or for summary judgment must be granted. Unless Pittsburgh-Corning can avoid the operation of section 303(b) as a bar to its first, second, fifth, sixth, seventh, and eighth claims for relief, those claims are barred.
Having decided that PWCA's exclusion can apply to the United States, I must decide whether it does apply under the circumstances of this case. This requires consideration of two theories which might be raised in order to avoid section 303(b)'s prohibition of actions against an employer. I now turn to these two theories.
1. Injury now in the course of employment
Section 303(b) only bars suits against employers based upon "injury or death to an employe. . . ." Pa.Stat.Ann. tit. 77, § 481(b). (Purdon Supp.1983). Section 303(a) defines "injury or death to an employe" by reference to section 301(c), Pa.Stat.Ann. tit. 77, § 411 (Purdon Supp.1983). Section 301(c)(1) defines "injury" "to mean an injury to an employe . . . arising in the course of his employment and related thereto. . . ." Id., § 411(1). Section 301(c)(2) provides in part that "the terms 'injury, ' 'personal injury, ' and 'injury arising in the course of his employment, ' used in this act, shall include, unless the context clearly requires otherwise, occupational disease as defined in section 108 of this act. . . ." Id., § 411(2).
Plaintiff alleges that he was exposed to asbestos fibers manufactured or distributed by defendants in the course of his employment at the Philadelphia Naval Shipyard from August 11, 1958, until the present. Complaint para. 7. As a result of this exposure, Mr. Colombo alleges that he has contracted or may contract asbestosis, lung cancer, mesothelioma, and other unspecified injuries. "Asbestosis and cancer resulting from direct contact with, handling of, or exposure to the dust of asbestos in any occupation involving such contact, handling or exposure" constitute occupational disease within the meaning of section 108 of PWCA. Pa.Stat.Ann. tit. 77, § 27.1(l) (Purdon Supp.1983). Accordingly, Mr. Colombo has alleged an injury in the course of his employment for purposes of section 303(b). Presumably for this reason, neither Pittsburgh-Corning nor Eagle-Picher has suggested that their claims do not fall within section 303(b) because Mr. Colombo's injury was not in the course of his employment.
2. Dual Capacity
Under the "dual capacity" doctrine, an employer "may become liable to an employee for actions undertaken in an additional and separate capacity from that of an employer." Weldon v. Celotex Corp., 695 F.2d 67, 71 (3d Cir.1982); see also 2A Larson, Workmen's Compensation Law § 72.80 (1983); Annot., 23 A.L.R. 4th 1151 (1983). In Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982), the Pennsylvania Supreme Court appears to have accepted the view that PWCA's exclusivity provision might not bar some suits by an employee against his employer because the latter acted in a nonemployer capacity when it caused the employee's injury. The question presented here is whether, in a hypothetical law suit identical in all respects with the one at bar except that plaintiff's employer is a private shipyard, a Pennsylvania court would read Tatrai as permitting Pittsburgh-Corning to pursue a third-party claim against the shipyard.
Tatrai involved a suit by a hospital employee against the hospital. Ms. Tatrai became ill while at work. No doctor was available at the Employee Health service, so Ms. Tatrai was instructed to go to the hospital's emergency room. She received treatment there for which the hospital billed Blue Cross; the hospital thus followed the procedure it customarily pursued with respect to paying patients. While in the emergency room, Mr. Tatrai was injured when a table collapsed. She brought an action against the hospital for damages for the resulting injuries. The Pennsylvania Supreme Court held
that Ms. Tatrai could proceed with her claim against her employer because "there is no basis for distinguishing appellant, a paying customer, from any other member of the public injured during the course of treatment." 439 A.2d at 1166.
In Budzichowski v. Bell Telephone Co. of Pa., 503 Pa. 160, 469 A.2d 111 (1983), the Pennsylvania Supreme Court rejected an employee's claim that the telephone company acted in a "dual capacity" when it provided medical care for him at the company's dispensary. "The treatment received by appellant at the Bell dispensary was not available to the general public and would not have been available to appellant but for his employment relationship with Bell. . . . Bell was not operating in a 'dual capacity, ' but rather only in its capacity as employer of appellant." 469 A.2d at 115.
The United States takes the position that these decisions of the Pennsylvania Supreme Court, and subsequent decisions of other courts applying them, have no relevance for its motion to dismiss. The United States takes the position that because the United States Supreme Court has rejected the dual capacity doctrine in certain employee suits against the United States under FECA or LHWCA, that doctrine cannot apply here. This position misconceives the inquiry. Mr. Colombo has not sued the United States, his former employer. In a suit by Mr. Colombo, FECA's exclusivity provision would apply and federal law would determine whether FECA permits suits against the United States under the dual capacity theory. In this case, however, FECA's exclusivity provision does not apply, as the Supreme Court held in Lockheed. The governing law is the Pennsylvania law of dual capacity, made applicable by the FTCA to the United States.
Pittsburgh-Corning's first and second claims for relief attempt to impose liability upon the United States in its capacity as a seller of raw asbestos. Judge Takiff has rejected the argument that an employee of an asbestos producer could sue his employer in his capacity as the manufacturer of the asbestos products to which the employee was exposed. Judge Takiff reasoned:
Product malfunction or defect causing employee injury while engaged in the course of the employer's business may well be a breach of the employer's duty to provide a safe working environment. Consequently, that an employer happens to be the manufacturer of an allegedly defective product used by the employee in the workplace in the very performance of the work for which he was engaged should not take the employer outside the compensation mechanism; it is a coincidence which does not disturb the fundamental obligations and expectations arising between employer and employee.