Barber v. Pittsburgh Corning Corp.

DEL SOLE, Judge,

dissenting:

With great deference to my colleagues, the Majority, I dissent. I believe that under the controlling language of our recent Supreme Court case, Poyser v. Newman and Co., Inc., 514 Pa. 32 , 522 A.2d 548 (1987), we must conclude that an employee is barred from advancing an intentional tort action against his/her employer under the Occupational Disease Act (hereinafter referred to as the “ODA”).

In Poyser , our Supreme Court recognized that some sister states have held that their workmen’s compensation statutes’ exclusive remedy provisions are inapplicable with respect to intentional tortious conduct committed by an employer against an employee. Id., 514 Pa. at 37-38 , 522 A.2d at 551 . However, the Poyser court illuminated a sharp contrast between those states’ statutes and the Pennsylvania Workmen’s Compensation Act (hereinafter referred to as the “WCA”). Specifically, those cases in which an employee was permitted to sue the employer were grounded upon provisions in the workmen’s compensation statutes “which expressly preserved the right of an employee to sue in tort where his injury was caused by the employer’s intentional wrongdoing.” Ibid. No such provision exists under this Commonwealth’s “WCA”.

By that Opinion, the Poyser court set out an interpretative process by which I believe this court is constrained to *268 follow in construing the “WCA” and similar statutes. That is, unless explicitly preserved under the terms of the Act, an employee is barred from bringing actions that are not provided for as remedies under the Act.

In analyzing the issues before it in that case, the Poyser court first looked to the “WCA’s” very terms. It was concluded that in devising the statute the legislature was mindful of the issue of intentionally caused harm but chose to narrowly proscribe the types of actionable intentional torts. This is evidenced by 77 P.S. § 411(1) which provides that an injury inflicted by a third person intended to injure an employee does not fall within the statutory definition of a covered injury. Further, 77 P.S. § 72 expresses an exception for the intentional infliction of harm caused by an employee against a fellow employee. From this it was held that the legislature did not intend to carve out an exception for intentional tort actions brought by an employee against his/her employer. With this analysis in mind, I turn to the terms of the “ODA”.

As can be readily determined, the exclusivity clause of the “ODA” is strikingly similar to that of the “WCA”. See 77 P.S. §§ 1401, 1403. Likewise, the “ODA” contains an identical exception from the Act for intentional tortious conduct by one employee against a fellow employee that is found in the “WCA”. See 77 P.S. § 1305. Insofar as the two statutes are similar in nature, I believe that Poyser is dispositive of the manner in which we are to decide whether or not the legislature intended to permit an employee to sue his/her employer for intentional harm under the “ODA”.

The starting point under Poyser is to operate from the premise that, unless a cause of action has been expressly preserved, the employee’s sole remedies for injuries sustained are found in the “ODA”. As a matter of observation, the “ODA” simply does not contain a provision for the type of action the Majority would allow. The next step, therefore, is to determine whether or not the legislature was mindful of the issue of intentionally caused harm. This is done by examining the provisions of the Act. Under *269 § 1305 of the “ODA”, an employee is immunized from tort actions for harm caused to a fellow employee unless such harm is intentionally inflicted. From this portion of the statute, it is clear that the legislature recognized the potential for intentional tort actions under the “ODA” but did not make provisions to preserve for an employee the right to sue his/her employer for intentional wrong. Thus, under the Poyser directives, I am convinced that we must arrive at the conclusion that the legislature did not intend for such actions to be instituted by an employee.

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

However enticing it may be to follow this rationale, I remain unpersuaded of Poyser’s nonapplicability for two reasons. First, the Majority’s position that, had the legislature possessed an intent to preclude an employee’s recovery from an employer for intentional wrong, it would have explicitly provided so runs contrary to the interpretative guidelines set out by Poyser . It bears repeating that Poyser operates from the presumption that the remedies provided for in the Act are exclusive unless other actions are preserved under the statute. This becomes abundantly apparent from our Supreme Court’s historical analysis of the quid pro quo relationship between an employer and an employee in accepting a statutory no-fault system of compensation for worker injuries. Id., 514 Pa. at 36 , 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 *270 for the opposite approach: unless explicitly preserved, such actions are not permitted.

Second, the Majority aptly points out that only upon the addition of § 1305, 24 years after the inception of the “ODA”, did the Act discuss intentionally caused harm, (op., 499, n. 8). The Majority’s purpose in bringing this fact to light would be to infer that the inclusion of § 1305 after such a lapse of time does not demonstrate that the legislature was mindful of intentional harm, but chose not to grant to the employee the right to institute this type of action against the employer. It is true that the “ODA” did not originally discuss intentional torts. I am unconvinced, however, that we can ignore the fact that § 1305 was eventually added to the Act. The legislature did consider intentional torts in the realm of “ODA” coverage at one point, yet decided not to make similar provisions with respect to an employee versus employer action.

The validity of the “time lapse” argument is further weakened when the “WCA” is viewed from this perspective. Admittedly, § 411(l)’s provision in reference to third person intentional torts was contained in the original version of the Act. However, § 72, which forms an exception for intentional harm caused by fellow employees, was not added until 1963, nearly 50 years after §§ 481 and 411 were written. It is evident from Poyser that our Supreme Court did not view the time lapse as a mitigating factor in arriving at the conclusion that the legislature considered intentional torts, but did not intend the result the Majority reaches today. Thus, this argument must fail.

As a practical matter, I am in complete agreement with the manner of construing the exclusivity clause of the “ODA” which the Majority would adopt. I, too, would hold that an employee is not deemed to have waived his/her common law rights to sue an employer unless the “ODA” specifically bars a particular cause of action. Unfortunately, our Supreme Court has adamantly adopted the inverse approach of statutory construction. Therefore, it is remiss to ignore the mandate that we are constrained to follow.

*271 Accordingly, I am of the opinion that, under the language of Poyser , we are compelled to hold that Appellants’ lawsuit is barred by the “ODA”. For these reasons, I must dissent.