Evans v. Allentown Portland Cement Co.
| Citation | 433 Pa. 595,252 A.2d 646 |
| Parties | Joseph T. EVANS, Administrator of the Estate of James M. Evans, Deceased, Appellant, v. ALLENTOWN PORTLAND CEMENT CO., and Jeffrey Galion Manufacturing Company. |
| Decision Date | 23 April 1969 |
| Court | United States State Supreme Court of Pennsylvania |
George R. Eves, Reading, for appellant.
Richard A. Bausher, Stevens & Lee, Reading, for appellee, Allentown Portland Cement Co.
Robert I. Cottom, Matten & Cottom, Reading, for appellee, Jeffrey Galion Mfg. Co.
Before BELL C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.
This is an appeal from the order of the Court of Common Pleas of Berks County, sustaining appellee's preliminary objections in the nature of a demurrer. The case arose out of an industrial accident, in which appellant's decedent James M. Evans, was killed. The complaint alleged that appellee, Allentown Portland Cement Co., had operated an electrically powered conveyor system without the safeguards required by law, and that the decedent met his death as a result of the unguarded system. It further alleged that because of the unlawful acts of appellee, neither decedent nor appellant was bound by the provisions of the Workmen's Compensation Act. Appellees filed preliminary objections asserting that appellant's exclusive remedy was under the Workmen's Compensation Act and that no cause of action existed in trespass. The court below sustained the preliminary objections. We affirm.
The Workmen's Compensation Act, Act of June 2, 1915, P.L 736, as amended, 77 P.S. § 1 et seq. provides that compensation shall be paid 'when employer and employe shall by agreement, either express or implied * * * accept the provisions of article three of this act.' § 301(a) of Article III, 77 P.S. § 431. It is conclusively presumed under the Act that the parties have accepted the provisions of the Act and have agreed to be bound thereby unless written notice of an intention that the Act not apply be given by either party to the other. § 302(a) of Article III, 77 P.S. § 461. § 303 of Article III of the Act, 77 P.S. § 481, specifically states:
(Emphasis supplied).
Appellant contended below that § 303 is inapplicable in the instant case because cause of the allegations of a wilful and unlawful violation of the safety provisions of both the Act of May 18, 1937, P.L. 654, § 2, as amended, 43 P.S. § 25--2(b) and the Rules and Regulations of the Department of Labor and Industry. The court below quite properly gave short shrift to appellant's contention, pointing out that the cases upon which he relied were neither good law, at present, nor if they were good law, were they applicable to the instant case because they both involved the special situation of the employment of minors in direct contravention of a statute prohibiting such employment.
Appellant has shown us no reason to reverse the court below. Although the word 'minor', nowhere to be found in his complaint, now conspicuously dots appellant's brief, we fail to see the relevance. Even if Lincoln v. National Tube Co., 268 Pa. 504, 112 A. 73 (1920) and King v. Darlington B. & M. C., 284 Pa. 277, 131 A. 241 (1925) were good law, appellant has failed to come within their ambit. Appellant has pointed to no statutory provision or Labor Department regulation which prohibits the employment of nineteen-year-olds at the job at which decedent was employed.
What is more important, though, is the fact that the two cases on which he relies were laid to rest by amendments to the Workmen's Compensation Act and our cases of Fritsch v. Pennsylvania Golf Club, 355 Pa. 384, 50 A.2d 207 (1947), and Lengyel v. Bohrer, 372 Pa. 531, 94 A.2d 753 (1953). Before the enactment of the Acts of April 14, 1931, P.L. 361 June 21, 1939, P.L. 520, and May 18, 1945, P.L. 671, amending the Workmen's Compensation Act, it had uniformly held that a minor employed in violation of the Child Labor Act could maintain an action of trespass for personal injuries received during the course of his employment. Lincoln v. National Tube Co., supra; King v....
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