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KOSLOP v. CABOT CORP.

March 6, 1987

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

 William W. Caldwell, United States District Judge

 Introduction

 Presently pending are the cross-motions of plaintiffs and defendant for summary judgment pursuant to Fed. R. Civ. P. 56. These motions require us, once again, to interpret and apply the intentional tort exception to the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq. and the Occupational Disease Act, 77 P.S. § 1201 et seq. Under this exception, a plaintiff must show that his employer desired to cause the injury or believed that the injury was substantially certain to result. Asserting that conduct virtually identical to that of defendant in the instant action was held to constitute an intentional tort within the meaning of the exception in Neal v. Carey Canadian Mines Ltd., 548 F. Supp. 357 (E.D. Pa. 1982), aff'd sub nom. Van Buskirk v. Carey Canadian Mines Ltd., 760 F.2d 481 (3d Cir. 1985), plaintiffs contend that summary judgment should be entered in their favor on the issue of liability. Defendant argues to the contrary (1) that in light of the recent decision of the Third Circuit in Wilson v. Asten-Hill Mfg. Co., 791 F.2d 30 (3d Cir. 1986), plaintiffs' complaints must be dismissed for failure to state a claim, and (2), that in any event the evidence adduced by plaintiffs does not demonstrate that defendant intended to injure the plaintiffs. For the reasons which follow we will grant defendant's motion for summary judgment while denying plaintiffs' motions.

 Background

 The following facts are not in dispute. Defendant, Cabot Corporation, and its predecessors in interest, The Beryllium Corporation and Kawecki-Berylco Industries, Inc., operated a plant located near Hazleton, Pennsylvania, which produced beryllium metal from 1957 until 1981. Plaintiffs are former employees of defendant and its predecessors who allegedly contracted berylliosis as a result of having been exposed to beryllium dust and fumes during the course of their employment. *fn1" The inhalation of beryllium dust and fumes can cause chronic beryllium disease, an irreversible lung problem which may not manifest itself until many years after exposure. It may also cause an acute form of beryllium poisoning which can be cured over a short period of time with proper treatment.

 Because of the known dangers associated with beryllium, an industrial hygiene program was maintained at the Hazleton plant. Under the program, upon arrival at the plant each day, every employee was required to change into freshly laundered work clothes. At the end of each shift the employees were made to shower before changing into street clothing. The program also included a respirator program, ventilation equipment at sources of exposure and routine sampling of beryllium levels in the plant. In addition, a medical program was established for the employees consisting of a pre-employment chest x-ray, an annual chest x-ray during the course of employment and a final chest x-ray upon termination of employment. The x-rays were taken by independent consultants including the Commonwealth of Pennsylvania and Massachusetts General Hospital. From 1960 through 1974, any abnormalities discovered in the x-rays were reported either to the employee or his physician. From 1974 to 1980, Massachusetts General Hospital reported the results of its medical examinations to each employee directly, regardless of whether any abnormalities were found. Throughout their employment, plaintiffs tested negative for beryllium-related diseases.

 In May, 1979, Kawecki-Berylco Industries, Inc. announced that it was discontinuing its beryllium operations at the Hazleton plant. At that time, Richard Chamberlin, an industrial hygienist with extensive beryllium experience, advised both defendant and the employee's union (the Oil, Chemical and Atomic Workers' Union Local No. 8-837) that the medical program should be continued to monitor the employees' health after the plant was closed. The continuation of the medical program was considered by Mr. Chamberlin to be critical. Relying on this recommendation, the union attempted to have a continuing surveillance program incorporated in the final collective bargaining agreement. The defendant, however, refused the union's proposal and the following provision for medical benefits was provided in the 1980 agreement:

 
The parties in connection with the discontinuance of the beryllium portion of the Company's business at the Hazleton, Pennsylvania Plant have agreed that a physical examination, as previously established by the Massachusetts General Hospital Pulmonary Unit, will be provided for active employees on the payroll as of 5/30/80 and, on a voluntary basis, to all people who were on the payroll as of 5/26/79 and whose jobs were discontinued due to the phase-out of the beryllium manufacturing operations. During the term of this agreement, the physical examination will consist of a chest X-ray and a pulmonary function test performed by the Company, completion of a questionnaire supplied by Massachusetts General Hospital and an evaluation of data by Massachusetts General Hospital. The Company will reimburse reasonable diagnostic costs including medical, surgical, hospitalization, transportation, maintenance expenses and lost time with respect to employees suspected of having beryllium disease as a result of this physical examination.

 Discussion

 Failure to state a claim under the intentional tort exception

 Defendant initially argues that we should reconsider our prior decision in Koslop v. Cabot Corp., 631 F. Supp. 1494 (M.D.Pa. 1986) in which we denied defendant's motion to dismiss plaintiffs' amended complaints for failure to state a claim under the intentional tort exception. Asserting that our decision is inconsistent with the recent decision of the Third Circuit in Wilson v. Asten-Hill Mfg. Co., 791 F.2d 30 (3d Cir. 1986), defendant argues that plaintiffs' second amended complaints fail to set forth a claim within the intentional tort exception because the complaints do not allege that it was the purpose of defendant to injure plaintiffs. Plaintiffs, of course, contend that the Wilson decision does not affect the validity of our prior decision.

 In Wilson, four employees and their spouses brought suit against the former employer, alleging that they contracted asbestosis as a result of being exposed to asbestos fibers during their employment. Plaintiffs there further alleged that the defendant employer possessed medical and scientific data that clearly indicated that the inhalation of asbestos was unreasonably dangerous and carcinogenic, intentionally withheld scientific data and disseminated outdated scientific data, failed to provide warnings of the risks and failed to test products adequately. Defendant moved to dismiss the complaint, taking the position that plaintiffs' action was barred by the Pennsylvania Workmen's Compensation and Occupational Disease Acts. The district court granted defendant's motion and plaintiffs appealed. The Court of Appeals affirmed and held that plaintiffs' allegations, which did not allege that it was the purpose of defendant to injure them, did not fall within the intentional tort exception.

 Whether or not plaintiffs' allegations in the present case state a claim under the intentional tort exception is a difficult question. Unlike the plaintiffs in Wilson, plaintiffs have alleged more than the failure of their employer to protect them against the known risks involving beryllium. Here, plaintiffs assert that defendant withheld and misrepresented the results of yearly x-ray testing and intentionally ignored the recommendation of Mr. Chamberlain that a life time medical program be maintained for its former employees. Plaintiffs contend that these allegations establish the requisite intent to injure which was absent in Wilson. We, ...


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