No. 85-1386.United States Court of Appeals, Third Circuit.Submitted Pursuant to Third Circuit Rule 12(6) March 7, 1986.
May 21, 1986.
Robert J. Gordon, Jane C. Fischer, Greitzer and Locks, Philadelphia, Pa., for appellants.
James A. Young, Timothy I. McCann, Sprecher, Felix, Visco, Hutchison Young, Philadelphia, Pa., for appellee Asten-Hill Mfg. Co.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before GIBBONS, BECKER, and ROSENN, Circuit Judges.
[1] OPINION OF THE COURT
BECKER, Circuit Judge.
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against their former employer. The district court granted defendant’s motion to dismiss for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiffs’ claims were barred by the Pennsylvania Workmen’s Compensation and Occupational Disease Acts. Plaintiffs’ appeal is grounded on the argument that their complaint stated a claim for relief under the “intentional tort” exception to the Workmen’s Compensation exclusivity provisions (“comp-bar”). We conclude that, even assuming that the judicially created intentional tort exception to the comp-bar is still viable under Pennsylvania law, see infra note 3, plaintiffs’ allegations fail to state a claim within that exception. Accordingly, we affirm.
I.
[3] Appellants, former employees of appellee Asten-Hill Manufacturing Company (“Asten-Hill”) and their spouses, brought suit in Philadelphia Common Pleas Court on December 19, 1978, against Asten-Hill and various suppliers of asbestos, alleging that during their employment at Asten-Hill they were exposed to asbestos fibers, and that, as a result, they contracted asbestosis.[1] Some of Asten-Hill’s co-defendants and certain third-party defendants filed counterclaims or crossclaims against Asten-Hill. On January 1, 1979, the case was removed to the district court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1441 (1982). The federal court’s jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332 (1982).
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judgment on plaintiffs’ behalf against one of the suppliers, Bell Asbestos Mines, and dismissed the claims against the other suppliers. At this time, the district court made final the April, 1983 dismissal of the claims against Asten Hill. We are now presented with plaintiffs’ appeal of that dismissal. The other defendants and third-party defendants have not appealed the dismissal of their crossclaims against Asten-Hill.
II.
[6] A federal court sitting in a diversity action must apply the substantive law of the state in which it sits and thus must predict how the highest state court would resolve the case Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir. 1982). In this case, we must predict whether the Pennsylvania Supreme Court would permit employees who are eligible for benefits under the Pennsylvania Workmen’s Compensation and Occupational Disease Acts to bring a third-party claim against their employer on an intentional tort theory predicated upon the allegations of the complaint in this case.
[8] Weldon v. Celotex Corp., 695 F.2d 67, 70 (3d Cir. 1982). [9] In Readinger v. Gottschall, 201 Pa. Super. 134, 191 A.2d 694The statutory scheme thus operates on a law of averages. In some instances where he could prove negligence, an employee may receive less compensation than he would recover in damages in a common law suit. In other situations, an employer may have to pay compensation where he would not be liable for any sum at common law. Despite inequities in specific cases, the underlying assumption is that, on the whole, the legislation provides substantial justice.
(1963), a panel of the Pennsylvania Superior Court established an exception to the comp-bar, holding that an intentional assault upon an employee by an employer was actionable. Thus was born in Pennsylvania the “intentional tort” exception to the comp-bar. Our present task is to predict the scope of the exception. A canvas of the case law convinces us that the Pennsylvania Supreme Court would not consider allegations such as plaintiffs’ as falling within the exception.[3]
III.
[10] The Pennsylvania Supreme Court has dealt with the scope of the intentional tort exception just once, and then only implicitly. In Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969), the court held that despite allegations
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of an employer’s willful and unlawful failure to provide safeguards on a conveyor system, the employee-plaintiff’s sole remedy was under the Workmen’s Compensation Act. The court made no reference to the intentional tort exception.
[11] The Pennsylvania Superior Court, in a detailed and thoughtful discussion of the intentional tort exception, recently attached much significance to Evans. The reasoning of that case Higgins v. Clearing Machine Corporation, 344 Pa. Super. 325, 496 A.2d 818 (1985), strongly suggests that appellants in the instant case did not state a claim within the intentional tort exception. [12] In Higgins, the plaintiff, who had been injured while operating an unguarded punchpress, alleged intentional misconduct by the defendants in not taking action to prevent a known hazard. The Higgins panel held that such actions do not bring a case within the intentional tort exception, observing:[13] Id. at 331, 496 A.2d at 821 (emphasis added). Similarly, in the case at bar plaintiffs did not allege that it was the purpose of defendants to injure them. Higgins, which is a very recent opinion by the highest Pennsylvania court directly addressing the scope of the intentional tort exception, strongly counsels that we affirm the dismissal of plaintiffs’ case. See Goodwin v. Elkins Co., 730 F.2d 99, 111 n. 23 (3d Cir. 1984) (“In the absence of a starkly defined irregularity of decision, therefore, we decline to hypothesize a disagreement between the Pennsylvania Supreme Court and the state’s intermediate appellate court.”).[4] [14] Larson’s treatise on workmen’s compensation, regarded as influential by Pennsylvania courts, supports this conclusion:Kelsey-Hayes’ alleged “intentional, wanton and willful” conduct herein comprises its repeated violation of safety regulations and its neglect of a known dangerous condition. Clearly, these allegations should properly be aligned with those presented to our Supreme Court in Evans, supra. No allegation is made that Kelsey-Hayes intended to injure Higgins.
[15] 2A Larson, The Law of Workmen’s Compensation, § 68.13 (1975). This summary strikes us as a fair rendering of Pennsylvania law on the issue. [16] In sum, we predict that the Pennsylvania Supreme Court would not extend the intentional tort exception to the allegations of this case. It is, of course, for that court to settle the matter definitively, and in view of the large number of cases in the federal courts raising this issue, we urge it to do so as soon as the opportunity presents itself.[5] [17] The judgment of the district court will be affirmed.Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common-law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute or other misconduct of the employer
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short of genuine intentional injury. . . . Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.
(1983). Thus, because appellants Wilson, Timoteo and Sims allege they were exposed to asbestos through 1977 and 1978, their claims are governed by both Acts. Appellant Triola’s claim is governed solely by the Occupational Disease Act because Triola alleges in his complaint that his last date of exposure to asbestos was 1970.
(1985) (effect of 1972 amendment on intentional tort exception is uncertain). Because we find that appellants have failed to state a claim against Asten-Hill that falls within the intentional tort exception, we need not decide whether the exception remains viable. That important question of state law is, of course, best decided by the Pennsylvania Supreme Court.
Consideration of the federal courts that have applied Pennsylvania law on the scope of the intentional tort exception, on balance, supports the dismissal of plaintiffs’ case. Se Weldon v. Celotex Corp., 695 F.2d 67 (3d Cir. 1982) (holding that similar allegations of an employer’s recklessness in permitting asbestos exposure were subject to the comp-bar, though explicitly declining to address whether the allegations stated a cause of action within the intentional tort exception because that issue was not raised by plaintiffs); Tysenn v. Johns-Manville Corp., 517 F. Supp. 1290 (E.D.Pa. 1981) (plaintiff’s former employer’s knowledge of the risk of cancer inherent in its employees’ exposure to asbestos not an intentional tort so as to enable recovery under the exclusive remedy provision of the Act); Ulicny v. National Dust Collection Corp., 391 F. Supp. 1265 (E.D.Pa. 1975) (non-asbestos case in which husband was killed when he was struck by the steel cover of a dust collecting system. Court held that “reckless,” “wanton,” “wilful,” and “negligent” conduct did not fall within the intentional tort exception.); contra Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357 (E.D.Pa. 1982), aff’d. on other grounds sub nom., Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985) (employer’s conduct in asbestos case held to be an intentional tort and thus compensable outside the Workmen’s Compensation Act).