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KOSLOP v. CABOT CORP.

April 10, 1986

RAYMOND KOSLOP (CA No. 85-0936); JOHN HLUDZIK (CA No. 85-0937); CHARLES TRUSKY (CA No. 85-0938); ROBERT P. DUNSTAN (CA No. 85-0939); RAYMOND PETRUNCIO (CA No. 85-0940); and ALFRED F. MATUSICK (CA No. 85-1267), Plaintiffs
v.
CABOT CORPORATION, Defendant



The opinion of the court was delivered by: CALDWELL

CALDWELL, U.S.D.J.

 M E M O R A N D U M

 I. Introduction.

 Defendant, Cabot Corporation, has filed a motion to dismiss plaintiffs' second amended complaints in accordance with Fed. R. Civ. P. 12(b)(6). By our order and memorandum of November 18, 1985, Koslop v. Cabot Corp., 622 F. Supp. 222 (M.D. Pa. 1985), we granted plaintiffs leave to amend their complaints to allege additional facts in support of their claim under the intentional tort exception to the Pennsylvania Workmen's Compensation Act, 77 P.S. ยง 1 et seq. (Purdon's Supp. 1985). *fn1" The issue presented by defendant's motion to dismiss is whether the amended complaints state a cognizable claim under the intentional tort exception. For the reasons which follow, we will deny defendant's motion to dismiss.

 II. Background.

 Plaintiffs have been diagnosed as suffering from berylliosis, a condition which they allege is the result of unreasonable exposures to beryllium during the course of their employment for defendant's predecessor, Kawecki-Berylco Industries ("KBI") at its Hazleton plant. Plaintiffs' allegations can be broken down into two major claims. First, plaintiffs maintain that KBI discovered through certain x-ray results that there was an occupational risk of contracting beryllium related diseases and that KBI suppressed this information knowing that serious injuries to plaintiffs were substantially certain to occur in the future. In this regard, plaintiffs allege that KBI hired a medical specialist to conduct chest x-rays on the employees at the Hazleton plant every six months. These x-rays revealed that approximately twenty (20) percent of the Hazleton employees were suffering from some form of beryllium illness. Despite this knowledge, defendant is charged with intentionally withholding this information from its employees. Plaintiffs further allege that requests for the results made by some plaintiffs were met with either denials or misinformation.

 Second, plaintiffs assert that defendant intended to injure them by ignoring the recommendation of a health and safety consultant that the employees at the Hazleton plant be placed under a program of medical surveillance. More specifically, they claim that Dr. Richard Chamberlain of the Massachusetts Institute of Technology was hired by KBI in 1972 to monitor conditions at the Hazleton plant and to make health and safety recommendations. After additional x-rays and blood testing was performed by a medical team from the Massachusetts General Hospital, beryllium related diseases were discovered. These conditions had existed for a number of years and were obvious in the x-rays referred to in the preceding paragraph. A surveillance program was then instituted which consisted of extensive medical testing once every three years. This program commenced in 1972 and lasted until 1980 when the Hazleton plant was closed. Plaintiffs, however, were not informed about the necessity of continuing such a program in the future.

 III. Discussion.

 When ruling on a motion to dismiss a complaint pursuant to Fed. R. Civ. P. 12(b), we must accept all allegations in the complaint as true, and must construe the complaint liberally in the light most favorable to the plaintiffs. 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 these principles in mind we will address the issues raised by defendant.

 As we noted in our previous memorandum, an employee may recover from his employer under Pennsylvania law for an intentional tort if that employer deliberately injures the employee. Koslop, supra at 224-25. In order to state a cause of action under the intentional tort exception plaintiffs' allegations must be made "with factual specificity and must demonstrate that the employer took some action specifically directed against its own employees." Kohr v. Raybestos-Manhattan, Inc., 626 F. Supp. 20 (E.D. Pa. 1985). Plaintiffs must assert more than an employer's awareness of dangerous conditions at the worksite. Shelly v. Johns-Mansville Corp., No. 82-2730 (E.D. Pa. Oct. 28, 1985). "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." Kohr, at 26.

 A. Withholding of X-ray Results.2

 Citing Tichy v. Asten Hill Manufacturing Co., No. 2364 (C.P. Phila. County June 27, 1985) defendant asserts that plaintiffs' claim that KBI purposely withheld the results of chest x-rays to the detriment of plaintiffs are insufficient to come within the intentional tort exception. In Tichy, the plaintiff alleged, inter alia, that defendant distorted or misdiagnosed the results of medical examinations conducted upon workers such as plaintiff. Finding that these allegations were inadequate, the court stated:

 
this allegation does not fall into the narrowly defined exception created by precedent since plaintiff does not allege that the results of medical examinations actually conducted on her deceased husband were intentionally distorted or misdiagnosed by her husband's employer - and its medical staff under its direction - in order to conceal the existence ...

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