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KOSLOP v. CABOT CORP.

November 18, 1985

RAYMOND KOSLOP, Plaintiff
v.
CABOT CORPORATION, Defendant; JOHN HLUDZIK, Plaintiff v. CABOT CORPORATION, Defendant; CHARLES TRUSKY, Plaintiff v. CABOT CORPORATION, Defendant; ROBERT P. DUNSTAN, Plaintiff v. CABOT CORPORATION, Defendant; RAYMOND PETRUNCIO, Plaintiff v. CABOT CORPORATION, Defendant; ALFRED F. MATUSICK, Plaintiff v. CABOT CORPORATION, Defendant



The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 Defendant has moved pursuant to Fed. R. Civ. P. 12(b) to dismiss plaintiffs' complaints. Plaintiffs, former employees of defendant, Cabot Corporation, brought this action against defendant for damages allegedly resulting from the contraction of berylliosis during their employment. The complaint is divided into four counts alleging (1) strict liability, (2) wanton and reckless conduct, (3) products liability and (4) intentional conduct. Defendant argues that this action is barred by the exclusive remedy provisions of the Pennsylvania Occupational Disease Act, *fn1" 77 P.S. § 1208 and the Workmen's Compensation Act, 77 P.S. § 481(a). Plaintiffs maintain that their action is not barred because it states a cause of action (1) under the intentional tort exception to the Workmen's Compensation Act and (2) under the dual capacity doctrine.

 II. Background.

 Plaintiffs are former employees of Cabot Corporation and its predecessor Kawecki Berylco Industries and have been diagnosed as suffering from berylliosis. Plaintiffs contend that their condition is the direct result of having been exposed to beryllium while employed by defendant. Generally, plaintiffs allege that defendant was aware of dangers connected with the use of beryllium and failed to take appropriate safety measures to protect its employees. More specifically, they contend that defendants (1) were in violation of health and safety standards regarding the processing of beryllium, (2) failed to warn plaintiffs of the known health risks of beryllium and (3) ignored certain health and safety recommendations made by hired consultants.

 III. Discussion.

 When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b), we must accept all allegations in the complaint as true, and construe the facts set forth in the light most favorable to plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n.3, 64 L. Ed. 2d 572, 575 n.3, 100 S. Ct. 1920, 1921 n.3 (1980); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir. 1977). With this in mind we will address the issues raised by defendant.

 A. The Intentional Tort Exception.

 Plaintiff asserts the complaint states a cause of action under the intentional tort exception. Defendant argues that the remedy provided in the Pennsylvania Workmen's Compensation Act is plaintiffs' exclusive remedy and that 1972 amendments to the Act eliminated the intentional tort exception. We disagree.

 The Workmen's Compensation Act provides in pertinent part:

 
(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, 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) or occupational disease as defined in section 108. (footnotes omitted)

 77 P.S. § 481(a).

 Despite the apparent intent of this section to exclude other remedies, a narrow exception for intentional torts was carved out. In Readinger v. Gottschall, 201 Pa. Super. 134, 191 A.2d 694 (1963) an employee, who was attacked by his employer, was permitted to bring an action against his employer because intentional torts were not within the purview of the Workmen's Compensation Act. The continued validity of the Readinger exception was called into question when the Workmen's Compensation Act was amended in 1972. *fn2" Defendant, citing Glendening v. United Parcel Service, Inc., 11 Phila. County Rptr. 246 (1984); Hogey v. Morello Excavating Co., 28 D&C 3d 451 (1984), Davis v. Dow Chemical Co., 24 D&C 3d 321 (1981), contends that the 1972 amendments eliminated the intentional tort exception.

 While we recognize that defendant's position has some merit, we find that the weight of authority supports the continued recognition of the intentional tort exception. At least one Pennsylvania appellate court has continued to apply this exception. In Jones v. P.M.A. Insurance Co., 343 Pa. Super. 411, 495 A.2d 203 (1985), the court stated that "the exclusive protection provided by the [Workmen's Compensation] Act does not exclude a suit for an intentional tort." Id. at , 495 A.2d at 204. Additionally, several trial courts have recognized the exception. In Getz v. Rohm & Haas, No. 576 (C.P. Phila. County, Oct. 24, 1984) the court, after a lengthy discussion ...


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