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ANTHONY A. BARBER v. PITTSBURGH CORNING CORPORATION (03/03/89)

decided: March 3, 1989.

ANTHONY A. BARBER, ET AL., AT NO. 16 SYLVESTER CONNOR, ET AL., AT NO. 17 ROBERT FORTNER, ET AL., AT NO. 18 LOIS YENTZER, ADMINISTRATRIX OF THE ESTATE OF RONALD YENTZER, DECEASED AT NO. 19 JAMES A. RINAMON AND DOROTHY RINAMON AT NO. 20
v.
PITTSBURGH CORNING CORPORATION, ET AL., AT NOS. 16, 17 AND 18 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 AT NO. 19 PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., CHARTER CONSOLIDATED, LTD., CHARTER CONSOLIDATED INVESTMENTS, LTD., CAPE INDUSTRIES, LTD., AND CAPE ASBESTOS FIBRES, LTD., AT NO. 20 V. COMMONWEALTH OF PENNSYLVANIA AND AMERICAN FLINT GLASS WORKERS UNION, AFL-CIO AT NOS. 16, 17 AND 18. APPEALS OF PITTSBURGH CORNING CORPORATION AT NOS. 16, 17, 18, 19 AND 20



Appeals from the Orders of the Superior Court at Nos. 174, 175, 176, 585 and 586 Pittsburgh, 1985, entered July 23, 1987, reversing the Orders of the Court of Common Pleas of Allegheny County, Civil Division, at G.D. Nos. 79-21544, 81-20380, 81-22224, 85-4381, and 84-18150 entered January 11, 1985 and April 8, 1985. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Nix

[ 521 Pa. Page 31]

Opinion

This appeal presents the question of whether there exists an exception to the exclusivity provision of the Occupational Disease Act ("ODA")*fn1 for injuries to employees caused by the alleged intentional misconduct of their employer. The appellees, the plaintiffs below, instituted this action against their former and/or current employer*fn2 appellant Pittsburgh Corning Corporation ("PCC" or "Pittsburgh Corning") and its parent corporations to recover damages for asbestos related diseases they allegedly contracted while employed at PCC's Port Allegheny Plant.

The initial action, Barber, et al. v. PCC, et al. was instituted in the Court of Common Pleas of Allegheny County in August, 1979. That action was subsequently consolidated with two other cases for trial and discovery purposes, Connor, et al. v. PCC, et al., filed in June 1981, and Fortner, et al. v. PCC, et al., filed August 1981. Later actions were also brought on behalf of other additional plaintiffs in Rinamon on October 10, 1984 and Yentzer on March 8, 1985.

Barber, Connor and Fortner represented approximately seventy-five former and current employees, and their spouses, who claimed they were injured and damaged as a result of exposure to asbestos dust during their employment at the Port Allegheny Plant. Pittsburgh Corning, in its New Matter, pleaded the exclusivity provisions of the ODA and

[ 521 Pa. Page 32]

    of the Workmen's Compensation Act ("WCA").*fn3 On December 21, 1984, PCC moved for summary judgment on the ground that the ODA barred the plaintiffs' action because the plaintiffs' exclusive remedy was to proceed under the statute. The trial court agreed that the action was barred and granted summary judgment for the defendants. The defendants' motion for summary judgment was also granted in Rinamon and Yentzer. The plaintiffs thereafter filed notices of appeal and the Superior Court consolidated all five cases for purposes of appeal.

By orders and opinion dated July 23, 1987, a panel of the Superior Court reversed the trial court's order for summary judgment and remanded the cases for further proceedings. The three-member panel of the Superior Court*fn4 concluded that the legislature could have never intended to immunize an employer from liability for harm caused by his "reprehensible intentional wrongdoing [which was] reasonably calculated to lead to severe personal injury or death of employees."*fn5

We granted allocatur to consider whether the Occupational Disease Act bars common law recovery for an injury to an employee alleged to have been intentionally inflicted by an employer. We were faced with the same issue in Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987), with respect to the WCA. There we held that the WCA does not permit a common law cause of action for injuries caused by the intentional tort of the employer. The Superior Court went to great lengths in a footnote to distinguish this Court's decision in Poyser.*fn6 For the reasons that follow we hold that our decision in Poyser is dispositive of the issue presently before this Court.

[ 521 Pa. Page 33]

The undisputed facts are that Pittsburgh Corning operated a manufacturing plant in Port Allegheny from 1964 until 1972 which produced thermal insulation made from raw asbestos fibers. During that period the appellees were employed by PCC at the plant and were exposed to various levels of asbestos dust. Appellees have claimed that they, or their spouses, have suffered asbestos related diseases, including asbestosis and lung cancer, as a result of their exposure to the dust during their employment with appellant.

Appellees contend that PCC knew of the danger of asbestos and yet deliberately did nothing to protect the workers from the danger. Appellees also allege that PCC allowed the levels of asbestos dust in the air at the plant to substantially exceed the safe levels recommended by experts and governmental standards. Appellees further contend that PCC deliberately refused to implement controls recommended by its own engineering team which would have reduced the airborne levels of asbestos dust. It is also alleged that PCC knowingly decided not to warn employees of the health hazard presented by exposure to high levels of asbestos dust.

Appellants admit, for purposes of this appeal, that its employees were exposed to asbestos and that it knew or should have known that exposure to asbestos dust was a health hazard. PCC admits that its safety precautions did not go far enough to protect its workers. Furthermore Pittsburgh Corning agrees that it did not adequately warn its employees of the risks ...


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