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STEPHEN POYSER v. NEWMAN & COMPANY (03/17/87)

decided: March 17, 1987.

STEPHEN POYSER, APPELLANT,
v.
NEWMAN & COMPANY, INC., APPELLEE



Appeal form Judgment of Superior Court dated April 4, 1985 at No. 1863 Philadelphia 1984, affirming the Order of the Court of Common Pleas of Philadelphia County at No. 4329, December Term 1983, dated June 13, 1984, Pa. Super , 495 A.2d 620 (1985).

COUNSEL

Mark I. Bernstein, Steven Martin, Eugene Mattioni, Philadelphia, for Amicus -- "former employees".

Blake E. Dunbar, Jr., Edward J. Tuite, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Nix

[ 514 Pa. Page 33]

OPINION

This appeal had its legal genesis in a trespass action which the appellant, Stephen Poyser, filed in the Court of Common Pleas of Philadelphia County against his employer, Newman & Company, Inc. ("Newman"). By that lawsuit

[ 514 Pa. Page 34]

    appellant sought to recover damages for a physical injury he suffered while in the course of his employment. The action was grounded partly on a claim of products liability under section 402A of the Restatement (Second) of Torts (1965), and partly on a theory that Newman had caused appellant's injury by willfully disregarding governmental safety regulations and by deliberately exposing him to a known hazard. Newman responded to the suit with an Answer containing New Matter which alleged that the injuries and other losses sustained by the appellant were covered by Newman's workmen's compensation insurance policy, and further asserted that the trespass action was barred by the "exclusivity" provision in section 303(a) of The Pennsylvania Workmen's Compensation Act ("Act").*fn1 Appellant followed with a Reply in which he denied generally the applicability of the asserted statutory bar, but admitted that he had received payments from the employer's insurance carrier.*fn2 After the close of the pleadings, Newman moved for judgment on the pleadings, based on the claimed bar of section 303(a) of the Act. The trial court granted the motion and entered judgment accordingly. That order was affirmed by the Superior Court in a memorandum opinion, 344 Pa. Super. 635, 495 A.2d 620 (1985).

We granted an allowance of appeal to consider the question of whether the appellant's second asserted ground for tort recovery, that his injury was caused by deliberate derelictions of the employer, operated to take the personal injury action out of the "exclusivity" provision of section 303(a) of the Act. Although the appellant's suit also included a products-liability claim, that theory of recovery as such is not offered as a basis for negating the applicability of section 303(a).

[ 514 Pa. Page 35]

Because the appellant suffered an adverse judgment on the pleadings, we must, for purposes of review, treat all of his well-pleaded allegations as being true. Cantwell v. Page 35} Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984); Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). The allegations of the appellant's Complaint in Trespass set forth the following. On June 7, 1983, the appellant was in the course of his employment at Newman's factory. While so engaged, he had occasion to be operating a device called a "notching" machine, which had been designed and manufactured by Newman itself.*fn3 Part of this machine consisted of six sharp saw-blades, which would spin when the mechanism was turned on. At some point in the appellant's operation of the machine on the day in question one of his hands came into contact with the spinning blades, causing him to lose a portion of the small finger.

In support of the products liability claim, the Complaint alleged that the employer's design and construction of the "notching" machine was defective because there was no cover or guard over the saw-blades to protect the hands of operators, and that such defect was the cause of the appellant's injury. With respect to the companion theory of liability, the Complaint alleged that Newman, despite its awareness of the danger posed by the machine, deliberately forbade its workers from using a certain "feeding" device which would have greatly reduced the risk of hand injury. Another averment was that Newman also knew that the "notching" machine did not comply with federal and state safety regulations, and, for that reason, directed the appellant to remove it on the eve of an OSHA inspection which took place about eleven days before the accident. It was again placed in full ...


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