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FREDERICK HIGGINS v. CLEARING MACHINE CORPORATION (08/02/85)

filed: August 2, 1985.

FREDERICK HIGGINS, APPELLEE,
v.
CLEARING MACHINE CORPORATION, A DIVISION OF U.S. INDUSTRIES, INC., AND A. STEIERT & SONS, INC., APPELLANTS, V. KELSEY-HAYES COMPANY, HEINTZ DIVISION, APPELLEE



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

COUNSEL

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 ...


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