Barber v. Pittsburgh Corning Corp.

MONTGOMERY, BROSKY, DEL Bеfore SOLE and JJ. BROSKY, Judge: granting appel- from orders appeal

This is a consolidated dismissing appel- and summary judgment motion for lee’s complaint. lants’ appellee, employees or former present

Appellants of these em- spouses Corning Corporation, Pittsburgh they alleged complaint in their have ployees intentionally from which was asbestosis spouse suffer their damages seeks The action by appellee. them upon inflicted consortium. spousal and loss personal injury for forth its reasons court, opinion, sets lengthy The trial Occupa- concluding motion granting appellee’s against action an any tort precludes Act Disease tional occupational disease of ah for the contraction Hence, are called intentional tort. for an including one by the precluded an to decide whether upon bringing Disease Act Occupational provisions an against employer, tort an аction for an appellate decision escaped heretofore issue has of this Commonweálth. court below, the order we reverse set forth For the reasons proceedings the trial court for remand to from and appealed opinion. consistent with this

I. not Worker’s of whether or question commonly possessing Acts Disease and/or employees actions exclusivity provisions preclude found is one infliction of for intentional employers many in conflict and debate brought forth both which has Commonwealth, or conflict In the debate this jurisdictions. in the wording the actual arisen, part, least in from has at Occupa- exclusivity provision so-called statute. The Act, 77 states: tional Disease P.S. § of all the acceptance constitute an agreement shall Such act, as operate of this and shall of article three provisions to rights any thereto of their parties by a surrender damages any or for compensation form or amount disease, or disability resulting occupational or death other than as thereof, any to method determination act____ in article three this provided [Emphasis added]. 1401(a), part 77 P.S. section in of article §

three, states: agreement, and shall either employe by

When express implied, accept provisions or of ... ... act, of such compensation disability employ- for or death ee, disease, in by occupational arising caused out of and paid the course of his shall be the em- employment, by without regard negligence, ployer, according to the Act]____ [Emphasis schedule contained [the added]. Supporters exclusivity point of the absolute 1403 and § this section tort argue requires preclusion all ac- tions, even those for intentional torts. point Others 1401(a) argue that had the intended to all common an completely including bar law actions inten- they tional tort action would have utilized the regard negligence Appellate “without or intent.” courts prоvided guidance, of this Commonwealth have either dicta, holdings definitively related but have not an- swered the under question occupational disease act. Gottschall, Readinger Pa.Super.

The case of (1963), court, panel 191 A.2d 694 decided of this did Compensation consider this issue under the Workmen’s Act. brought that case an action was for conduct which was tantamount to a deliber- employer upon ate assault This court employee. found exclusivity clause of the Workmen’s Com- pensation preclude Act did not bar or an action for an analyzed tort. We there that an intentional tort “accident,” thought could not be of as an which was an operative word under providing that version of the act compensation to employees injured by occurring an accident in the course of employment, consequently found such an action scope without of the act. to the Subsequent Readinger decision the Workmen’s Act was language no contains the “аccidental” longer and amended leading some to question in hence Readinger, relied upon the decision. We do Readinger the of ongoing validity tjhat given of its due nor be disposed feel the issue can be the upon single a of statute. regard relying simply word in engage game to a semantical Nor does the court wish legislature of or judicial is the intent where at issue Rather, find it of enactment. interpretation legislative to determining in the issue before us appropriate more question, pur- in its legislation consider the nature pose and effect. undisputed is that passage to appears generally

What be Compensation Occupational and Disease of Workmen’s reform intend- Acts an element of social and industrial was provide recovery injured employ- ed to a certain basis of for injured employee, of acts an passage ees. Prior to these individual, like had recourse to courts injured any personal in any actions but like action common law legal responsibility to injury, required establish was any of the Acts recovery. passage After liability prior had the employment right in the course of employee injured act provisions applicable under with- compensation prove Apparently out fault. having occurring by trauma or “accident” injury more conscious it original Compensation Workmen’s Act as drafting construing which resulted in courts employed as not disease. encompassing occupational that statute Disease Act Occupational Consequently, relief for stricken with such provide enacted to individuals on, re- point injured From that worker had injuries. stat- compensatory appropriate course to the scheme ute resulted from accident regardless injury whether one exposure dangerous of the enumerated substances found in the Disease Act. distinction occupational a result of trаuma and injury between as effectively disease was eliminated the 1972 amendments to the Act 77 P.S. Workmen’s with being encompass arising all in the redrafted to or an by trauma caused whether employment course disease.1 occupational has measure, of these acts passage a reformative

As features trading off of certain as a referred to been often to up right his sue gives employee The litigation.2 of tort recovery. certain a more being awarded court while faultless, and found to be right his gives up employer liability.3 limited liable, enjoying also not while therefore more provide to intended Hence, assuming an over- imposing employees to without protection certain relieving an upon employers, financial burden whelming limiting recovery would showing fault while employee from it does interests well. to these seem balance to designed measure a reformative follow that logically cost also at а workable injuries compensable maximize liability to tort an shield provide absolute contemplated allow, reprehensible or at least encourage, or to personal to lead to severe reasonably calculated wrongdoing passage If the Work- employees. injury or death Acts are Occupational Disease Compensation and men’s to benefit designed reform of as humanitarian thought against overall, thought of as a shield it cannot be workers employ- of harm an intentional infliction liability for the it meant to be. indication that was any er. Nor is there indicated, court of this appellate no As previously Com has held that either Workmen’s Commonwealth Act shields an Disease pensation Occupational Act or the intentionally upon inflicted for harm employer liability death or itself indicates that when The Act employee.4 only enumerated Occupational Act addresses certain 1. The Disеase occupational be occupational diseases would diseases. Post 1972 acts, least, possibly under both. one of the two at covered under see, Indemnity Company, Wagner infra. example, v. National 2. For proper respect perhaps focus of attention is not whether In this 3. bring an action Disease Act allows passage his but whether the for intentional tort away employee. to take such an action from the that Act was intended so, might appear upon Although to have held closer certain cases 4. (But, they truly Poyser scrutiny done so. see the dictum in v. have not of and arising disease out occupational diability is caused compensation shall be employment, of one’s the course per as regard negligence, without employer, paid earlier, logical, it is As but posed in the act. the schedule 8, infra.) fully in footnote Company, discussed more & Newman Company, Pa. 252 A.2d Cement Portland Evans v. Allentown Pa.Super. (1969) Clearing Corporation, 344 Higgins Machine infra, (1985), fully have dealt with more discussed 496 A.2d 818 safety regulations disregard statutory knowing situations where Compensation Act an alleged. found the Workmen’s Both cases allegations Although of inten- remedy. both cases contained exclusive employer, case found the wrongdoing neither tional overly may injurious ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​​‌‌‌​​‌​‌​‌​​​‌​‍seem to be an result. This "intended” the had neighbor- key rural one. A man in a but it is a technical distinction backyard in target with a rifle in his may shoot hood decide off a rock safety If a bullet ricocheted ordinance. violation of a local sight committed an he would not have out of and struck an individual firing of the though intended to fire and the he intentional tort even however, If, group been wrongful. a of individuals had rifle was walking disregarding target anyway and he fired the rifleman’s behind struck, quite possibly group he safety was group’s and one of jury jury could by intentional tort for the liable a for would be found group certainty that one of been a substantial find that there had Therefore, legally would have "intended” he would be struck. that it come about. injurious if he had not desired result even industry, employers decisions and make conscious In the context of may day. every Some of these business "intentional" actions take prove However, may prove this even a bit unsafe. unwise and some degree place does not mean that in the work and common to some is recognized by likely injury Most this was "intended”. a resultant (ás likely how legislature, was the fact that no matter most our occur), likely injuries are and employers are some cautious compensation be "forgiven", that would in the sense meant to be employer not provisions of the Act and the would payable under the liability injury despite subjected personal and unlimited to a action be prudent injury may from a less than have resulted the fact that legislature necessarily follow that the it does not decision. liability emрloyer when he know- from tort to immunize an intended ingly engages injury. substantially to cause which is certain in conduct employer literally who reading work to immunize an Such a could provide employ- liability an tort and could also commits murder from disregard precau- intentionally safety standards er incentive to though injury result therefrom. or death is certain to tions even allegations apparent that Consequently, this context it becomes in that, that, disregarded safety regula- holding employer wilfully an or a actually does not the risk of the harm sustained tions which increased an intentional necessarily an has committed indicate that fact, manner, extremely in such a it sounds tort. In when stated recognized in a factor test of causation similar to the substantial negligence action. legislature to assume that had the necessary, not perhaps compensation to the schedule employee to limit intended intentionally his inflicted of the act when have added the “or they would intent” employer, The Act itself regard negligence”. mentions to “without section, infliction of harm one at 77 only P.S. original added to the act in 1963. which was Sec- § essence, “statutory extends the immunity” tion Occupational features of the Disease Act to fellow employ- not, this section an could injured employee ees. Under Act, injury being compensable after his found under the sue a fellow for his subsequently employee injury unless intentionally employee. This re- inflicted fellow protect employee liability flects an intent to from for his upon infliction of harm negligent fellow while if the retaining legal culpability liability his harm is intentionally opinion, inflicted. our this reflects the legislature’s general understanding intention or Act as a shield operate liability should intentional infliction of harm. argue and the trial court the fact that

Appellee specifically intentional harm is excluded 1305 and is not otherwise or addressed to the indicatеs employer, elsewhere an intention of the to shield the such are not liability. argument. We convinced 24 years Section 1305 was added after the Disease Act enacted and specific addresses a class of individuals, employees. logical fellow It would not be legislature the to address in employer liability immunity this section. Nor is it expected legislature that our would problem make wholesale revision of a no in statute where application its is perceived. Consequently, we will not infer legislative a intent to provide immunity wholesale to one individuals, class of employers, simply legisla- because the chose, date, ture at a later to add a section a granting limited immunity entirely to an different class of individu- als, employees, did not clarify existing but otherwise the provisions. immunity regard- by appellee advanced has been argument

Similar Compensation the to Workmen’s amendments ing the 1972 v. Readinger in indicated, holding our previously Act.5 As Gоttschall, supra, Compensation the found that Workmen’s for an a suit not preclude Act did on focused opinion, analysis our In that tort. intentional “accident” and found of the word usage the the act “accidental,” consequently, not injury was amendments an action. preclude such did re- drafted which Act were Compensation the Workmen’s language. Appellee of the “accident” in the deletion sulted action, by such legislature, the us have believe would which exception” “intentional tort eliminate the intended to argu- Readinger appellee’s preceding As in had created.6 A argument as well. ment, by this are unconvinced we indicates the 1972 amendments review of Compensa- coverage of the Workmen’s expand intended to analyze part Opinion we both Throughout of this the first 5. we Disease Act as Compensation Act and Workmen’s that, injury, they addressing types although different find developments and decisions therefore in nature and intеnt and similar deciding before us. the issue both are relevant in under exception" appears quotes because "intentional tort 6. The commonly referred Readinger before us are decision and the issue manner referred to in this this manner and have been to in to, However, previously this is a appellee. as alluded court and trial issue misleading of that decision and the characterization somewhat right a right employee to sue an of an itself. unconditionally passage Com- prior to the of the Workmen's existed Passage acts affect- Occupational Disease Acts. of these pensation and being judicially degree employee's right which is still to sue ed the Readinger description of our a more accurate determined. holding passage Workmen’s Act did is that the of the right away employee’s to recover in tort for take not bar or intentionally Consequently, Readinger employer. inflicted not, logical rеality, exception to the exclusivi- "carve out” we did Rather, began to define the extent to ty provisions the Act. previously provision employee’s unconditional affected an which that right to sue in tort. Readinger ongoing validity express opinion We no as to Poyser light Court’s recent decision in decision in rely Company, see footnote 8 infra. Nor do we on that Newman & Rather, Readinger reaching decision made here. we find case in subsequent which discuss this issue instructive on the cases dispositive of our decision. matter but not

257 and in the arising out of all encompass tion Act to trauma or by caused occu- employment, whether course not, in did com- As the word “accident” disease. pational encom- interpretation, understanding by judicial and mon no disease, deleted. There is occupational it was pass that its action legislature the express by intent exhibited or to holding designed Readinger to counteract emplоy- to immunity an intentional tort provide otherwise that had Furthermore, find it difficult believe ers. taken that intent it would have possessed the legislature instead that had accomplish it. We believe steps these our effectively intended to overrule Read- to effectu- undergo statutory revision decision inger intent, of the labor such a revision ate such view entails, employer that an provided explicitly it would have immune, Act, an tort action. under the from intentional of this seems to borne ongoing validity position be In Supreme language out our Court’s as well. Kline v. by Co., 158, (1983), H. 503 Pa. 469 A.2d 160 Arden Verner amendments, Supreme eleven after the 1972 our years Court, discussing constitutionality of the Act’s exclu- “the sivity provision, compensation stated workmen’s law losses incurred injury by does address employer.” Although holding this was not a court, discussing used the court in exclusivity provision equivocal is far from and cannot be ignored. Supreme Other statements our Court and this support ongoing position. Court also of this validity Corporation, Laughlin Tsarnas v. Jones & Steel 513, 519, Pa. Court (1980), Supreme A.2d our stated:

Indeed, the United States Court has consistently held that the purpose legislation this kind of was to restrict the remedy employee against available compensation, and to close to the employee, parties, and to third recourse any added). (Emphasis tort negligence.

258 Tsarnas

Immediately preceding language appears Stempkow- quoted of this court from Hefferin ski, 366, Pa.Super. (1977), 247 372 A.2d 869 discussing recommendations from the National Commission on State laws, Compensation Workmen’s which in part relevant states:

Recommendations R 2.18 and R 2.19 address immunity employers exclusivity negligence actions employee impaired when an is or dies because of work related or disease. v. National Wagner Indemnity Company, 154, 492 Pa. (1980),

422 A.2d 1061 our Supreme Court stated regard with Compensation both Workmen’s Act and Occupational Disease Act that: the employer

both and employee relinquished certain rights to other advantages. worker, obtain For the he no longer prove had to negligence; in return employee limited, accept certain, had to a though recovery. The employer, hand, on the other guaranteed compensation to injured employee return for the exclusivity ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​​‌‌‌​​‌​‌​‌​​​‌​‍workmen’s compensation liability its employees. Additionally, a recent panel decision of this court affirma- tively stated protection that the provided exclusive by the Workmen’s Compensation Act does not exclude an action for an intentional tort. Jones v. P.M.A.Insurance Compa- ny, Pa.Super. (1985). 495 A.2d 203 More recently, this Court sitting en banc has stated that an action by an employee can lie against an if the employer has harmed its employee through an wrongful act. Boris v. Liberty Mutual Insurance Company, Pa.Su- per. (1986). 515 A.2d 21 lastly We appellee’s address argument, one which is frequently made these, сircumstances such as “carve out a judicially-created intentional tort exception” to acts like the Workmen’s and Occupational Disease Act usurps the legislative function. We cannot agree. We are called on here to decide passage whether the Occupational Disease Act precludes an action by for intentional tort. We our deci- Consequently, us. before escape cannot the issue govern until of the statute will interpretation sion and by effectively Court or overruled overruled our amendment. legislative issue, as explicit not on an is case a statute

When in- “legislative to effectuate here, attempt frequently we here, that our If, also the case we believe as is tent”. result, a certain not have intended legislature would abstaining holding from so due to serving them role. For so usurping legislative fear of their misguided intent. give opposite effect to the Conse- abstaining we not, legislature if that our would and quently, we believe not, intentionally it did wish to immunize an when alternatively, hold. if employees harms its we must so Or really contemplate did not we believe drafting by provid- the Act must credit them issue when we their enactment rather than ing just interpretation a until such time as can unjust they allow results to continue If rectify improperly the situation amendment. we intent, legislature’s or estimate the we trust perceive they However, in will amend the statute to indicate so. explicitly meantime, a attempted provide just at least we have interpretation legislature’s result and a enact- just and, ment cannot certainly, this be faulted. light in statements made

Consequently, various understanding this Court and our Court and our of statutes, intent of legislative compensatory these compelled Occupational to hold that the Disease Act preclude employee against employ- does not a suit er for an intentional tort.

II. Having found that the Disease Aсt does preclude here, of in type question suit and as the trial granting court relied on this fact in summary judgment, we must determine if the of in entry summary judgment favor of appellee proper for other reasons. judgment proper of entry summary that

It is axiomatic as to material facts and the dispute there exists no where as a matter of law. judgment is entitled to moving party Pa.R.C.P. 1035.. intention of dispute here there is a as to the Accordingly, is a material fact. we cannot

appellee which facts summary judgment unless the entry affirm the record, inferences and all reasonable there- allegations from, as a matter of law for a are insufficient reasonable appellee find that committed an tort. jury to brief, allege, complaint in their and their Appellants appellee knowingly exposed appellants that asbestos far exceeded the quantities currently dust and fibers levels; safety exposure that the to asbestos was accepted exposed certain to result individual’s substantially injurious and other related dis contraction asbestosis eases; appellee appellants substantially knew were many certain to contract fact were exhibit asbestosis signs having contracted that disease and failed to ing and, also, misrepresented take that it adequate precautions dangerous working appel nature of the conditions to lants. gleaned depositions

Additional facts indi- various prior appellee cates that in to the date years two unibestos, production provided started the of they were outlining with medical literature the threshold limits of exposure indicating prevention that of asbestos asbesto- to concentra- depends entirely upon preventing exposure sis tions the threshold limits. Cape above The chief scientist at specifically Industries informed that appellee’s management dangerous asbestos was to human health and that specific must A precautions protect be taken to workers. few operations appellee’s plant, months after were at underway appellee was informed the Health De- Commonwealth’s that the partment substantially asbestos dust levels exceed- this, ed the Subsequent appellee’s threshold limit. to one of managers was sent to Cape’s manufacturing plant Eng- study land to asbestos dust controls and found Cape that to employees number predictable lost a previously had To deal and related diseases. contraction of asbestosis plants in its had instituted controls problem Cape with the air- processes reduce encapsulate producing dust to of dust. borne concentrations England, appellee’s to findings trip Based on from the to engineering report implement engineers up drew at comparable Cape’s projected to engineering controls $180,000. deposition cost of A statement at the work that, from it was clear that manager report, indicated exposed quantities employees such of asbestos dust when to A meeting contract took eventually “would asbestosis.” place president adoption with in which appellee’s engineering urged managers working at controls reported 8. from the plant response presi- appellee “losing dent was as Fur- negative money.” thermore, appellants indicated appellee’s certain times, managers, at different them that there was assured no health being exposed risk as a result the asbestos. litigation

In the intent has context of tort been defined thusly:

‘Intent’ is the word used to describe the desire commonly bring physical consequences about ... [of act] Intent, however, to bring than a desire broader about physical only results. It must extend not conse- those desired, quences are also to those but which actor substantially believes are certain follow from Prosser, Torts, (4th what he 8 at does. Law of ed. § 1971). 2d, the Restatement

Likewise, Torts (1965), de- follows, fines “intent” as

“the word ‘intent’ ... actor desires to denote[s] the consequences act, cause or that he his believes that certain to consequences substantially result from it.”

Furthermore, the Comments to Section 8A describe relationship between wrongdoing “intentional” and “reck- lessness” as follows:

If consequences certain, the actor that the knows certain, act, his substantially result from and still ahead, goes he is treated the law as he had in if fact produce desired to the result. As the that probability decreases, the consequences will follow and becomes less than substantial the actor’s conduct loses certainty, intent, recklessness, character of and becomes mere as b, 8A, ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​​‌‌‌​​‌​‌​‌​​​‌​‍defined in 500. (emphasis added).7 Comment § The above excerpts Prosser and the Restatement of provide Torts some of the explanation better of intent in the body of tort law and analysis allow of the issue here. light of these excerpts we cannot find that аn issue for the non-existent, jury that, is nor can find as a matter-of- law, appellee requisite was without the intent impose liability.

There is evidence of record which jury would allow a find appellee employees knew that its were exposed to fibers, excessive levels of asbestos dust and knew and employees exposed believed that to these levels of dust were substantially certain to contract asbestosis and related despite carcinoma and this knowledge, continued operate its plant taking without adequate measures to reduce the exposure to asbestos assuring dust while its employees that there was no health risk due to the exposure.

Consequently, possible while it is trial by jury will result in the painting of a different picture than that presented by appellants, we would be improperly invading province of the fact if finding body we were to hold here that, law, as a matter of appellee possess did not requisite intent or that an issue of material fact did not exist. Nor do we find that our decision today conflicts with previous decisions of our appellate courts.

Appellee and the court pointed trial have out certain decisions which they believe mandate affirmance of the in question. order these, In one of Evans v. Allentown Portland Cement Company, 433 Pa. 252 A.2d 646 Turner, quoted 7. This in In re 44 Pa.Cmwlth. 403 A.2d (1979).

263 neglect where “that even stated (1969), Supreme our Court only remedy employee’s the alleged, is statutory duty aof In that case Act.” Compensation the Workmen’s is under employer oper- had decedent’s alleged that the plaintiff the safe- system without conveyor electrically powered ated an met his decedent plaintiff’s and that required by law guards noted, the Court Supreme As our result thereof. death as a alleged that be- case further that complaint plaintiff’s was not activity plaintiff unlawful employer’s the cause of Supreme Act. The Compensation by the Workmen’s bound commentary quoted above.8 making the disagreed Court Poyser Supreme recently upheld by Court in position our 8. This (1987). Inc., Similar to Pa. 522 A.2d 548 Company, Newman & granted allowance of said it in Evans the Court statement used the ground recov- appellant’s asserted for tort whether appeal to consider the derelictions of caused deliberate ery, his that exclusivity provision of the operated the action out employer, to take concluded that it did Compensation Act. The Court of the Workmen’s Compen- provisions interprets of the Workmen’s not. As that decision differ, degree, found in the from those to some sation Act which Occupational employer’s con- find that the Act and does not Disease tort, affects we do not believe it of intentional rose to the level duct here. our determination apparent some critical Poyser opinion, it is Upon review of the applicable here. Poyser аre not determination in factors in the court’s statutes, although sim- exclusivity respective of the sections First ilar, Occupational "exclusivity section” not identical. Act, of that reference to other sections P.S. 1403 makes § Disease provided in article three of than as where it states “other article conjunction be read in requires that the different sections act.” This section, 1401(a), acceptance states 77 P.S. one another. The with paid “without compensation injury shall be issue, the Although on the regard negligence.” not conclusive regard negligence intent” at legislature’s failure to state "without happens question if there is evidence opens of what least to debate appear It does not reasonable intentional infliction of harm. of argue legisla- explicit provisions evidence an intent that these tort, employee’s right and it away to sue for intentional ture to take legislature contemplate entirely possible did not intentional that the original passed all when it act. tort actions at contrast, “exclusivity Compensation Workmen’s Act has an reference to other which is self contained and does not make section” Consequently, Compensa- while the Workmen’s sections of the Act. regard negligence” in its “without tion Act has similar acceptance section, exclusivity provision provisions does not its require that other sections of that Act and does not make reference to Therefore, appropriate they together. may to read the be read it be Compensation "exclusivity provision” Act more Workmen’s Act, provision narrowly in the Disease than that specifically requires makes reference to other of the Act and sections reading conjunction that section in with others. vein, Secondly, Poyser in a related Court in made legislature wrong much of the fact that the had considered intentional employees persons Compensa- third in the Workmen's fellow addressing wrong employers, tion Act while not interpreted this to mean that the had not intended that an employee’s right to sue for intentional infliction of harm (Note passage had survived of that Act. that the "fellow employee" section of the Workmen’s Act was added in act.) contrast, original original 1963 and not contained in the In Occupational intentionally version of the Disease Act did not address 1305, 1963, Only upon caused harm. the addition of 77 P.S. also in employee liability, which deals with fellow did the Act inten- discuss tionally wrong. caused or harm intentional Consequently, quarrel while we have no with the inference drawn Supreme language Compen- our Court from the of the Workmen’s sation Act we cannot from the draw non-existence of in the legislative Disease Act the same inference of intent that Supreme regard our Court drew with to the Workmen's Act; and, opinion, as noted in the text of our we do nоt believe the years passage original addition of 24 § 1305 some after of the Act extend, negative warrants a inference that the intended to time, immunity at that to an from an intentional tort action. intent, legislature possessed they Had the such we believe would have explicitly provided so. Thirdly, Poyser, pointed dissenting in as out in Justice Larsen’s opinion, majority employer’s found that the conduct did not rise allegations to the level of intentional tort and there is no discussion of employer intentionally Poyser, only employ- that harmed that the intentionally disregarded safety precautions. er As indicated in foot- 4, subtle, supra, although important note this is an distinction. The key injure. to an intentional tort action is that there exist an intent to disregard safety regulations may The "intentional” constitute evi- however, injure, necessarily dence of an "intent" to it does not consti- injure. present tute an intent to case differs in that it considers and, allegations purрoses deciding of this sort scope for exclusivity provision, injure assumes that “intent" to existed as defined body in our of tort law. Court, Fourthly, although, pointed Supreme as out our some of our by employees sister states have allowed intentional tort actions against employers Acts, pursuant states, specific provisions in their at least Ohio, two of our sister Illinois and have allowed intentional despite exclusivity provisions tort actions similar to ours. The Su- Ohio, preme Blankenship Court of v. Cincinnati Milacron Chemi- cals, Inc., 608, (1982), 69 Ohio St.2d 433 N.E.2d 572 considered the viability of an intentional tort action under the Ohio Act which (cid:127) provided employers respond damages that shall not be liable to at any injury common law or occupational statute for disease by any employee received or contracted employ- in the course of his ment. The Ohio expressly Court found that the Act did not employers immunity extend from intentional tort actions and found

265 Corрoration, Machine Clearing Higgins another, this Court (1985), panel a 325, 496 A.2d 818 Pa.Super. sustaining found Evans an order controlling and affirmed There nature a demurrer. preliminary objections operating while appellant injured was alleged it was according to guarded inadequately punch press which prior at least two there were regulations and OSHA shielding employees encompass purpose of the Act did that the liability. They stated: that form of from Indeed, designed improve compensation Acts were workers' worker, torts are injured to hold that intentional plight encouraging such Act would be tantamount under the covered conduct, motivating clearly with the cannot be reconciled and this purpose spirit of the Act. 433 N.E.2d at 577. vein, Handley appellate Illinois in v. Unarco court of In a similar Industries, Inc., Ill.App.3d N.E.2d 1011 79 Ill.Dec. against employer (1984), by employees considered an action allegations in exposure to this case the to asbestos. Similar due to exposure employer knew that to asbestos Handley indicated that the yet death withheld would cause disease dust could and and/or exposure representing employees to them that while information be that while it remained to not harmful. The Court indicated they allegations plaintiffs prove their would whether the could seen employer immunity provide from an their statute to not construe exclusivity provision that there was The stated intentional tort action. injury employer right recover from the for no of the to provided compensation in the statute. The other than the disease Court went on to state: Act, system of Diseases establishes The Workers’ fault, liability abolished traditional defenses available without exchange prohibition against common- to the for the legisla- by employees, persuaded suits but we are not that law encourages, permit meant to who tive balance was commands, tort use the act as a shield or commits an intentional shifting against liability by raising then the bar of the statute and employers. liability throughout system on other innocent 469, Ill.Dec. at 463 N.E.2d at 1023. 79 Connecticut, deciding Supreme issue Even the Court of while Court, apparent their statute in contrast to the Ohio under following express holding, liability "the common law made employer cannot, injuries accidental ... be stretched include wanton, wilful, deliberate, gross, con caused ...” CBS,Inc., added) employer, (emphasis Mingachos 196 duct course, (1985). injury if the is found Conn. 491 A.2d Of bring it could not rise to an intentional tort action accidental then supra. Conse even if caused intentional conduct. See footnote Poyser controlling quently, as we do not find our decision here we do respected come to a find comfort in the fact that other courts have interpreting very provisions. similar to ours while similar conclusion injury press punch operators plant incidents of at this resulting appropriate safeguаrds. from a lack of The com- appellants’ plaint alleged injury further was result “intentional, employer’s wanton and willful” conduct. court, This the Evans quoted even when neglect statutory duty alleged the employees’ remedy remains ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​​‌‌‌​​‌​‌​‌​​​‌​‍under the Workmen’s Act. Evans, present distinction between and the Higgins cases, that the former although involving allega- case is two violations, regulatory tions of did not conduct suffi- allege cient to meet the level intent necessary impose inten- liability. Consequently, tional tort cases both the com- plaints were dismissed failure to state a cause of action. excerpts as the from the Restatement of Tort indicated, a point there is where conduct of an individual rises to a of culpable though level intent even perhaps the actor actually did not “desire” the result received. The Evans opinion never discusses intent or the theory intentional tort only neglect statutory of a duty. On hand, other Higgins provides discusses Evans and the key distinction to the judice case sub that the employees’ death Evans, violation, despite the still statutory presump- was Likewise, tively accidental. the decision in Higgins hinged upon essentially the same criterion as this court stated allegation is made that Kelsey-Hayes intended to “[n]o injure Higgins.” Here, however, 496 A.2d at 818. it is argued extensively by appellant that appellee “intended” to injure appellants as that term has legally been defined in the large and, of tort body law as discussed earlier in this opinion, presented have sufficient present evidence to issue for the While jury. Evans and Higgins involved alleged willful violation of safety regulations, there is no indication that this created a situation where either desired or certain substantially to occur nor alleged. same Consequently, the allegations regarding in- tent were insufficient. In the present case it appears established that individuals exposed to excessive levels asbеstos dust and for an fibers extended period of time are substantially certain to contract asbestosis or other injuri-

267 Thus, here appellants have overcome symptoms. ous Accordingly, Evans and Higgins. found both pitfall Evans, Higgins do not find a conflict between we present case. Disease Act does not Occupational

As find that the we tort, find that for intentional and as we preclude an action issue, find present exists to a triable we sufficient evidence Ac- was erroneous. granting summary judgment reverse the orders from. cordingly, appealed granting Orders reversed. summary judgment SOLE, J., DEL files a dissenting opinion. SOLE,

DEL Judge, dissenting: I great my colleagues, Majority, With deference to I controlling language dissent. believe that under the case, Supreme our recent Poyser Court v. Newman and Co., Inc., (1987), Pa. A.2d 548 we must conclude advancing an is barred from an intentional tort action against his/her under the (hereinafter “ODA”). Disease Act referred to as the our Poyser, recognized Court that some sister states compensation have held that their workmen’s statutes’ exclusive remedy provisions inapplicable with respect intentional tortious conduct committed Id., 37-38, employee. 514 Pa. at A.2d at 551. court illuminated a Poyser sharp contrast between those states’ statutes and the Penn- sylvania (hereinafter Workmen’s Act re- “WCA”). ferred to as the those cases in Specifically, an employee permitted to sue the employer were grounded upon provisions in the compensation workmen’s statutes expressly preserved right “which of an employ- ee to sue in tort where his was caused employer’s intentional wrongdoing.” provi- Ibid. No such sion exists under this Commonwealth’s “WCA”.

By Opinion, the Poyser interpreta- court set out an process tive I by which believe this court is constrained to

268 and similar statutes. That construing in the “WCA” follow Act, terms of the under the is, explicitly preserved unless that are not bringing actions an is barred employeе under the Act. remedies provided for as case, the Poyser it in that the issues before analyzing It very to the “WCA’s” terms. first looked court devising legislature in the statute the that concluded caused harm but chose intentionally of the issue mindful types actionable narrowly proscribe 411(1) by provides P.S. torts. This is evidenced § person injure inflicted a third intended to that an injury statutory does not fall within the definition an employee Further, excep- an expresses 77 P.S. 72 injury. a covered § of harm caused an the intentional infliction tion for From this it was held against employee. a fellow employee exception not intend to carve out an legislature did that against an brought by employee for intentional tort actions mind, in I turn to the employer. analysis his/her With terms of the “ODA”. determined, the clause of readily exclusivity

As can be similar to that of the See strikingly the “ODA” is “WCA”. Likewise, an 1403. the “ODA” contains 77 P.S. §§ intentional tortious exception identical from the Act for is employee a fellow employee conduct one 1305. Insofar as the found the “WCA”. See P.S. § nature, I is Poyser two statutes are similar believe of the manner in which we are to decide whether dispositive intended to to sue legislature permit employee or not the under the his/her for intentional harm “ODA”. starting point operate under is to from the Poyser that, expressly unless a cause of action has been premise sole remedies for sus- preserved, employee’s injuries tained are found the “ODA”. As a matter of observa- tion, provision the “ODA” does not contain a for the simply type Majority step, of action the would allow. The next therefore, or not is determine whether was mindful of the issue of caused harm. This intentionally by examining provisions done of the Act. Under “ODA”, employee 1305 of the is immunized from tort actions for harm caused to a fellow unless such harm is From this intentionally portion inflicted. statute, it is the legislature recognized clear that the poten- tial for intentional tort actions under the “ODA” did but provisions preserve make for an employee right Thus, sue his/her for intentional wrong. under directives, I am Poyser convinced that we must arrive at legislature the conclusion that the did not intend for such actions to be instituted employee.

I duly recognize the Majority’s attempt valiant to distin- guish the instant case from particular Of a Poyser. per- suasive nature is the Majority’s argument second emphasizes the fact that 1305 was added approximately § 24 years original after the Act. The Majority does not “believe the addition of 24 some after years § of passage the Act negative warrants a inference that the legislature extend, intended time, at that to an immunity an intentional 499, 8). tort action.” (op., n.

However enticing may it be to rationale, follow this I unpersuaded remain of Poyser’s for nonapplicability two First, reasons. that, the Majority’s position legisla- had the possessed ture an intent to preclude an employee’s recovery from an employer for intentional wrong, it would have explicitly provided so runs contrary interpretative to the guidelines set out by It Poyser. bears repeating that Poyser operates from the presumption that the remedies provided the Act are exclusive unless other actions are preserved under the statute. This becomes abundantly apparent from our Supreme Court’s analysis historical of quid pro quo relationship between an employer and an employee accepting a statutory no-fault system of com- pensation for worker injuries. Id., 514 Pa. at 522 A.2d at 550. Thus, the Majority’s contention that, unless specifically precluded by the legislature, we cannot infer an intent to bar intentional tort actions brought by an employee against an employer does not comport with Poyser. Poyser calls such explicitly preserved, unless opposite approach:

for the not permittеd. actions ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​​‌‌‌​​‌​‌​‌​​​‌​‍only upon points out that

Second, aptly Majority inception after the years addition § harm, caused intentionally “ODA”, the Act discuss did this fact bringing purpose 499, 8). Majority’s The n. (op., 1305 after the inclusion of infer that light § would be legisla- demonstrate that the does not of time lapse such a harm, not to chose intentional but mindful of ture was type right to institute employee to the grant the “ODA” did It is true that employer. action unconvinced, I am intentional torts. originally discuss 1305 was however, ignore the fact can did consider the Act. The added to eventually coverage at one in the realm “ODA” torts re- with provisions to make similar decided not yet point, employer action. versus spect is further argument lapse” of the “time validity perspective. this is viewed from the “WCA” weakened when person in to third 411(l)’s reference provision Admittedly, § original version torts contained intentional for inten- 72, exception forms Act. not added employees, was tional harm caused fellow and 411 after were 1963, years nearly until §§ Supreme that our Court Poyser It written. is evident arriving factor lapse mitigating time as a did not view the that the considered at the conclusion reaches torts, Majority the result the did not intend but Thus, fail. argument must today. matter, with complete agreement I am practical

As a clause construing exclusivity manner of too, I, would hold adopt. would Majority “ODA” which his/her is not deemed to have waived that an to sue an unless “ODA” rights common law of action. Unfortunate- particular a cause specifically bars the inverse adamantly adopted our Court has ly, Therefore, remiss construction. it is approach statutory are constrained to ignore the mandate that we follow. that, I Accordingly, opinion am of the under the compelled to hold that Poyser, Appellants’ lawsuit reasons, “ODA”. For these I is barred must dissent. 529 A.2d 504 BOSCIA, Boscia, Louis C. II and Robin His Wife MASSARO, Jr., Massaro, Joseph Carolyn A. His Wife: Inc., Realty, Corporation Schindler-Haughton a Oliver Company, Corporation. Elevator Appeal of SCHINDLER-HAUGHTON

ELEVATOR COMPANY. Superior Pennsylvania. Court of

Argued Dec. 1986. July

Filed 1987.

Case Details

Case Name: Barber v. Pittsburgh Corning Corp.

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 23, 1987

Citation: 529 A.2d 491

Docket Number: 00174-00176

Court Abbreviation: Pa.