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KURT KOSOWAN AND REGINA KOSOWAN v. MDC INDUSTRIES (09/16/83)

decided: September 16, 1983.

KURT KOSOWAN AND REGINA KOSOWAN, APPELLANTS,
v.
MDC INDUSTRIES, INC. AND HALL-WOOLFORD WOOD TANK COMPANY, INC.



No. 321 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 39 November Term, 1981.

COUNSEL

Charles S. Lieberman, Philadelphia, for appellants.

Jerome Gerber, Philadelphia, for MDC, appellee.

Earl T. Britt, Philadelphia, for Hall-Woolford, appellee.

Spaeth, Wieand and Hoffman, JJ.

Author: Wieand

[ 319 Pa. Super. Page 93]

Kurt Kosowan, an employee of Hall-Woolford Wood Tank Company, Inc. (Hall-Woolford), sustained personal injuries when he fell through a rotted portion of a wooden platform surrounding a water tank which his employer had contracted to dismantle. He and his wife filed an action in trespass against MDC Industries, Inc., the owner of the water tank, and also against Hall-Woolford. The trial court sustained preliminary objections in the nature of a demurrer filed by Hall-Woolford on grounds that an action by an employee against his employer is barred by Section 303(a) of the Workmen's Compensation Law of June 2, 1915, as amended,

[ 319 Pa. Super. Page 9477]

P.S. ยง 481(a). On appeal, Kosowan argues that Hall-Woolford should be subject to a common law tort action because it had negligently designed and installed the tank and platform whose "design, manufacture, assembly, inspection, testing, use, sale and maintenance" had caused a defective and unsafe condition.*fn1 We reject this argument and affirm the order entering judgment in favor of Hall-Woolford.

Preliminarily, we are constrained to observe that immunity from suit is an affirmative defense which, according to Pa.R.C.P. 1030,*fn2 must be pleaded as "New Matter" in

[ 319 Pa. Super. Page 95]

    an answer. See: Budzichowski v. Bell Telephone Company of Pennsylvania, 299 Pa. Super. 392, 395 n. 3, 445 A.2d 811, 812 n. 3 (1982); Mackey v. Adamski, 286 Pa. Super. 456, 466, 429 A.2d 28, 33 (1981); Turner Construction Company v. Hebner, 276 Pa. Super. 341, 347, 419 A.2d 488, 490 (1980). Kosowan, however, has not challenged the propriety of Hall-Woolford's use of preliminary objections to assert the defense of immunity from suit; and, therefore, he has waived the right to object. See: Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 54 (1980); Rufo v. The Bastian-Blessing Co., 417 Pa. 107, 114, 207 A.2d 823, 826 (1965); Swartz v. Masloff, 62 Pa. Commw. 522, 525, 437 A.2d 472, 474 (1981); Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commw. 313, 316, 379 A.2d 330, 332 (1977). Cf. Stein v. Richardson, 302 Pa. Super. 124, 139-140, 448 A.2d 558, 566 (1982).

Kosowan does not dispute that his injury arose within the course and scope of his employment and was directly related thereto. Rather, he contends that Hall-Woolford in the present situation possesses two separate identifies or capacities: (1) that of an employer which is immune from suit by virtue of the Workmen's Compensation Act; and (2) that of a seller of goods to the general public which enjoys no immunity from suit. He urges us to adopt the "dual capacity" doctrine and permit suit against Hall-Woolford in its capacity as manufacturer of a defective product. Under the dual capacity doctrine, recognized in a small minority of states, "'an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if ...


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