Pennsylvania’s ‘Third-Party Attack’ Exception to Exclusive Remedy Rule

Do You Know the Rule?

If an employee wants to sue an employer for personal injuries based on a work-related accident, she is generally out of luck. The Pennsylvania Workers’ Compensation Act is the exclusive remedy for such injuries. However, one exception to this rule may apply when the injury is the result of a physical attack by a thirty party. 

What is the third-party attack exception?

The PWCA recognizes a narrow "personal animus" or "third party attack" exception, which allows claims for employee injuries caused by the intentional conduct of third parties for reasons personal to the attacker and not directed against the worker as an employee or because of his employment. It’s also known as the “personal animus” exception.

Why is there an exception?

This exception arises from the PWCA’s definition of “injury.” That definition states, in part, that injury is one which arises in the course of employment. It does not include an injury caused by an act of a third person intended to injure the employee because of personal reasons, and not directed against him as an employee or because of his employment.

What are the key questions to ask when determining whether the exception applies?

Was the attack motivated by personal reasons, as opposed to generalized contempt or hatred? Thus, if the third party would have attacked a different person in the same position as the injured employee, the attack does not fall within the exception.

Was the attack sufficiently unrelated to the work situation so as not to arise out of the employment relationship? For example, it's likely personal when a jealous husband enters the workplace and shoots an employee he thinks is having an affair with his wife.

Who has the burden of establishing the exception?

The employer or carrier seeking to show that workers’ compensation is the employee’s sole remedy has the burden of establishing that the injury actually resulted from a third-party attack or personal animus.

Case examples

A supervisor’s alleged sexual harassment of an employee fell under the third-party attack exception where the harassment was “personal in nature and not part of the proper employer/employee relationship." Schweitzer v. Rockwell Int'l, 402 Pa.Super. 34  (Pa. Super. Ct. 1990).

Where the employee claimed she was attacked suddenly and for reasons she could not identify, she failed to establish that the third-party attack exception applied. Grabowski v. Carelink Community Support Services, Inc., 230 A.3d 465 (Pa. Super. 2020).

What are some tips for employers and insurance carriers investigating workers’ compensation claims arising from third-party attacks?

In general, consider whether the dispute is something the employee brought from outside of work into the workplace.

Consider whether the relationship between the two individuals predated employment. If it did, that may indicate that the attack was not connected to work, but to the individuals’ personal relationship.

In a situation where the employee is attacked by a coworker, review reports and observations of how the employees interacted at work. If they generally got along well, that suggests that the subsequent attack may not have been personal in nature.

Review internal and police reports and investigation records for a description of what occurred just prior to and during the incident, including any description of what the two individuals said during those times.

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