgoing reasons, this Court requests that its findings and conclusions be 

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