HEALTH v. Church's Fried Chicken, Inc.

546 A.2d 1120, 519 Pa. 274, 1988 Pa. LEXIS 235

• Court: Supreme Court of Pennsylvania
• Decided: August 25, 1988
• Docket: 141 E.D. Appeal Dkt. 1987
• Status: Published

Opinions

OPINION

McDERMOTT, Justice.

Appellant, Inez Heath, appeals to us from the order of the Superior Court affirming the entry of summary judgment by the Court of Common Pleas of Philadelphia. 359 Pa.Super. 632, 515 A.2d 621 (1986). Upon petition we granted allocatur.

The facts of this case are not in dispute. Appellant at all times relevant to this proceeding was an employee of appellee, Church’s Fried Chicken, Inc. While in the course of her employment appellant was severely injured while operating a “chicken saw”. This saw was manufactured by appellee. As a result of this injury appellant received workmen’s compensation benefits. In addition to these benefits appellant sought additional recovery by filing an original action in trespass and assumpsit. Her theories of recovery were based upon the allegedly defective nature of the manufactured chicken saw, and she attempted to state causes of action in negligence, strict liability, and breach of warranty. In new matter appellee pled, inter alia, a defense of employer immunity based upon the exclusivity provision of the Workmen’s Compensation Act (Act)¹ which provides:

The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees, 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 séction 301(c)(1) and (2) [411(1) and (2), 77 P.S.] or occupational disease as defined in section 108.

77 P.S. § 481(a) (emphasis added).² This defense formed the basis of appellee’s summary judgment motion, which was granted. The Superior Court subsequently affirmed the grant of summary judgment for the same reason. We are now called upon to examine that decision.

This case presents the question which was left undecided in Poyser v. Newman and Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987), to wit: whether a products liability claim can be asserted against an employer who is also the manufacturer of the equipment which caused the employee’s injury. Unfortunately for appellant the rationale behind our decision in Poyser, as well as the reasoning contained in the more recent case of Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), require us to respond in the negative.

In order for appellant to succeed on this appeal this Court must find that appellee here can be sued under the “dual capacity” concept, which a majority of this Court endorsed in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 255, 439 A.2d 1162, 1166 (1982) (Concurring Opinion, Roberts, J.) However, in addressing the question of when the “dual capacity” exception applies this Court has held:

[i]t is this clear that the focus of the “dual capacity” exception is on the circumstances in which the worker’s injury occurs. But no such exception can exist where, as in the matters now before us, the employee’s compensable injury occurred while he was actually engaged in the performance of his job.

Lewis, supra, 517 Pa. at 475, 538 A.2d at 869 (emphasis added). Accord Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1984).

In this case it is a fact that appellant was injured while “actually engaged in the performance of her job.” Thus, under Lewis, the “dual capacity” exception can not apply.

The order of the Superior Court is affirmed.³

PAPADAKOS, J., joins this opinion and files a separate concurring opinion. LARSEN, J., files a dissenting opinion in which STOUT, J., joins.

1 . Act of June 2, 1915 P.L. 736, as amended,

2 . Act of December 5, 1974, P.L. 782, No. 263, § 6.

3 . We have dutifully followed the plain mandate of the General Assembly that all injuries while at work are only compensable by Workmen’s Compensation. We do so, however, as we did in Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548 (1987), with concern that machinery manufactured by an employer, for his specific purpose, should conform to safety standards imposed by legislation, the violation of which should be actionable beyond the limits of Workmen’s Compensation, if only to limit the opportunity for injury and insure safety from "Rube Goldberg" devices that put production above life and limb.