Document Nx93OGONDQRKD8MM8MX0ZG0g

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CATHERINE HASSEY, Individually and as Administratrix of the Estate of Harry R. Hassey, Dec'd vs_ : : : . CIVIL ACTION FILED FEB 2 Wtfl. UNIROYAL, INC, et al. : NO. 80-43 GREEN, J. MEMORANDUM n FEBRUARY ., ,,. URL 12567 This matter is once again before me on defendant Uniroyal's motion for summary judgment. Having carefully considered both the arguments made by Uniroyal and those made in opposition by plaintiff, I will deny the motion. This diversity action originally was instituted by i-Iarry R. Hassey and his wife, Catherine Hassey, against one defendant. Uniroyal. Mr. Hassey has since died, and the sole plaintiff is now his wife, suing individually and as the administratrix of his estate. She has filed an amended complaint, which names four additional defondants, 3.F. Goodrich Company, Firestone Tire and Rubber Company, Union Carbide Corporation and Air Products ami Chemicals, Incorporated. The amended complaint alleges that during the period from 1951 to 1973 the defendants sold a chemical known as polyvinyl chloride (PVC) to the Mas land Der .i ion the Company (Masland), which used the chemical as part of its process for manufacturing vinyl sheets. Further, i1; lz claimed that harry Hassey, who was an employee of Va . .n : throughout that twenty-uovon y-'ir ri': ' v.-* ' ' *d f :*. lung cancer which eventually killed him as a result; of his exposure to the PVC supolied Masiand by the defendants. The amended complaint alleges causes of actions na-.iir.at the defendants for negligence, breach of warranty and strict liability. Before bringing this suit, Harry Kassey filed a claim, which is still pending, against defendant Uniroyal under the Pennsylvania Workmen's Compensation Act. It is undis puted that from December, 1972 to August, 1978, L'niroya 1, which had taken over and liquidated the Maslarn: Como-my while continuing to operate it under the fictitious namu 01 'Uisland, was Mr. Ilassey13 statutory employer to: pur poses of workmen's compensation. Similarly, the parties agree that during the period fr^n ihti t - : :: L\ URL 12568 was not the statutory employer of plainti 1 ?. * 3 re*..tt. In dispute, however, is the tor 1'h.; "--ort i .1 n uu r ; , l.'h- *; December, 19"2, after I'niroyal had `icnu;: r<-: 1 1 ` . v m .1 ~ f the stock of Mas land and bo car. overattr.-- .r." us a vholiv-' wued subuid.L U". m :.nt.t m > : !]irny..iJ. was -nu :.<>r Ivj.Jiuiii;1:; ::ir; [ -vor whilo r';umv:il aroues t.uni: t wii. Those c- art: w v . s limits " i. 1' f. 1 miMOC < ' ' U'S .l`"A '' !.UW t :*.,*; t ;;o t* so 1 *.; to ioe.i.':-.' the u.jt :!!; met i'. law for damages and a claim under the Workmen*s Compensation Act against his employer who at one time acted as a '.hire party supplier of a purportedly dangerous substance to his original employer. In Pennsylvania, workmen's compensation is the exclusive remedy of an employee or his representative against an employer for any injury, occupational disease or death resulting from the conditions of employment. 77 P.S. 5481 ia). However, an employee or his repiescntut^vo may bring a civil action against any third party who causes or contributes to the cause of such injury, disease or death. 77 P.S. 5481(b). Defendant Uniroyal argues that despite the fact th.it xz may have at one time acted as a third party supplier ol PVC to Maslami, plaintiff's only remedy against Unfroyal, .;houJ*; she be able to show its liability,, is un<l*r dvr- work;:-*.:'. * : compensation statute. While conceding that thou.- Pennsylvania law directly supporting this nositicn, "n.rn-.ii asserts that plaintiff has "bifurcated" her husband* , occupational disease an-! '.ha-; b; :"ur\v: a novel theory which should not ij uco'pLod i.v M,.- . Uniroyal offers four reasons which it contends ccmoov rejection of plaintiff's theory, t do not find of -k-jso reasons persuasive.* i URL 12569 Indeed, wio fondant claims taut it .has not f rind ar.y case law from .my i ur isd i ct ion !o:t.l.v:-. . i ssao. : i. ru;:;uin.: f ha t. ibis v*ry , .Lconoo v:r - The first reason cited by defendants is that the language of the Pennsylvania Workmen's Compensation Act "neither mandates or even suggests" that an employee can sue his employer both as an employer and as a third party supplier. Stated another way, because the statute is silent as to the question presented here. Uniroyal urges that I must conclude that the legislature intended to pro hibit what Uniroyal has described as bifurcation. I do not construe this silence in the same way as the defendant does. 77 P.S. 481(b), the Pennsylvania workmen's compensa tion statute, clearly allows an employee to bring a civil action against a third party; during some part of fir. Kassey's term of employment at Masland, Uniroyal may have acted as a third party supplier of PVC to that plant. As Uniroyal has failed to point to specific language in the statute and in URL 12570 the legislative history which would prohibit Mr. Hassey's widow from suing Uniroyal under 5481(b), I must reject the first reason cited by Uniroyal. Uniroyal's second reason, that "bifurcation,f unfairly would subject an employer to double liability, i.;.,;* unconvincing. While it is true that if Mrs. iiassov were able to establish liability on the part of Uni.royal a:: a third party supplier, it will have to pay her damages in addition to any payments she might be entitled to "rem Uniroyal under workmen's compensation, this docs nor. amount to double liability. The situation ic no r--.-r chan it plaintiff were to sue anoihor third Mart/, v indued Mrs. Hassey is doing in this ^nse, and 'Jr.im- i . remained liable under the Workmen's Compensation Act. The third argument against "bifurcation" made by Uniroyal is that Pennsylvania law treats an occupational disease as a single injury which cannot be divided into separate parts for purposes of determining causation and liability. Based on the cases cited by defendant, I air. not convinced that Uniroyal has correctly stated Pennsyl vania law on this question. More importantly, j think this argument must fail because it is beside the point. 77 P.S. 481(b) allows an employee to sue a third party as well as maintain a workmen's compensation claim ogamat his employer. Problems of proving causation arc not altered by the fact one of the tiura pa: ties sued a loo happens to be the claimant's statutory employer. Mr.:. Hassey may indeed have difficulty Proving what part -j:: her husband's fatal illness can bo ascribed to L'nirr-vai'.v activities as a'third party suooii^r of how^'-o;', she races this same di i ir-i j. ty v f:ic other third parties which siv- 'nor -sued. At ..mv rite. ;hi:> grok-1.-m-i tii ; i. wi:f *h ::in- * .'OisO-Vn,; i !; r, r i iy t "'lie m-.: a-fo i f n I-.j L ' ' ' ' i icti'-". bifurcation" because of its "practical effects vh1..'. according to Uniroyal, is the fact that plaintiff will not be able to separate and prove each defendant's responsibility and liability for Mr. Hassey's illness. I already have explained why I reject this line of reasoning. Like defendant, X have not found any cases involving the precise issue presented here; however, there are cases dealing with a closely related issue, known as the dual capacity doctrine. This doctrine has been Jcscrib'ju .;j follows; URL 12572 . . . an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tore to his employee if he occupies, in audi tion to his capacity-as employer, a second capacity that confers on him obligations independent of those imposed on him as employer. Larson, Law of Workmen's Compensation (1976), Vol. 2a, 57.oO, at 14-111. In the canes in which this doctrine has boon appLi : :, ..-rul: I*J .5 have sued their employees ir. their capacities *s landowners or manufacturers in addition to bringing workmen's cor.oo!..;.iv. ion claims. -- 7heso cases are f actual 2 y 'ii Jtincuisr.ak mom \ iiO inst.Kit r.i.u i. r u; `.L . mv where ;np .lover functions in two :apaci(::cs simul tarr </ ;s 2 ' ii this case it is alleged that Uniroyal first had the- m.-'.e thirl tarty jupplicr and later Locarno cho pLaintn:f`\ . :m vi r.'c f . \i though the .;uai c ip n.*i y doctrin^ vt r.'v'.T. the ;js5!o raised bo.ro, iu . :</< o: > show thu- .. > , P-'UuUi 7 Cal. lorcer n ' * - . arc.- jurisdictions, aiboit, a iv.ii.* ' ::i 'ey , whj, eh h.ivj l >\ -ct-c the position taken by Uniroyal that in ail situations an employee's exclusive remedy against a party who 13 his employer lies in workmen's compensation. Sue Konn v. Ravbestos-Manhattan, Inc., No. 78-3942 (E.D. Pa. January 14, 1981) (Troutman, J.) (district court, predicting that Pennsylvania will follow the dual capacity doctrine, allows olaintiff to sue his ornplnyrir in l-3 canaciv -is manufacturer of an allegedly defective product which hue injured plaintiff). As defendant Uniroyal has failed to prove th*it it i:_ entitled to judgment as a matter of law, I enter the attached order denying its motion for summary judgment. a a v ia n In its --uoorting m'.-rv-irunch.:fn, ':ur'v;,;ii h ;? .tv,'...11. Tcurt net to foreclose Uniroynl it -.".is st.-'n'.m uh.at it was Mr. Nassey1 s ntntut -v -.-mol yc: . : rom i ^62 to **72 I wi ] ] 1 rar.t t* *- ; 1 , ~ i IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVAN IA CATHERINE HASSEY, Individually and as Administratrix of the Estate of Harry R. llassey, Dec'd ; : : CIVIL ACTION vs. : UNIROYAL, INC., et al. ; NO. 30-43 ORDER AND NOW, this & day of February, 1981, upon consideration of defendant Uniroyal`s motion for summary f-udcrr.en t .md plaintiff's oppositi ;n t ;-.er ' to , IT I.-' PFLLPET that said motion is DENIED. Y THE COURT l '4/0. CLiFFORD'-SCOTT GREEN,1 J c. c..c!-- URL 12574 \' ^ i . - * 0 t L f\