# Petition for Writ of Certiorari — Klineburger v. Maritrans Operating Partners L. P.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 1005

## Text

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91 = Jf 1S %, | Bupreme Goon US

. FILE Dp
;

NO. | MAR 9 i999
L OFFICE OF THE cuss

IN THE

Supreme Court of the Gnited States

JOSEPH R. KLINEBURGER,

Petitioner,
VS.

MARITRANS, MARITRANS OPERATING PARTNERS L.P.
and MARITRANS G.P., Inc.,
Respondents

PETITION FOR WRIT OF CERTIORARI
TO THE SUPERIOR COURT OF PENNSYLVANIA

AVRAM G. ADLER

MARC S. HENZEL
Counsel of Record
ADLER & KOPS

Attorneys for Petitioner

210 West Washington Square

Second Floor

Philadelphia, PA 19106

(215) 625-9999

THE COPY CENTER, INC. 615 Chestnut Street Philadelphia, PA 19106 215-928-1900

QUESTIONS PRESENTED FOR REVIEW

Whether specific physical contact is
a requirement under the General Maritime
Law and the Jones Act for recovery of a
Captain of a barge carrying an ultra
hazardous cargo of fuel and molten
asphalt, and furnished an inadequate and
shorthanded crew requiring the Captain,
for the safety of the Barge to work
extra watches and to suffer sleep
deprivation over a period of months,
resulting in an emotional disorder with

physiological manifestations.

ii

TABLE OF CONTENTS

Question Presented for Review.....

Table of Contents...... ee ee

Me Oe RO, cg oc cccccccecerce

ES ee

ee

Statutory Provisions Involved.....

Statement of the Case......ccccece

Reasons for Granting the Writ.....

1. The decision below is con-

trary to the mandate of this
Court as to emotional injury
and is contrary to the hold-

ings in the Ninth and Fifth

Circuits of the Courts of

EEE GGG CCK Oe cede nenececs
ee

iii

11

11

29

iii

CONTENTS

TABLE OF CITATIONS
Cases Cited:

Boudoin v. Lykes Bros. S.S. Co.,
348 U.S. 336, 75 S.Ct. 382,
99 L.Ed. 2d 354 (1955) judgment
amended 350 U.S. 811, 76 S.Ct.
38, 100 L.Ed. 727 (1955)........ 38

Buell _ v. Atchison T. & S.F.R. Co.,
771 F.2d 1320 (9th Cir. 1985)... passim

v. Atchiso _.& $.F.R. Co.,
771 F.2d 1320 (1985);
remanded chiso T. & S.F.R.
Co. v. Buell, 480 U.S. 557,
107 $.Ct. 1410, 94 L.Ed. 2d
See CERO i sc canwbe ne bekkbekacs passim

Dice v. Akron, C.&Y.R. Co.,
342 U.S. 359, 72 S.Ct. 312,
OG EcBR. FOG CAOGR) vows dc nccccccs 25

Gaston v. Flowers Transportation,
866 F. 2d 816 (5th Cir. 1989).... 29,30

2i,33
34
Holliday v. Consolidated Rail
Corporation, 914 F.2d 421
tee eee ee 31

iv

CONTENTS
u v. Mari Marit
j tners and
Maritrans G. P., Inc., (sub

judice) 404 Pa.Super. 490
(1991), 591 A.2da 314,

1991 A.M.C. 2384, Appeal

Denied 600 A.2d 954 (1991)......

Kr Vv onsolidated Rai
Corporation, 723 F.Supp. 1073
(E.D.Pa. 1989), Appeal Dis-
miseed, 899 F.24 1360. ..cccccces

Mahnich v. Southern S.S. Co.,
321 U.S. 96, 64 S.Ct. 455,

a ee eee

McAllister v. Magnolia Petroleum
Co., sof U.S. 2213, 78 &.Ct.

1201, 2 L.Ed. 2d 1272 (1958)....

Mesle v. Kea S.S. Inc., 260 F.2d
Tav CEOey SO Coben tscieceanses

Moody v. Maine C.R. Company, 823
F.2a 693 (1st Cir. 1987)........

Paugh v. Hanks, 6 Ohio St. 3d 72,
451 N.E.2d 759, 765 (1983)......

37

37

38

25

29

CONTENTS

Page

’
937 F.2d 1004 (5th Cir. 1991),
Court En Banc argument ordered
2/11/92, __—s F.2d __—s 19992,
WL 22975 (5th Cir. La.)......... passim

Randall v. Reading Company, 54 Cal.
2d 841, 9 Cal.Rptr. 361,

357 Pac.2d 449 (1960)........... 36

Taylor v. Burlington Northern Railway

Company, 787 F.2d 1309
(9th Cir. 0) ee re 18,26

Urie v. Thompson, 337 U.S. 163, 174,
69 S.Ct. 1018, 1027,

93 L.Ed. 1282 (1949)........e00. 25,36

Waldron v. Moore-McCormack Lines,
386 U.S. 724, 87 S.Ct. 1410,

18 L.BA.20 482. (1967) ...ccccccce 38
Statutes Cited:
26 U.8.C. Gemtion 126411) 6 ccccikncs 3
46 U.S.C. § 688 (Jones Act)....... 3
Federal Employers' Liability Act,

§1 et seq., 45 U.S.C.A. §51 et
BOs TRAD psec tec ce re setwesséees 20

Rules Cited:

Supreme Court Rule 10......... cece
Supreme Court Rule 10(c)..........

Other Authorities Cited:

Bell, The Bell Tolls: Toward Full

ecov fe) sychic ury,
36 U.Fla.L.Rev. 333, 337 (1984).

Noyes and Kolb, Modern Clinical

s Bec cccccccececenecesese
Restatement (Second) of Torts §436.

W.Kee ss and Keeton on
Torts, 363 (5th ed. 1984).......

APPENDIX

APPENDIX A - OPINION AND ORDER OF
THE COURT OF COMMON PLEAS
OF PHILADELPHIA COUNTY MOTION
DIVISION - CIVIL ACTION DATED
APRIL, 10, 199O.cccccccssccsesecs

APPENDIX B - OPINION OF THE
SUPERIOR COURT OF PENNSYLVANIA..

APPENDIX C - ORDER OF THE SUPREME
COURT OF PENNSYLVANIA DATED
DECEMBER 11, 199lL.wccccccccccces

28

27

la

19a

39a

vii
CONTENTS
Page
APPENDIX D - AFFIDAVIT OF

PETITIONER FILED IN ANSWER TO
MOTION FOR SUMMARY JUDGMENT..... 40a

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

JOSEPH R. KLINEBURGER,
Petitioner

vs.

MARITRANS, MARITRANS OPERATING
PARTNERS L.P. and MARITRANS G.P., INC.,
Respondents

PETITION FOR WRIT OF CERTIORARI
TO THE SUPERIOR COURT OF PENNSYLVANIA

OPINIONS BELOW
The Petitioner, Joseph R.
Klineburger, respectfully prays that a
writ of certiorari be issued to review
the judgment and opinion of the Superior
Court of the Commonwealth of Pennsylvania
entered in this proceeding on May 22,

1991. The Opinion of the Superior Court

2
of the Commonwealth of Pennsylvania is
reported at 404 Pa.Super. 490 (1991), 591
A.2d 314, 1991 A.M.C. 2384, Appeal Denied
600 A.2d 954 (1991). The Opinion also
appears in the Appendix hereto. The
denial by the Supreme court of the
Commonwealth of Pennsylvania of the
Petition for Allowance of Appeal of
Joseph R. Klineburger was denied on
December 11, 1991 without Opinion, 600
A.2d 954 (1991). The Opinion rendered by
the Court of Common Pleas’ for
Philadelphia County of the Commonwealth
of Pennsylvania is not reported. The
Opinion appears in the Appendix hereto.
JURISDICTION
The denial of the Petition for

Allowance of Appeal of Joseph R.

Klineburger by the Supreme Court of

3
Pennsylvania was denied on December ll,
1991. This Petition for Certiorari was
filed within ninety (90) days of that
date. This Court's jurisdiction is
invoked under 28 U.S.c. Section 1254(1).
STATUTORY PROVISIONS INVOLVED

66 ¥.8.C. § 688 (Jones Act)

provides:
Any seaman who shall suffer personal
injury in the course of his
employment may, at his election,
maintain an action for damages at
law, with the right of trial by
jury, and in such action all
statutes of the United States
modifying or extending the common
law right or remedy in cases of
personal injury to railway employees

shall apply; and in case of the

4
death of any seaman as a result of any
Such personal injury the personal
representative of such seaman may
maintain an action for damages at law
with the right of trial by jury, and in
such action all statutes of the United
States conferring or regulating the right
of action for death in the case of
railway employees shall be applicable.
Jurisdiction in such actions shall be
under the court of the district in which

the defendant employer resides or in

which his principal office is located.

°
STATEMENT OF THE CASE

Joseph R. Klineburger was an
employee of the defendants and a member
of the crew of the Tanker Barge 71 in the
Capacity of Captain. Barge 71 was owned
and operated by Maritrans, Maritrans
Operating Partners, L.P. and Maritrans
G.P., Inc. On or about July 3, 1986
defendants hired and assigned to Tanker
Barge 71 as a member of the crew, one
Charles Edwards while the Tanker Barge
was under tow. At the outset, Charles
Edwards exhibited severe mental
aberrations in which he spoke about
killing people and about people he had
killed. Edwards played with fire which
was absolutely prohibited aboard this

type of vessel. Edwards blew fire into

the face of one of the crew members.

Edwards later disappeared over the side

of the vessel while the voyage was
underway en route to Providence, Rhode
Island. In addition, Charles Edwards
lacked the necessary papers to act as a
tankerman, causing all watches to be
borne by the Plaintiff and one other
tankerman.

The Barge contained two eight and a
half million B.tT.vu. heaters which
required constant Surveillance. The
heaters have a tendency to catch fire
and, therefore, require constant
Surveillance. They also require huge
inputs of electrical power with the risk
of explosion and fire as a constant. The
Barge is a single-skinned boat containing

thirty thousand gallons of fuel. The

—————

4
heaters sit on top of the oil and the
crew quarters are on top of the heaters.
There were no valves on deck that could
prevent or stop the flow of fuel oil into
the heaters should the heaters catch
fire. Barge 71 also carried molten
asphalt as a general cargo.

From the time Charles Edwards
disappeared over the Side, plaintiff
protested the sending of a seaman who was
not qualified, like Charles Edwards. The
result was that Charles Edwards was never
replaced and from that moment on, the
vessel carried an inadequate and

incomplete complement aboard the vessel.

Plaintiff repeatedly made requests
for a replacement for Edwards which
became more hysterical and anxiety-ridden

until December 1986 when he could no

eects

8

longer continue to function as a barge
Captain as a result of exhaustion and
Sleep deprivation and required
hospitalization for his emotional and
psychiatric breakdown. The severe
disabling anxiety and depression had
physiological manifestations resulting in
high blood pressure and protracted
Sleeplessness, which disability has
continued from December 1986 to this
time.

On December 18, 1989, the
defendants, MARITRANS, MARITRANS
OPERATING PARTNERS, L.P. and MARITRANS
G.P. INC., through their counsel, filed a
Motion for Summary Judgment. The
gravamen of the Motion for Summary
Judgment is that a seaman is precluded as

a matter of law from recovering from the

en Na

9
vessel owner for negligence and against
the vessel for unseaworthiness if he has
suffered merely emotional injury.

Answer to the Motion for Summary
Judgment was filed with affidavits and
the issue joined. (Appendix D) on April
10, 1990, the Honorable G. bp. Cohen

granted the defendants', MARITRANS,

MARITRANS OPERATING PARTNERS, L.P. and
MARITRANS G.P., INC., Motion for Summary
Judgment. Appeal was timely taken to the
Superior Court of the Commonwealth of
Pennsylvania which is the Court of last
resort as of right.

The Superior Court affirmed the
trial court's holding that there could
not be any recovery under General
Principles of Admiralty Law or under the

Jones Act, 46 U.S.c. §688, et seq. for

10

physical or emotional manifestations of
work related stress. The Court of Common
Pleas and the Superior Court determined,
in accordance with Federal Maritime Law,
that neither the Doctrine of Unsea-
worthiness under the General Maritime Law
nor the Jones Act afforded a remedy for
damages resulting from purely emotionai
injuries, even with physical
manifestations.

At all points in the proceedings,
both in the Court of Common Pleas and in
the Superior Court, the federal question
was conceded.

Following the Decision and Order of
the Superior Court on May 22, 1991
Plaintiff filed Petition for Allowance of
Appeal to the Supreme Court of

Pennsylvania. The Petition for Allowance

i

4

11
Of Appeal is a Procedure that
approximates a Petition for Certiorari in
this Court. On December 11, 1991, the
Petition for Allowance Of Appeal was
denied.

REASONS FOR GRANTING THE WRIT

I.

The decision below is contrary to
the mandate of this Court as to emotional
injury and is contrary to the holdings in
the Ninth and Fifth Circuits of the
Courts of Appeals.

The decision of the highest Appeal
Court as of right in the Commonwealth of
Pennsylvania is in conflict with the
Court of Appeals for the Fifth and Ninth
Circuits as demonstrated in Plaisance vy.

Texaco, Inc., 937 F.2d 1004 (5th Cir.

1991), Court En Banc argument ordered
2/11/92, F.2d 1992, WL 22975 (5th

Cir. La.) and Taylor v. Burlington

| ane

12
° Llway Company, 787 F.2d 1309
(9th Cir. 1986). See also Bue Vv.

Atchison T. & S.F.R. Co., 771 F.2d 1320

(1985); remanded Atchison, T. & S.F.R.

Co. v. Buell, 480 U.S. 5957, 107 S.Ct.

1410, 94 L.Ed. 24 563 (1987). In
addition, the case sub judice constitutes
a rejection of the mandate set forth by
this Court in Atchison, T.& S.F.R. Co. v.
Buell, supra. Rule 10 of the vu. s.

Supreme Court Rules sets forth the

consideration governing Writ of
Certiorari. A Petition for writ of
Certiorari will be granted only when
there are special and important reasons
therefor. Among the reasons that Warrant
this Court's consideration is when there

has developed a conflict on a federal

question between United States Courts of

bck

13

Appeals and a State court of last resort,
as in the case sub judice. In addition,
we submit that Rule 10(c) of the Supreme
Court Rules calls for this Court to
exercise its discretion in granting a
Writ of Certiorari when the Superior
Court has ignored its mandates.

The Superior Court of Pennsylvania
has decided an important question of
federal law incorrectly and contrary to

Atchison, T.& S.F.R. Co. y. Buell, supra.

It is not alone in this regard. In

addition, the First, Third, Fourth, Sixth
and Seventh Circuits have failed to heed
this Court's direction that an emotional
injury lacking a physical trigger is
nevertheless within the ambit of injury
as set forth in the Federal Employers'

Liability Act, §1 et seq., 45 U.S.C.A.

14

§51 et seq. (hereinafter referred to as
"FELA") and the Jones Act.

In coming to the conclusion that
purely emotional injuries, with or
without physical manifestations deserve
redress, the field of decisions were
reviewed by the Fifth Circuit in

Plaisance v. Texaco, inc., 937 F.2d 1004

(Sth Cir,. 1991), Court En Banc argument

ordered 2/11/92, F.2d 1992, WL
22975 (Sth Cir. La.)

In Plaisance v. Texaco, Inc., 937

F.2d 1004 (5th Cir. 1991) the case
involved a tugboat captain and his wife
seeking recovery for emotional injuries
that resulted from witnessing a fire.
Plaisance was a tugboat captain and was
towing a workover barge from one well

location to another in Louisiana coastal

| neal

j
:
3
°

15

waters. The barge's spuds projected
below its bottom and came in contact with
an under water four inch gas pipeline.
The pipeline ruptured, the gas escaped,
and an explosion and fire ensued. The
tow was disconnected and the tug was
taken a short distance off. The fire was
confined to the rear of the barge and the
front of the trailing tug. The fire was
extinguished by the combined crews of the
two tugs and the crews of other vessels
which were attracted by the fire. The
entire operation took less than thirty
minutes. No one was injured by the
explosion or the fire.

Several hours later, upon arriving
at the repair dock, Plaisance asked to be
relieved of duty because he did not feel

well. He first went to a local hospital

—eee

16
for a few days and then transferred to a
psychiatric hospital, where he remained
for some forty-five days. According to
the treating psychiatrist, Plaisance was
suffering from post-traumatic stress,
disorder and depression resulting from
his perception that he and others could
have been injured or killed. Plaisance
sought recovery under the Jones Act for a
purely emotional injury. A motion to
dismiss was filed by Texaco and granted
by the lower court. The Court of Appeals
for the Fifth Circuit, hearing the case
On appeal, took cognizance of the

decision by this Court in Atchison. T. &

S.F.R. Co. vs. Buell, 480 U.S. 557, 107

S.Ct. 1410, 94 L.Ed.2d 563 (1987), which
had considered the issue of recovery for

purely emotional injuries. This Court,

:
4

17
because of the paucity of the record,
declined to decide whether the FELA
permitted recovery in Buell's case. It
did, however, hold:

[tjhe question whether "emotional
injury" is cognizable under the FELA
is not necessarily an abstract point
of law or a pure question of
statutory construction that might be
answerable without exacting scrutiny
of the facts of the case. Assuming,
as we have, that FELA jurisprudence
gleans guidance from common law
developments, whether one can
recover for emotional injury might
rest on a variety of subtle and
intricate distinctions related to
the nature of the injury and the
Character of the tortious
activity... In short, the question
whether one can recover for
emotional injury may not be
Susceptible to an all-inclusive
"yes" or "no" answer. As in other
areas of law, broad pronouncements
in the area may have to bow to the
precise application of developing
legal principles to the particular
facts at hand. (U.S. 568, S.Ct.
1417)

The Plaisance court took note that

a.

18
the Supreme Court had left open the
question, by Suggesting that the Federal
Courts consult the common law for
guidance. The Plaisance court then went
on to say:

"(wjhat constitutes negligence for
the statute's Purpose is a federal
question, not varying in accordance
with the differing conceptions of
negligence applicable under state
and local laws for other purposes."

ie v. ompson, 337 U.S. 163, 174,
6D &§.Ct. 1018, 1027, 93 L.ka. 1282
(1949); see also Dice v. Akron, C.&

kaRe._£6O,., 342 U.S. 359, 72 S.Ct.

312, 96 L.Ed. 398 (1952).

The Plaisance court viewed the
comments by the Supreme Court in Buell as

an open invitation to the Lower Federal

Courts to explore the parameter of
recovery under the FELA for a purely

emotional injury, citing Moody v. Maine

C.R. Company, 823 F.2d 693 (lst Cir.

1987). It also conducted a circuit

ae ptiies

19
roundup and came to the conclusion that
other than the Ninth Circuit, in Buell v.

Atchison, T. & S.F.R. Co., 771 F.2d 1320

(9th Cir. 1985) and Taylor v. Burlington

Railwa ompany, 787 F.2d 1309
(9th Cir. 1986), the invitation had been
declined in the First, Third, Fourth,
Sixth and Seventh Circuits.

The Plaisance court took issue with
their Circuit Court brethren in their
reluctance to accept the invitation of
this Court to establish the parameters of
what constitutes an emotional injury and
held that an emotional injury can be
every bit as harmful, debilitating and
destructive of the quality of one's life
as a Physical injury. They therefore
held that a claim for emotional injury

caused by emotional distress negligently

20

inflicted, even without an accompanying
physical injury or physical contact, is
cognizable under the FELA. The Plaisance
Court reviewed the four basic paradigms
sometimes used: (1) a physical injury or
impact; (2) a zone of danger; (3) being a
bystander; and (4) recovery. (F.2d 1009)
The Plaisance Court went on to say:

The physical injury or impact rule

permits recovery for emotional

injury provided there is some

physical contact. The ostensible

justification for this requirement

is that it affords a semblance of a
guarantee that the mental injury is

genuine. Restatement (Second) of
Torts §436 A comment pb (1965) ;
W on ss a eeton on
Torts, 363 (5th ed. 1984). It

provides a bright line basis for
recovery for an emotional injury.
This rule has been criticized,
however, as being arbitrarily
underinclusive for there are genuine
mental injuries that are not
accompanied by a physical injury or
impact. Buell, 480 U.S. at 569 n.
18, 107 S.Ct. at 1417 n.18 ("The
American Law Institute urges that as

21

long as the distress is ‘genuine and
severe,‘ bodily harm should not be
required."); :

injury, 36 U.Fla.L.Rev. 333, 337 (1984)
{hereinafter The Bell Tolls). (F.2d 1009)

As to the zone of danger

doctrine, the Plaisance Court decried
its limitation:

While this rubric permits recovery
in some instances excluded by the
Physical injury or impact rule, it
nevertheless suffers from the same
basic failing: it excludes recovery
by persons suffering a genuine
emotional injury. The arbitrary
nature of this rule is best
illustrated by the circumstance that
the difference of a handful of
inches may determine compensation
for emotional distress. (F.2d 1009)

Plaisance, for good reasoning, also
rejected the limiting aspect of the
bystander rule.

As to the full recovery rule the
Fifth Circuit stated:

The full recovery rule permits a
general negligence cause of action

22

for the infliction of serious
emotional distress. It requires
that the mental injury be evaluated
according to an objective standard.
The plaintiff's claimed emotional
injury must result from a situation
in which a_ reasonable person,
normally constituted, would not be
able to cope adequately with the
mental distress occasioned by the
circumstances. See Prosser and
Keeton on Torts 365 n. 60; see also
Paugh v. Hanks, 6 Ohio St. 34d aa,
451 N.E.2d 759, 765 (1983). (F.2d
1010)

The Fifth Circuit in Plaisance also
quoted Prosser and Keeton on Torts, page
361 that the shibboleths for barring
mental injuries, are just that. The
problem is one of adequate proof and a
remedy should not be denied because some
claims may be false. The Plaisance
court summed up its review:

"There need be little reminder of

the mandated liberal interpretation

to be ascribed to the FELA and Jones

Act. Buell, 480 U.S. at 561-62, 107

S.Ct. at 1413-14; Gaston, 866 F.2d

at 818. We conclude that a rule
which allows recovery for true,

23
significant mental injuries is best
attuned to that mandate. Having so
stated, we remain vitally aware that
seamen and railroaders have chosen
callings that "involve braving
certain hazards {which]) are
traditionally not well suited to the
squeamish or fainthearted." Gaston,

866 F.2d at 820. In evaluating

Claims of emotional injury, courts

must attribute to those who choose

these callings the appropriate
daring and strength and quality of
character."

The Plaisance court tested the
actions of Plaisance against the
principles they had just enunciated. A
claim lacking validity could be winnowed
out without a broad pronouncement
capturing all other victims in its net.
The Court found that Plaisance was not
threatened by the fire; that fires in the
oil field and the firing of gas are not
unusual sights and that the treating
psychiatrist testified that he was

baffled by Plaisance's overall reaction.

i
'
:
2
9
i
j
y
§
i

24
The Court sharing that bafflement,
affirmed the court below.

The principles that had been
enunciated survived to be effective for
valid and deserving cases. The Superior
Court of the Commonwealth of Pennsylvania
conducted no such searching analysis of a
doctrine. It Slavishly followed Kraus v.

S j d i Co Oration, 723

F.Supp. 1073 (E.D.Pa. 1989). Appeal

Dismissed, 899 F.2d 1360; Holliday v.
Consolidated Rail Corporation, 914 F.2d

421 (3rd Cir. 1990), and Gaston Vv.

Flowers Transportation, 866 F.2d 816 (Sth

Cir. 1989). These cases invite scrutiny.

The Superior Court sub judice
adopted the reasoning of Kraus:
“plaintiffs, who allegedly suffer

from stress-related physical or
purely emotional injuries or

25

illnesses caused by their general

working conditions, fail to state a
Claim under the FELA. Lawyers,
doctors, bus drivers, police
officers, laborers, and, yes, even
judges, face stressful conditions
every working day. To Suggest that
Congress intended to Single out
railroad workers (and seamen under
the Jones Act) as worthy of special
protection from such stress would be
pure folly. Job-related stress is
Simply not the type of problem
intended to be dealt with by the
FELA." 723 F.Supp. at 1090 (footnote
omitted).

The Superior Court summed up the
Kraus decision by saying:

"The court assigned as reason for
its holding a fear of (1) fraud, (2)
a flood of litigation by
disenchanted workers, and (3)
incalculable and potentially
unlimited damages. It also opined
that a contrary rule would create
problems regarding causation and
foreseeability. The court foresaw
also that claims would be open to
the defense of assuming the risk of
stress related injuries by
voluntarily accepting stressful
positions. Such injuries, the
court suggested, are caused by 'too
much -~ not too dangerous -- work."

26
591 A.2d 314, 317.

This reasoning is rebutted in
Plaisance, supra. It would be folly to
compare the actions of Klineburger
charged with maintaining the safety of an
explosive barge, shorthanded and sleep-
deprived, with lawyers, doctors, bus
drivers, police officers, laborers and
even judges. While they may work hard,
they do not face this condition every
working day for months.

It is up to the litigation system to
weed out the frauds and the excesses. A
back condition or a whiplash is more easy
to feign then the complexities of a
nervous breakdown.

In Gaston v. Flowers Transportation,

866 F.2d 816 (5th Cir. 1989), reliance

by the Superior Court is misplaced.

;

27
Seeking to use it as a general rule
against a purely emotional injury is not
followed in Plaisance, 937 F.2d 1004.
Gaston merely refuses to follow or
implant bystander liability. In Gaston,
866 F.2d 816 (5th Cir. 1989) the Fifth
Circuit said it is not barring recovery
under the Jones Act for a purely

emotional injury resulting from actions

di against e i iff o an

occurrence that happened _to hin.
(emphasis supplied) |

In the instant case, the
unseaworthiness of the vessel, because of
its undermanning and its inadequate crew,
was a continuing breach of the warranty
of seaworthiness that eroded the defenses
against abuse. Klineburger was no tyro.

He had been going to sea for many years.

28
He had survived temporary setbacks; he
had seen a man killed; he had been
| involved in fires and he had bounced
back. The prolongation and the constancy
of the unseaworthiness of the vessel by

first putting a dangerous crew member

aboard and when he disappeared over the
Side, failing to replace him, in time
caused Klineburger to be totally disabled

with physiological manifestations : The

AD AbD aril Related wt, Mt aie tet A te

fanciful reasons that were Suggested in
Kraus _v. Consolidated Rail Corporation,
723 F.Supp, 1073 (E.D.Pa. 1989), Appeal
Dismissed, 899 F.2a 1360, to bar
emotional injury defy logic.

The Jones Act talks of injury as
being compensable. Medicine has long

accepted the concept that injury includes

the disruption of an emotional well being

29
as it would a physical well being.

This Court recognized in Urie v.
Thompson, 337 U.S. 163, 186, 69 S.Ct.
1018, 1033, 93 L.Ed. 2d 1282, that to be
compensable under the FELA an injury need
not be inflicted by external violent or
accidental means. The Court in Urie v.
Thompson, supra, held that continuous
inhalation of silicon dust resulting in
Silicosis is compensable under the FELA
when it results from the employer's
negligence. A railroad in failing to
furnish prompt medical attention to an

employee who suffered a heart attack, has

been found to be compensable. andall v.

Reading Company, 344 F.Supp. 879, 881-82
(MD Pa. 1972). See also McMillan v.

Western Pacific Railroad Co., 54 Cal.2da

841, 9 Cal.Rptr. 361, 357 Pac.2d 449

Selita

30
(1960).

Seaworthiness is a warranty of
fitness for duty, a concept of the
General Maritime Law. The doctrine
imposes on a vessel owner or its operator
an absolute and nondelegable duty to
provide a vessel that is fit for its
intended purpose for the voyage. See
Mahnich v Southern S.S. Co., 321 U.S. 96,
64 S.Ct. 455, 88 L.Ed. 561 (1944);
M ister v Magnolia Petroleum Se., 387
weme Baa, 76 8.Ct. 1201, 2 L.Ed. 2d 1272
(1958). It requires that the vessel is
a place to work and although the sea is
inherently dangerous, the vessel itself
should be free from hazards.

While it is the usual state of
affairs that a cause of action for

unseaworthiness results from a defective

31

condition of the vessel, its equipment or
appurtenances, it is also the Maritime
Law that members of the crew of a vessel
are also warranted as seaworthy, ance
there is liability for a crew member who
is not equal to his calling on a vessel

undermanned. Waldron v ore-McCo ck

Lines, 386 U.S. 724, 87 S. Ct. 1410, 18

L. Ed 2d 482 (1967); Boudoin v Lykes
Bros. $.S. Co., 348 U.S. 206, 75 8.¢td.

382, 99 L. Ed. 2d 354 (1955), judgment
amended 350 U.S. 811, 76 S.Ct. 38, 100
L.Ed 727 (1955). See also Mesle v Kea
S.S.Inc., 260 F.2d 747 (3rd Cir. 1963)
which holds as a definition of
unseaworthiness that a vessel owner,

knowing that a certain activity is to

take place, has the absolute duty of

ie a eit hn tes

32
furnishing such equipment and in this
case, such sufficient and adequate
personnel, as would enable that activity
to be done in reasonable safety.

In the instant case Klineburger is
not a bystander. He is a participant.
The effects of the unseaworthiness of the
vessel are directly visited upon him. He
is the captain of the barge. He has the
ultimate responsibility for multiple
hazards, not only to himself but to the
vessel, to others and to the environment.
He is sitting upon gallons of fuel oil
and molten asphalt in which maintenance
and surveillance and attention are
constant. Beginning in early July and
culminating in December he was given a

crew member who was clearly not equal to

his calling and thereafter an

33
insufficient complement. These are

fundamental definitions of

ee ee eee

unseaworthiness. Thereafter the vessel
sails with a short complement, doubling
the work and the watches of Klineburger a
situation in which he is in involved in a
hysterical scramble to perform the
necessary duties to maintain any
semblance of safety.

Textbooks have dealt long and well
with combat neuroses. The experiences of
seamen can and do frequently rival battle
fears with a threat of death, plus
intense fatigue which are the
precipitating factors in the production
of combat neuroses. Noyes and Kolb,

ode inic sychiatry, at pg. 449.
Combat neuroses is a combination of fear

and anxiety. It has been said that fear

we ee |

34

is an emotion experienced in response to
a stimulus having actual reality, one
that either constitutes a present threat
to the individual or portends real
danger. Anxiety, on the other hand, is
an expectation of danger, an emotional
state of apprehensiveness, uncertainty,

and insecurity, that may be produced from

situations symbolic of external danger.

Noyes and Kolb, Modern Clinical
Psychiatry, at pg. 450.

The conditions engendered from the
long term unseaworthiness and the
combination of fear and anxiety in a
context of real danger produced a
condition similar to a combat neurosis
which was not only foreseeable, but was

predictable.

35
CONCLUSION
For these reasons, it is prayed that

a writ of certiorari should issue to
review the judgment and opinion of the
Superior Court of the Commonwealth of
Pennsylvania.

Respectfully submitted,

AVRAM G. ADLER
Counsel of Record

ADLER & KOPS
Attorneys for Petitioner

ahd ee cter the wi

la

APPENDIX A - OPINION AND ORDER OF THE
COURT OF COMMON PLEAS OF PHILADELPHIA
COUNTY MOTION DIVISION - CIVIL ACTION
DATED APRIL 10, 1990

COURT OF COMMON PLEAS
OF PHILADELPHIA COUNTY
MOTION DIVISION - CIVIL SECTION

JOSEPH R. KLINEBURGER

Vv.
MARITRANS, MARITRANS
OPERATING PARTNERS,
L.P., AND MARITRANS
G.P., INC.

MAY TERM, 1989

NO. 1067
ORDER

AND NOW, this 10th day of April,
1990, upon consideration of Defendants'
Motion for Summary Judgment and Responses
thereto, it is hereby ORDERED and DECREED
that Summary Judgment in favor of
Defendants Maritrans, Maritrans Operating
Partners, L.P., and Maritrans G.P., Inc.

and against Plaintiff Joseph R.

2a
APPENDIX A

Klineburger is GRANTED.

BY THE COURT:
Zs/_G.D. COHEN

G.D. COHEN, J.

ee eee.

3a
APPENDIX A

COURT OF COMMON PLEAS
OF PHILADELPHIA COUNTY
MOTION DIVISION - CIVIL SECTION

JOSEPH R. KLINEBURGER
Vv.
MARITRANS, MARITRANS
OPERATING PARTNERS,
L.P., AND MARITRANS

MAY TERM, 1989

G.P., INC. NO. 1067
Cohen, J. April 10, 1990
ORAN e) ie) ORDER

The issue before the Court is
whether Defendant's Motion for Summary
Judgment should be granted when Plaintiff
seeks recovery for negligence of
Defendant vessel owner and for
unseaworthiness of Defendant's vessel,
when Plaintiff alleges emotional damages
without any physical tapack.

After consideration of the case law

cited by Plaintiff in this matter, the

4a
APPENDIX A

relevant facts of the case at hand, and
the standard in Summary Judgment
proceedings, the Court finds that
Plaintiff does not have a claim against
Defendant and, therefore, Defendant's
Motion for Summary Judgment should be
granted.

This case began on June 26, 1989
when Plaintiff filed a Complaint alleging
that he suffered psychiatric injuries
including chronic anxiety disorder and
major depression while an
employee/seaman of Maritrans on board the
Maritrans'! Barge Interstate 71.
Plaintiff alleges that Defendants owned,
operated, managed and controlled Barge 71
at all times relevant to this cause of

action and that Plaintiff, employee,

member of the crew

5a

APPENDIX A
and Captain of said vessel developed
severe disabling anxiety and depression
culminating in his being unable to work
Since December, 1986. Plaintiff alleges
that Defendant ship owners were negligent
and Barge 71 was unseaworthy in:
furnishing a member of the crew who was
homicidal and dangerous, not only to the
crew but to himself; requiring Plaintiff
to work with an inadequate and
inappropriate crew; requiring Plaintiff
to stand excessive watches as the result
of the inadequate and inappropriate crew;
and placing equipment aboard the vessel
which required constant’ surveillance.
Plaintiff also alleges that he did not
receive prompt and adequate medical care

which could haver prevented the insidious

6a

APPENDIX A

course of his physical and psychiatric
condition and that Defendants failed to
exercise due care under the circumstances
and exercised a hiring policy that
permitted the hiring of a seaman
dangerous to the crew of the vessel and
to himself. Plaintiff alleges that his
injuries were caused by the negligence
of Defendant, and that solely as the
result of Defendant's negligence,
Plaintiff sustained severe psychiatric
injuries. Plaintiff demands judgment
against Defendants in excess of
$25,000.00 with costs and interest.

On October 20, 1989, at Plaintiff's
deposition, Plaintiff elaborated that his
fellow seaman, Charles Edwards, was a

maniac who could not be trusted on deck

7a

APPENDIX A

and who eventually jumped overboard.
(N/T 16, 28) Plaintiff described
Defendant's actions as peculiar because
he rambled about people who he had killed
in Vietnam and played with his lighter
repeatedly blowing flame into his mouth
with his inhaler. (N/T 23, 28, 29)
Plaintiff stated that on one occasion,
Charles Edwards blew fire into the
tugboat's AB's face. (N/T 23)

Subsequently, Defendant filed a
Motion for Summary Judgment alleging that
Plaintiff's Complaint contained only
allegations that Plaintiff had suffered
psychiatric or emotional injuries as a
direct result of the presence of a fellow
crew member who had been assigned to the

barge. Defendant, therefore, argued that

8a

APPENDIX A

Plaintiff is precluded as a matter of law
from recovering from a vessel owner for
negligence of the vessel and for
unseaworthiness. Defendant for this
reason argued that Plaintiff's claim
against Maritrans must be dismissed.

On January 17, 1990 Plaintiff filed
a Response to Defendant's Motion for
Summary Judgment. Plaintiff admits that
on June 26 Plaintiff filed a Complaint
and states that the Complaint speaks for
itself. Plaintiff further alleged that
Defendants knowingly placed a seaman not
equal to his calling on Barge 71 causing
Plaintiff to suffer chronic anxiety
disorder and depression culminating in
psychological symptoms including but not

limited to high blood pressure that

9a

APPENDIX A
rendered Plaintiff an industrial non-
descript. Plaintiff denies that he only
encountered the defective seaman several
times over the three-day period when the
latter was on the vessel. Plaintiff
Similarly contends that the encounters
were threatening or intimidating to
Plaintiff, and that the presence of
Edwards was a continuous and oppressive
presence causing psychological damage.
Plaintiff contends that he did not merely
suffer emotional injury but that he
suffered severe anxiety disorder and
major depression with psychological
manifestations and psychiatric injuries
as a result of the negligence of the ship
Owner and the unseaworthiness of the

vessel. Plaintiff accordingly denies

10a

APPENDIX A

that he is precluded as a matter of law
from recovering from vessel owner for
negligence and against Defendant Barge
for unseaworthiness. Plaintiff contends
that he suffered psychiatric injuries
including chronic anxiety disorder and
major depression while an employee/seaman
of Defendant on board the Maritrans'!
Barge Interstate 7].

Subsequent to the Court's receipt of
the aforesaid pleadings, the Court held
oral argument on the matter. As a
result or Plaintiff's representations,
Plaintiff was granted additional time in
which to file any Supporting case law.

While the Court patiently awaited
Plaintiff's Supplemental Brief, Defendant

filed a Supplemental Brief stating that

lla

APPENDIX A
federal "maritime" law applies to the
Substantive issues of the Motion , that
even application of Pennsylvania law
precludes recovery, and that Plaintiff

was a bystander entitled to no recovery

from Defendant.

The Court finds that federal
admiralty law applies to the substantive
issues before it, that Pennsylvania law
applies to the procedural issues, that
Plaintiff's Supplemental Brief on the
substantive issues’ contained clearly
distinguishable cases and that Defendant
is thereby entitled to Summary Judgment.

According to Pennsylvania law,a
Motion for Summary Judgment:

"...Shall be rendered if the

pleadings, depositions, answers to

ial

12a
APPENDIX A

interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to judgment as a matter
of law."

Rule 1035, Pennsylvania Rules of Civil

Procedure. See also, McDonald _ vy.
Marriott Corporation, 564 A.2d 1296
(Pa.Super. 1989). “Additionally, the

record must be examined in the light most
favorable to the non-moving party,
accepting as true all well-pleaded facts
in their pleadings and giving that party
the benefit of all reasonable inferences
drawn therefrom." Id at 1298. Moreover,
the court's function in summary judgment

proceedings "is not to determine the

13a

APPENDIX A
facts, but only to determine ae. 6
material issue of fact exists." Id at

1298.

The Court strictly adheres to the
guiding Pennsylvania law regarding
Summary Judgment and after applying such
law to the facts in the case at hand, the
Court feels compelled to grant
Defendant's Motion. In regard to the
Substantive case law cited by the
parties, the Court finds the cases cited
by Plaintiff to be distinguishable from
the facts before it, while the cases
cited by Defendant are both relevant and
compelling.

In particular, the Court finds that
two of the cases cited by Defendant are

persuasive and relevant to the issue and

14a
APPENDIX A

facts in the case at hand. In Gaston v.

Flowers Transportation, 866 F.2d 816 (5th

Cir. 1989), the court denied recovery for

mental anguish to aie seaman allegedly
resulting from the horror of watching his
half-brother crushed to death between two
vessels. That court's determination was
made after it found that the plaintiff
was a bystander. Similarly, Plaintiff
Klineburger was a bystander who only
witnessed the alleged dangerous actions
of Charles Edwards on board Barge 71.
(See Klineburger Deposition pp. 29-33,
36-37)

In addition, in Kraus, et al. v.

onsoli ed i Cc ation, 723 F.
Supp. 1073 (E.D. Pa. 1989), the court

concluded that a plaintiff could not

15a

APPENDIX A

recover for job-stress related emotional
injuries unless the plaintiff stated a
Claim for intentional or negligent
infliction of emotional distress. That
court found that in order for a
Plaintiff to prevail in a claim for
intentional infliction of emotional
distress, a plaintiff would have to show
"outrageous" conduct by a defendant, and
for a plaintiff to prevail for the
negligent infliction of emotional
distress, that plaintiff must allege some
kind of specific physical contact. Since
Plaintiff Klineburger has done neither of
the above, he does not have a claim
against Defendant. (See Klineburger
Deposition p. 44)

Conversely, upon consideration of

16a
APPENDIX A
Plaintiff's Response to Defendant's
Motion for Summary Judgment, and
Plaintiff's Supplemental Brief in support
of their Answer, the Court found the
cited case law to be distinguishable from
the case at hand. In Haggerty v. L & L

Marine Services, Inc., 788 F.2d 315 (5th

Cir. 1986), the Plaintiff sought damages

for pain and suffering and mental anguish
in the form of Cancerphobia, which
according to Plaintiff, was the result of
the unseaworthiness of the vessel. The
Haggerty case is distinguishable from
Plaintiff's position because plaintiff
Haggerty was completely drenched with a
chemical that was known to have a

carcinogenic affect and, therefore, that

plaintiff's resulting cancerphobia, or

17a
APPENDIX A

fear of contacting cancer, could be
measured objectively. Such is not the
case for Plaintiff Klineburger whose
Psychiatric injuries remain
unsubstantiated by a psychiatrist and
unmeasurable because of Plaintiff's
history of mental distress. (See
Attending Physician Statement of
Disability, Dr. Wolgomat; Supplementary
Proof of Law, Application for Disability
Benefits; ATtending Physician's
Statement; Defendant's Memorandum in
Support of Motion for Summary judgment p.
4 4, and Klineburger Deposition pp. 45,
56-58.)

The Court also finds distinguishable

Vv Wo s

Inc., 606 F.Supp. 656 (S.D.N.Y. 1985),

18a
APPENDIX A

because plaintiff Salerno's emotional
injury was’ substantiated by her
miscarriage approximately 24 hours after
her plane ride aboard defendant's
eirerett. Whereas, Plaintiff
Klineburger's condition was never
substantiated by any impact. (See
Klineburger Deposition pp. 36-37 wherein
Plaintiff states that Edwards never
personally threatened Plaintiff.)

For the above reasons, the Court
grants Defendant's Motion for Summary
Judgment against Plaintiff Klineburger
and in favor of Defendants Maritrans,
Maritrans Operating Partners L.P. and
Maritrans G.P., Incorporation.

BY THE COURT:

/s/_ G.D. COHEN
G.D. COHEN

19a

APPENDIX B - OPINION OF THE SUPERIOR
COURT OF PENNSYLVANIA

SUPERIOR COURT OF PENNSYLVANIA
NO. 1389 PHILADELPHIA, 1990

JOSEPH R. KLINEBURGER,
Appellant

Vs.

MARITRANS, MARITRANS OPERATING
PARTNERS L.P. and MARITRANS G.P.,
INC.
Appeal from Order of the Court of Common
Pleas, Civil Division, of Philadelphia
County, No. 1067 May Term, 1989.
BEFORE: WIEAND, KELLY and CERCONE, JJ.
OPINION BY WIEAND, J.: FILED MAY 22, 1991

The issue in this appeal is whether
a ship's captain can recover under
general principles of admiralty law or
under the Jones Act, 46 U.S.C. §688, for

Physical or emotional manifestations of

work related stress. The trial court

held that there could be no such recovery

20a
APPENDIX B
and entered summary judgment in favor of
the defendant ship owner. After careful
review, we affirn.

In July, 1986, Joseph R.
Klineburger, an employee of Maritrans
with sixteen years experience, was
serving as captain of TAnker Barge 71,
which had been engaged to transport a
cargo of molten asphalt from Philadelphia
to Providence, Rhode Island. Charles
Edwards, who had recently been hired by
Maritrans, was assigned to the vessel as
a member of the crew. Klineburger has
alleged that Edwards, from the beginning,
displayed dangerous, aberrant behavior
while aboard ship. Thus, he allegedly
(1) bragged about his ability to kill and

about having killed while serving in

2la
APPENDIX B

Vietnam; (2) played with fire by blowing
flame at another seaman aboard ship after
the ship had been loaded with fuel and
cargo; and, finally, (3) jumped overboard
and swam ashore while the ship was en
route to Rhode Island. Between July 1986
and December, 1986, Edwards was not
replaced; and, therefore, Klineburger and
other members of the crew were required
to stand more frequent watches.
Kl ineburger contended that because of
these events he suffered a chronic and
debilitating anxiety and, because of the
emotional/psychiatric injury which he
Sustained, became disabled from further

employment. His condition was diagnosed
by his physician, on the application for

long term disability benefits, as

22a
APPENDIX B

depression and anxiety, together with an
incidentally discovered hypertension.
Appellant, in depositions, said that he
had suffered "emotional strain and
stress." He attributed it to stress
caused by Edwards' brief stay aboard
Ship. His physicians, on the other hand,
attributed his condition to "no specific
incident" but to life threatening
experiences as a ship's captain.

In reviewing the grant of summary
judgment, we are guided by the law set

forth in Austin J. Richards, Inc. vy.

McClafferty, 371 Pa.Super. 269, 538 A.2da
11 (1988), allocatur denied, 520 Pa. 570,
549 A.2d 131 (1988), as follows:

A motion for summary judgment

may properly be granted only
"if the pleadings,

23a

APPENDIX B

interrogatories, and admissions
on file, together with
affidavits, if any, show that
there is no genuine issue as to
any material fact and that the
moving party is entitled to a
judgment as a matter of law."

Pa.R.C.P. 1035(b). See also:
Williams v. Pilgrim Life

Insurance Co., 306 Pa.Super.

170, 172, 452 A.2a 269, 270
(1982). In passing upon a
motion for summary judgment,
the court must examine the
record in the light most
favorable to the nonmoving
party. ocono inte Lona

Raceway, Inc, Vv. Pocono
Produce, Inc., 503 Pa. 80, 82-
83, 468 A.2d 468, 470 (1983);
Zimmerman v. Zimmerman, 322
Pa.Super. 121, 124-125, 469
A.2d 212, 213 (1983); Wilk v.
Haus, 313 Pa. Super. 479, 482,

460 A.2d 288, 289-290 (1983).

It is not part of the court's

function to decide issues of
fact but solely to determine
whether there is an issue of
fact to be tried. Wilk v.

Haus, supra, 313 Pa. Superior
Ct. at 482, 460 A.2da at 290;

Tom Morello Construction Co. v.
Bridgeport Federal Savings &
Loan Association, 280

Pa.Super.

24a
APPENDIX B

329, 334, 421 A.2ada 747, 750
(1980). Any doubt must be
resolved against the moving
party. Chorba_ v. Davlisa

Gee 303
Pa.Super. 497, 500, 450 A.2da
36, 38 (1982); First
Pennsylvania Bank, N.A. vy.

Triester, 251 Pa.Super. 372,
378, 380 A.2da 826, 829 (1977).

Id. at 273-274, 538 A.2d at 13, quoting

Thorsen v. Iron and Glass Bank, 328

Pa.Super. 135, 140-141, 476 A.2a 928,
930-931 (1984).

In the instant case, the injuries
alleged by appellant occurred because of
maritime activity occurring in navigable
waters. Although the present action has
been brought in a state court, liability
must be determined according to federal,

maritime law. 70 Am.Jur. 2d Shipping

§447 (1987), citing Kermarec v. Compagnie

25a

APPENDIX B
Gene sat ti » 358 U.S. 625,
628, 79 8.¢ct. 406, 408, 3 L.Ed. 2a 550,

5953 (1959), overruled On other grounds,
Maragne v. States Marine Lines. Inc., 398

V.8. 375, 90 &.Ct. 1772, 26 L.Ed. 2d 339

(1970); Sistrunk v. Circle Bar Drilling

Co., 770 F.2d 455, 458 n.3 (Stu Cir.
1985), cert. denied, 475 U.S. 1019, 106
S.Ct. 1205, 89 L.Ed. 2d 318 (1986).

Under federal law, a ship owner is
strictly liable for failing to furnish a
Seaworthy ship. Liability for failing to
provide a seaworthy ship arises

independent of any duty to exercise

reasonable care. See: Seas Shipping Co.

Vv. Sieracki, 328 U.S. 85, 94-95, 66 S.Ct.
872, 877-878, 90 L.Ed. 1099, 1106

(1946); Mahnick v. Southern S.S. Co., 321

U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561

(1944). See also: Miles, Admx. v. Apex
Marine Corp., 498 U.S. , : 22

S.Ct. 317, 322, 112 L.Ed. 2a 275, 286, 59

U.S.L.W. 4001, 4003 (1990). Appellant

26a
APPENDIX B
contends that the ship owner's employment
Of Edwards and Subsequent failure to
replace him rendered the barge
unseaworthy,. Under this doctrine,
however, recovery by a seaman generally
is limited to, "past and prospective loss
of earnings, medical expenses, physical
injuries and pain and suffering." Kiffe

Vv. Neches-Gulf Marine, Inc., 709 F.Supp.

743, 745 (E.D. Tex. 1989), citing Sosa v.

M/V_ Lago Isabal, 736 F.2d 1028, 1034 (5th

Cir. 1984). See also: Gaston v. Flowers

Transportation, 866 F.2d 816, 821 (5th
Cir. 1989); Bartholomew v. Universel

Tankships, Inc., 279 F.2d 911, 916 (2d

Cir. 1960). Recovery for purely

mental/emotional injury because of an
unseaworthy vessel has generally been

denied.

27a

APPENDIX B
The Jones Act makes available to
seamen injured in the course of their
employment a right of recovery for
injuries resulting from the ship owner's

negligence.! The Act "establishes a

1 The Jones Act provides, in
relevant part, as follows:

Any seaman who shall suffer personal
injury in the course of his employment
may, at his election, maintain an action
for damages at law, with the right of
trial by jury, and in such action all
statutes of the United States modifying
or extending the common-law right or
remedy in cases of personal injury to
railway employees shall QPPly . . « «

46 U.S.C. §688(a) (1986).
FELA provides, in relevant part, as
follows:

Every common carrier by railroad
while engaging in commerce... shall be
liable in damages to any person suffering
injury while he is employed by such
carrier in such commerce .. . fcr such
injury ... resulting in whole or in
part from the negligence of any of the
officers, agents, or employees of such
carrier, or by reason of any defect or

28a
APPENDIX B
uniform system of tort law parallel to
that available to employees of interstate
railway carriers under [the Federal
Employers Liability Act (FELA), 45 U.S.C.
§ 51)." See: Mi ™ - ex Marine
Corp., supra at —__., ill S.Ct. at 321,
112 L.Ed. 2d at 285, 59 U.S.L.W. at 4004.

See also: Mitchell _v. Trawler Racer,

Inc., 362 U.S. 539, 546-547, 80 S.Ct.
926, 931, 4 L.Ed. 2d 941, 946 (1960);
Neal _v. Saga Shipping Co., 407 F.Ed 481,
485 (5th Cir. 1969), cert. denied, 395

U.S. 986, 89 S.Ct. 2143, 23 L.Ed. 2d 775

(footnote cont'd)

insufficiency, due to its negligence, in
its cars, engines, appliances, machinery,
track, roadbed, works, boats, wharves, or
other equipment.

29a
APPENDIX B
(1969). The Jones Act allows an injured
seaman to recover for injuries on a
theory of negligence which is different
from and in addition to the strict
liability theory established under the
ancient doctrine of unseaworthiness.

See: Garrett v. Moore-McCormack 2. »

317 U.S. 239, 240 n.2, 63 S.Ct. 246, 148
n.2, 87 L.Ed. 239, 241 n.2 (1942); Rowley

Vv. Sierra S.S. Co., 48 F.Supp. 193, 195

(N.D. Ohio 1942). Here, appellant
alleges that his injury was caused by the
ship owner's negligence in hiring
Edwards, an averred dangerous person.

In Atchison, Topeka and Santa Fe

Railway Co. v. Buell, 480 U.S. 557, 107

S.Ct. 1410, 94 L.Ed. 2a 563 (1987), the

Supreme Court declined to decide whether

30a

APPENDIX B
damages were recoverable for purely
emotional injuries under the FELA, and
therefore under the Jones Act. This
caused the Court of Appeals for the Fifth

Circuit, in Gaston _ vy, Flowers

Transportation, supra, to comment:

The most recent statement from the
Supreme Court regarding recovery for
purely emotional injuries under the FELA,
and therefore the Jones Act, is to be
found in Atchison, Topeka and Santa Fe
Railway Co. v. Buell, 480 U.S. 557, 107
S.Ct. 1410, 94 L.Ed. 2d 563 (1987). In
Buell, the Court declined to decide
whether damage were recoverable for
purely emotional injuries under the FELA
because the record was not fully
developed on the alleged tort of the
employer and the claimed resulting injury
to the respondence. id. at 567, 107
S.Ct. at 1417. The court did, however,
offer the following observation:

In short, the question whether one
can recover for emotional injury may not
be susceptible to an all-inclusive "ves"
or "no" answer. As in other areas of
law, broad pronouncements in this area
may have to bow to the precise

31a

APPENDIX B

application of developing legal
principles to the particular facts at
hand.

2a. at 570, 107 S.ct. at 1418. This
Statement has been viewed as an open
invitation "to parse the FELA in light of
the specific facts" of a case. Netto v.
Amtrak, 863 F.2d 1210, 1213 (5th Cir.
1989). Indeed, a liberal interpretation
has traditionally been ascribed to the
legislation; and the common law has
served as a guide to interpreting the
statute. See Buell, 480 U.S. at 568,
107 &.Ct. at 1417.

Id at 818.

Recovery for job related stress has
been before the Court of Appeals for the
Third Circuit and the United States Court
for the Eastern District of Pennsylvania.
In S_v. Consolidated Rail Corp., 723
F.Supp. 1073 (E.D. Pa. 1989), appeal
dismissed, 899 F.2d 1360 (3d Cir. 1990-),

the Court concluded that

32a
APPENDIX B

Plaintiffs, who allegedly suffer from
stress-related physical or purely
emotional injuries or illnesses caused by
their general working conditions, fail to
state a claim under the FELA. Lawyers,
doctors, bus drivers, police officers,
laborers, and, yes, even judges, face
stressful conditions every working day.
To suggest that Congress intended to
Single out railroad workers (and seamen
under the Jones Act) as worthy of special
protection from such stress would be pure
folly. Job-related stress is simply not
the type of problem intended to be dealt
with by the FELA.

id. at 1090 (footnote omitted). THe
court assigned as reason for its holding
a fear of (1) fraud, (2) a flood of
litigation by disenchanted workers, and
(3) incalculable and potentially
unlimited damages. It also opined that a
contrary rule would crate problems
regarding causation and foreseeability.
The court foresaw also that claims would

be open to the defense of assuming the

33a
APPENDIX B
risk of stress related injuries by

voluntarily accepting stressful

positions. Such injuries, the court
Suggested, are caused by "too much -- not
too dangerous -- work."

The reasoning in Kruass was approved

by the Court of Appeals for the Third

Circuit in Holliday Vv. Consolidated Rail

Corporation, 914 F.2d 42] (3d Cir. 1990).

Holliday, a railroad employee, was

adversely affected by the stress of his
job and began to experience heart
palpitations, Sleep disorder, anxiety,
depression, tenesmus, a spastic colon and
involuntary rectal discharge. The
district court entered summary judgment
in favor of the employer holding that
PSychological and Physical

manifestations

34a
APPENDIX B
of job related stress were not
recoverable under the FELA. On appeal,
the Court of Appeals affirmed. In so
doing, the Court observed that there had
been no accident, and that Holliday had
not observed injury to another party
because of tortious conduct. The court
also observed that Holliday's condition
was not solely emotional but included
Physical consequences attributable to his
emotional state. The Court declined to
alter its analysis, however, observing
that to hold otherwise would permit the
most attenuated claims to be presented to
a jury whenever a Claimant alleged
“possible negligence with psychological
consequences." See also and compare:

Gaston v Flowers Transportation, supra,

35a
APPENDIX B
where the Court of Appeals for the Fifth
Circuit held that there could be no
recovery for emotional distress after a
seaman had observed a shipping accident
in which his half-brother had been
injured but which had not involved a
Physical touching of the seaman.

In the instant case, there is no
contention that the ship owner was guilty
of outrageous’ conduct Suggesting an
intentional infliction of emotional
distress. Instead, appellant has
alleged that he was injured when he
performed normal duties as ship captain
under conditions which were more
difficult and stressful than usual
because of Edwards. However, there was

no threatening activity of any kind

36a
APPENDIX B
directed at or near appellant personally,
and he was not a witness to serious
Physical injury to any third person.
Under these circumstances we conclude, as
did the federal district court under
Similar facts in Vv. solidated

Rail Corp., Supra, and the Court of

Appeals in Holliday v. Consolidated Rail

Corporation, supra, that there can be no

recovery under the Jones Act for the

psychological and physical manifestations
of job related stress alleged by the
plaintiff-appellant.

These decisions specifically
involved the Jones Act and FELA. We
conclude, however, that they have equal
application to claims based on the

alleged unseaworthiness of a vessel. They

37a
APPENDIX B

represent policy statements pertaining to
federal admiralty law and the nature of
the claims which can be made thereunder.
The trial court's entry of summary
judgment in favor of the ship owner was
consistent with these decisions and
requires that we affirm its
determination.

Judgment affirmed.

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38a
APPENDIX B

IN THE SUPERIOR COURT
OF PENNSYLVANIA

No. 1389 Philadelphia, 1990

JOSEPH R. KLINEBURGER,
Appellant

vs.
MARITRANS, MARITRANS OPERATING
PARTNERS L.P. and MARITRANS G.P.,
INC.,
Appellees
JUDGMENT
ON CONSIDERATION WHEREOF, it is now
Ordered and adjudged by this Court that
the judgment of the Court of Common Pleas
Of PHILADELPHIA County be, and the same
is hereby AFFIRMED.
BY THE COURT:
David A. Szewczak

Prothonotary

Dated: May 22, 1991

39a

APPENDIX C - ORDER OF THE SUPREME COURT
OF PENNSYLVANIA DATED DECEMBER 11, 199]

JOSEPH R. KLINEBURGER, PETITIONER v.
MARITRANS OPERATING PARTNERS, L.P. and
MARITRANS G.P., INC.

NO. 569 E.D. Allocatur Docket 1991

December 11, 199]
Petition Denied.

Per Curian.

40a
APPENDIX D - AFFIDAVIT OF PETITIONER
FILED IN ANSWER TO MOTION FOR SUMMARY
JUDGMENT

COMMONWEALTH OF PENNSYLVANIA

SS
COUNTY OF PHILADELPHIA :

AFFIDAVIT

JOSEPH R. KLINEBURGER, being
duly sworn according to law, deposes and
states that he was employed as a Barge
Captain by MARITRANS OPERATING PARTNERS
and MARITRANS G.P., INC. and under
whatever name and corporate style suited
them at the time. His severe disabling
anxiety and depression, which resulted in
his being unable to work since December
of 1986 and which has rendered him
totally disabled, had at its start the

Placing aboard the barge Interstate 7]

one Charles Edwards. Prior to this time,

4la

APPENDIX D
he had been able to cope with all of the
hazards at sea which included ship
collisions and fires which are doubly
Serious when one is concerned with
traffic and petroleum products and in
which fire is frequently a preamble to
explosion. It was negligent on the part
of the management of Barge 71 to put a
seaman like Charles Edwards aboard that
barge. He lacked tankerman's papers
which meant that the ship's complement
was not complete and required deponent
and Robert Deane, the second tankermen,
to double up and do the watches that
would ordinarily be assigned to Charles
Edwards. In addition, Charles Edwards
exhibited severe mental aberrations in

which he spoke continuously of killing

42a
APPENDIX D
people and people that he had killed.
This meant that he had to be watched and
was a matter of constant concern. In
addition, he Played with fire which is
absolutely prohibited aboard a vessel and
On one occasion, blew fire into the face
Of one of the crew members. His
disappearing over the side of the ship
was the final culmination of anxiety
creating acts by this member of the crew.
The Barge contained two eight and a half
million B.T.Uu. heaters which required
constant surveillance. These heaters
have a tendency to catch fire and they
are a constant source Of concern
requiring constant surveillance; they
require huge inputs of electrical power

which rendered the prospects for an

43a

APPENDIX D
explosion and fire to be a constant
worry. The Barge is a Single skin boat
containing thirty thousand gallons of
fuel oil. The heaters sit on top of the
Oil and the crew quarters are on top of
the heaters. There was no valves on deck
that could prevent or stop the flow of
fuel oil into the heaters should the
heaters catch fire, which made the Barge
a literal time bomb. When deponent
protested the sending of a seaman like
Charles Edwards aboard the vessel, the
result was that he was never replaced and
the vessel thereby was unseaworthy by
reason of having an inadequate and
incomplete complement aboard the vessel.
Barge 71 carried molten asphalt as a

general cargo.

44a
APPENDIX D

Plaintiff, from the time that
Mr. Edwards disappeared over the side,
continually pressed the defendants for
the additional experienced crew member
necessary. Plaintiff's request became
more hysterical and anxiety-ridden until
in December, 1986 he could no longer
continue to function as a barge captain.

The placing of Charles Edwards
aboard the barge which in the light of
his inexperience and his homicidal and
dangerous characteristics, demonstrated
negligence on the part of the vessel
Owner, the presence of Charles Edwards on
the vessel rendered the vessel
unseaworthy. The total impact of a

Charles Edwards with his life threatening

attitudes and constant pre-occupation

45a
APPENDIX D
with fire, effected the deponent' so
severely that he began to develop severe
disabling anxiety and depression which
added his physical manifestations and
high blood pressure, sleeplessness from
which he has not to this day recovered.
The anxiety created by Charles Edwards
was of such a nature that both deponent
and the second tankerman exhorted the
defendants not to make public to anyone

their addresses.

{s/JOSEPH KLINEBURGER
JOSEPH KLINEBURGER

SWORN TO AND SUBSCRIBED
BEFORE ME THIS 16th DAY

OF JANUARY, 1990.

NOTARY PUBLIC

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0297%3A1. Public record. Not legal advice.