Perez v. Blumenthal Bros. Chocolate Co.
| Decision Date | 09 January 1968 |
| Citation | 237 A.2d 227,428 Pa. 225 |
| Parties | Louis PEREZ v. BLUMENTHAL BROTHERS CHOCOLATE COMPANY, Appellant. |
| Court | Pennsylvania Supreme Court |
Frederick W. Anton, III, Philadelphia, for appellant.
Joseph Matusow, Irving Marks, Philadelphia, for appellee.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appellee commenced an action of trespass against appellant, his employer, alleging that appellant had violated its duty to protect the health and safety of appellee, its employee. Specifically, appellee alleged that he was exposed to heavy dust produced in a grinding operation, and that this, together with injurious fumes caused by the high temperatures associated with appellant's operation, caused him an aggravation of a latent tubercular condition and a preexisting pulmonary emphysema and severe bronchitis.
The case was heard in a non jury trial resulting in a verdict for appellee. The trial judge found that appellee's condition was caused or aggravated by a continued exposure to a heavy concentration of dust and excessive heat in his employment with appellant. Appellant's exceptions to the findings and verdict of the trial judge were heard and dismissed. This appeal followed the entry of judgment on the verdict of the trial judge.
Appellant asserts in this appeal that appellee's action is barred by the Pennsylvania Occupational Disease Act, 1 and that the finding of the trial judge that appellee's emphysema was caused by any condition existing in appellant's plant was not supported by competent medical evidence. We disagree with appellant on both counts.
One is tempted to dismiss appellant's argument relative to the Pennsylvania Occupational Disease Act out of hand, inasmuch as appellee, prior to the filing of the instant action of trespass had filed a claim under the Act, which claim was resisted by appellant on the ground that emphysema is not an occupational disease. Appellant ought not to be permitted to have it both ways. Be that as it may, however, the Act itself makes clear that it is not a bar to the trespass action. The Act enumerates occupational diseases in § 108, 77 P.S. § 1208. The specifically enumerated diseases have no relevancy here, but subsection (n) added to the section in 1956 is relied upon by appellant in support of its contention that the Act provides appellee's exclusive remedy. That section states:
'(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population. * * *'
We are in agreement with the court below that the General Assembly intended to bring within the purview of the Act all diseases not specifically enumerated which meet the standards set forth in subsection (n). In view of the fact that appellee offered competent medical testimony that pulmonary emphysema is not 'peculiar to the industry' of chocolate manufacturing and is 'common to the general population', we conclude, as did the court below, that appellee's condition is not covered by the Act. See Porter v. Sterling Supply Corp., 203 Pa.Super. 138, 199 A.2d 525 (1964).
We are also in agreement with the court below that a causal connection between the hazard to...
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Tooey v. Ak Steel Corp.
...and not on whether compensation is or is not barred by some other feature of the statute.14See also Perez v. Blumenthal Bros. Chocolate Co., 428 Pa. 225, 227–28, 237 A.2d 227, 229 (1968) (permitting a common law trespass action to proceed because the plaintiff's illness fell outside the sco......
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Alexander v. Red Star Exp. Lines of Auburn, Inc.
...can be no tort recovery under Pennsylvania law for disease covered by the workmen's compensation statute); Perez v. Blumenthal Bros. Chocolate Co., 428 Pa. 225, 237 A.2d 227 (1968) (recovery for disease not covered by compensation statute II. Plaintiff's Discharge Defendant contends that th......
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Tooey v. AK Steel Corp.
...and not on whether compensation is or is not barred by some other feature of the statute.14 See also Perez v. Blumenthal Bros. Chocolate Co., 428 Pa. 225, 227-28, 237 A.2d 227, 229 (1968) (permitting a common law trespass action to proceed because the plaintiff's illness fell outside the sc......
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Greer v. United States Steel Corp.
...Act could not constitute a bar to the common law action. (Emphasis added) 457 F.2d at 1337. I concede that neither the Supreme Court in Perez nor the Court Appeals in Hartwell expressly ruled upon the argument that appellant raises here: they did not, that is, expressly interpret the effect......