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February 28, 1985

EUGENE R. KOHR, and ELAINE M. KOHR, his wife, BLEYER, EDITH aministratrix of the Estate of BLEYER, Clarence C., deceased and WHITMAN, ANNA MAE administratris of the estate of WITMAN [sic], Charles F., deceased and BOYLE, IRENE administratris of the Estate of KROUGH, Lillian deceased and the estate of KROUGH, John, CHARLES L. SOUDERS AND NANCY SOUDERS, h/w JOHN M. GAIDOS, SR. AND LENA S. GAIDOS, h/w ROBERT GERALD BROOKS, SR. AND DOROTHY E. WALTON, Administratrix of the Estate of ARTHUR L. WALTON, AND DOROTHY WALTON, on her on behalf, and EDDIE T. RICHARDSON, INTERVENOR-PLAINTIFFS

The opinion of the court was delivered by: TROUTMAN



 Defendant, Raymark Industries, Inc., employer or former employer of plaintiffs in the instant action has moved for summary judgment on what it perceives to be the remaining claim against it, that of intentional tort. *fn1" The motion, as originally filed, was essentially based on three arguments:

 1. That there is no evidence of intentional tort;

 2. That there is no cognizable intentional tort exception to the exclusivity provisions of the Workmen's Compensation/Occupational Disease Act under circumstances such as are alleged in the complaint in this case;

 3. That the complaint does not sufficiently aver such intentional conduct as would abrogate the exclusivity provision even if the intentional tort exception is viable under these circumstances.

 Before considering the merits of the motion, it is necessary that we engage in a short discussion of its proper procedural framework.

 Although defendant requests summary judgment, its motion is unsupported by affidavit, by deposition testimony, or by any other type of evidence allowed by Fed. R. Civ. P. 56(c). Consequently, the motion is not accurately designated, for, "While a motion for summary judgment may be based solely on the pleadings, it is then functionally equivalent to a motion to dismiss for failure to state a claim under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c). If a motion is directed solely to the pleadings, the movant admits the truth of his adversary's well-pleaded allegations but denies their sufficiency as a matter of law. And in ruling on such a motion the pleadings are to be liberally construed". 6 Moore's Federal Practice para. 56.11[1]. Thus, in the absence of evidence to support a defendant's motion for summary judgment, the Court accepts the averments of the complaint as true and the moving party is deemed to have admitted the truth of those averments. Plaintiff, therefore, need not produce its evidence because on this motion defendants can prevail only if the complaint is legally deficient. Here, however, plaintiffs have produced evidence or, as defendant contends, at least an offer of proof. Under usual circumstances, that in itself may be enough to defeat an unsupported motion for summary judgment by raising an issue of material fact. But we are presented here with an unusual situation. As counsel recognized at argument, the issue presented is complex and has in only a limited number of cases been addressed in either the courts of Pennsylvania or this District. Consequently, we believe it would do all parties a disservice to dispose of the motion on technical grounds. Instead, we will follow the procedure outlined in Moore, supra, and treat the motion as one in which the defendant is testing the legal sufficiency of plaintiffs' complaint, both in terms of whether the allegations are indeed "well-pleaded" and, more importantly, in terms of whether the complaint states a claim upon which relief may be granted in light of the exclusivity provisions of Pennsylvania's Workmen's Compensation Act. *fn2"

 In addressing the question whether and under what circumstances an intentional tort cause of action exists as to an employee seeking to sue his employer for an asbestos-related injury otherwise compensable under Pennsylvania's Workmen's Compensation/Occupational Disease Act, we begin by reviewing the few cases available on this issue. We have considered Chief Judge Luongo's opinion in Tysenn v. Johns-Manville Corp., et al., 517 F. Supp. 1290 (E.D. Pa. 1981), Judge Bechtle's opinion in Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357 (E.D. Pa. 1982), and Judge Hannum's opinion in Wilson v. Asten-Hill Manufacturing Co., et al., No. 79-332, slip op. (E.D. Pa. June 6, 1983). We have also examined the opinion of Judge Takiff, of the Philadelphia Court of Common Pleas, in the case of Anastasi v. Pacor, Inc., 7 Phila. County Reports 488 (1982) and his more recent opinion in the case of Getz v. Rohm & Haas, et al., No. 576 November Term, 1983, slip op. (Philadelphia Court of Common Pleas October 24, 1984). Although three of these cases held that the employee-plaintiffs were not entitled to pursue tort actions against their employers, those reaching the opposite result are not irreconcilable. *fn3" All agree on several general principles: the Workmen's Compensation Act was designed to be an exclusive remedy, supplanting tort recovery in employee injury cases; the Pennsylvania courts have recognized a limited exception to the general rule where the injury is the result of intentionally tortious conduct on the part of the employer and plaintiff bears a heavy burden in successfully bringing the allegations of the complaint within the "extremely narrow boundaries" of the exception. In fact, as noted in Getz, the results in the cases cited above in which plaintiffs were foreclosed from pursuing a common law tort action against their employers turned on the insufficiency of the complaints in alleging intentionally tortious conduct. Averments of willful, wanton or reckless conduct fail to state a cause of action under the intentional tort exception to the exclusivity provisions of the Compensation Act. Only allegations of actual and provable intent to injure the employee will suffice. Demonstrating that intent requires a showing that the employer desired to cause the injury or believed that the injury was substantially certain to result. See Neal at 379. Thus, even allegations of such deliberate actions as the knowing violation of safety statutes will not state a cause of action under the strict pleading requirements imposed by the courts. Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A. 2d 646 (1969).

 The judicially created intentional tort exception to the legislatively created exclusive remedy was developed in limited cases of discrete injury, such as assault upon an employee by his employer. Readinger v. Gottschall, 201 Pa. Super. 134, 191 A.2d 694 (1963). It is much more difficult to apply it to a "creeping disease" case. However, interpreting and analyzing Schneider v. Rohm & Haas, 23 D. & C. 3d 428 (C.C.P. Phila. 1982) and Neal, Judge Takiff recently articulated a standard for doing so. He reasoned that, given appropriate and sufficiently specific allegations, a "pattern of intentional, deliberate, egregious conduct by an employer which cannot be characterized as arising naturally in the course of employment" should bring a plaintiff within the admittedly narrow grounds of the exception. Getz, at 37. Judge Takiff's analysis appears to represent a reasonable and workable integration of the case law in the Pennsylvania courts and in this district, particularly if one applies his definition of the language and phrase "arising in the course of employment", as something which "occurs while the employee is doing the work which he is required to perform" (see Anastasi, supra, at page 498). Such a standard is more easily and rationally applied than one based on the nature of the injury, as defendant here urges, in that it focuses directly on the actions of the employer rather than on an attempt to distinguish between the initial injury and the aggravation thereof. *fn4" Moreover, it is a standard less likely to either swallow the exclusivity rule, a result clearly at odds with present Pennsylvania cases and federal cases in this district reflecting Pennsylvania law, or vitiate the exception. The employer's actions in exposing his employees to asbestos fibers is not such a deliberate act as would subject him to liability because it is conduct which arises naturally in the course of employment. On the other hand, consistent with Neal, a deliberate pattern of fraud and misrepresentation designed to induce plaintiffs to remain in the workplace despite the employer's actual knowledge of its hazardous nature is conduct which would subject him to liability under the intentional tort exception to the exclusivity provisions of the Workmen's Compensation/Occupational Disease Act.

 Adopting this standard is the beginning of our analysis of the issue as presented in the instant case, not the end of it, for proper pleading is highly essential to presenting a viable cause of action in tort against an employer. In this regard, we digress momentarily to address plaintiffs' argument that even if we find no cause of action in tort, their claims of post-employment failure to warn and extra-worksite exposure, not addressed by defendant's motion, would remain. Our investigation of the issue thus presented, whether or not an employee may pursue a remedy other than compensation against his employer, has revealed no exception to the exclusivity of the compensation scheme other than intentional tort. Therefore, all of plaintiffs' allegations against Raymark, however stated, must meet the intentional tort standards or recovery is foreclosed.

 Before examining the allegations of the complaint to determine whether plaintiffs properly allege such a pattern of deliberate, egregious conduct as would bring these plaintiffs within the intentional tort exception and thus allow them to maintain their action against Raymark, there are a few general observations to be made. The case law is unanimous in emphasizing that averments of intentionally tortious conduct on the part of an employer must be clear and specific. Although we are to construe a complaint liberally on a motion akin to one for dismissal and, as plaintiffs argued, notice pleading is the general rule in federal court, we must balance these considerations against the stringent pleading requirements imposed upon plaintiffs seeking to maintain a common law tort action against their employers in the state courts. We do not frequently confront a situation where the more liberal pleading standards prevailing in the federal courts may have a deleterious effect upon a state mandated statutory scheme. In accepting a judicially created exception to a state legislative scheme we risk expanding it beyond its judicially intended bounds if we apply usual notice pleading standards. Importantly, however, a requirement of specific pleading is not unknown to the federal courts, particularly where substantial public policy concerns are implicated. It has long been the rule in the Third Circuit, for example, that civil rights complaints brought pursuant to 42 U.S.C. § 1983 must be pled with factual specificity. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976).

 The situation here presented is in many ways similar to that faced by the federal courts when presented with civil rights claims against municipalities under § 1983. There, until the Supreme Court's decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), local governments were not considered "persons" for § 1983 purposes and hence were effectively immune from suit for civil rights violations. Since Monell, a plaintiff who alleges an unconstitutional custom or policy on the part of a local government may maintain an action for violations of his civil rights accomplished by the execution of that policy or custom. In the present case there is a legislative determination that compensation is an exclusive remedy for employment related injuries, effectively and similarly immunizing employers from tort liability. However, Pennsylvania courts now recognize a narrow exception to that rule for deliberate, egregious conduct of an employer not arising out of employment or related thereto. This exception is similar to the custom or policy exception to the prior rule of municipal immunity.

 As to the municipal immunity exception and based upon the important public policy of "weeding out" frivolous and insubstantial cases at an early stage of the litigation, this Circuit adopted, even prior to Monell, a requirement of fact pleading in civil rights cases. Thus, a complaint against a municipality under § 1983 must present allegations of municipal policy with sufficient factual specificity. See, Borenstein v. City of Philadelphia & Briggs, 595 F. Supp 853 (E.D. Pa. 1984). In Getz, Judge Takiff was concerned about the continued viability of the exclusivity rule in light of the intentional tort exception which he articulated. He adhered to strict pleading requirements consistent with the usual fact pleading standards in Pennsylvania courts. Recognizing the important public policy concerns underlying Judge Takiff's discussion of the pleading standards he outlined in Getz, we conclude that the situation here involved is even more compelling than the civil rights area for imposing specificity in pleading. Here we risk more than frivolous and insubstantial claims. There is in this situation the potential for creating a double standard of recovery for plaintiffs in federal and state courts if we recognize the exception to the exclusivity provisions of Pennsylvania's Workmen's Compensation/Occupational Disease Act but fail to also adopt the Pennsylvania courts' pleading standards when an employee seeks to assert an intentional tort action against his employer. The principle underlying the Federal Rules of Civil Procedure is that the purpose of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Under these circumstances only a requirement of factual specificity in pleading will vindicate that principle and accomplish the results dictated by Pennsylvania law.

 Turning now to the allegations of the complaint in this case, we consider first defendant's argument that only Count VI purports to state an intentional tort claim against Raymark. The averment there that defendant "deliberately, intentionally, willfully injured plaintiffs" is clearly insufficient under prior case law in this district, see, Tysenn at 1293, Wilson at 3, Neal at 379, as well as under the specific pleading standards we deem necessary for this type of case. In the first instance, it does not indicate the conduct of the employer to which plaintiffs refer. Insofar as it may be a claim that the employer exposed the plaintiffs to asbestos fibers it does not state a claim under the intentional tort exception as we have here defined it no matter what pleading standards are imposed. Beyond that, it fails to aver clearly and with factual specificity a pattern of intentional, egregious conduct on the part of the employer which injured the plaintiffs.

 Consistent with our obligations in construing a complaint on a motion to dismiss, however, we also examined the allegations of Count VII which apparently seeks to state claims for failure to warn, fraud and misrepresentation. The difficulties with Count VII are twofold: first, the allegations are not directed specifically to the conduct of employer but encompass the actions of all defendants; second, they are equivocal as to Raymark's actual knowledge of the dangers inherent in using asbestos products. In addition, we note that all the cases in which employee-plaintiffs were allowed to pursue tort actions against their employers involved situations where the employers themselves had hired experts to examine their own employees, or to examine the employees' work-related illness records, etc., but then chose to ignore the experts' conclusions and/or misrepresent such conclusions to the employees. See, Neal, Schneider and Getz. Such does not appear to be the case here. Even if we were to supplement the complaint by incorporating and considering the evidence plaintiffs supplied to the Court to support their opposition to the instant motion, we find only broad claims against all defendants for concealing information known generally in the industry, not claims specifically directed against Raymark for its conduct vis-a-vis its employees only. None of the allegations of this complaint, therefore, meet the strict, factually specific pleading requirements necessary to bring plaintiffs in this case within the narrow bounds of the intentional tort exception to the exclusivity provisions of the Workmen's Compensation/Occupational Disease Act.

 In hereafter entering an order dismissing employee-plaintiffs' claims against Raymark, their employer, which will be designated judgment for the defendant in the context of this motion, we are cognizant of the usual practice followed in these circumstances of giving plaintiffs the opportunity to amend their complaint. We do not deem that to be a viable alternative in this case at this time. It is now the eve of trial. Allowing an amendment to the complaint would certainly delay the trial of a seven-year-old case by twenty-one plaintiffs against ten defendants other than Raymark. As noted above, our careful examination of plaintiffs' offer of proof persuades us that an amendment would likely be futile in any event. *fn5"

 In summary, we recognize that a narrow intentional tort exception to the exclusivity provisions of Pennsylvania's workers' compensation scheme does exist through which an employee-plaintiff may assert a common law claim against an employer for an asbestos-related disease where he can show a pattern of deliberately egregious conduct not arising out of employment or related thereto. Liability on the part of an employer may not be based upon its conduct in exposing and continuing to expose its employees to asbestos, however, because such exposure arises out of employment and is subject to the exclusivity principles discussed. Other conduct of the employer which may support a cause of action must be alleged with factual specificity and must demonstrate that the employer took some action specifically directed against its own employees.


 AND NOW, this 28th day of February, 1985, upon consideration of defendant Raymark Industries, Inc.'s motion for summary judgment and/or for judgment on the pleadings, and plaintiffs' response thereto, and upon hearing oral argument, IT IS ORDERED that the motion is GRANTED and judgment is entered in favor of Raymark Industries, Inc. only, and against the plaintiffs.

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