This is an appeal from an order entering summary judgment. Plaintiff-husband suffers from silicosis. He and his wife have sued the companies that manufactured or supplied the products exposure to which caused his silicosis. The question is whether those companies may join plaintiff-husband's employers as additional defendants. The lower court held that the Act of December 5, 1974, P.L. 782, No. 263 § 6, 77 P.S. § 481, precludes joinder. We agree, and therefore affirm.
Plaintiff-husband worked in a steel foundry in Glassport, Pennsylvania, from April 1942 to July 1943, and after military service, from March 1946 until September 19, 1975, when he had to retire from work because of a disabling lung condition. Sometime later, either in October 1975, R. 13b-14b, or December 1975, R. 44b, he learned that his condition was silicosis caused by his exposure to silica and silicon dioxide in the foundry. On October 25, 1977, plaintiffs — husband and wife — filed a complaint in trespass and assumpsit against appellant and several other companies that had manufactured or supplied the products exposure to which caused his silicosis. Appellant filed a complaint to join appellees as additional defendants. Appellee Bucyrus-Erie Company is the current owner of the Glassport foundry, having purchased the foundry from appellee Textron, Inc., Pittron Division, in October 1974. Appellant's complaint alleged that as plaintiff-husband's employers, appellees were either solely liable, or to the extent that appellant was liable, liable for contribution or indemnity. After some intervening pleadings, appellees moved for summary judgment on the ground that the Act of December 5, 1974, P.L.
The Act of December 5, 1974, supra, 77 P.S. § 481, provides that an employee receiving workmen's compensation benefits from his employer may sue a third party for causing his injury, but his employer "shall not be liable to [the] third party for damages, contributions, or indemnity. . . ." Here, plaintiff-husband is receiving workmen's compensation benefits from appellee Bucyrus-Erie's carrier. Appellant acknowledges that if the Act applies, it precludes suit against appellees for damages, contribution, or indemnity, and that summary judgment in favor of appellees was therefore proper. Appellant argues, however, that the Act does not apply. The effective date of the Act was February 5, 1975, in other words, after most of plaintiff-husband's period of employment with appellees was over. In appellant's view, to apply the Act would be to make it retroactive in violation of the rule established in Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978).
In Bell v. Koppers, supra, the plaintiffs or their decedents were employed by the United States Steel Corporation at its Clairton Coke Works. Work there was conducted in close proximity to coke ovens designed, manufactured, or installed by Koppers Company, Allied Chemical Corporation, and Salem Corporation. The plaintiffs alleged that exposure over an extended period to substances emitted from these ovens had caused them or their decedents to develop lung cancer. It was agreed by all parties that "the injuries occurred before February 3, 1975." Id., 481 Pa. at 456, 392 A.2d at 1381. The plaintiffs filed suit on August 25, 1976, against the companies that had designed, manufactured, or installed the ovens. Koppers thereafter filed a third party complaint against United States Steel Corporation seeking contribution or indemnity. United States Steel filed preliminary objections contending that since it had been the plaintiffs' or their decedents' employer, the Act of December 5, 1974, precluded Koppers's suit against it. The lower court sustained the objections and we affirmed per curiam, Bell v. Koppers, 253 Pa.Super. 590,
We do not find either the Supreme Court's decision in Bell v. Koppers, supra, or any of the federal district court decisions cited by the Court, on point, for none of them addressed the question before us, of when an occupational disease becomes an injury for purposes of determining the applicability of the Act. As we have noted, in Bell the parties had agreed that the injury — lung cancer — "occurred before February 3, 1975," the effective date of the Act. Id., 481 Pa. at 456, 392 A.2d at 1381. In each of the federal district court cases the injury was caused by a discrete event occurring before February 3, 1975. Thus Bell held that the Act of December 5, 1974, must be applied prospectively, and that the Act therefore did not preclude joinder of the employer where the injury occurred before the effective date of the Act. But the problem of how to determine whether an injury has occurred before the effective date of the Act was not addressed.
Given the absence of any decision on point, the lower court drew an analogy between determining when a plaintiff was injured for the purpose of deciding whether to apply the Act of December 5, 1974, and determining when an action accrues in a creeping disease case for the purpose
Similarly, a federal district court has recently predicted that in determining whether the Act of December 5, 1974, applies, Pennsylvania courts would hold that an occupational disease is incurred on "the date of discovery or the date that the disease should have reasonably been discovered." Tysenn v. Johns-Manville, 517 F.Supp. 1290, 1295 (E.D.Pa. 1981).
While we disagree with the lower court's analysis, we agree with its result. It is unimportant that we reach this result by different reasoning. Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Lobianco v. Property Protection Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981).
The Workmen's Compensation Act provides compensation to workers for the "injuries" they incur in the course of their employment. 77 P.S. § 1, et seq. "Injuries" are defined to include certain occupational diseases. 77 P.S. § 411(2). Silicosis is one such designated occupational disease. 77 P.S. § 27.1(k). However, one may not recover compensation for an occupational disease unless the disease has resulted in death or a disability. Thus the Act provides that "whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease . . . ." 77 P.S. § 411(2).
There is no statutory provision defining when a disability is first suffered. It has nonetheless been consistently held that this occurs only when there has been some loss in the employee's earning capacity. See Unora v. Glenn Alden Coal Co., 377 Pa. 7, 104 A.2d 104 (1954); Woodward v. Pittsburgh Engineering & Construction Co., 293 Pa. 338, 143 A. 21 (1928); Montgomery v. Workmen's Compensation Appeals Board, 42 Pa.Commw. 143, 400 A.2d 253 (1979); Consolidation Coal v. Workmen's Compensation Appeals Board, 37 Pa.Commw. 412, 391 A.2d 14 (1978).
Here, plaintiff-husband had to retire from his employment as a result of silicosis on September 19, 1975. That was after the effective date of the Act of December 5, 1974. The Act therefore applies, and suit against appellees as plaintiff-husband's employers is precluded. The lower court therefore properly granted appellees' motion for summary judgment.
This conclusion is consistent with case law. In McIntyre v. E.J. Lavino & Co., 344 Pa. 163, 25 A.2d 163 (1942), the employee operated a mill that brought him in contact with manganese dust. He did this from 1935 to September 1937, when he was transferred to another department and had no further contact with manganese. He was discharged in February 1938 and twenty days later he became totally disabled from manganese poisoning. He petitioned for compensation
It is true that the present Occupational Disease Act, The Act of June 21, 1939, P.L. 566, No. 284, § 101 et seq., which supplanted the Act of 1937, interpreted in McIntyre v. E.J. Lavino, supra, does not expressly state that the date of
We also note that our conclusion has been anticipated by a federal district court. Ryden v. Johns-Manville, 518 F.Supp. 311 (W.D.Pa. 1981).