The opinion of the court was delivered by: LUONGO
This is an asbestosis action in which Owens-Illinois was named as an original defendant, and later made the target of various crossclaims by some of its co-defendants. Owens now moves for summary judgment against all parties, principally on the ground that it was the employer of plaintiff Anthony Tysenn, and therefore under the applicable compensation laws cannot be liable to any of the parties.
A threshold issue is the law to be applied. Owens contends that New Jersey law controls, while the respondents to Owens' motion contend that Pennsylvania law is applicable. During the period in question, Tysenn was employed out of Owens' Philadelphia office. During that time, however, he resided in New Jersey, was treated for his injuries there, and allegedly was first exposed to asbestos at Owens' Berlin, New Jersey, plant, although he had subsequent exposure in Pennsylvania and Delaware.
The parties agreed at argument that there is no clear answer to the choice of law question. Both Pennsylvania and New Jersey employ the balancing of interests test in resolving choice of law questions. Four factors are relevant: (a) place of injury; (b) place of conduct; (c) domicile of parties; and (d) place where the parties' relationship is centered. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Phillips v. Oneida Motor Freight, Inc., 163 N.J.Super. 297, 394 A.2d 891 (1978). Here, except for Tysenn's place of residence, Pennsylvania would seem to be the forum with more contacts. Tysenn's exposure to asbestos stemmed directly from his employment relationship with Owens, which was centered in Pennsylvania. Moreover, the court in Phillips noted that when compensation issues are involved in a case, the state of employment is particularly interested in its outcome. Accordingly, on balance, at least insofar as claims relating to Anthony Tysenn are concerned, Pennsylvania would seem to have more of an interest in the litigation than would New Jersey.
Owens contends that it is entitled to summary judgment against the plaintiffs on Anthony Tysenn's claims because Owens was his employer during the period in which he was subjected to its asbestos products, with the result that plaintiffs' exclusive remedy against Owens is the Pennsylvania Occupational Disease Act of 1939, 77 Pa.Stat.Ann. § 1201 et seq.
It is undisputed that Tysenn was exposed to asbestos during two periods of time. First, Tysenn was exposed during 1935-1941, while employed by Rohm & Haas. Owens can have no liability arising out of that exposure because it is undisputed that it did not manufacture asbestos products at that time. Second, Tysenn was exposed during 1951-1958, during which time he was employed by Owens.
Under the Occupational Disease Act,
an employee receives compensation payments without regard to fault if he contracts a disease covered by the Act during the course of his employment. In return the employee surrenders any right of action. 77 Pa.Stat.Ann. § 1403. Asbestosis is a covered disease, § 1208(l ). Discovery has revealed, however, that Tysenn does not contend that he contracted asbestosis, but rather mesothelioma, an asbestos-connected disease which is not specifically covered by the Act. Although not specifically listed, mesothelioma also seems to fall under the Act. In 1955, the legislature amended the Act to include:
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. § 1208(n).
In Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973), the Supreme Court of Pennsylvania held that the Occupational Disease Act should be interpreted broadly, and ruled that cancer, although present in the general population, comes within the Act if it is shown that it is peculiar to the claimant's occupation.
The Act itself does not list any exceptions. To avoid the bar to suit posed by the Act, Tysenn raises several arguments. First, Tysenn contends that it does not apply where the employer has committed an intentional tort. Owens, Tysenn alleges, had knowledge of the dangerous effects of exposure to asbestos, and deliberately exposed its employees to it in reckless disregard of their health. There is evidence in the record that Owens conducted tests on laboratory test animals using high concentrations of asbestos, and discovered that such exposure to asbestos had adverse effects on the animals. Tysenn relies upon a judicially created exception to the Compensation Act established in Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963), which he contends is applicable to the Occupational Disease Act as well. In Readinger, the court held that an employer who physically assaulted and struck an employee could not avail itself of the immunity from suit created by the Compensation Act, because the Act applied only to accidental injury, and did not extend to deliberate conduct by an employer.
The flaw in this argument is that few Pennsylvania decisions have addressed this issue, and no Pennsylvania court has extended the intentional wrong exception as far as Tysenn urges. The only case factually close to the instant one, Sumski v. Sauquoit Silk Company, Inc., 66 Lack Jur. 118 (1965), involved an employer who deliberately exposed its employee to a toxic agent by changing the label on a bottle containing it while representing that the harmful agent had been replaced by a substitute. Whether a higher court would have adopted this reasoning is problematic, and the case is factually distinguishable from the instant one, because the employer's conduct in Sumski was unlawful, and the danger was concealed from the employee. Moreover, there is nothing in subsequent decisions to suggest that the Pennsylvania courts would extend the intentional tort concept in the absence of deliberate, egregious conduct by an employer. Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969); see Ulicny v. National Dust Collector Corp., 391 F. Supp. 1265 (E.D.Pa.1975). Here, where Tysenn knew he was working ...