J-A10032-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SENETHAVISAY PHANSACKDY 

Appellant

v.

REILLY FOAM CORPORATION

Appellee

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2713 EDA 2018

Appeal from the Order Dated July 26, 2018

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2017-19519

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED MAY 20, 2019

Appellant, Senethavisay Phansackdy, appeals from the order entered in 

the Montgomery County Court of Common Pleas, which granted the motion of 

Appellee, Reilly Foam Corporation, for judgment on the pleadings. We affirm.

In its opinion, the trial court accurately set forth the relevant facts and 

procedural history of this case. Therefore, we have no reason to restate them.

Appellant raises one issue for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND 

ERRED AS A MATTER OF LAW BY GRANTING [APPELLEE’S] 

MOTION FOR JUDGMENT ON THE PLEADINGS DESPITE 

[APPELLANT’S] ASSERTION THAT [APPELLEE] FLAGRANTLY 

AND INTENTIONALLY ALTERED MANUFACTURING 

EQUIPMENT TO INCREASE PRODUCTION AT THE EXPENSE 

OF WORKER SAFETY, AND PROVIDED NO TRAINING OR 

SAFETY INSTRUCTION TO WORKERS ASSIGNED TO WORK 

ON THE ALTERED AND DANGEROUS MACHINERY THEREBY 

ASSURING THAT A SERIOUS INJURY WAS LIKELY TO 

OCCUR, WHICH CONDUCT FAR EXCEEDS THE SCOPE AND 
J-A10032-19

- 2 -

INTENT OF THE PENNSYLVANIA WORKERS’ COMPENSATION 

ACT AS DETERMINED BY THE SUPREME COURT OF 

PENNSYLVANIA, AND MUST QUALIFY FOR THE 

INTENTIONAL TORT EXCEPTION TO EMPLOYER IMMUNITY 

REGARDLESS OF WHETHER [APPELLANT’S] INJURY IS AN 

AGGRAVATION OF A PRIOR WORK INJURY OR A NEWLY

SUSTAINED INJURY.

(Appellant’s Brief at 3-4). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Gail 

Weilheimer, we conclude Appellant’s issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of the question 

presented. (See Trial Court Opinion, filed December 17, 2018, at 3-7) 

(finding: Appellant’s claims against her employer are barred by exclusivity 

provision of Pennsylvania Workers’ Compensation Act (“WCA”); exclusivity 

provision of WCA does not contain exception for intentional torts; Appellant’s 

complaint sets forth that Appellee’s conduct was intentional with knowledge 

that injury suffered by Appellant was likely to result from removal of safety 

interlock on piece of machinery; nevertheless, exclusivity is triggered where 

cause of action arises from employee who sustained injury while engaged in 

furtherance of business or affairs of employer; Appellant’s claim of fraudulent 

misrepresentation also fails to pierce exclusivity provision of WCA because 

Appellant failed to aver that incident at issue aggravated any pre-existing 

condition). Accordingly, we affirm on the basis of the trial court’s opinion.

Order affirmed.
J-A10032-19

- 3 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/19
Circulated 05/09/2019 04:06 PM

affirmed. 

2017-19519-0030 Opinion, Page 1 

FACTUAL & PROCEDURAL msTORY 

Superior Court No: 

2713 EDA 2018 

December. f� 2018 

OPINION 

1 Appellant originally filed her Complaint in Philadelphia County. On June 13, 2017, the Philadelphia 

Court entered an Order transferring this matter to Montgomery County Court of Common Pleas. 

Appellant was working in the course of her employment. (Id.) 

The underlying facts which resulted in the instant civil action occurred on May 6, 2015, in 

Common Pleas Court No: 

2017-19519 

May 1, 2018. (See "Motion for Judgment on the Pleadings", S/1/18 (#11).) On May 30, 3018, Appellant 

Phansackdy ("Appellant"), filed Complaint in Civil Action alleging products liability, battery and 

The instant matter commenced on December 21, 2016

1 when Plaintiff/Employee, Senethavisay 

After the relevant pleadings closed, Appellee filed its motion for judgment on the pleadings on 

Eagleville, Montgomery County, Pennsylvania. (Jd.) �P<,,t\ant-alleged that her right hand was crushed 

while she was operating machinery at the Reilly Foam facility. (Id. at 1 10.) At the time of her accident, 

the Pleadings."(See Order, 7/26/18 (#18).) For the reasons that follow, said trial court Order should be 

fraudulent misrepresentation against her employer, Defendant/Employer Reilly Foam Corporation 

("Appellee"). (See Complaint, 8/2/2017 (#0).) 

REILLY FOAM CORPORATION 

v. 

The underlying Plaintiff/Employee, Senethavisay Phansackdy, instantly appeals to the Superior 

Court of Pennsylvania (uSuperior Court") from the July 26, 2018 Order entered by this Court of Common 

Pleas of Montgomery County ("trial court"), granting Defendant's May 1, 2018 "Motion for Judgment on 

WEILHEIMER, J. 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 

CIVIL DMSION 

SENETHA VISA Y PHANSACKDY 
2017-19519-0030 Opinion, Page 2 

replied to said motion. (See Appellant's Response, 5/30/18 (#14).) Subsequently on July 26, 2018, the 

trial court granted Appellee's motion. (See Order, 7/26/18 (#18).) 

On August 6, 2018, Appellant filed its motion for reconsideration of said July 26, 2018 Order. 

(Motion for Reconsideration, 8/6/18 (#19).) The trial court scheduled oral argument on Appellant's 

Motion for Reconsideration. (See Order, 8/15/18 (#23).)2 On August 23, 2018, Appellant filed her timely 

Notice of Appeal from the trial court's July 26, 2018 Order. (See "Notice of Appeal", 8/23/18 (#24).) 

The trial court required a clarification of the errors complained of on appeal, and thus, directed 

Appellant to file a Concise Statement of Issues Complained of on Appeal, within twenty-one (21) days, in 

accordance with Pa. R.A.P. I 925(b ). (See Order 9/7 /l 8, (#26).) 

On September 27, 2018, Appellant filed her Concise Statement of Issues Complained of on 

Appeal in wherein Appellant raised nine (9) issues. The legal issues named on appeal can be summarized 

as follows: 

I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A 

MA TIER OF LAW IN GRANTING APPELLEE'S MOTION FOR 

JUDGMENT ON THE PLEADINGS 

2. TIIE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A 

MATTER OF LAW IN DETERMINING THAT APPELLANT,S CLAIM 

THAT SHE WAS INJURED AS A RESULT OF INTENTIONAL TORT 

AND FRAUDULENT MISREPRESENTATION COMMITIED BY HER 

EMPLOYER IS PRECLUDED BY THE EXCLUSIVITY PROVISION OF 

THE PENNSYLVANIA WORKERS' COMPENSATION ACT 

3. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A 

MATTER OF LAW IN DETERMINING THAT APPELLANT'S CLAIM 

TIIAT SHE WAS INJURED AS A RESULT OF INTENTIONAL TORT 

AND FRAUDULENT MISREPRESENTATION COMMITIED BY HER· 

EMPLOYER IS PRECLUDED BECAUSE SHE DID NOT SUSTAIN AN 

AGORA VATION OF A PRE-EXISTING CONDITION 

4. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A 

MATIER OF LAW BY FAILING TO ACKNOWLEDGE THAT 

COURTS IN OTHER JURISDICTIONS AROUND THE COUNTRY 

2 The trial court subsequently cancelled oral argument after receiving notice of appeal. (See Order, 

8/29/18 (#25).) 

2 
2017-19519-0030 Opinion, Page 3 

HA VE HELD THAT INTENTIONAL ACTS ARE NO SUBJECT TO THE 

EXCLUSIVITY PROVISIONS UNDER WORKERS COMPENSATION 

(Appellant's Concise Statement, 9/27/18 (#28).) 

DISCUSSION 

I. STANDARD OF REVIEW 

The scope and standard of review in appeals of a grant or denial of a motion for judgment on the 

pleadings is well settled. The Superior Court applies the same standard as the trial court and confines its 

consideration to the pleadings and documents properly attached thereto. Okeke-Henry v. Sw, Airlines, 

Co., 163 A.3d 1014, 1017 (Pa. Super. 2017) (citations and quotation marks omitted). The Court will 

review to determine whether the trial court's action respecting the motion for judgment on the pleadings 

was based on a clear error of law or whether there were facts disclosed by the pleadings which should 

properly go to the jury. (Id.) 

The Court will affirm the grant of judgment on the pleadings if the moving party's right to succeed is 

certain and the case is so free from doubt that trial would clearly be a fruitless exercise. Municipality of 

Mt. Lebanon v. Reliance Ins. Co., 778 A.2d 1228, 1231 (Pa.Super.2001) (citations and quotation marks 

omitted). 

II. THE TRIAL COURT DID NOT ERR AS A MATTER OF LAW WHEN IT GRANTED 

APPELLEE'S MOTION FOR JUDGMENT ON THE PLEADINGS 

Entry of judgment on the pleadings is permitted under Pennsylvania Rules of Civil Procedure 1034, 

which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. 

A motion for judgment on the pleadings is similar to a demurrer. See Kelly v. Hazelton Gen. Hosp., 837 

A.2d, 490, 493 (Pa.Super. 2003). 

It may be entered where there arc no disputed issues of fact and the moving party is entitled to 

judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its 

consideration to the pleadings and relevant documents. Cole v. Lawrence, 701 A.2d 987, 988 

3 
\=! 

2017-19519-0030 Opinion, Page 4 

�

s 

!; (Pa.Super.1997); see also Pa.R.C.P. 1017 (stating "pleadings' are limited to: (1) a complaint and an 

... .!!i 

O t: t'i' 'I> 

� � answer thereto; (2) a reply if the answer contains new matter, a counterclaim or a cross-claim; (3) a 

I:! -8 

8 i counter-reply if the reply to a counterclaim or cross-claim new matter; (4) a preliminary objection and a 

-c e 

ii 

� � response thereto.") The trial court found that, assuming all facts averred in the pleadings are true; the law 

'I> J2 :E .s; � ! precludes recovery from Appellee as Appellant fails to state a claim for which relief may be granted. 

:��

e8 � § A. Appellant's Claims are Barred by the Exclusivity Provision of the Worken' 

5 � Compensation Act s a, 'iS 

jl t The trial court granted Appellee's motion finding that Appellant's claims against her employer were �; 

[ � barred by the exclusivity provision of 77 P.S. § 481, which provides that the Pennsylvania Workers' �i ! J Compensation Act (''the Act") is the employee's exclusive remedy against her employer for injuries 

:

��ai sustained in the course of employment. 

t= 8 8:c, 

� � Under the Act, employers are generally immune from suit by their employees regarding work related 

'.::: .e 

CD.E:; 

f.;: "ii! 

0 '€ injuries. Id. The Pennsylvania Legislature adopted said Act to balance competing policy interests between 

��� 8 workers and industry. The Legislature ordered employers to provide compensation to injured employees 

t� (� regardless of fault pursuant to 77 P.S. § SOI, and in exchange they are vested with two important rights: 

�& 

r,;2! 

0015 exclusivity and immunity from suit pursuant to 77 P.S. § 481. Thompson v. Workers' Comp. Appeal Bd. 

1:;S 

��

� 5 (USF&G Co.), 781 A.2d 1146, (Pa. 2001) . 

... (.) 

8�1!- f.;;; The Act provides the following definitions regarding "exclusivity" of remedy regarding the employer 

!! -g 

g a, � J and "injury." 

ti 

§ ,u Exclusiveness of remedy; actions by and against third party; contnct indemnifying third party 

a:S 

o 'o � � The liability of an employer under this act shall be exclusive and in place of any and all other liability i J to such employes (sic) ... in any action at law or otherwise on account of any injury or death .... 

� Zl 

i'o � 77 P.S. § 481(a). 

j.i!! 

.... t: � 1 "Injury," "penonal injury," and "injury arising in the coune of his employment" deftned 

a��l 

�'a 

:g e �t �� 4 

U: ,!.1! ! -Sal 

��
2017-19519-0030 Opinion, Page 5 

The tenns "injury" and "personal injury:• as used in this act, shall be construed to mean an injury to 

an employe (sic), regardless of his previous physical condition, arising in the course of his 

employment and related thereto .... The tenn "injury arising in the course of his employment," as used 

in this article, ... shall include all other injuries sustained while the employe (sic) is actually engaged 

in the furtherance of the business or affairs of the employer .... 

77 P.S. § 411(1). 

"As the above statutory language retlect[s], the focus of the exclusivity provision of the Act is to limit 

the liability of an employer on account of injury arising in the course of the employee's employment with 

the employer. In other words, the exclusivity is triggered if, when the cause of action arises, the plaintiff 

was an employee who 'sustained' 'injury' while 'actually engaged in furtherance of the business or affairs 

of the employer."' Minto v. J.B. Hunt Transp., Inc., '\j I A.2d 1280, 1284 (Pa. Super. 2009). 

The Act bars actions in tort by an employee against her employer, with certain limited exceptions. 

Hershey v. Ninety-Five Assoc., 604 A.2d 1068, 1069 (Pa.Super, 1992). Pennsylvania courts have been 

extremely reluctant to grant Workers' Compensation exceptions, See e.g., Kuney 11. PMA Insurance Co., 

525 Pa. 171, 578 A.2d 1285, 1286 (Pa. 1990) (immunity from tort action extends to worker's 

compensation insurer despite its alleged fraudulent and deceitful conduct to deprive injured employees of 

their worker's compensation benefits) and Shaffer v. Procter & Gamble, 604 A.2d 289 (Pa. Super.1992) 

(Workers' Compensation Act precluded intentional infliction of emotional distress claim based on 

employer's harassment of injured employee in connection with treating the work-related injury). 

Moreover, in Poyser 11. Newman & Co., Inc., the Pennsylvania Supreme Court determined the 

plaintiff's intentional torts claims against her employer were barred by Section 481. 522 A.2d 548 (Pa. 

1987). In the Poysner complaint, the plaintiff claims that he was injured by machinery after his employer 

ordered certain saftey devices to be removed. Id. at 549. The Court upheld the dismissal of plaintiff's 

claims because the exclusivity provision of the Workers' Compensation Act did not include an exception 

for intentional torts. Id. at 551. In doing so, the Court reinforced that the Act was the exclusive remedy 

from his employer for "any work-related injury". Id. at 550. 

s 
2017-19519-0030 Opinion, Page 6 I 

s 

� Similarly to the plaintiff in Poysne,. Appellant's Complaint sets for the material facts, when viewed 

.._ ,12 

O c: f I as true, that Appellee's conduct was intentionally done with knowledge that the injury suffered by 

18 -8 

� � Appellant was likely to result from the removal of the safety interlock on the aforesaid machinery. (See 

g:S � J Complaint, 8/2/2017 (#0).) Nevertheless, exclusivity is triggered because the cause of action arises from 

ss 

� i an employee who "sustained" "injury" while "actually engaged in furtherance of the business or affairs of 

a ii 

·;,s�

-� � the employer" as Appellant admits that the subject incident occurred while she was acting within the 

Q. c: 

�g 

s la course and scope of her employment. (Id. at, 10.) 

"§: :S 

0�

�� � Appellant's claim for fraudulent misrepresentation also fails to pierce the exclusivity provision. e 

8�

-� � Where an employee can demonstrate ( 1) fraudulent misrepresentetion, which (2) leads to the aggravation 

i:: iii 

.!!? E 

s � of an employee's pre-existing condition, he may proceed against an employer in a common law fraudulent <ii -8 

s�

j � misrepresentation action, outside of the Workers' Compensation Act. 77 P.S. § 481(a); see e.g., Wendler 

�il 

l ! 11. Design Decorators, Inc., 168 A.2d 1172 (Pa. Super. 2001)( holding that both fraud and delay leading 

CD.S 

�:ii! 

g 55 to the exacerbation of a work-related injury must be present to remove a claim from the exclusivity 

oi �(: 

11 8 provision of Workers' Compensation Act, was not applicable, and thus, exclusivity provision barred l! �"" 

e; -� wrongful death and survival action brought by administratrix of estate of employee, who suffered fatal �& 

c',; e 

� I injuries in course of employment; administratrix was not seeking relief for an aggravation of employee's o- 

��::: :::s � 8 work injury.) 

c: {! Oi;;; t-g In Martin v. Lancaster Battery Co. Inc., et al., the Pennsylvania Supreme Court held that where an 

O QI 

c:�

� J!! employee alleges fraudulent misrepresentation on the part of the employer which caused an aggravation 

,fl i: of a work-related injury, the employee is not barred from pursuing a common law claim against the 

B 'ci f j employer. Martin, 606 A.2d 4"'1:,t�a. 1992) (emphasis added). 

,�� � The employer in Martin was charged with the responsibility of monitoring the level of lead in the 

j t employee's blood. The employer intentionally withheld and altered Martin's blood test results, causing 

8�g i aggravation of Martin's injury and resulting in his common law claim against Lancaster Battery. 

di..._ 

.... 0 

�E 

;i 6 

��II:,!!! 

a s 

��
2017-19519-0030 Opinion, Page 7 

Appellant failed to make any avenncnts that the subject incident aggravated a pre-existing condition. 

Thus, pursuant to Exclusivity Provision of the Workers' Compensation Act, the law precludes recovery 

and, as such, Appellant fails to state a claim for which relief may be granted. 

CONCLUSION 

Wherefore the reasons stated above, the trial court's July 26, 2018 Order is proper and should be 

affirmed. 

BY TIIE COURT: 

J. 

Copies sent OD December r1 , 2018, to: 

Superior Court Prothonotary 

Court Administration - Civil Division 

Plaintiff Counsel, Brian M. Penis, Esq. 

�Co�vid R. Bronstein, Esq. 

4V "",, 

7