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ANTHONY A. BARBER v. PITTSBURGH CORNING CORPORATION (07/23/87)

filed: July 23, 1987.

ANTHONY A. BARBER, ET AL., APPELLANTS,
v.
PITTSBURGH CORNING CORPORATION, ET AL., V. COMMONWEALTH OF PENNSYLVANIA, AND AMERICAN FLINT GLASS WORKERS UNION, AFL-CIO. SYLVESTER CONNOR, MELVIN FULLER, REUBEN M. HARRIS, MILLARD REESE, JOSEPH D. RYAN, DAVID K. SMOKER, CARL F. STEINBAUGH, STANLEY G. STUCKEY, RAYMOND VANDERMARK, ELEANOR (MRS. SYLVESTER) CONNOR, BONNIE (MRS. MELVIN) FULLER, EVALENA E. (MRS. REUBEN M.) HARRIS, DONNA (MRS. JOSEPH D.) RYAN, ELBERTIA O. (MRS. DAVID K.) SMOKER, ELAINE H. (MRS. CARL F.) STEINBAUGH, CYNTHIA D. (MRS. STANLEY G.) STUCKEY, RUTH (MRS. RAYMOND) VANDERMARK, APPELLANTS, V. PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., CHARTER CONSOLIDATED LTD., CAPE ASBESTOS FIBRES LTD., CAPE ASBESTOS SOUTH AFRICA PROPRIETARY LTD., EGNEP (PTY) LTD. AMOSA, LTD., CHARLES G. MORGAN, GEOFREY HIGHAM, DR. RICHARD GAZE, CAPE BOARD & PANELS LTD., W.B. ARNOLD CO., CHARTER CONSOLIDATED INVESTMENTS, LTD., CENTRAL MINING FINANCE, LTD., CHARTER CONSOLIDATED SERVICES, LTD., BRITISH SOUTH AFRICA CO., LTD., CONSOLIDATED MINES SELECTION CO., LTD., TRANSVAAL CONSOLIDATED LAND & EXPLORATION COMPANY, LTD., X, Y AND Z CORPORATIONS V. COMMONWEALTH OF PENNSYLVANIA AND AMERICAN FLINT GLASS WORKERS UNION, AFL-CIO. ROBERT FORTNER, DONALD FORTNER, MARIETTA E. (MRS. DONALD) FORTNER, OTIS J. CARL, RAMSEY DALABA, GARY L. DAUGHERTY, JOSEPH FINSTER, BESSIE PAINTER, RICHARD YENTZER, MINNIE J. (MRS. OTIS J.) CARL, GERTRUSE (MRS. RAMSEY) DALABA, HELEN P. (MRS. GARY L.) DAUGHERTY, ERNESTINE (MRS. JOSEPH) FINSTER, HAZEL B. (MRS. RICHARD) YENTZER, LEROY W. EARLE, PETER P. PESOCK, JERRY N. LUDWIG, JAMES A. TILLEY, RUBERTA A. (MRS. LEROY W.) EARLE, BETTY W. (MRS. PETER P.) PESOCK, JACQUELINE C. (MRS. JAMES) TILLEY, RICHARD F. BARTH, GRACE H. (MRS. RICHARD F.) BARTH, DARREL F. VAN SICKLES, DONNA (MRS. DARREL F.) VAN SICKLES, APPELLANTS, V. PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., CORNING GLASS WORKS, INC., CHARTER CONSOLIDATED, LTD., CAPE INDUSTRIES, LTD., CAPE ASBESTOS FIBRES, LTD., CAPE ASBESTOS SOUTH AFRICA PROPRIETARY LTD., EGNEP (PTY) LTD., AMOSA LTD., NORTH AMERICA ASBESTOS CORPORATION, CHARLES G. MORGAN, GEOFFREY HIGHAM, DR. RICHARD GAZE, CAPE BOARD & PANELS, LTD., W.B. ARNOLD CO., CHARTER CONSOLIDATED INVESTMENTS, LTD., CENTRAL MINING FINANCE LTD., CHARTER CONSOLIDATED SERVICES, LTD., BRITISH SOUTH AFRICA COMPANY, LTD., CONSOLIDATED MINES SELECTION COMPANY, LTD., TRANSVAAL, CONSOLIDATED LAND & EXPLORATION COMPANY, LTD., X, Y AND Z CORPORATIONS V. COMMONWEALTH OF PENNSYLVANIA, AND AMERICAN FLINT GLASS WORKERS UNION, AFL-CIO. LOIS YENTZER, ADMINISTRATRIX OF THE ESTATE OF RONALD YENTZER, DECEASED, APPELLANT, V. PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., DR. LEE B. GRANT (INDIVIDUALLY AND AS MEDICAL DIRECTOR OF PPG INDUSTRIES, INC.), CHARTER CONSOLIDATED, LTD., CHARTER CONSOLIDATED INVESTMENTS, LTD., CAPE INDUSTRIES, LTD., CAPE ASBESTOS FIBRES, LTD., AND NORTH AMERICAN ASBESTOS CORPORATION. JAMES A. RINAMON AND DOROTHY RINAMON, APPELLANTS, V. PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., CHARTER CONSOLIDATED, LTD., CHARTER CONSOLIDATED INVESTMENTS, LTD., CAPE INDUSTRIES, LTD., AND CAPE ASBESTOS FIBRES, LTD.



Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 79-21544. Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 81-20380. Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at G.D. 81-22224. Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. G.D. 85-4381. Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. G.D. 84-18150.

COUNSEL

George H. Cohen, Pittsburgh, for appellants.

Gerald C. Paris, Pittsburgh, for appellees.

Brosky, Del Sole and Montgomery, JJ. Del Sole, J., files a dissenting opinion.

Author: Brosky

[ 365 Pa. Super. Page 250]

This is a consolidated appeal from orders granting appellee's motion for summary judgment and dismissing appellants' complaint.

Appellants are present or former employees of appellee, Pittsburgh Corning Corporation, and spouses of these employees and have alleged in their complaint that they or their spouse suffer from asbestosis which was intentionally inflicted upon them by appellee. The action seeks damages for personal injury and loss of spousal consortium.

The trial court, in a lengthy opinion, sets forth its reasons for granting appellee's motion concluding that the Occupational Disease Act precludes any tort action against an employer for the contraction of an occupational disease including one for an intentional tort. Hence, we are called upon to decide whether an employee is precluded by the provisions of the Occupational Disease Act from bringing an action for an intentional tort against an employer, an issue which has heretofore escaped decision by an appellate court of this Commonwealth.

For the reasons set forth below, we reverse the order appealed from and remand to the trial court for proceedings consistent with this opinion.

I.

The question of whether or not Worker's Compensation and/or Occupational Disease Acts possessing the commonly found exclusivity provisions preclude actions by employees against employers for intentional infliction of injury is one which has brought forth both conflict and debate in many jurisdictions. In this Commonwealth, the debate or conflict has arisen, at least in part, from the actual wording in the statute. The so-called exclusivity provision of the Occupational Disease Act, 77 P.S. § 1403, states:

Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any

[ 365 Pa. Super. Page 251]

    disability or death resulting from occupational disease, or to any method of determination thereof, other than as provided in article three of this act. . . . [Emphasis added].

However, 77 P.S. § 1401(a), which section in part of article three, states:

When employer and employe shall by agreement, either express or implied, . . . accept the provisions of . . . this act, compensation for disability or death of such employee, caused by occupational disease, arising out of and in the course of his employment, shall be paid by the employer, without regard to negligence, according to the schedule contained in [the Act] . . . . [Emphasis added].

Supporters of the absolute exclusivity point to § 1403 and argue that this section requires preclusion of all tort actions, even those for intentional torts. Others point to § 1401(a) and argue that had the legislature intended to completely bar all common law actions including an intentional tort action they would have utilized the language "without regard to negligence or intent." Appellate courts of this Commonwealth have provided guidance, either in related holdings or in dicta, but have not definitively answered the question under the occupational disease act.

The case of Readinger v. Gottschall, 201 Pa. Super. 134, 191 A.2d 694 (1963), decided by a panel of this court, did consider this issue under the Workmen's Compensation Act. In that case an action was brought by an employee against an employer for conduct which was tantamount to a deliberate assault by the employer upon the employee. This court found that the exclusivity clause of the Workmen's Compensation Act did not bar or preclude an action for an intentional tort. We analyzed there that an intentional tort could not be thought of as an "accident," which was an operative word under that version of the act providing for compensation to employees injured by an accident occurring in the course of employment, and consequently found such an action without the scope of the act. Subsequent to the Readinger decision the Workmen's Compensation Act was

[ 365 Pa. Super. Page 252]

    amended and no longer contains the "accidental" language relied upon in Readinger, hence leading some to question the ongoing validity of the Readinger decision. We do not feel that the issue can be disposed of nor be given its due regard by relying simply upon a single word of the statute. Nor does the court wish to engage in a semantical game where at issue is the intent of the legislature or the judicial interpretation of a legislative enactment. Rather, we find it more appropriate in determining the issue before us to consider the nature of the legislation in question, its purpose and effect.

What appears to be generally undisputed is that passage of the Workmen's Compensation and Occupational Disease Acts was an element of social and industrial reform intended to provide a certain basis of recovery for injured employees. Prior to passage of these acts an injured employee, like any injured individual, had recourse to the courts and common law actions but like in any action for personal injury, was required to establish legal responsibility and liability prior to recovery. After passage of the Acts any employee injured in the course of employment had the right to compensation under provisions of the applicable act without having to prove fault. Apparently the legislature was more conscious of injury occurring by trauma or "accident" in drafting the original Workmen's Compensation Act as it employed that language which resulted in courts construing that statute as not encompassing occupational disease. Consequently, in 1939, the Occupational Disease Act was enacted to provide relief for individuals stricken with such injuries. From that point on, an injured worker had recourse to the compensatory scheme of the appropriate statute regardless of whether injury resulted from accident or exposure to one of the enumerated dangerous substances found in the Occupational Disease Act. The distinction between injury as a result of trauma and occupational disease was effectively eliminated in the 1972 amendments to the Workmen's Compensation Act with 77 P.S. § 411 being redrafted to encompass all injury arising in the

[ 365 Pa. Super. Page 253]

    course of employment whether caused by trauma or an occupational disease.*fn1

As a reformative measure, the passage of these acts has been often referred to as a trading off of certain features of tort litigation.*fn2 The employee gives up his right to sue in court while being awarded a more certain recovery. The employer gives up his right to be found faultless, and therefore not liable, while also enjoying a limited liability.*fn3 Hence, assuming the legislature intended to provide more certain protection to employees without imposing an overwhelming financial burden upon employers, relieving an employee from showing fault while limiting recovery would seem to balance these interests well. However, it does not logically follow that a reformative measure designed to maximize compensable injuries at a workable cost was also contemplated to provide an absolute shield to tort liability or to encourage, or at least allow, reprehensible intentional wrongdoing reasonably calculated to lead to severe personal injury or death of employees. If the passage of the Workmen's Compensation and Occupational Disease Acts are thought of as humanitarian reform designed to benefit workers overall, it cannot be thought of as a shield against liability for the intentional infliction of harm by an employer. Nor is there any indication that it was meant to be.

As previously indicated, no appellate court of this Commonwealth has held that either the Workmen's Compensation Act or the Occupational Disease Act shields an employer from liability for harm intentionally inflicted upon an employee.*fn4 The Act itself indicates that when death or

[ 365 Pa. Super. Page 254]

    disability is caused by occupational disease arising out of and in the course of one's employment, compensation shall be paid by the employer, without regard to negligence, as per the schedule in the act. As posed earlier, it is logical, but

[ 365 Pa. Super. Page 255]

    perhaps not necessary, to assume that had the legislature intended to limit an employee to the compensation schedule of the act when his injury is intentionally inflicted by the employer, they would have added the language "or intent" to "without regard to negligence". The Act itself mentions intentional infliction of harm in only one section, at 77 P.S. § 1305, which was added to the original act in 1963. Section 1305, in essence, extends the "statutory immunity" features of the Occupational Disease Act to fellow employees. Under this section an injured employee could not, after his injury being found compensable under the Act, subsequently sue a fellow employee for his injury unless intentionally inflicted by the fellow employee. This reflects an intent to protect an employee from liability for his negligent infliction of harm upon a fellow employee while retaining his legal culpability and liability if the harm is intentionally inflicted. In our opinion, this reflects the legislature's general intention or understanding that the Act should not operate as a shield against liability for intentional infliction of harm.

Appellee and the trial court argue that the fact that intentional harm is specifically excluded in § 1305 and is not otherwise or elsewhere addressed to the employer, indicates an intention of the legislature to shield the employer from such liability. We are not convinced by this argument. Section 1305 was added 24 years after the Occupational Disease Act was enacted and addresses a specific class of individuals, fellow employees. It would not be logical for the legislature to address employer liability or immunity in this section. Nor is it expected that our legislature would make wholesale revision of a statute where no problem in its application is perceived. Consequently, we will not infer a legislative intent to provide wholesale immunity to one class of individuals, employers, simply because ...


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