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DEAN v. HANDY & HARMAN

March 13, 1997

ROBERT DEAN and ROSEMARY DEAN, h/w, ROBERT G. GLASSSMYER and DEBORAH GLASSMYER, h/w, KENNETH W. HITE, JR., and ADA HITE, h/w, GEORGE LEATHERY, JR., VAN D. POFF, JOHN NOLL and LINDA NOLL, h/w, MELVIN H. WEEKLEY and MARY WEEKLEY, h/w, Plaintiffs
v.
HANDY & HARMAN, LUCAS-MILHAUPT, INC., ENGLEHARD CORP., CATERPILLAR, INC., Defendants



The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 This is a diversity action controlled by Pennsylvania law which the defendant, Caterpillar, Inc., removed here with the concurrence of the other defendants.

 The plaintiffs, Robert Dean, Robert G. Glassmyer, Kenneth Hite, Jr., George Leathery, Jr., Van D. Poff, John Noll, and Melvin H. Weekley, are workers or former workers at the plant Caterpillar operated in York, Pennsylvania. They sued Caterpillar and three other defendants, Handy & Harman, Lucas-Milhaupt, Inc., and Englehard Corp., in state court, alleging that they were seriously injured from chronic exposure to cadmium and fluoride at the plant. The three other defendants are alleged to have manufactured the products containing the chemicals. The wives of Dean, Glassmyer, Hite, Noll and Weekley are also plaintiffs and suing for loss of consortium.

 We are considering Caterpillar's motion under Fed. R. Civ. P. 12 (b)(6) to dismiss for failure to state claim, or, in the alternative, for a more particular statement under Fed. R. Civ. P. 9(b) as to the complaint's allegations of fraud against Caterpillar.

 The main question raised by Caterpillar's motion is whether the plaintiffs have successfully avoided the statutory bar to suit against an employer presented by the Pennsylvania Workers' Compensation Act (WCA) by making allegations that might bring them within an exception to that bar created in Martin v. Lancaster Battery Co., Inc, 530 Pa. 11, 606 A.2d 444 (1992), for fraudulent misrepresentations by an employer that aggravate a work-related injury.

 Because we are dealing with a motion to dismiss, we must accept as true the factual allegations in the complaint and construe any inferences to be drawn from them in the plaintiffs' favor. See Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993). With this standard in mind, we set forth the background to this litigation, as the plaintiffs allege it.

 II. Background.

 The complaint avers that the plaintiff workers were exposed to toxic levels of fluoride and cadmium while they were employed in various capacities on or near the oil cooler line in Department 54 at Caterpillar's plant. The chemicals were in brazing rods, rings, and fluxes, products manufactured by the other defendants.

 The plaintiffs' dates of employment in the Department varied. Dean worked there from the beginning of his employment with Caterpillar in 1969 until his retirement in 1995. Glassmyer was there from 1972 until the present. Hite was there from 1970 until 1993. Leathery was there from 1969 until the present. Poff was there from 1972 until the present. Noll was there from 1968 until 1988. Weekley was there from 1977 until the present.

 The plaintiffs do not allege when each of the injured workers first began to experience symptoms relating to exposure to cadmium or fluoride. They do allege that none of them could have connected their physical conditions and symptoms to such exposure until five of them, Dean, Glassmyer, Poff, Leathery and Weekley, had medical tests performed sometime after September 10, 1994, which indicated high levels of cadmium in their blood.

 Count IV of the complaint is directed to Caterpillar and alleges that Caterpillar made three fraudulent misrepresentations to the plaintiffs. First, Caterpillar falsely represented that their workplace was safe and free from harmful levels of toxic chemicals:

 
56. At all times material hereto, Defendant Caterpillar represented to plaintiffs that their workplace was safe and free of levels of chemicals capable of causing injury and disease.
 
57. At the time defendant made these representations, it knew them to be false, or made them in reckless disregard of the truth.

 Second, Caterpillar falsely represented that the air near the air cooler line was safe by failing to disclose data showing dangerous air levels of cadmium:

 
58. At all times material hereto, Defendant Caterpillar was in possession of data concerning the levels of cadmium in the air in the brazing area of the Oil Cooler Line.
 
59. Defendant Caterpillar willfully and intentionally withheld the results of the above-referenced air testing from plaintiffs.

 Caterpillar did so even though it knew that exposure to unsafe levels of cadmium "could cause permanent damage to the kidneys and other body organs, which damage would go unnoticed without testing, until the damage was severe and irreversible." (Complaint, P 60(b)).

 Third, Caterpillar falsely represented to the plaintiff workers that they were "healthy" despite having discovered sometime in 1993 that the plaintiffs' blood or urine or both had excessive levels of cadmium:

 
62. Beginning in 1993, Caterpillar discovered that all plaintiffs named herein had been found to have excessively elevated levels of cadmium in their blood and/or urine. Despite this knowledge, Caterpillar, by and through its agents, servants and/or employees thereafter falsely advised plaintiffs that they were "healthy" and had suffered no ill effects or health risks from their exposure.

 The plaintiffs closed count IV of their complaint by averring that they had "justifiably relied" on Caterpillar's "representations and disclosures" concerning "the safety of their workplace" and "their exposure to hazardous substances and its health consequences . . . ." (Complaint. P 63). They further averred that Caterpillar's fraudulent conduct was intended to "induce plaintiffs to remain in the workplace under . . . hazardous conditions." (Id.).

 Finally, the plaintiffs alleged that:

 
64. As a result of defendant's fraudulent and deceitful conduct, plaintiffs were precluded from reducing their exposures to cadmium and receiving timely and appropriate medical testing and treatment. The resulting delay caused an aggravation of the cadmium poisoning of plaintiffs, resulting in the harms and damages averred hereinabove.

 Based on the foregoing theory of liability, in count V of the complaint the plaintiff wives bring loss-of-consortium claims against Caterpillar. In count VI, all the plaintiffs seek punitive damages against the defendant.

 III. Discussion.

 A. The Motion to Dismiss and the Martin Exception.

 Defendant Caterpillar moves to dismiss counts IV, V, and VI, arguing that the plaintiffs' exclusive remedy against their employer is under the WCA. See 77 P.S. § 1 et seq. (Purdon & Purdon Supp. 1996-97). Hence, they cannot bring this common-law action against Caterpillar. The motion also argues that the plaintiffs cannot invoke the exception to the exclusivity of the Act established in Martin v. Lancaster Battery Co., Inc, 530 Pa. 11, 606 A.2d 444 (1992), for fraudulent misrepresentations by an employer that aggravate a work-related injury:

 Generally, the WCA is the sole remedy of an employee against his employer for injuries suffered during the course of employment. See 77 P.S. § 481(a)(Purdon 1992). See also Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27 (1992); Hammerstein v. Lindsay, 440 Pa. Super. 350, 655 A.2d 597 (1995). Section 481(a) also bars any action by others ...


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