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An appeals court decision from February 2023 did not end a legal battle between Penn State and a worker who witnessed his fiancee’s ex-husband kill her in a parking lot.

A three judge panel of the Commonwealth Court ordered four decisions be vacated.  It also instructed a workers’ compensation judge to write a revised decision asserting which testimony is credible.

A food services worker, 49-year-old Lesli Kelly was fatally shot in December of 2017.  She typically met her ex-husband there to exchange custody.  She was set to receive Christmas gifts for their children.

But something else happened.  The ex-husband with two semi-automatic handguns fired about eight shots and killed her.  Then he killed himself.

John Ward, a maintenance worker, said he saw the scene from inside a dorm through a second floor window.  Ward now has post-traumatic stress disorder and has sought workers’ compensation benefits.

Penn State has argued John Ward is not eligible for workers’ compensation because he was not acting in the course of his employment (COE) when he watched the custody interaction exchange.  No legal ruling has been definite and finally enacted on whether Penn State will have to pay benefits to John Ward.

Ward testified his job was to respond to any maintenance requests in the dorms.  He would sometimes see the custody exchange desultorily.  On the day of the killings, Ward testified he was on his way to his mailbox to check for maintenance requests.  He glanced out the window.  He then became aware something bad was happening.

Penn State argued against Ward’s claims by using the testimony of the Pennsylvania State Police Trooper who was the lead investigator.  The trooper testified that John Ward watched every custody exchange and did not believe he was on his way to the office.  A workers’ compensation judge denied Ward’s petition, writing in 2019 that Ward “failed to establish that he was injured during an activity that furthered the interests of Penn State.”  But this argument doesn’t seem reasonable.  Using the restroom wouldn’t further the interests of Penn State either, but an injury from a slip in the lavatory would be an AOE out of the AOE/COE definition, meaning “arising out of the employment” but not necessarily in the course of employment.
 
John Ward then successfully appealed.

The WCAB found Ward was not engaged in a “pronounced and significant departure from work responsibilities” or in a premeditated, extreme, and inherently high-risk action wholly foreign to his employment.  The arguments continued with Penn State’s appeal to the Commonwealth Court.

John Ward told a TV station, WTAE, that he and his fiancée made more than four dozen reports of harassment and intimidation by her ex-husband before the shootings.  Lesli Kelly’s family said she and her ex-husband were scheduled for a court hearing on child support payments the next day after the killings.  Her father described her ex-husband as a very abusive alcoholic who owned many guns.  A woman who had long known the Kellys said Lesli Kelly was fearful for weeks her ex-husband would harm her.

John Ward, the claimant, told the TV station WTAE that he and Lesli Kelly told every cop, judge, lawyer, and all the “people they worked with” that they were in fear for her safety, “and nobody would lift a finger”.  

Lesli Kelly was a beloved figure on campus.  It was said she was very passionate about her work and “really cared about everyone”.
 
Lesli had worked at Penn State “Beaver” for 26 years.  She worked in the campus Bistro as a chef.  People were impressed by her warmth and her friendly demeanor.

Lonce Lamonte, journalist, lonce@adjustercom.com. Source material from beaver.psu.edu

lonce@adjustercom.com