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filed: August 2, 1985.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, at No. 1155 August Term, 1980.


Joseph F. Van Horn, Jr. and Robert P. Corbin, Philadelphia, for appellants.

William F. Sweeney, Philadelphia, for appellee.

McEwen, Del Sole and Montemuro, JJ.

Author: Montemuro

[ 344 Pa. Super. Page 326]

Before us is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of Kelsey-Hayes Company, Heintz Division ("Kelsey-Hayes"), appellee herein and additional defendant below, and dismissing Kelsey-Hayes from the instant action. The issue before us concerns to what extent the Pennsylvania Workmen's Compensation Act ("Act")*fn1 insulates Kelsey-Hayes, as an additional defendant, from common law liability, on a claim of the original defendants, for allegedly "intentional, wanton and willful" conduct resulting in serious injury to an employee.

Frederick Higgins, plaintiff below*fn2 and an employee of Kelsey-Hayes, was injured on February 14, 1979, while operating a punch press in the regular course of his employment. On August 11, 1980, Higgins filed a complaint in trespass against appellants, Clearing Machine Corporation ("Clearing Machine"), the manufacturer of the punch press, and A. Steiert and Sons, Incorporated ("Steiert"), the supplier of a die that was on the punch press at the time of Higgins' injury. Subsequent to filing its answer, appellant Steiert petitioned and was granted leave to join Kelsey-Hayes as an additional defendant. Both appellants filed complaints against Kelsey-Hayes alleging its negligence, to

[ 344 Pa. Super. Page 327]

    which Kelsey-Hayes responded in its answer by raising various affirmative defenses. Thereafter, following leave of the court below, both appellants amended their complaints to allege the "intentional, wanton and willful" nature of Kelsey-Hayes' conduct. Kelsey-Hayes' preliminary objections in the nature of a demurrer were sustained by the court below in an order dated May 23, 1984. This appeal followed.

We note that, in reviewing the arguments presented, we have been mindful of the following analytical guidelines:

"Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom. Conclusions of law, however, are not admitted by a demurrer. It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks. If the plaintiff does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action." Cunningham v. Prudential Property & Casualty Insurance Co., 340 Pa. Super. 130, 133, 489 A.2d 875, 877 (1985) (citations omitted).

Acme Markets, Inc. v. Valley View Shopping Center, Inc., 342 Pa. Super. 567, 569-570, 493 A.2d 736, 737 (1985).

For the purposes of this appeal, we accept as true, by admission, the following allegations contained in appellants' amended complaints: (1) Prior to the incident giving rise to the instant litigation, there were at least two incidents involving injuries to punch press operators at Kelsey-Hayes' facilities, resulting from a lack of appropriate equipment safeguards; (2) Kelsey-Hayes was fully aware, prior to Higgins' injury, that the operation of the unguarded punch press constituted a violation of the pertinent Occupational Safety and Health Administration ("OSHA") provisions and/or regulations; (3) Notwithstanding the foregoing, Kelsey-Hayes

[ 344 Pa. Super. Page 328]

    permitted Higgins to operate an unguarded punch press; and (4) The cause of Higgins' injury was the "intentional, wanton and willful" conduct of Kelsey-Hayes.*fn3

Regarding the exclusivity of the remedies provided by the Act, the Act itself states:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. §§ 411(1), (2)] or occupational disease as defined in section 108 [77 P.S. § 27.1].

As defined by the Act, 77 P.S. § 411(1), the "terms 'injury' and 'personal injury' . . . shall be construed to mean an injury to an employe . . . arising in the course of his employment and related thereto, . . . ." Within the same section, the Act further expressly provides:

The term "injury arising in the course of his employment," as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere . . . .

Appellants argue that, despite the exclusivity of the Act's remedies, Kelsey-Hayes may be found liable at common law

[ 344 Pa. Super. Page 329]

    for an injury caused by its "intentional, wanton and willful" conduct.

Appellants rely heavily upon a 1963 decision of this court, viz., Readinger v. Gottschall, 201 Pa. Super. 134, 191 A.2d 694 (1963). In Readinger, the plaintiff/appellee was physically assaulted by her employers while she attempted to collect wages due her following notice of her discharge. Prior to certain amendments to the Act in 1972, the Act provided for compensation to employees injured by an accident occurring in the course of employment. Relying upon that language, and upon sister states' interpretations of similar language, this court reasoned, "The word 'accident' itself is nowhere defined in the act but its language, covering only injury or death 'by an accident' indicates no intention that deliberate injury to an employe by his employer is intended to be covered." Id., 201 Pa. Superior Ct. at 138, 191 A.2d at 696. In Readinger, we concluded that the employers' deliberate assault was not an "accident" and was therefore actionable at common law.

In Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A.2d 646 (1969), our supreme court considered whether a cause of action in trespass was presented by allegations that, due to an employer's "willful and unlawful" violation of safety provisions, an employee was killed while operating an unguarded conveyor system. The Evans court stated, "[W]e have often held . . . that even where neglect of a statutory duty is alleged, the employee's only remedy is under the Workmen's Compensation Act." Id., 433 Pa. at 598, 252 A.2d at 648.

Clearly, prior to 1972, Pennsylvania recognized the existence of a common law right of action when an employer deliberately assaulted an employee. Readinger, supra. However, a claim premised upon an employer's willful neglect of safety regulations was subject to the Act's exclusive remedy provisions. Evans, supra. Readinger and Evans should not be viewed as inconsistent simply because both involved an employer's deliberate or willful conduct. In Readinger, the employee was intentionally assaulted

[ 344 Pa. Super. Page 330]

    while, in Evans, the alleged intentional conduct was the employer's neglect of safety requirements. The employee's death, in Evans, was still presumptively accidental although the Evans rationale did not expressly turn on any accidental/nonaccidental distinction.

In 1972, the legislature amended the Act so as to eliminate any requirement that a compensable injury be occasioned by an accident. As was noted in Hinkle v. H.J. Heinz Company, 462 Pa. 111, 116 n. 4, 337 A.2d 907, 910 n. 4 (1975):

As the injury to Hinkle was allegedly incurred prior to May 1, 1972, the effective date of the 1972 Amendments to the Workmen's Compensation Act, Act of March 29, 1972, P.L. 105, Hinkle was required to prove the occurrence of an 'accident' within the meaning of Section 301(c), 77 P.S. § 411. The 1972 Amendments removed the necessity of proving an 'accident' in order to be eligible for compensation. Thus, for all injuries incurred on or after May 1, 1972, it will only be necessary to prove an 'injury arising in the course of . . . employment.' Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1). Cf. Universal Cyclops Steel Corporation v. Krawczynski, 9 Cmwlth. 176, 305 A.2d 757 (1973).

As amended, the Act provides compensation for injuries "arising in the course of . . . employment." Kelsey-Hayes argues herein that the 1972 amendments to the Act cast doubt on the continued validity of Readinger, supra, i.e., an employer's intentional tortious conduct resulting in nonaccidental injury is no longer actionable outside of the Act. See Hogey v. Morello Excavating Company, Inc., 28 Pa.D. & C.3d 451 (1984). Kelsey-Hayes contends that the only current exception to injuries "arising in the course of . . . employment", which are compensable under the Act, are injuries "caused by an act of a third person intended to injure the employe because of reasons personal to him, and

[ 344 Pa. Super. Page 331]

    not directed against him as an employe or because of his employment." 77 P.S. § 411(1)*fn4

While Kelsey-Hayes may indeed be correct in so interpreting the impact of the 1972 amendments upon cases involving employers' intentional tortious acts directed against employees, we see no need for expressly adopting that interpretation at this juncture.*fn5

Kelsey-Hayes' alleged "intentional, wanton and willful" conduct herein comprises its repeated violation of safety regulations and its neglect of a known dangerous condition. Clearly, these allegations should properly be aligned with those presented to our supreme court in Evans, supra. No allegation is made that Kelsey-Hayes intended to injure Higgins. Any "intent" on their part develops out of their knowing failure to provide a safe workplace. We view this case as controlled by the language in Evans reiterating that "even where neglect of a statutory duty is alleged, the employee's only remedy is under the Workman's Compensation Act." Evans, 433 Pa. at 598, 252 A.2d at 648. Cf. Weldon v. Celotex Corporation, 695 F.2d 67 (3d Cir. 1982); Ulicny v. National Dust Collector Corporation, 391 F.Supp. 1265 (E.D.Pa. 1975).

Furthermore, applying the standard for determining the compensability of an injury under the Act, as set forth in Hinkle, supra, we are satisfied that the injury sustained herein arose "in the course of . . . employment."

[ 344 Pa. Super. Page 332]

Based on the foregoing, we conclude that the appellants herein have failed to state a cause of action upon which relief may be granted.*fn6

Order affirmed.

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