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decided: December 22, 1975.


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1973, No. 3403, in case of Allison Greer v. United States Steel Corp.


Blair S. McMillin, with him Thomas R. Wright, James D. Strader, and Reed, Smith, Shaw & McClay, for appellant.

William R. Caroselli, with him McArdle, Henderson, Caroselli & Beachler, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Spaeth, J.

Author: Watkins

[ 237 Pa. Super. Page 598]

This is an appeal from the order of the Court of Common Pleas of Allegheny County refusing appellant's motion for judgment on the pleadings.

The history of the appeal is as follows: On December 29, 1973, the plaintiff Allison Greer, filed a complaint in trespass against the employer-defendant, United States Steel Corporation, seeking damages as a result of the negligence of the defendant. The plaintiff alleged he contracted pulmonary fibrosis as a result of his exposure to the noxious emissions incident to his employment at the defendant's Clairton works.

[ 237 Pa. Super. Page 599]

The defendant's answer raised the defense of exclusivity of the Occupational Disease Act and that the complaint failed to state a cause of action. The defendant filed a Motion for Judgment on the Pleadings and in the alternative requested a Certification for Allowance of Appeal to this Court as well as a Stay of the Proceedings. The lower court denied its motions and the defendant-appellant petitioned for reconsideration of its Request for Certification to this Court and a Stay of Proceedings. The lower court granted the Certification for Allowance of Appeal to this Court but did not grant the Stay of Proceedings. This Court granted the appellant's petition for Allowance of Appeal and Stay of Proceedings.

With the enactment of the first Workmen's Compensation Act by the legislature in 1915, Act No. 338, June 2, 1915, P.L. 736, 77 P.S. § 1 et seq., and its companion, the Occupational Disease Act, Act of June 21, 1939, P.L. 566, No. 284, 77 P.S. § 1201, et seq., and the amendments made periodically thereto, it has been the clear legislative intent to provide an accessible, expert and easy forum for the handling of all claims for occupational injury and disease; to provide for prompt payment of all costs for all medical expenses and reasonable income loss payments to the employee or his dependents; to reduce the costs and delays of personal injury court trials and eliminate unnecessary payment of fee to lawyers, witnesses as well as time consuming trials and appeals; and to accomplish this without assessing fault to the employee or employer while the employer is freed from the threat of court suit.

The only question involved in this appeal is where a claimant alleges he contracted a disease in the course of his employment which arose out of his employment and is related thereto, is he free to elect to file his action in trespass in Common Pleas Court and in a jury trial have the question of the compensability of the disease determined or must he first file under the provisions of the Workmen's Compensation Act, supra.

[ 237 Pa. Super. Page 600]

The claimant here has made the factual and legal determination that his claim is not compensable by filing his action in the nature of trespass, while the legislature has created a forum with expertise in these matters to make this determination. The legislature has in fact removed from the jurisdiction of the Courts of Common Pleas all matters relating to Workmen's Compensation and directed that appeals from the Workmen's Compensation Board be taken to the Commonwealth Court so that an expert and consistent line of decisions would evolve. § 427 of the Act, supra.

It is agreed that both parties to this litigation have accepted Workmen's Compensation Act. Section 303 of the Act, supra, sets forth the effect of such acceptance: "Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or to any method of determination thereof, other than as provided in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife or husband, widow or widower, next of kin, and other dependents."

Any question as to the intention of the legislature that the remedy created by the Workmen's Compensation Act be exclusive is removed by the Act of December 5, 1974, P.L. 263, effective February 3, 1975, which states:

"(a) The Liability of an Employer under this Act shall be exclusive and in place of any and all other Liability to such Employes, his Legal Representatives, Husband or Wife, Parents, Dependents, next of kin or anyone otherwise entitled to Damages in any action at law or otherwise on account of any injury or death as defined in Section 301 (L) (1) and (2) or Occupational Disease as defined in Section 108."

Pulmonary fibrosis, the disease forming the basis of appellee's claim is within the purview of § 108(n) of the

[ 237 Pa. Super. Page 601]

Occupational Disease Act, supra, which includes: "(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population. For the purposes of this clause, partial loss of hearing due to noise shall not be considered an occupational disease. Added 1956, Feb. 28, P.L. (1955) 1095 § 1."

Whether the proofs ultimately establish compensability is for the compensation referee, board and Court to determine. To live up to the spirit of the Act, every attempt to establish compensability should be made, not an attempt to avoid the provisions of the Workmen's Compensation Act.

Appellee relies strongly upon the case of Perez v. Blumenthal Bros. Chocolate Co., 428 Pa. 225, 237 A.2d 227 (1968) as precedent for his right to select the Court of Common Pleas as the initial forum. However, in that case the basis for the action was determined not to be an occupational disease by a prior proceeding under the Workmen's Compensation Act. By voluntarily accepting the Workmen's Compensation Act, both parties ...

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