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decided: May 1, 1979.


No. 61 March Term, 1978, Allocatur granted at No. 1510 Allocatur Docket on May 3, 1978 from the Order of the Superior Court of Pennsylvania on December 28, 1977 at No. 871 April Term, 1976 affirming the order of the Court of Common Pleas of Allegheny County at No. GD 75-2092.


Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellants.

Robert E. Tucker, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.

Author: Larsen

[ 485 Pa. Page 165]


This is an appeal from an interlocutory order of the Court of Common Pleas of Allegheny County, Civil Division, denying defendant-appellants' motion for summary judgment. The Superior Court, 252 Pa. Super. 467, 381 A.2d 1301, affirmed the order of the lower court, and this Court granted allocatur.

Appellee commenced an action in trespass against appellants after being denied relief under the Pennsylvania Occupational Disease Act.*fn1 Appellee alleged that while he was in the employ of appellants, they improperly maintained their premises*fn2 and exposed him to conditions which caused him to contract emphysema, pulmonary fibrosis and bronchitis and thus to become totally and permanently disabled. Appellants

[ 485 Pa. Page 166]

    filed a motion for summary judgment contending that the Occupational Disease Act and the companion provisions of the Pennsylvania Workmen's Compensation Act*fn3 bar all common law actions by an employee against his employer for occupational diseases and that, if this is not the case, the present action is nevertheless barred because appellee's inflictions are occupational diseases which are fully covered by and subject to the provisions of those Acts. The lower court denied appellants' motion and appellants' allege that this was error.

In Greer v. United States Steel Corp., 475 Pa. 448, 380 A.2d 1221 (1977), we held that the Legislature, in enacting the Occupational Disease Act, did not intend to bar recovery at common law for diseases not covered by the Act. Appellants contend that a different legislative intent is evidenced by the amendment of the Workmen's Compensation Act in 1972 to provide for an alternative remedy for occupational diseases. We disagree. These statutory provisions that were added to the Workmen's Compensation Act to provide compensation for victims of occupational diseases are very similar to the portions of the Occupational Disease Act that were construed in Greer and, hence, the analysis we performed in the Greer case would apply here as well.*fn4 Accordingly,

[ 485 Pa. Page 167]

    appellants' contention that the Workmen's Compensation and Occupational Disease Acts are totally exclusive and deprive common pleas courts of jurisdiction over claims arising from diseases not covered by those acts is rejected.

Appellants also contend that summary judgment should nevertheless be entered because appellee's maladies are compensable under the Acts and the court below is therefore without jurisdiction to hear this particular case. Appellants are correct in stating that if appellee's diseases are covered by the Acts, then appellee's common law action does not exist. Greer v. United States Steel Corp., supra. However, there is nothing in the record, aside from appellants' mere allegations, which would indicate that appellee is entitled to relief under the Acts. Appellee was denied relief under the Occupational Disease Act but there has been no adjudication of appellee's rights under the somewhat broader coverage afforded by the companion provisions of the Workmen's Compensation Act.*fn5 Rule 1035(b) of the Rules of

[ 485 Pa. Page 168]

Civil Procedure requires the court to determine that "there is no genuine issue as to any material fact" before entering summary judgment. Since the question of appellee's compensability under the Workmen's Compensation Act cannot be resolved from the record as it presently stands, the court below did not err in denying appellant's motion for summary judgment.*fn6

Accordingly, the order of the court below is affirmed.

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