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WILLIAM B. KLINE AND RENEE KLINE v. ARDEN H. VERNER COMPANY (12/30/83)

decided: December 30, 1983.

WILLIAM B. KLINE AND RENEE KLINE, APPELLANTS,
v.
ARDEN H. VERNER COMPANY, ARDEN H. VERNER, ARDEN H. VERNER COMPANY, INC. AND ARDEN H. VERNER T/A PAINTERS, INC. AND T/A PAINTERS INC., APPELLEES



No. 18 W.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court of Pennsylvania, at No. 832 Pittsburgh, 1981, affirming the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 80-14068, Pa. Super. , Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a concurring opinion. Larsen, J., files a dissenting opinion.

Author: Mcdermott

[ 503 Pa. Page 253]

OPINION

Appellant, a painter, was injured in the course of his employment. He fell from a ladder suffering pelvic injuries that rendered him impotent. He applied for and received Workmen's Compensation benefits for the month he was disabled. Denied benefits by the Workmen's Compensation Board for the resulting impotency, he filed suit against his employer, alleging negligent conduct by a fellow employee as the cause of the injury. The trial court granted summary judgment and upon appeal to the Superior Court, 307 Pa. Super. 573, 453 A.2d 1035, was unanimously affirmed. We agree.

The Workmen's Compensation Act*fn1 provides the exclusive means by which a covered employee can recover against an employer for injury in the course of his employment. Appellant contended he is entitled to maintain an action against his employer because his injury is not covered by workmen's compensation. He argued that the exclusivity provision of the Workmen's Compensation Act, 77 P.S. ยง 481(a) offends Article I, Section 11 of the Pennsylvania Constitution guaranteeing that all should have access to the courts to remedy wrongs.

[ 503 Pa. Page 254]

In Scott v. C.E. Powell Coal Co., 402 Pa. 73, 166 A.2d 31 (1960) we held that the exclusivity clause denied recovery against an employer for injury resulting in loss of taste and smell. In Hartwell v. Allied Chemical Corp., 457 F.2d 1335 (3rd Cir.1972), the Third Circuit, applying Pennsylvania law, held that disfigurement, not covered by workmen's compensation, provided no remedy against an employer. Consistent with a plain reading of the Act, its intent and purpose, we have held that workmen's compensation is the exclusive remedy for job related injuries.

While we have not hitherto addressed the constitutionality of the exclusivity clause, we have touched the perimeter with cases so analogous as to leave little room for question.

In Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), when appellant argued that the No Fault Act*fn2 deprived him of his right of access to the courts, we held that "Nothing in Article I, Section 11 prevents the legislature from extinguishing a cause of action." 464 Pa. at 400, 346 A.2d at 903. In Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978), we held that delaying access to trial by jury by arbitration was constitutional because the power of the legislature to abolish a cause of action certainly included the power to create a preliminary administrative remedy. In Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), we cited Singer, supra, for the proposition that no one "has a vested right in the continued existence of an immutable body of negligence law . . . . The practical result of a contrary conclusion would be the stagnation of the law in the face of changing societal conditions." Singer v. Sheppard, supra, 464 Pa. at 399, 346 A.3d at 903.

In Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980) we addressed a similar provision of the Workmen's Compensation Act, immunizing employers from indemnity or contribution actions by third parties. We said that the "purpose of this kind of legislation was to restrict

[ 503 Pa. Page 255]

    the remedy available to an employee against the employer to compensation, and to close to the employee, and to third parties, any recourse against the employer in tort for negligence." 488 Pa. at 519, 412 A.2d at 1097.

To change, alter or abolish a remedy lies within the wisdom and power of the legislature and in some instances, the courts. Access to a tribunal is not denied when the tribunal has no jurisdiction to entertain either the claim or the remedy. Time and circumstances require new remedies to adjust to new and unforeseen losses and conditions. To do so, facets of the society often require new immunities or larger responsibility, as the legislature may determine. The workmen's compensation law has deprived some of rights in exchange for surer benefits, immunized some, to make possible resources to benefit many, who where heretofore without possible or practical remedies.

Appellant cites Dolan v. Linton's Lunch, 397 Pa. 114, 152 A.2d 887 (1959). The analogy is inapposite simply because the workmen's compensation law does not address losses incurred by intentional injury by employee or employer. We said there only that a denial of right of access to the courts for existing common law actions might violate Article I, Section 11 without providing some statutory remedy. The instant case, however, is very different. Here, the injury suffered was clearly within the scope of the Act and the appellant was fully compensated under the Act. As this Court stated in Dolan, "[T]he substituted remedy need not be the same." As the Dolan decision rested comfortably on the language of the Act, the discussion of the possible effect of Article I, Section 11 was dicta, dicta that was subsequently repudiated. See, Freezer Storage, Inc. ...


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