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Shelly v. Asbestos Corp.

argued: June 2, 1986.

CHARLES SHELLY AND INA V. SHELLY, APPELLANTS V. JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, JOHNS-MANVILLE AMIANTE CANADA, INC. BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., TURNER & NEWALL, LTD., GAF CORPORATION, CAPE ASBESTOS, CAPE ASBESTOS, LTD., EGWEP, LTD., ASBESTOS TEXTILE INSTITUTE, RAYBESTOS-MANHATTAN, INC., SOUTHERN ASBESTOS COMPANY, KEENE CORPORATION, FIBERBOARD CORPORATION, CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION
v.
ASBESTOS CORPORATION, LTD., THIRD-PARTY DEFENDANT; THOMAS B. HUNTER, SR., AND MARY HUNTER, APPELLANTS V JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, JOHNS-MANVILLE AMIANTE CANADA, INC., BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., TURNER & NEWALL, LTD., GAF CORPORATION, CAPE ASBESTOS, CAPE ASBESTOS, LTD., EGWEP, LTD., ASBESTOS TEXTILE INSTITUTE, RAYBESTOS-MANHATTAN, INC., SOUTHERN ASBESTOS COMPANY, KEENE CORPORATION, FIBERBOARD CORPORATION, CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., THIRD-PARTY DEFENDANT; BRUCE L. NUNEMACHER AND ARLENE B. NUNEMACKER, APPELLANTS V. JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE AMIANTE CANADA, INC., BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., TURNER & NEWALL, LTD., GAF CORPORATION, CAPE ASBESTOS, CAPE ASBESTOS, LTD., EGWEP, LTD., ASBESTOS TEXTILE INSTITUTE, RAYBESTOS-MANHATTAN, INC. SOUTHERN ASBESTOS COMPANY, KEENE CORPORATION, FIBERBOARD CORPORATION, CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., THIRD-PARTY DEFENDANT; GEORGE E. GOOD AND SHIRLEY A. GOOD, APPELLANTS V. JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION JOHNS-MANVILLE AMIANTE CANADA, INC., BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., TURNER & NEWALL, LTD., GAF CORPORATION, CAPE ASBESTOS, CAPE ASBESTOS, LTD., EGWEP, LTD., ASBESTOS TEXTILE INSTITUTE, RAYBESTOS-MANHATTAN, INC., SOUTHERN ASBESTOS COMPANY, KEENE CORPORATION, FIBERBOARD CORPORATION, CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., THIRD-PARTY DEFENDANT; WARREN H. OYSTER AND ANNA MAE OYSTER, APPELLANTS V. JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, JOHNS-MANVILLE AMIANTE CANADA, INC., BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., TURNER & NEWALL, LTD., GAF CORPORATION, CAPE ASBESTOS, CAPE ASBESTOS, LTD., EGWEP, LTD., ASBESTOS TEXTILE INSTITUTE, RAYBESTOS-MANHATTAN, INC., SOUTHERN ASBESTOS COMPANY, KEENE CORPORATION, FIBERBOARD CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., THIRD-PARTY DEFENDANT; ALLEN D. PENWELL AND IRENE C. PENWELL, APPELLANTS V. BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., GAF CORPORATION, RAYBESTOS-MANHATTAN, INC., CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., TURNER & NEWALL, LTD., AND TURNER ASBESTOS FIBRES, LTD.; MILDRED REINCKE, ADMINISTRATRIX OF THE ESTATE OF GEORGE REINCKE, AND MILDRED REINCKE IN HER OWN RIGHT, APPELLANT V. BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., GAF CORPORATION, RAYMARK, INC., CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., TURNER & NEWALL, LTD., TURNER ASBESTOS FIBRES, LTD.; JETWOOD W. HENSEL AND MARY K. HENSEL, APPELLANTS V. BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., GAF CORPORATION, RAYBESTOS-MANHATTAN, INC., CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. TURNER & NEWALL, LTD, TURNER ASBESTOS FIBRES, LTD, C/O TURNER & NEWALL, LTD., C/O FAULKER HOUSE, C. TENANT & SONS COMPANY OF NEW YORK, RHODESIAN & GENERAL ASBESTOS CORPORATION, LTD., BRITISH METAL CORPORATION (SOUTH AFRICA PROPRIETY), LTD. FLINTKOTE COMPANY, ASBESTOS CORPORATION, LTD., ASBESTOS CORPORATION OF AMERICA; MELVIN F. GAINER AND LANNA GAINER, APPELLANTS V. BELL ASBESTOS MINES, LTD., LAKE ASBESTOS OF QUEBEC, LTD., CAREY-CANADIAN MINES, LTD., GAF CORPORATION, RAYBESTOS-MANHATTAN, INC., CASSIAR ASBESTOS CORPORATION, LTD., METROPOLITAN LIFE INSURANCE COMPANY, AND THE CELOTEX CORPORATION V. ASBESTOS CORPORATION, LTD., CAPE ASBESTOS S.A. (PVT) UNITED, LTD., FLINTKOTE COMPANY, JACQUAYS ASBESTOS CORPORATION, C. TENANT & SONS CO., TURNER & NEWALL, LTD., AND TURNER ASBESTOS FIBRES, LTD.



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 82-2730, D.C. Civil No. 82-2731, D.C. Civil No. 82-2732, D.C. Civil No. 82-2733, D.C. Civil No. 82-2734, D.C. Civil No. 83-0852, D.C. Civil No. 83-1933, D.C. Civil No. 83-4286, D.C. Civil No.84-4596.

Author: Becker

Before: GIBBONS, BECKER, and STAPLETON, Circuit Judges

BECKER, Circuit Judge.

Plaintiffs in these consolidated cases appeal from the district court's dismissal, pursuant to Fed. R. Civ. P. 12(c), of their common law asbestos personal injury claims. The district court held that the suits were barred by the exclusivity provisions of the Pennsylvania Workmen's Compensation and Occupational Disease Acts ("comp-bar"), which give employers immunity from common law suits by employees.*fn1 In so holding, the court rejected the plaintiffs' contention that they had pleaded a cause of action within the "intentional tort" exception to the comp-bar. We shall affirm on that point. However, because we also find that plaintiffs pleaded a cause of action within the "dual capacity" exception to the comp-bar, we shall reverse the judgment of the district court and remand the case for further proceedings.

I. Facts and Procedural History

Appellants, former employees of Raymark Industries, Inc., and their spouses, brought ten separate actions against Raymark in the United States District Court for the Eastern District of Pennsylvania. Each of the complaints alleged that plaintiffs had contracted asbestosis and/or mesothelioma, as a result of asbestos exposure to which they had been subjected by defendant.*fn2 According to the complaints, plaintiffs reside near Raymark's plant in Manheim, Pennsylvania. The complaints averred that Raymark's misconduct resulted in the release of asbestos throughout the community, so that plaintiffs were exposed to asbestos in the normal course of their lives away from the workplace, as well as during their employment.

On September 13, 1985, Raymark moved for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), in each of the ten cases, alleging that plaintiffs' sole remedies were through Pennsylvania's workmen's compensation scheme. To secure a uniform decision with respect to the motions, the Eastern District judges arranged for the ten cases against Raymark to be consolidated before a panel of six judges.*fn3

Defendant's memorandum accompanying its motion to dismiss stressed that plaintiffs had failed to state a cause of action within the intentional tort exception to the comp-bar. In a footnote, defendants asserted that plaintiffs also failed to state a cause of action within the dual capacity exception to the comp-bar. In their memorandum opposing the motion to dismiss, plaintiffs argued that their complaint stated a cause of action within the intentional tort exception. Their memorandum also included a section discussing their exposure to asbestos away from the workplace.

The district court granted defendant's motion to dismiss. Its opinion dealt exclusively with the intentional tort exception to the comp-bar, explaining why plaintiffs' claims failed to come within that exception. The court made no mention of the allegations of exposure away from the workplace or of the dual capacity exception. On appeal, plaintiffs raise two arguments: 1) that the district court erred in finding that plaintiffs failed to state a claim within the intentional tort exception to the comp-bar; and 2) that the district court ignored the fact that plaintiffs' allegations of exposure away from the workplace stated a cause of action under the dual capacity exception to the comp-bar.*fn4

There is no doubt that the district court correctly decided the intentional tort exception issue, for subsequent to its decision, this court held that under Pennsylvania law, suits virtually identical to those of plaintiffs did not state a claim within the intentional tort exception to the comp-bar. Wilson v. Asten-Hill Manufacturing Co., 791 F.2d 30(3d Cir. 1986). Wilson controls and requires that we affirm the district court's decision insofar as it held that plaintiffs did not state a claim within the intentional tort exception. Therefore, the remaining issue in this case is whether the allegations in the complaint concerning plaintiffs' exposure to asbestos away from the workplace stated a claim within the "dual capacity" exception to the comp-bar, first applied in the Pennsylvania Supreme Court case of Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).

II. The Dual Capacity Doctrine Under Pennsylvania Law

In Tatrai, supra, a hospital employee became ill while on the job and went to the hospital emergency room to seek medical attention. The foot stand of the X-ray table on which she was perched in the emergency room was loose, and she fell. When Ms. Tatrai sued the hospital, it pleaded the comp-bar defense. The opinion of the court, written by Justice Nix, held for plaintiff on the ground that, because her injury was not suffered in the course of employment, she was not eligible for workmen's compensation, hence the comp-bar did not apply. However, none of the other justices on the court joined Justice Nix's opinion. Rather, Justice Roberts wrote a concurring opinion, joined by three justices,*fn5 that supported plaintiff on a somewhat different basis. Justice Roberts essentially invoked the "dual capacity" doctrine:

In holding itself out to the public as a provider of medical services, appellee hospital owed a duty to all its patients. There is no basis for distinguishing appellant, a paying customer, from any other member of the public injured during the course of treatment.

Id., 497 Pa. at 255, 439 A.2d at 1166 (Roberts, J., concurring). Under this theory, plaintiff's eligibility for workmen's compensation was simply irrelevant. Id., 497 Pa. at 257, 439 A.2d at 1168. She was suing not as an ...


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