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BELIK v. ADVANCE PROCESS SUPPLY CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 1, 1993

YAKOV BELIK AND SOFIA BELIK
v.
ADVANCE PROCESS SUPPLY CO., et al. v. PENN EMBLEM CO., et al.

The opinion of the court was delivered by: BY THE COURT; J. WILLIAM DITTER, JR.

MEMORANDUM AND ORDER

 This is a products liability suit against the distributors and manufacturers of toxic chemicals to which plaintiff, an employee of the Penn Emblem Company, was allegedly exposed during his employment. Advance Process Supply Company, one of the distributors, filed a third-party complaint against Penn Emblem charging that the employer fraudulently misrepresented information to the plaintiff, thus aggravating plaintiff's injuries. Penn Emblem has moved to dismiss, contending that it is immune from liability under the Pennsylvania Workers' Compensation Act, 77 P.S. § 481(b). I agree and will grant Penn Emblem's motion.

 Under the exclusivity provision of the Workers' Compensation Act (WCA), 77 P.S. § 1 et seq., Penn Emblem, the employer, is statutorily immune from "liability to a third party for damages, contribution, or indemnity in any action at law, or otherwise . . . ." 77 P.S. § 481(b). *fn1" The only statutory exception is if liability is expressly provided for by prior written contract. Id.

 Advance Process contends, however, that it can sue Penn Emblem under the exception created by Martin v. Lancaster Battery Co., 530 Pa. 11, 606 A.2d 444 (Pa. 1992). In Martin, the Pennsylvania Supreme Court held that where an employee alleges that fraudulent misrepresentations by his employer aggravated his work-related injury, the employee's claim is not barred by section 481(a) of the WCA, which limits employers' liability to their employees. *fn2" Id. at 446. While the Pennsylvania Supreme Court had previously held that an intentional tort suit against an employer was barred, Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548 (Pa. 1987), it found Martin to be a distinguishable case on two grounds. It explained that first, the employer's misrepresentation in Martin was made directly to the employee, and second, the employee sought compensation for the aggravation of his injury, not for the injury itself. 606 A.2d at 447.

 Now mindful of Martin, Advance Process alleges that Penn Emblem misrepresented information to an employee and that this misrepresentation aggravated his work-related injury. Advance Process, however, is not that employee. Whether or not Martin permits third-party plaintiffs to sue employers under section 481(b) is a matter of first impression. I hold that it does not. Just because Martin punctures an employer's immunity as to an employee's claim that the employer's misrepresentation aggravated his injury, it does not do so for third-parties to whom that misrepresentation was not made. In other words, Advance Process lacks standing to charge Penn Emblem with fraud.

 Moreover, I hold that Martin must be construed narrowly in order to protect the integrity of 77 P.S. § 481(b). If all defendant/third-party plaintiffs in product liability suits could independently sue the employers -- who are otherwise immune from liability under section 481(b) -- the protection which those employers bargained for would be severely undermined. The Martin exception is reserved for plaintiff/employees whose employers' fraudulent misrepresentations aggravated their work-related injuries. See Rodgers v. Prudential Ins. Co., 803 F. Supp. 1024, 1030 (M.D. Pa. 1992) (calling the Martin exception "very narrow"); Henry v. Twin City Fire Ins. Co., No. 92-1504, 1992 U.S. Dist. LEXIS 9035, at *7 (E.D. Pa. June 10, 1992) (same); Santiago v. Pennsylvania Nat'l Mutual Cas. Ins. Co., 418 Pa. Super. 178, 613 A.2d 1235, 1241 (Pa. Super. 1992) (calling it "limited").

 Section 481(b) bars Advance Process's third-party complaint against Penn Emblem. An order follows. *fn3"

 ORDER

 AND NOW, this 1st day of June, 1993, it is hereby ordered that:

 1. The motion of third-party defendant, Penn Emblem Company, to strike the response of third-party plaintiff, Advance Process Supply Company, to its motion to dismiss is denied.

 2. The motion of third-party plaintiff, Advance Process Supply Company, to enlarge time nunc pro tunc is granted.

 3. The third-party complaint of Advance Process Supply Company against Penn Emblem Company is dismissed.

 BY THE COURT:

 J. William Ditter, Jr. J.


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