William R. Caroselli, McArdle, Henderson, Caroselli, Spagnolli & Beachler, Pittsburgh, for appellant.
Blair S. McMillin, Reed, Smith, Shaw & McClay, Thomas R. Wright, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ.
The Superior Court, Spaeth, J. dissenting, 237 Pa. Super. 597, 352 A.2d 450, granted judgment on the pleadings to the employer in this test case*fn1 in which common law recovery was sought by an employee for a disease, pulmonary fibrosis, allegedly contracted in the course of employment due to the negligence of the employer.*fn2 The employer's answer to the complaint admitted ownership, possession and control but in new matter made the three points that the court did not have jurisdiction, that no cause of action in trespass was stated and that the employee's exclusive remedy was under the Pennsylvania Occupational Disease Act,*fn3 herein referred to as the "Act." The employee's answer to the new matter denied the three points.
The trial court denied the employer's motion for judgment on the pleadings. As the result of an interlocutory appeal, the Superior Court concluded that recovery for any disease within the purview of the Act barred any common law recovery. Although the court referred to the compensation proceedings as the "initial forum for work-related diseases," it actually granted a final judgment in favor of the employer.
The initial undisputed premise is that common law recovery is barred if recovery can be had under the Act. Section 302 of the Act*fn4 provides for the presumption of acceptance of the Act and the following section provides:*fn5
"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."
The converse of the initial premise would seem to follow, i. e., recovery at common law would not be barred if recovery could not be had under the Compensation Act. It was pointed out in Billo v. Allegheny Steel Co., 328 Pa. 97, 106, 195 A. 110, 115 (1937):
"It would be a perversion of the humane purpose of the act to hold that in respect to occupational diseases arising from the negligence of the employer, an employee was by the act deprived of a valuable legal right which had theretofore been his. No court will give the act such an interpretation unless required so to do by the act's explicit language."
It was well accepted in Pennsylvania that a common law cause of action could be asserted for negligence of the employer for injuries to an employee resulting from failure to properly maintain the work place. Fritz v. Elk Tanning Co., 258 Pa. 180, 101 A. 958 (1917). The rule was true before compensation could be had for diseases, Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936); Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 16 A.2d 534 (1940), and was true, as to diseases not covered by the Act after its adoption. Perez v. Blumenthal Bros. Choc. ...