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05/20/97 LORD CORPORATION v. DIANA G. POLLARD

May 20, 1997

LORD CORPORATION, A CORPORATION, APPELLANT
v.
DIANA G. POLLARD, ADMINISTRATRIX OF THE ESTATE OF THOMAS C. POLLARD, DECEASED, APPELLEE



Appeal from Superior Court, Order No. 0052 PGH 1995, entered September 8, 1995, reversing and remanding the order of the Deceased, Court of Common Pleas of Crawford County, Civil Division, at No. AD482-94 entered December 7, 1994. Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Nigro files an opinion in support of affirmance in which Mr. Justice Cappy and Madame Justice Newman join. Mr. Chief Justice Flaherty files an opinion in support of reversal in which Messrs. Justice Zappala and Castille join.

ORDER

PER CURIAM:

DECIDED: MAY 20, 1997

AND NOW, this 20th day of May, 1997, the Court being equally divided, the order of the Superior Court is affirmed.

Mr. Justice Nigro files an opinion in support of affirmance in which Mr. Justice Cappy and Madame Justice Newman join.

Mr. Chief Justice Flaherty files an opinion in support of reversal in which Messrs. Justice Zappala and Castille join.

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE NIGRO

DECIDED:MAY 20, 1997

In this wrongful death action, Appellant Lord Corporation ("Lord") appeals from the order of the Superior Court reversing the order of the Court of Common Pleas of Crawford County, granting Lord's preliminary objections in the nature of a demurrer and dismissing Appellee Diana Pollard's ("Pollard") complaint. For the reasons which follow, we would affirm.

Prior to his death in 1992, Pollard's husband had worked as a maintenance mechanic for Lord, a manufacturer and distributor of aerospace components. Pollard filed a wrongful death action under 42 Pa.C.S. §§ 5524(2) and 8301 against Lord, claiming that her husband died as a result of complications from malignant nodular lymphoma acquired through his exposure to "numerous toxic and deadly chemicals" while employed in Lord's chemical products division. Pollard further alleged that the decedent's exposure to these chemicals was due to Lord's negligence. *fn1

Lord filed preliminary objections to the complaint averring that Pollard's claim is barred by the exclusivity provisions of the Workers' Compensation Act ("WCA"), 77 P.S. §§ 1-1603 (1992 & Supp. 1995), *fn2 and the Occupational Disease Act ("ODA"), 77 P.S. §§ 1201-1603 (1992). *fn3 The trial court granted the preliminary objections and dismissed Pollard's complaint. On appeal, the Superior Court reversed, reasoning that the trial court's order granting a demurrer was premature because there had been no determination of compensability and this question could not be resolved from the pleadings. *fn4 Pollard v. Lord Corporation, 445 Pa. Super. 109, 119-120, 664 A.2d 1032, 1037 (1995).

The sole issue before this Court is whether Pollard's civil action may proceed before a final administrative determination has been made regarding compensability under the WCA or the ODA. In an appeal from an order sustaining preliminary objections in the nature of a demurrer, an appellate court must admit as true for purposes of review all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom. Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 816 (1985); Santiago v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 418 Pa. Super. 178, 184, 613 A.2d 1235, 1238 (1992). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Santiago, 418 Pa. Super. at 184, 613 A.2d at 1238. In the present case, Pollard's complaint makes no averment with respect to recovery under either the WCA or the ODA. In its preliminary objections, Lord simply asserts that the WCA and the ODA are a complete bar to Pollard's cause of action. While it is true that an employee may not bring a common law cause of action against an employer if recovery is possible under either the WCA or the ODA, Ducjai v. Dennis, 540 Pa. 103, 109, 656 A.2d 102, 104-05 (1995); Alston v. St. Paul Ins. Cos., 531 Pa. 261, 267, 612 A.2d 421, 424 (1992); Greer v. United States Steel Corp., 475 Pa. 448, 451, 380 A.2d 1221, 1222 (1977), Lord's mere assertion that Pollard's claim is barred by these Acts, without more, is insufficient to support a demurrer.

This Court has previously examined the question of whether an employee's common law action is barred under circumstances similar to those presented here. In Boniecke v. McGraw Edison Co., 485 Pa. 163, 401 A.2d 345 (1979), an employee commenced an action in trespass against his employer after being denied relief under the ODA. The employer then filed a motion for summary judgment, contending, as Lord does in the present case, that the ODA and WCA bar all common law actions by an employee against his employer for occupational diseases. This Court rejected the employer's argument, holding that the employee's claims were not barred because although the employee had been denied relief under the ODA, there had been no adjudication of the employee's rights under the WCA, and ...


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