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filed: August 18, 1989.


Appeal from an order of December 10, 1987, in the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 84-19335.


John W. Jordan, IV, Pittsburgh, for Goodyear Tire, appellant.

Louis M. Tarasi, Jr., Pittsburgh, for Callender, appellee.

Michael J. Manzo, Pittsburgh, for Port Authority, appellee.

Rowley, Del Sole and Montgomery, JJ. Del Sole, J., files a concurring statement.

Author: Rowley

[ 387 Pa. Super. Page 285]

This is an interlocutory appeal by permission by Goodyear Tire and Rubber Company (Goodyear), from an order denying the cross-summary judgment motions of Goodyear and appellee, Terri Callender (Callender),*fn1 in a wrongful death and survival action brought by Callender against both Goodyear and the Port Authority of Allegheny County (PAT) after her husband, Gary Callender, was killed by the explosion of a Goodyear bus tire while he was working in the Goodyear tire workroom at PAT's Ross Township bus maintenance garage. This appeal presents the issue of whether an employer, who is also a manufacturer of a product sold to the general public, may be liable under the dual capacity doctrine for a tort claim in the nature of a products liability action brought by an employee whose job is to maintain the manufacturer's product for the consumer, when the employee is injured by the product in the course of his employment. We hold that the dual capacity doctrine is inapplicable, and that the plaintiff's exclusive remedy is under the Workmen's Compensation Act. 77 P.S. § 1 et seq.

The facts of this case are as follows. Pursuant to the terms of a lease agreement between Goodyear and PAT, Goodyear provides PAT with all of its bus tires and maintains them. The maintenance of the tires is performed by a "tire changer" employed by Goodyear who works full time in each of the PAT maintenance garages.

At the PAT maintenance garage involved in this case, PAT maintained a separate room within the garage dedicated for the exclusive use of Goodyear. Goodyear's tire changer, the Decedent, worked alone in this room which was set off from the remainder of the garage by floor-to-ceiling walls of cinder block and one double door. Inside the room were the machines/tools supplied to the Decedent by Goodyear which were necessary for separating tires

[ 387 Pa. Super. Page 286]

    from wheel rims, re-grooving tires and other maintenance which would regularly be performed on the tires.

PAT had an employee, called a "wheel changer," whose sole job was to remove tires from the buses and put the tires back on the buses. When the PAT wheel changer removed a flat tire, or upon his inspection noticed that a tire was worn unevenly or scuffed on the side, he would remove the tire from the bus and roll it to the outside of the Goodyear tire room. The Decedent then decided on his own whether and/or how to repair the tire. If a repair were to be performed or if the tire needed to be mounted on or dismounted from the rim, the Decedent would roll the tire into the Goodyear tire room.

New tires, tires which were about to be worked on by the Decedent, and tires which the Decedent had just finished working on were the only tires which ordinarily would be in the Goodyear tire room at any time. Most tires which were awaiting repair were kept along the wall outside of the door into the Goodyear tire room. Most repaired tires or tires brought out of storage and placed on wheels ready to be put on the busses by the PAT wheel changer were kept in an area outside the Goodyear tire room but inside the PAT garage. Two several-inch-diameter pipes no higher than waist high contained the area where most of these tires were kept. The number of tires in this pen outside the Goodyear tire room at the time of the accident was between 20-30. In addition, over 100 tires, not yet ready to be used, were stored adjacent to the penned area in the maintenance garage but outside of the Goodyear tire room. New tires were often kept inside the Goodyear tire room for security reasons.

Decedent was hired as a Goodyear tire changer by a Goodyear field manager who was responsible for supervising each of the Goodyear employees at the various PAT maintenance garages. The field manager trained the Decedent how to maintain the tires, how to remove tires from and replace tires on the rims, how to maintain the inventory cards for each tire handled by the Goodyear employee, how

[ 387 Pa. Super. Page 287]

    to inflate the tires, and other similar tasks. The Goodyear field manager regularly, often as frequently as weekly, would stop into each of the garages where a Goodyear tire changer was employed to check on the work that was being performed by the Goodyear employee, to ensure that it was satisfactory by Goodyear's standards, and to see if there were any complaints from the PAT garage supervisor. The Goodyear manager also had the authority to fire the Goodyear tire changers.

Callender admits that Goodyear was the Decedent's employer (answer to interrogatory # 12 of PAT). The PAT employees, including the supervisor of the PAT garage, never told the Decedent what to do or how to do it. The PAT employees rarely, if ever, went into the Goodyear tire room, although some PAT painting and cleaning supplies were stored in the Goodyear tire room.

The specific tire which exploded in this case was a regrooved one which PAT employees had trucked, along with numerous others, from PAT's tire storage facility on the Southside, to the maintenance garage where Decedent worked so that it could be mounted on a rim and put back into use. Apparently the Decedent had remounted the tire in question and placed it, still in the Goodyear tire room, approximately three to four feet away from where he was working on another tire when the tire exploded.

Although receiving Workmen's Compensation benefits, Callender brought the present products liability and negligence action against Goodyear and PAT. Goodyear sought summary judgment on the basis that Gary Callender was its employee at the time of the accident, he was killed while performing his responsibilities as an employee, and therefore, the Workmen's Compensation Act's exclusivity provision, Act of June 2, 1915, P.L. 736, No. 338, Section 303, as amended 1974, December 5, P.L. 782, No. 263, Section 6, 77 P.S. § 481, precludes Goodyear from any tort liability. Callender sought summary judgment as to Goodyear's liability on the theory that there was no material question of fact that Goodyear was the manufacturer of the tire which killed

[ 387 Pa. Super. Page 288]

Gary Callender. Both motions were denied, and the trial court certified its order denying the summary judgment motions as involving a controlling question of the applicability of the exclusivity provision of the Workmen's Compensation Act, and the judicial doctrine of "dual capacity."

Two issues are raised on appeal: 1) is there a material question of fact as to whether the Decedent was under the control and direction of Goodyear or PAT at the time of his death; and 2) if the Decedent was an employee of Goodyear and under its control at the time of his death, does the dual capacity doctrine preclude Goodyear from avoiding liability on the basis of the exclusivity provision of the Workmen's Compensation Act. For the reasons set forth below, we conclude that there is no material question of fact that the Decedent was an employee of Goodyear and under its control at the time of his death, and that Callender's exclusive remedy is that provided in the Workmen's Compensation Act.

The scope of review of a motion for summary judgment is well established:

"A motion for summary judgment may properly be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). See also Rybas v. Wapner, 311 Pa. Super. 50, 52, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa. Super. 121, 123, 469 A.2d 212, 213 ...

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