A Lackawanna County judge has granted partial summary judgment to a Swedish national who claimed in a suit that after he was injured on the job, his Scranton-based former employer unlawfully forced him out of the company and, ultimately, out of the country in an attempt to escape liability.

Lackawanna County Common Pleas Court Judge Carmen D. Minora based the ruling on the theory of collateral estoppel, finding that the factual determinations of a workers’ compensation judge were sufficient to support a grant of partial summary judgment in a parallel civil suit.

Counsel for the plaintiff said it may be the only case in Pennsylvania history in which an employee successfully invoked the collateral estoppel theory against an employer, rather than vice versa.

In Alpensjo v. Sandvik Materials Technology, Wilkes-Barre WCJ Alan R. Harris denied the employer’s petition for suspension of benefits, finding that the company had fired plaintiff Johan Alpensjo without cause and then informed the American Embassy in Stockholm and U.S. Immigration and Customs Enforcement that he was living illegally in the United States on a work visa while unemployed.

Alpensjo was working for an American subsidiary of Swedish-based Sandvik Inc. on an E2 Work Visa.

On December 11, 2008, Alpensjo was injured in a work-related automobile accident and, after being totally disabled for a period of time, returned to work part-time, court documents said.

But on March 3, 2009, according to court documents, Alpensjo was fired.

The defendant’s human resources director, Brian Spencer, wrote a series of letters to the American Embassy in Stockholm and ICE informing them that Alpensjo was let go from the company but was still living in the United States on a work visa, court documents said.

Alpensjo returned to Sweden on May 22, 2009, the day after his visa expired, according to court documents.

In February 15, 2010, Alpensjo testified that he was still suffering from his injury and that, before he was injured, Sandvik never complained about his job performance, nor did it ever warn him or tell him his employment was being reconsidered, according to court documents.

When Alpensjo asked his employer why he was being fired, he was told that Pennsylvania is an at-will employment state and that the employer is not obligated to give him a reason for his termination, court documents said.

Alpensjo testified he was aware that his visa expired May 21, but he could not get a plane ticket back to Sweden until the following day, according to court documents.

Alpensjo also testified that he believed he would be arrested if he remained in the United States after his visa expired and was reluctant to return to the United States for the same reason, court documents said.

On February 16, 2010, according to court documents, Spencer testified that Alpensjo was fired for cause.

Spencer said Alpensjo claimed he was single when he was hired but arrived in the United States with a wife and attempted to obtain a work visa for her, according to court documents.

According to Spencer’s testimony, Alpensjo did not cooperate with Sandvik’s immigration counsel by submitting the necessary paperwork to get the visa, court documents said.

Spencer also testified that Alpensjo had complained that his health insurance was denied, but it was discovered that he hadn’t filled out the necessary documents from Sandvik’s health insurance carrier, according to court documents.

Spencer said Alpensjo was also attending physical therapy sessions during work hours when he didn’t have to and had enrolled in a computer training course while at the same time complaining that his injury was making it difficult to work because he couldn’t see the computer screen, according to court documents.

Harris called the employer’s conduct "manipulative and ruthless," and found that the employer forced an injured employee out of the company and, ultimately, out of the country.

In his February 13 opinion, Minora said Harris’ findings "are both critical and central to the conclusion that Alpensjo did not voluntarily remove himself from the United States workforce by relocating to Sweden."

Minora said the facts met the four criteria of the collateral estoppel laid out by former state Supreme Court Justice Sandra Schultz Newman in the 1998 case Rue v. K-Mart.

"The issues were the same," Minora said. "The workers’ compensation hearings were conducted with sufficient protections and opportunity to be heard by Sandvik. Workers’ compensation proceedings can be used for issue preclusion. The decision by Judge Harris is final. The parties of the workers’ compensation case were identical to those herein and finally Sandvik had a full and fair opportunity to litigate at the workers’ compensation hearing."

Alpensjo’s attorney, Michael J. Foley of the Foley Law Firm in Scranton, said collateral estoppel is typically used by employers against employees.

"This is the first case I know of in Pennsylvania where a plaintiff was able to successfully use it against an employer," Foley said.

Counsel for the defense, Michael J. Ossip of Morgan, Lewis & Bockius in Philadelphia, declined to comment.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 19-page opinion in Alpensjo v. Sandvik Materials Technology, PICS No. 13-0529, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •