dual capacity issue now before this court. For guidance we have therefore not only studied Judge Troutman's opinion in Kohr v. Raybestos-Manhattan, Inc., 505 F. Supp. 159 (1981), in which he predicted that Pennsylvania would adopt dual capacity, and those Pennsylvania decisions, cited above, which have interpreted the Workmen's Compensation Act and the products liability doctrine, but have also considered cases from other jurisdictions in which the dual capacity doctrine was at issue.
Pennsylvania courts have shown extreme reluctance to alter the workmen's compensation system of certain, but limited and exclusive recovery from employers for work related injury. Thus, the Pennsylvania Supreme Court has upheld that section of the Workmen's Compensation Act, 77 P.S. § 481(b), pursuant to which an employee may not join his employer as a defendant in an action against a third party, nor may that third party seek contribution or indemnity from the employer. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 518, 412 A.2d 1094, 1096 (1980). In addition, the Pennsylvania Supreme Court has recognized only a very limited intentional tort exception to the Act, see, Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969), and the Superior Court has rejected as an exception to the Act the concept of enterprise liability, a theory somewhat analogous to dual capacity in that it too seeks to identify distinguishable functions of an employer in order to impose liability. Berger v. U.G.I. Corp., 285 Pa.Super. 374, 427 A.2d 1161 (1981).
Statutory provisions similar to Pennsylvania's, which limit an employee's legal actions against his employer are a part of the Workmen's Compensation Acts of most, if not all states. Among them is California, yet that state's Court of Appeal, in a thoughtful opinion, nonetheless adopted the dual capacity doctrine. See, Douglas v. E. & J. Gallo Winery, 69 Cal.App.3d 103, 137 Cal.Rptr. 797 (1977). An Ohio appellate court has also adopted the doctrine, see, Mercer v. Uniroyal, Inc., 49 Ohio App.2d 279, 361 N.E.2d 492 (1976), and the United States Supreme Court has employed an analogous theory with regard to maritime law and the Longshoremen's and Harborworkers' Compensation Act in Reed v. The Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963). However, the great majority of courts in other states which have ruled on dual capacity have rejected the theory. See, e.g., Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d 879, 412 N.E.2d 934 (1980); Longever v. Revere Copper and Brass, Inc., 381 Mass. 221, 408 N.E.2d 857 (1980); State v. Purdy, 601 P.2d 258 (Alaska 1979); McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240 (Tenn.1977); Needham v. Fred's Frozen Foods, 171 Ind.App. 671, 359 N.E.2d 544 (1977); Winkler v. Hyster Co., 54 Ill.App.3d 282, 369 N.E.2d 606, 12 Ill. Dec. 109 (1977). Federal courts in other jurisdictions have also refused to adopt dual capacity. See, Kottis v. United States Steel Corp., 543 F.2d 22 (7th Cir. 1976), cert. denied, 430 U.S. 916, 97 S. Ct. 1328, 51 L. Ed. 2d 594 (1977); Strickland v. Textron, Inc., 433 F. Supp. 326 (D.S.C.1977); Provo v. Bunker Hill Co., 393 F. Supp. 778 (D.Idaho 1975).
Although review of the opinions from other states is instructive, and the reasoning of other courts might perhaps prove persuasive were we to directly address the merits of recognizing dual capacity in Pennsylvania, they are of little help to us with regard to our real inquiry: ascertaining, or if necessary predicting, and then applying, Pennsylvania law.
Mindful of the proper rule to be played by a federal court in applying state law, and abiding by the rules of statutory construction outlined above, it is manifest that this federal court cannot ignore so unambiguous and plain a meaning as that of the legislatively enacted Workmen's Compensation Act, which seeks to limit an employer's liability, merely in order to effectuate a judicially created legal theory which seeks to expand a manufacturer's liability. Moreover, judicial expansion of a statute is particularly inappropriate when initiated by a federal court acting in the absence of any direction or signal to do so on the part of the state courts. Accordingly, since the Workmen's Compensation Act clearly provides the exclusive remedy for employee work related injury, and the dual capacity theory has not been recognized by Pennsylvania courts, we are constrained to conclude that the Act precludes an employee's products liability action against his employer for injury sustained during the course of and related to his employment.
In reaching this decision, we are not immune to the considerable appeal which the dual capacity doctrine possesses, nor are we unmindful of the seeming inequity of the law in permitting those workers injured by exposure to asbestos not produced by their employers to seek, and perhaps recover, substantial monetary damages, while preventing those workers whose employers were the manufacturers of the asbestos which allegedly caused them injury from seeking compensation beyond that provided by workmen's compensation. Additionally, we are not unaware that under the present state of the law, merely because the victims of a manufacturer's defective products are that manufacturer's own employees, the manufacturer can avoid that products liability to which it would otherwise be subject. We have considered as well that the Workmen's Compensation Act is designed to protect workers and thus ought to be liberally construed, and that with the advent of products liability, society benefited when the risk of loss from injury caused by defective products shifted from the injured person to the manufacturer of the product causing injury. Nevertheless, such changes in the law as may be deemed necessary for reasons of public policy ought to be effectuated by the state legislature, which enacted the clearly unambiguous Workmen's Compensation Act, or by the courts of Pennsylvania, and not by a federal court exercising diversity jurisdiction.
Furthermore, for us to hold an employer-manufacturer liable under the dual capacity theory, and thereby judicially carve out an exception to the exclusive remedy provided for in the Workmen's Compensation Act, would take this federal court beyond the bounds of mere prediction of Pennsylvania law to its actual formation. Although the Pennsylvania Supreme Court may, in the future, adopt the dual capacity doctrine, that simply has not yet occurred. Since there is at this time no indication that the Pennsylvania courts actually will or even are likely to judicially expand the rights of employees to bring suit on a dual capacity theory against their manufacturer-employers, for the federal courts to hold otherwise would be an exercise more in gross speculation than in mere prediction of the future development of Pennsylvania law. If such jurisprudential innovation, progressive as it may be, is to be instituted by a court, such action must be left to the only court which in our federal system may exercise such discretion, the Pennsylvania Supreme Court.
While the federal judiciary must not shirk its duty to fairly adjudicate all properly brought justiciable cases and controversies, care must be taken lest we forget that there are at times limits on the policy making role which may be had by the federal courts. Despite the exercise of policy making restraint, however, federal judicial decisions often do have the inevitable effect of forming public policy. Such is the case here, of course, as the result of our decision is that the dual capacity doctrine remains unavailable to plaintiffs in Pennsylvania. It is not our place though to accept or reject the doctrine on its merits, and we have done no more than merely apply the current law of Pennsylvania, as adopted by the legislature and courts of the Commonwealth. Thus, it is with those bodies that the opportunity properly lies for any future action on the important issues of law and public policy raised in these cases.
NEWCOMER and BECHTLE, District Judges, concur.