decided: August 25, 1988.
INEZ HEATH, APPELLANT,
CHURCH'S FRIED CHICKEN, INC., CARLING SWITCH, INC., KLEIN HARDWARE CORPORATION AND DOERR ELECTRIC CORPORATION, APPELLEES
Appeal from the Order of the Superior Court entered August 11, 1986, at No. 02496 Philadelphia, 1985, affirming the Order of the Court of Common Pleas of Philadelphia entered August 27, 1985, at No. 2966 March Term, 1984
Joseph C. Murray, Allen L. Rothenberg, Philadelphia, for Inez Heath.
Austin Hogan, Philadelphia, for Doerr.
Wayne Partenheimer, Joseph DeMaria, Philadelphia, for Carling.
G. Wayne Renneisen, Robert J. Dougher, Philadelphia, for Church's.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Papadakos, J., joins this opinion and files a separate concurring opinion. Larsen, J., files a dissenting opinion in which Stout, J., joins.
[ 519 Pa. Page 275]
Appellant, Inez Heath, appeals to us from the order of the Superior Court affirming the entry of summary judgment by the Court of Common Pleas of Philadelphia. 359 Pa. Super. 632, 515 A.2d 621 (1986). Upon petition we granted allocatur.
The facts of this case are not in dispute. Appellant at all times relevant to this proceeding was an employee of appellee, Church's Fried Chicken, Inc. While in the course of her employment appellant was severely injured while operating
[ 519 Pa. Page 276]
a "chicken saw". This saw was manufactured by appellee. As a result of this injury appellant received workmen's compensation benefits. In addition to these benefits appellant sought additional recovery by filing an original action in trespass and assumpsit. Her theories of recovery were based upon the allegedly defective nature of the manufactured chicken saw, and she attempted to state causes of action in negligence, strict liability, and breach of warranty. In new matter appellee pled, inter alia, a defense of employer immunity based upon the exclusivity provision of the Workmen's Compensation Act (Act)*fn1 which provides:
The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next-of-kin, or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [411(1) and (2), 77 P.S.] or occupational disease as defined in section 108.
77 P.S. § 481(a) (emphasis added).*fn2 This defense formed the basis of appellee's summary judgment motion, which was granted. The Superior Court subsequently affirmed the grant of summary judgment for the same reason. We are now called upon to examine that decision.
This case presents the question which was left undecided in Poyser v. Newman and Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987), to wit: whether a products liability claim can be asserted against an employer who is also the manufacturer of the equipment which caused the employee's injury. Unfortunately for appellant the rationale behind our decision in Poyser, as well as the reasoning contained in the more recent case of Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), require us to respond in the negative.
In order for appellant to succeed on this appeal this Court must find that appellee here can be sued under the "dual
[ 519 Pa. Page 277]
capacity" concept, which a majority of this Court endorsed in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 255, 439 A.2d 1162, 1166 (1982) (Concurring Opinion, Roberts, J.) However, in addressing the question of when the "dual capacity" exception applies this Court has held:
[i]t is this clear that the focus of the "dual capacity" exception is on the circumstances in which the worker's injury occurs. But no such exception can exist where, as in the matters now before us, the employee's compensable injury occurred while he was actually engaged in the performance of his job.
Lewis, supra, 517 Pa. at 475, 538 A.2d at 869 (emphasis added). Accord Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1984).
In this case it is a fact that appellant was injured while "actually engaged in the performance of her job." Thus, under Lewis, the "dual capacity" exception can not apply.
The order of the Superior Court is affirmed.*fn3
PAPADAKOS, Justice, concurring.
[ 519 Pa. Page 278]
I reluctantly join in the opinion of the majority because the issue is controlled by the statutory restriction imposed by the legislature. I write separately only to call upon the legislature to review and correct the apparent injustices wrought to the injured parties in Lewis v. School District Page 278} of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988); Poyser v. Newman and Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987); Budzichowski v. Bell Telephone Co. of Pa., 503 Pa. 160, 469 A.2d 111 (1983), and in this case.
LARSEN, Justice, dissenting.
The majority continues to take a strait jacket approach to the Workmen's Compensation Act, 77 P.S. §§ 101-1603, (Act) and this approach guarantees that workers will be increasingly disadvantaged by a system that was originally enacted for their benefit.
As I noted in my dissent in Lewis v. School District of Philadelphia, 517 Pa. 461, 477, 538 A.2d 862, 870 (1988) (Larsen, J., dissenting):
The majority has lost sight of the fact that employees may have other ties with their employers such as landlord/tenant, trustee/beneficiary, seller/buyer, etc. The laws that govern the particular relationship will determine the rights and liabilities of the parties.
In the instant action, appellant, Inez Heath, seeks to hold her employer liable as the manufacturer of a defective product. Had appellant been injured while using the saw in the course of her employment for a different employer, the Act would not have precluded an action against appellee, Church's Fried Chicken, Inc., as manufacturer of a dangerous instrumentality. It is not fair to deny an injured employee the right to sue his or her employer as a third party manufacturer when others who are not employed by the manufacturer of a defective product clearly would have a cause of action against that manufacturer.
Mr. Justice McDermott states that this Court was concerned in Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548 (1987), that machinery manufactured by an employer "should conform to safety standards imposed by legislation." Maj. op. at 277 n. 3. I fail to find any reference in the Poyser majority opinion to such concern. As long as the majority limits the liability of the manufacturer of a defective product to a workmen's compensation award in
[ 519 Pa. Page 279]
these cases, then the deterrent aspect of strict liability law will be seriously undermined and "'Rube Goldberg' devices that put production above life and limb," id., will continue to maim and kill innocent employees.
A majority of this Court determined in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982) (Roberts, J., concurring, joined by O'Brien, CJ.; Larsen, J., and Flaherty, JJ.), that where a service is provided to the public, the provider of the service owes a duty to all those utilizing that service, including employees. Appellant alleged in her complaint the appellee, Church's Fried Chicken, Inc., "was engaged in the business of, inter alia, designing, processing, producing, fabricating, manufacturing, assembling, advertising and distributing a machinery product known as 'chicken saw tables' in the regular course of its business." Appellant's Complaint, paragraph 4. Appellee denied distributing these saws to the public for public use or advertising such saws. This raises a question of fact, thus the trial court improperly granted the motion for summary judgment filed by appellee, Church's Fried Chicken, Inc.
Accordingly, I would reverse the order of Superior Court affirming the trial court's grant of appellee's motion for summary judgment and would remand for further proceedings.