Barber v. Pittsburgh Corning Corp.

555 A.2d 766, 521 Pa. 29, 1989 Pa. LEXIS 43
CourtSupreme Court of Pennsylvania
DecidedMarch 3, 1989
Docket16, 17, 18, 19 and 20 W.D. Appeal Dockets, 1988
StatusPublished
Cited by53 cases

This text of 555 A.2d 766 (Barber v. Pittsburgh Corning Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. Pittsburgh Corning Corp., 555 A.2d 766, 521 Pa. 29, 1989 Pa. LEXIS 43 (Pa. 1989).

Opinions

OPINION

NIX, Chief Justice.

This appeal presents the question of whether there exists an exception to the exclusivity provision of the Occupational Disease Act (“ODA”)1 for injuries to employees caused by the alleged intentional misconduct of their employer. The appellees, the plaintiffs below, instituted this action against their former and/or current employer2 appellant Pittsburgh Corning Corporation (“PCC” or “Pittsburgh Corning”) and its parent corporations to recover damages for asbestos related diseases they allegedly contracted while employed at PCC’s Port Allegheny Plant.

The initial action, Barber, et al. v. PCC, et al. was instituted in the Court of Common Pleas of Allegheny County in August, 1979. That action was subsequently consolidated with two other cases for trial and discovery purposes, Connor, et al. v. PCC, et al., filed in June 1981, and Fortner, et al. v. PCC, et al., filed August 1981. Later actions were also brought on behalf of other additional plaintiffs in Rinamon on October 10, 1984 and Yentzer on March 8, 1985.

Barber, Connor and Fortner represented approximately seventy-five former and current employees, and their spouses, who claimed they were injured and damaged as a result of exposure to asbestos dust during their employment at the Port Allegheny Plant. Pittsburgh Corning, in its New Matter, pleaded the exclusivity provisions of the ODA and [32]*32of the Workmen’s Compensation Act (“WCA”).3 On December 21, 1984, PCC moved for summary judgment on the ground that the ODA barred the plaintiffs’ action because the plaintiffs’ exclusive remedy was to proceed under the statute. The trial court agreed that the action was barred and granted summary judgment for the defendants. The defendants’ motion for summary judgment was also granted in Rinamon and Yentzer. The plaintiffs thereafter filed notices of appeal and the Superior Court consolidated all five cases for purposes of appeal.

By orders and opinion dated July 23, 1987, a panel of the Superior Court reversed the trial court’s order for summary judgment and remanded the cases for further proceedings. The three-member panel of the Superior Court4 concluded that the legislature could have never intended to immunize an employer from liability for harm caused by his “reprehensible intentional wrongdoing [which was] reasonably calculated to lead to severe personal injury or death of employees.”5

We granted allocatur to consider whether the Occupational Disease Act bars common law recovery for an injury to an employee alleged to have been intentionally inflicted by an employer. We were faced with the same issue in Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987), with respect to the WCA. There we held that the WCA does not permit a common law cause of action for injuries caused by the intentional tort of the employer. The Superi- or Court went to great lengths in a footnote to distinguish this Court’s decision in Poyser.6 For the reasons that follow we hold that our decision in Poyser is dispositive of the issue presently before this Court.

[33]*33The undisputed facts are that Pittsburgh Corning operated a manufacturing plant in Port Allegheny from 1964 until 1972 which produced thermal insulation made from raw asbestos fibers. During that period the appellees were employed by PCC at the plant and were exposed to various levels of asbestos dust. Appellees have claimed that they, or their spouses, have suffered asbestos related diseases, including asbestosis and lung cancer, as a result of their exposure to the dust during their employment with appellant.

Appellees contend that PCC knew of the danger of asbestos and yet deliberately did nothing to protect the workers from the danger. Appellees also allege that PCC allowed the levels of asbestos dust in the air at the plant to substantially exceed the safe levels recommended by experts and governmental standards. Appellees further contend that PCC deliberately refused to implement controls recommended by its own engineering team which would have reduced the airborne levels of asbestos dust. It is also alleged that PCC knowingly decided not to warn employees of the health hazard presented by exposure to high levels of asbestos dust.

Appellants admit, for purposes of this appeal, that its employees were exposed to asbestos and that it knew or should have known that exposure to asbestos dust was a health hazard. PCC admits that its safety precautions did not go far enough to protect its workers. Furthermore Pittsburgh Corning agrees that it did not adequately warn its employees of the risks involved and that it did represent to its plant employees that work area conditions were safe.

Appellees argue that PCC deliberately subjected its employees to unsafe levels of asbestos dust which it knew to a substantial certainty would result in harm to the employees. They argue that this conduct amounts to an intentional tort. We find that, like the WCA in Poyser, the ODA provides the exclusive remedy for the injuries alleged herein. In Poyser this Court held that the exclusivity provision, section 303(a) of the WCA, 77 P.S. § 481(a), bars a common law [34]*34action against an employer to recover damages for an intentional tort which injured the employee. There an employee argued that he had been injured as a result of his employer’s intentional misconduct and deliberate disregard for employee safety and that he should not be precluded from recovering damages in an intentional tort common law action. We said

The appellant’s argument is an interesting one; but it is one that must be resolved by the General Assembly, not this Court. What he is asking us to do is to engraft upon section 303(a) of the Act an exception the legislature did not see fit to put there.
Poyser, 514 Pa. at 38, 522 A.2d at 551.

The same reasoning applies in the instant action. The ODA and the WCA are similar statutes, designed to provide certain compensation for employees injured in the course of their employment.

Although the language varies slightly, the exclusive remedy provisions of both the WCA and the ODA are very similar. See Greer v. United States Steel Corporation, 475 Pa. 448, 380 A.2d 1221 (1977). Section 303(a) of the Workmen’s Compensation Act7 provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108. (Emphasis added.)

The Occupational Disease Act, section 303,8 states:

Such agreement shall constitute an acceptance of all the provisions of article three of this act, and

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Bluebook (online)
555 A.2d 766, 521 Pa. 29, 1989 Pa. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-pittsburgh-corning-corp-pa-1989.