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Robert Smith v. Philadelphia Housing

August 9, 2012

ROBERT SMITH
v.
PHILADELPHIA HOUSING AUTHORITY, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This case arises out of Robert Smith's employment by the Philadelphia Housing Authority ("PHA") and working conditions he experienced at a construction site ("Hill Creek"), in Philadelphia. The plaintiff brought claims against the PHA; its executive director, Carl Greene; the City of Philadelphia ("City"); the United Brotherhood of Carpenters and Joiners of America, Local 8 ("Local 8" or the "Union"); and its executive secretary, Edward Coryell. Smith and the City stipulated to the dismissal, without prejudice, of all claims against the City. The remaining defendants have moved to dismiss all claims against them. The Court will grant the motions and dismiss all claims with prejudice except Count I as brought against the Union, which will be dismissed without prejudice. The plaintiff may file an amended complaint as to Count I within thirty days of this decision.

I. Background

The plaintiff alleges that he was exposed to asbestos and other harmful materials while working at Hill Creek, and that his complaints regarding exposure were ignored by the Union, PHA, and their officials. The plaintiff also litigated his work-related injuries in a workers' compensation hearing, which the Court discusses below.

A. Facts as Alleged in the Amended Complaint The plaintiff has been a member of Local 8 since 1984.

The Union has a collective bargaining agreement with the City. Smith was employed by the PHA from March 2009 until January 22, 2010, and paid $24.50 per hour. Am. Compl. ¶¶ 17-19.

At some point during that period, Smith was assigned to work at Hill Creek. During that assignment he "frequently encountered what he believed to be friable asbestos and/or other similarly harmful and dangerous substances." He came into contact with and breathed in that material, including on one occasion where a "colleague[] caused the asbestos or other similarly harmful and dangerous substance to become airborne and to rain down on" Smith. Id. ¶¶ 21-23.

Smith repeatedly raised concerns regarding these materials to Local 8 and the PHA, but those concerns went unaddressed, and an unidentified person "told [him] to keep quiet and keep working and that his complaints were harmful to the Union . . . ." He was not given protective equipment or warnings related to the harmful materials. The plaintiff began to suffer severe respiratory problems, "causing him to be removed from work" on January 22, 2010. Id. ¶¶ 24-26, 28, 29.

Smith also alleges that the Union and PHA agreed to pay $24.50 per hour for PHA work instead of $37.40, which was the "contractual rate of pay for a union carpenter of Philadelphia." Smith learned through Patrick Gillespie, who he alleges was Local 8's head of building trades, that the "deal" made between the Union and PHA was secret and would result in layoffs of union members if it was revealed. Id. ¶ 27.

The plaintiff alleges that Local 8, the PHA, Greene, and Coryell were all aware of the hazards present at the Hill Creek facility and "deliberately chose not to remove [him] and/or his colleagues from the unhealthy environment" there, and "specifically agreed to conceal the facts relating to asbestos exposure." Id. ¶ 30.

B. Workers Compensation Hearing

The plaintiff brought a claim for workers compensation

for injuries he sustained while working at Hill Creek. He testified before a workers' compensation judge ("WCJ") at two hearings. Smith's supervisor and a co-worker testified at the hearings, and medical depositions were presented by the PHA and by Smith.

In that proceeding, the WCJ found that Smith had not met his burden of showing that he suffered from asbestos-related disease or needed medical monitoring given his exposure to asbestos, and found that none of his current respiratory problems related to asbestos exposure. The WCJ did find that Smith experienced occupational asthma related "exposure to airborne dust and other irritants during his employment at PHA." He was awarded disability benefits in the amount of $569.38 per week from January 25, 2010 "through the present" (the WCJ's decision itself is undated ...


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