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JOHN A. COLLINS AND VIRGINIA COLLINS v. WALTER C. BEST (10/22/82)

filed: October 22, 1982.

JOHN A. COLLINS AND VIRGINIA COLLINS, HIS WIFE
v.
WALTER C. BEST, INC., A CORPORATION, PENNSYLVANIA GLASS SAND CORPORATION, A CORPORATION, EMERALD INDUSTRIAL SUPPLY COMPANY, A CORPORATION, MILLWOOD SAND COMPANY, A CORPORATION, AND SUMMITT SILICAN SAND COMPANY, A CORPORATION V. BUCYRUS-ERIE COMPANY AND TEXTRON INC., PITTRON DIVISION. APPEAL OF PENNSYLVANIA GLASS SAND CORPORATION



No. 740 Pittsburgh, 1981, Appeal from the Order of June 22, 1981 in the Court of Common Pleas of Allegheny County, Civil Action No. G.D. 77-24489.

COUNSEL

James F. Andrews, Jr., Pittsburgh, for appellant.

Fred C. Trenor, Pittsburgh, for Bucyrus-Erie, appellee.

James F. Manley, Pittsburgh, for Textron, appellee.

Spaeth, Johnson and Hoffman, JJ.

Author: Spaeth

[ 306 Pa. Super. Page 6]

This is an appeal from an order entering summary judgment. Plaintiff-husband suffers from silicosis. He and his wife have sued the companies that manufactured or supplied the products exposure to which caused his silicosis. The question is whether those companies may join plaintiff-husband's employers as additional defendants. The lower court held that the Act of December 5, 1974, P.L. 782, No. 263 § 6, 77 P.S. § 481, precludes joinder. We agree, and therefore affirm.

Plaintiff-husband worked in a steel foundry in Glassport, Pennsylvania, from April 1942 to July 1943, and after military service, from March 1946 until September 19, 1975, when he had to retire from work because of a disabling lung condition. Sometime later, either in October 1975, R. 13b-14b, or December 1975, R. 44b, he learned that his condition was silicosis caused by his exposure to silica and silicon dioxide in the foundry. On October 25, 1977, plaintiffs -- husband and wife -- filed a complaint in trespass and assumpsit against appellant and several other companies that had manufactured or supplied the products exposure to which caused his silicosis. Appellant filed a complaint to join appellees as additional defendants. Appellee Bucyrus-Erie Company is the current owner of the Glassport foundry, having purchased the foundry from appellee Textron, Inc., Pittron Division, in October 1974. Appellant's complaint alleged that as plaintiff-husband's employers, appellees were either solely liable, or to the extent that appellant was liable, liable for contribution or indemnity. After some intervening pleadings, appellees moved for summary judgment on the ground that the Act of December 5, 1974, P.L.

[ 306 Pa. Super. Page 7782]

, No. 263 § 6, 77 P.S. § 481, precluded their joinder. On June 22, 1981, the lower court granted their motions.

The Act of December 5, 1974, supra, 77 P.S. § 481, provides that an employee receiving workmen's compensation benefits from his employer may sue a third party for causing his injury, but his employer "shall not be liable to [the] third party for damages, contributions, or indemnity . . . ." Here, plaintiff-husband is receiving workmen's compensation benefits from appellee Bucyrus-Erie's carrier. Appellant acknowledges that if the Act applies, it precludes suit against appellees for damages, contribution, or indemnity, and that summary judgment in favor of appellees was therefore proper. Appellant argues, however, that the Act does not apply. The effective date of the Act was February 5, 1975, in other words, after most of plaintiff-husband's period of employment with appellees was over. In appellant's view, to apply the Act would be to make it retroactive in violation of the rule established in Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978).

In Bell v. Koppers, supra, the plaintiffs or their decedents were employed by the United States Steel Corporation at its Clairton Coke Works. Work there was conducted in close proximity to coke ovens designed, manufactured, or installed by Koppers Company, Allied Chemical Corporation, and Salem Corporation. The plaintiffs alleged that exposure over an extended period to substances emitted from these ovens had caused them or their decedents to develop lung cancer. It was agreed by all parties that "the injuries occurred before February 3, 1975." Id., 481 Pa. at 456, 392 A.2d at 1381. The plaintiffs filed suit on August 25, 1976, against the companies that had designed, manufactured, or installed the ovens. Koppers thereafter filed a third party complaint against United States Steel Corporation seeking contribution or indemnity. United States Steel filed preliminary objections contending that since it ...


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