author: WIEAND, Judge:

text:
    529 A.2d 480
    COMMONWEALTH of Pennsylvania v. Luis TOLEDO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1987.
    Filed July 21, 1987.

      Patricia Wenger, Assistant Public Defender, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

Luis Toledo was tried by jury and was found guilty of murder of the first degree in connection with the shotgun slaying of Lazaro Gonzalez in Harrisburg on July 26, 1985. On direct appeal from a sentence of life imprisonment, Toledo contends that the evidence was insufficient to sustain the finding of first degree murder or, in the alternative, that the verdict was contrary to the weight of the evidence. He also argues that the trial court erred when it (1) refused to charge the jury on “heat of passion” voluntary manslaughter; (2) permitted selected portions of the trial testimony to be read back to the jury; and (3) refused to declare a mistrial because of comments made by the prosecutor during closing argument. We find no merit in these contentions and, therefore, affirm the judgment of sentence.

The test to be applied in determining the sufficiency of the evidence is whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984).

The crime of first degree murder is defined as follows:

(a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

18 Pa.C.S. § 2502(a). Intentional killing is defined as a “[killing by means of poison, or by lying in wait, or by any other kind of-.willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d).

The evidence in this case showed that, on July 26, 1985 at or about 10:55 a.m., Lazaro Gonzalez, the victim, was shot at close range in the lower back by an assailant who used a sawed-off shotgun. An eyewitness to the shooting, Jose Saez, testified that he observed defendant arguing with the victim moments before the shooting, heard a shotgun blast, and saw the defendant flee the scene with a sawed-off shotgun in his possession.

The deliberate use of a deadly weapon upon a vital area of the body of a victim is sufficient to permit a jury to infer a specific intent to take life, absent any circumstances to negate such an intention. Commonwealth v. Crowson, 488 Pa. 537, 543, 412 A.2d 1363, 1365 (1979); Commonwealth v. Ewing, 439 Pa. 88, 91, 264 A.2d 661, 663 (1970). See also: Commonwealth v. Clemmons, 312 Pa.Super. 475, 479-480, 459 A.2d 1, 3 (1983), rev’d on other grounds, 505 Pa. 356, 479 A.2d 955 (1984). Appellant in this case was identified as the actual killer by an eyewitness to the shooting. The evidence, therefore, was sufficient to sustain the jury’s verdict. See: Commonwealth v. Coyle, 415 Pa. 379, 385, 203 A.2d 782, 785 (1964). The fact that the eyewitness did not actually observe appellant pull the trigger does not render the evidence insufficient, for a verdict may rest in whole or in part upon circumstantial evidence. See: Commonwealth v. Culbreath, 439 Pa. 21, 264 A.2d 643 (1970).

The decision to grant or deny a motion for a new trial on the ground that the verdict was against the weight of the evidence is committed primarily to the sound discretion of the trial court. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). A new trial will be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Datesman, 343 Pa.Super. 176, 182, 494 A.2d 413, 416 (1985). In view of the evidence received at trial in this case, it is clear that the trial court did not abuse its discretion in refusing to find that the verdict was contrary to the weight of the evidence.

Appellant also contends that the trial court erred when it refused to instruct the jury, upon request, regarding a “heat of passion” voluntary manslaughter defense. We agree with the Commonwealth and the trial court that the facts in the case did not warrant such a charge. The evidence suggested that Gonzalez had died as a result of a single shotgun blast to the lower back. There was no evidence that the shooting had been provoked. The defense offered at trial was one of mistaken identity. Appellant argues on appeal that he was nevertheless entitled to a “heat of passion” voluntary manslaughter instruction because of the “mercy dispensing power” of the jury.

This had been the holding of Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). However, the rule had a short-lived history. Justice Nix (now Chief Justice), who had been the author of Jones, wrote in dissent in Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978), where the Court extended the rule to “unreasonable belief” voluntary manslaughter, that the enactment of the 1972 Crimes Code afforded an opportunity to reassess the wisdom and utility of the Jones rule and to set it aside. The term “ ‘mercy dispensing power,’ ” he observed, was a “ ‘euphemism to justify a rationally unsupportable verdict.’ ” Such an approach invited arbitrary action by juries and left a reviewing court powerless to remedy discriminatory verdicts. Id., 477 Pa. at 504, 384 A.2d at 1201, quoting Commonwealth v. Gartner, 475 Pa. 512, 533, 381 A.2d 114, 125 (Nix, J. concurring and dissenting).

In Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), a majority of the Court, in reliance upon Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), observed that “ ‘[d]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.’ ” Id. 500 Pa. at 72, 454 A.2d at 967, quoting Hopper v. Evans, supra at 611, 102 S.Ct. at 2053, 72 L.Ed.2d at 373 (emphasis in original). The majority also noted that as a Court it had “rejected the practice of charging the jury, on request, on the crime of involuntary manslaughter without regard to the evidence. . . .” Id. 500 Pa. at 73, 454 A.2d at 967, citing Commonwealth v. White, 490 Pa. 179, 184, 415 A.2d 399, 401 (1980) and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). Therefore, a majority of the Court concluded, “[i]n an appropriate case, this Court would have to consider whether Roberts v. Louisiana, supra, would require a similar result regarding instructions on voluntary manslaughter in the absence of evidence to support such an offense.” Id. 500 Pa. at 73, 454 A.2d at 967.

This occurred in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), when the Supreme Court held that a defendant was entitled to an “unreasonable belief” voluntary manslaughter charge only where the offense had been made an issue in the case and the evidence would reasonably support such a verdict. Finally, in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), in response to a defense argument, the Court held that the practice of instructing a jury, upon defense request, regarding the elements of voluntary manslaughter whether or not evidence existed to support a charge, did not inject an element of arbitrariness by inviting the jurors to disregard their oaths to apply the law to the evidence presented. By way of a footnote, the majority wrote, without dissent, as follows:

There is little or no vitality left to this practice which stems from this Court’s decisions in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974) and Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978). The continuing validity of the rule was seriously undermined by our decisions holding that an instruction on involuntary manslaughter may be given only where the evidence would support such a verdict. Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980); Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). The death knell to the practice regarding instructions on voluntary manslaughter was sounded in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) wherein a majority of this Court held that a trial court may charge on the “unreasonable belief” subclass of voluntary manslaughter, 18 Pa.C.S.A. § 2503(b), only where evidence exists that would support such a verdict. 502 Pa. 433, 466 A.2d 1328. The majority did not decide the propriety of the practice of charging the jury on “heat of passion” voluntary manslaughter, 18 Pa.C.S.A. § 2503(a) in the absence of evidence, 502 Pa. 441 n. 8, 466 A.2d 1331 n. 8, although the concurring opinions of this author and Mr. Justice McDermott would have abolished that practice as well.

Id., 504 Pa. at 450 n. 10, 475 A.2d at 711 n. 10 (emphasis in original).

The fact that Jones has not been overruled expressly by the Supreme Court does not mean that inferior courts can blithely ignore the subsequent history of its holding or the guidance given by the Supreme Court in the foregoing footnote. In view thereof, we will not hold, as appellant would have us do, that the trial court committed error by refusing a defense request to charge on “heat of passion” voluntary manslaughter where such a defense was not made an issue at trial and where the evidence would not reasonably have supported such a finding. We are unable to conclude rationally that a different rule should obtain where voluntary manslaughter is based on “heat of passion” than where it is based on “unreasonable belief.”

Moreover and in any event, the absence of such an instruction in this case was harmless. In Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987), a panel of this Court held that a trial court’s refusal to instruct on voluntary manslaughter did not prejudice the defendant. We might well say, as did the Mays Court,

[i]n the present case, the trial court instructed on first, second and third degree murder. The jury could have exercised a mercy-dispensing power and brought back a verdict of third-degree murder against [defendant]. Instead, the jury found [defendant] guilty of second-degree murder. We are therefore persuaded that [defendant] suffered no prejudice from the trial court’s denial of a request for charge on Section 2503(a), “heat of passion” voluntary manslaughter.

Id., 361 Pa.Superior Ct. at 563, 523 A.2d at 361. Appellant is not entitled to a new trial in this case because of the trial court’s refusal to instruct the jury on voluntary manslaughter.

Appellant next contends that the trial court erred when it allowed selected portions of the eyewitness’s testimony to be read to the jury. A request therefor had been made during deliberations by the jury to assist it in determining the sequence of events between the firing of the shotgun and the witness’s identification of appellant as the assailant.

In Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984), this Court reviewed the applicable law as follows:

When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court’s discretion to grant or deny such request. Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968); Commonwealth v. McBall, 316 Pa.Superior Ct. 493, 463 A.2d 472 (1983). The court must be careful so as not to place undue emphasis upon those portions which are requested. Peterman, supra, Commonwealth v. Coley, 297 Pa.Superior Ct. 435, 444 A.2d 110 (1982); Commonwealth v. Banks, 267 Pa.Superior Ct. 10, 405 A.2d 1277 (1979). The parameters concerning the extent that testimony should be read to the jury are to be set by the juror’s request. Commonwealth v. Peterman, supra. Hence the court, if it deems it appropriate, may permit the jury to hear only a portion of a witness’ testimony. See Commonwealth v. Coley, supra.

Id., 328 Pa.Superior Ct. at 54, 476 A.2d at 449. In the instant case, the trial had been interrupted by a sudden snowstorm that closed the courthouse for one full day. Therefore, it cannot be said that the trial court abused its discretion by allowing the jury’s request to have its collective recollection of the prior testimony refreshed. Although the cross-examination of the witness had not been read to the jury, defense counsel expressed satisfaction that the jury had received the information which was relevant and necessary to satisfy the jury’s request. See: N.T. 2/12/86, at 99. There was no undue emphasis placed upon that portion of the testimony which was read to the jury. Therefore, we perceive no abuse of discretion by the trial court.

Finally, appellant contends that he was prejudiced by inflammatory and prejudicial comments made by the prosecuting attorney during closing argument. The first of these was as follows:

When you go back to consider the evidence, ladies and gentlemen, I think perhaps this can synthesize your task. Make it very simple for you. Any doubt that you have must arise from the evidence that is presented. The evidence that has been presented was that a man was shot in the back at close range on a downward angle and it was observed by a man who knew the killer. Is there anything to suggest otherwise than that this Defendant committed the slaying? And I mentioned that to you because the Defense attorney said pay careful attention to cross-examination. Pay careful attention to that because the full story sometimes doesn’t come out until cross-examination.

Closing Arguments, 2/12/86, at 32 (emphasis added). Appellant contends that this was an improper reference to his failure to testify.

It is correct, as appellant argues, that a comment by the prosecution concerning the failure of an accused to testify at trial is constitutionally impermissible. Commonwealth v. Young, 477 Pa. 212, 217, 383 A.2d 899, 901 (1978). See also: Commonwealth v. Brenizer, 467 Pa. 347, 351, 356 A.2d 784, 785-786 (1976). However, a prosecutor is not barred from commenting on the “uncontroverted” strength of its case unless such comments unequivocally call attention to the defendant’s failure to testify. Commonwealth v. Kloch, 230 Pa.Super. 563, 589, 327 A.2d 375, 389 (1970). In the instant case, the comment by the prosecuting attorney was made in response to a defense argument and referred to the uncontradicted nature of the evidence which had been presented by the Commonwealth. The remark did not call attention to appellant’s failure to testify. Cf. Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1980) (prosecutor may properly respond to defense counsel’s argument which questions the credibility of witness). Appellant was not entitled to a mistrial because of the prosecuting attorney’s argument.

Appellant also contends that the prosecutor improperly appealed to the prejudices and fears of the jury by the following remarks:

What about this common threat of fear that we talked about? Jose Saez told you that he came forward, but only after a friend had arranged for the interview. And all those people, all those people were out there. All those people were around the area where this shooting took place and only one man comes forward. Only one young man. And you heard Detective Macon. He interviewed how many people? Ten? Fifteen people? And who does he get? One man to come forward. And sometimes, you know, that just is the way it is, because the crimes that you read about in the paper, the crimes of violence that sometimes tear a community apart will cause that. It will cause those windows to shut. Cause those curtains to pull, cause those people to stay inside and surrender the streets, surrender the community, because of fear.
But you know, many times it takes just that one person, that one person who is going to put everything on the line as he told you from the stand, to have enough courage to stand up and say I am not going to give into fear, I am not going to surrender the community where my mother-in-law lives, where I walk with my children, the people who, for no reason, will take another person’s life.
That is the courage of one man to come forward and tell you that and it has been suggested.
Do not surrender the community to be gripped by fear by those for no reason or any reason would shoot an unarmed man in the back.
Please be the conscious [sic] of the community, accept the facts as they have been presented to you and convict this Defendant of first degree murder. Thank you.

Closing Arguments, 2/12/86, at 30-31, 36.

A prosecutor should not appeal to the prejudices or fears of a jury. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974). The prosecutor is a quasi-judicial officer whose duty is to seek justice, not convictions. His or her “position as both an administrator of justice and an advocate ‘gives him [or her] a responsibility not to be vindictive or attempt in any manner to influence the jury by arousing their prejudices.’ ” Commonwealth v. Gilman, supra 470 Pa. at 188, 368 A.2d at 257, quoting Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300, 302 (1972). Moreover, “[t]he determination of guilt must not be the product of fear or vengeance but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that has been presented.” Commonwealth v. Harvell, supra, 458 Pa. at 411, 327 A.2d at 30 (emphasis in original).

Not every intemperate or uncalled for remark, however, requires a new trial.

[C]omments by a prosecutor do not constitute reversible error unless the “unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Anderson, supra at 501 Pa. 282, 461 A.2d 211; Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 93 (1982).

Commonwealth v. D'Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987), quoting Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986). “[T]he prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred.” Commonwealth v. D'Amato, supra, 514 Pa. at 490, 526 A.2d at 309. Viewing the prosecutor’s comments in this case against the defense attack on the witness’s credibility and the weight of the Commonwealth’s case, and viewing the prosecutor’s argument as a whole, we are unable to conclude that the unavoidable effect thereof was to so permeate the trial with bias and hostility toward the appellant that the jurors could not render a true verdict according to the evidence.

Appellant contends finally that the prosecutor improperly suggested that defense counsel had engaged in unethical conduct in the gathering and presentation of evidence. During closing argument the prosecutor remarked:

Use that analogy that the Defense attorney suggests to you that sometimes the mind’s eye isn’t like a camera. Well, I am glad it isn’t, because if it is anything like the photographs that were taken with that camera, we would have had Jose Saez standing on the West Shore, seeing what is taking place on 13th Street.
You heard him. You took the pictures so that the signs are in it and the Coke machines are in it. What does that suggest to you? When you look at those photos, use those as an aid just to get a feel for the scene, but remember, the testimony is what you consider. The facts are what you use to judge guilt or innocence as the case may be.

Closing Arguments, 2/12/86, at 33. At trial, appellant had introduced into evidence various photographs of the scene of the shooting in an apparent effort to pinpoint the spot from which Saez had observed the shooting. When defense counsel attempted to convey to the jury that Saez’s supposed line of sight was obstructed by a hanging sign depicted in one of the photographs, Saez protested that the picture had not been taken from the same spot at which he had been standing when he witnessed the shooting. The prosecutor’s closing argument did not imply that defense counsel had acted unethically in the taking of the photographs; rather, it was meant to suggest that the photographs were merely an aid in reconstructing the scene of the shooting and did not constitute incontrovertible evidence that Saez’s line of sight had in fact been obstructed by the sign. The trial court did not err when it denied appellant’s motion for mistrial because of the prosecuting attorney’s closing argument.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    529 A.2d 487
    Marie T. BIGGINS v. Murray J. SHORE and Angelo D. Guerra, Individually and T/A Shore & Guerra Realtors, Appellants.
    Superior Court of Pennsylvania.
    Argued April 22, 1987.
    Filed July 27, 1987.

      John J. Yannacone, Media, for appellants.
    Richard M. Bockol, Philadelphia, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal by defendants-appellants, Murray J. Shore and Angelo D. Guerra, individually and trading as Shore and Guerra Realtors, from an order entered in the Delaware County Court of Common Pleas granting plaintiff-appellee’s, Marie T. Biggins’ motion for summary judgment. We affirm.

On April 10, 1985, appellee filed a complaint in assumpsit against appellants. In her complaint, appellee asserted that she was a third-party beneficiary of a contract between her late husband, Robert A. Biggins, and the appellants, concerning the purchase by appellants of Mr. Biggins’ partnership in Biggins, Shore and Guerra. On June 25, 1985, appellants answered appellee’s complaint and raised new matter explaining that the original agreement had been modified pursuant to a subsequent agreement entered into by Robert A. Biggins and the appellants. On July 11, 1985, appellee filed a reply to appellant’s new matter, arguing that the modification was ineffective.

Appellee filed a motion for summary judgment on March 5, 1986. On September 19, 1986, an order granting appel-lee’s motion for summary judgment was entered by the Honorable William R. Toal, Jr., of the Court of Common Pleas of Delaware County, and this appeal followed.

Appellant presents three issues for our review on appeal: (1) whether the trial court erred in concluding that appellants’ power of acceptance under an option contract was terminated upon the death of the offeror; (2) whether’ the trial court erred in failing to conclude that Robert Biggins’ grant of an option contract to the appellants, entitled an “Award of Options”, constituted a valid gift inter vivos; and, (3) whether the trial court erred in granting appellee’s motion for summary judgment since there is a genuine issue as to several material facts.

Pennsylvania Rule of Civil Procedure 1035(b) provides that a motion for summary judgment may only be granted:

[I]f the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.

In Waldman et al. v. Shoemaker et al., 367 Pa. 587, 589, 80 A.2d 776, 777 (1951), the Pennsylvania Supreme Court ruled that a motion for summary judgment on the pleadings should be granted only in a case that is clear and free from doubt. In ruling on a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a general issue of material fact must be resolved against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 202, 264 A.2d 597, 601 (1970).

Viewed in the light most favorable to the appellants, as the non-moving parties in the instant case, the record shows the following:

On October 26, 1979, Robert A. Biggins, appellee’s late husband, entered into a written agreement with appellants, Murray J. Shore and Angelo D. Guerra, setting out the details concerning the purchase by the appellants of Big-gins’ partnership interest in Biggins, Shore & Guerra, a realty firm.

Paragraph 4(d) of said agreement provided that:

Commencing June 1, 1980, S-G shall pay to Biggins for life the sum of Thirty-five ($35.00) Dollars on each settlement held on or after June 1, 1980, on any type of transaction, said sum to be paid within five (5) days after settlement. Upon the death of Biggins, the said Thirty-five ($35.00) Dollars payment shall continue and be paid to Marie T. Biggins for her life. In the event of the death of Biggins and Marie T. Biggins, within six (6) years of the date of this Agreement, the Thirty-five ($35.00) Dollars payment shall be paid to Robert G. Biggins, as Trustee for Anthony Biggins, Thomas Biggins and Jonathan Biggins. These payments to Robert G. Biggins as Trustee shall continue for a period of six (6) years. (Plaintiff’s Complaint, Exhibit A).

On or about June 3, 1982, Robert Biggins delivered a sealed envelope to appellant, Angelo D. Guerra. On the outside of said envelope, the following words appeared:

To be opened only at the death of Robert A. Biggins. (Plaintiff’s Complaint, Exhibit A).

Appellant Guerra gave the envelope to his wife, Martha Guerra, for safekeeping.

Following the death of Robert Biggins on May 17, 1984, Mrs. Guerra opened the envelope and found enclosed a document handwritten and signed “Robert A. Biggins”. The document, dated June 3, 1982, read as follows:

To: Murray J. Shore and Angelo D. Guerra
From: Robert A. Biggins
Subject: Award of Options under an Agreement dated 26 October, 1979, between Robert A. Biggins, Murray J. Shore and Angelo D. Guerra
1. I hereby award you the following options to be exercised by you within 30 days of notification of my death opting for either A or B option.
A. Keep in full force and effect Paragraph 4B, 4C and 4D under the above mentioned agreement.
B. Change Paragraph 4C of the agreement to read. Upon the death of Biggins pay the sum of (fifteen) $15.00 Dollars to St. Joseph’s Preparatory School 18th and Gir-ard Avenue, Philadelphia, PA on each settlement for a period of not less than (three) 3 years. Change Paragraph 4A and Paragraph 4C to read as follows: Any sums of money not paid to Robert A. Biggins under Paragraph 4B and 4C shall not be paid to the estate of Robert A. Biggins but a lump sum of $500.00 (Five Hundred) Dollars shall be paid to St. Joseph’s Preparatory School if the sum payable to Robert A. Biggins shall exceed $500.00. Any sums payable to Robert A. Biggins under $500.00 shall be paid to St. Joseph’s Preparatory School.
2. If you choose to exercise Option B, I hereby release you from all claims that may be brought against you and release you from the obligations of Option A. .
3. All other Terms and Conditions of the Agreement shall remain in full force and effect.
My Hand and Seal Affixed 3 June 1982.
Robert A. Biggins

Within thirty (30) days following the death of Robert Biggins, the appellants notified St. Joseph’s Preparatory School that they exercised their option pursuant to Option B. Under Option B, appellants were required to pay fifteen ($15.00) dollars per real estate settlement to St. Joseph’s Preparatory School for a minimum of three (3) years instead of paying the thirty-five ($35.00) dollars per settlement to Marie T. Biggins for the duration of her life, as stated in the original agreement between the parties.

After a careful study of the record, we find that the pleadings present a case that is clear and free from doubt and that a summary judgment is proper.

The trial court held that appellee, Marie T. Biggins, is a third-party beneficiary of the October 26, 1979, agreement between her husband, Robert A. Biggins, and appellants, Murray J. Shore and Angelo D. Guerra, concerning the purchase by appellants of Biggins’ partnership interest in Biggins, Shore & Guerra. The trial court further held that the original contract between Robert Biggins and appellants could not be modified by the attempted delivery of the alleged option contract, opened upon the death of Robert Biggins. We agree.

According to the October 26, 1979, agreement between Robert Biggins and appellants, appellee, Marie T. Biggins, is clearly shown to be an intended third-party beneficiary of the agreement. Paragraph 4D states:

Commencing June 1, 1980, S-G shall pay to Biggins for life the sum of Thirty-five ($35.00) Dollars on each settlement held on or after June 1, 1980, on any type of transaction, said sum to be paid within five (5) days after settlement. Upon the death of Biggins, the said Thirty-five ($35.00) Dollars payment shall continue and be paid to Marie T. Biggins for her life. (Plaintiff’s Complaint, Exhibit A).

In addition, in their answer to plaintiff’s complaint, appellants themselves concede that the appellee was a third-party beneficiary of the original agreement.

Under the original agreement, appellee became a donee beneficiary since the beneficial performance comes without cost to herself as a donation from the promisee, Robert Biggins.

In Pennsylvania, a third-party donee beneficiary has a right of action to enforce the duty of the promisor to perform the promise. Ohio Cas. Ins. Co. v. Bank Bldg. & Equipment Corp. of America, 300 F.Supp. 632 (W.D.Pa. 1968); Logan v. Glass, 136 Pa.Super. 221, 7 A.2d 116 (1939), affirmed 338 Pa. 489, 14 A.2d 306 (1940). A third party beneficiary acquires the right immediately upon the making of the contract, and, at that point, the right becomes indefeasible. Pennsylvania Supply Co. v. National Casualty Co., 152 Pa.Super. 217, 31 A.2d 453 (1943); Logan v. Glass, supra. In Logan v. Glass, supra, the court also ruled that, where a contract is executed in favor of a third-party donee beneficiary, the third-party donee beneficiary alone has the power to discard his contractual rights and his right to damages for breach of contract, except, where by terms of the contract, such power is reserved to the promisee.

Thus, in the instant case, we find that appellee, as a third-party donee beneficiary, has a right to enforce appellants’ promise to pay her thirty-five ($35.00) dollars on each settlement entered into by Shore & Guerra Realty after her husband’s death on May 17, 1984 and for the remainder of her life. In this case, the promisee, Robert Biggins, did not retain the power to discharge or modify by subsequent agreement the promise or duty owed to appellee, as a third-party beneficiary, within the terms of the original agreement.

Even if the promisee, Robert Biggins, had retained the power to discharge or modify by subsequent agreement the duty owed to appellee, we find that a valid option contract does not exist as appellants contend.

It is fundamental contract law that, for a valid contract to exist, there must be an offer and an acceptance which signifies that there has been a “meeting of the minds”. Without such assent, no enforceable contract can exist. Triffin v. Thomas, 316 Pa.Super. 273, 280, 462 A.2d 1346, 1350 (1983). In the instant case, there is no acceptance of the alleged option contract.

An option is an offer which, when accepted, is a valid and binding contract. In re Intermet Realty Partnership, 26 B.R. 383 (Bankr.E.D.Pa.1983). Accord In re: Francis E. Roswog, 48 B.R. 689 (Bankr.M.D.Pa.1985); Salzman v. Miller, 64 Lanc.Rev. 241 (Pa.Com.Pl.1974).

We find no acceptance of the alleged option contract in the instant case. Under general contract law, an offer, in order to be validly accepted, must be communicated to the offeree prior to the death of the offeror. Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968). However, appellants contend that the rule is not applicable to and does not effect the validity of option contracts. Restatement 2d of Contracts, Section 48, comment d. In this regard, appellant further contends that Section 37 of the Restatement Second of Contracts states the following:

§ 37. Termination of Power of Acceptance Under Option Contract
Notwithstanding §§ 38-49, the power of acceptance under an option contract is not terminated by rejection or counter-offer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.

However, we found no cases to show that Pennsylvania follows these sections of the Restatement 2d of Contracts. Rather, in Bosses et al. v. Mahalsky et al., 365 Pa. 184, 74 A.2d 93 (1950), the Pennsylvania Supreme Court held that the option in question was defective and this defect became incurable by the optionor’s death.

Finally, appellants contend in the alternative, that the “Award of Options” granted to appellants by Robert Biggins, constituted a valid gift inter vivos. We disagree.

In order for a valid gift to occur, there must be a donative intent on the part of the donor and delivery of the subject matter to the donee. Wagner v. Wagner, 466 Pa. 532, 537, 353 A.2d 819, 821 (1976). In the case at bar, Robert Biggins may have intended to make a gift to appellants by offering them the option of paying a lesser amount per settlement to St. Joseph’s Preparatory School for a minimum of three (3)

years, whereas, under the original agreement, appellants were required to pay appellee, Marie T. Biggins, thirty-five ($35.00) dollars per settlement for the duration of her life. However, there could never be a delivery of said gift to appellants since appellee’s right to the money under the original contract became indefeasible immediately upon the making of the contract. Ohio Cas. Ins. Co. v. Bank Bldg. & Equipment Corp. of America, supra; Logan v. Glass, supra. Therefore, we find that Robert Biggins had no inter vivos gift to deliver to appellants.

Order affirmed.

      . Corbin, Corbin on Contracts § 782 (1952).


author: BROSKY, Judge: DEL SOLE, Judge,

text:
    529 A.2d 491
    Anthony A. BARBER, et al., Appellants, v. PITTSBURGH CORNING CORPORATION, et al., v. COMMONWEALTH of Pennsylvania, and American Flint Glass Workers Union, AFL-CIO. Sylvester CONNOR, Melvin Fuller, Reuben M. Harris, Millard Reese, Joseph D. Ryan, David K. Smoker, Carl F. Steinbaugh, Stanley G. Stuckey, Raymond Vandermark, Eleanor (Mrs. Sylvester) Connor, Bonnie (Mrs. Melvin) Fuller, Evalena E. (Mrs. Reuben M.) Harris, Donna (Mrs. Joseph D.) Ryan, Elbertia O. (Mrs. David K.) Smoker, Elaine H. (Mrs. Carl F.) Steinbaugh, Cynthia D. (Mrs. Stanley G.) Stuckey, Ruth (Mrs. Raymond) Vandermark, Appellants, v. PITTSBURGH CORNING CORPORATION, PPG Industries, Inc., Charter Consolidated Ltd., Cape Asbestos Fibres Ltd., Cape Asbestos South Africa Proprietary Ltd., Egnep (PTY) Ltd. Amosa, Ltd., Charles G. Morgan, Geofrey Higham, Dr. Richard Gaze, Cape Board & Panels Ltd., W.B. Arnold Co., Charter Consolidated Investments, Ltd., Central Mining Finance, Ltd., Charter Consolidated Services, Ltd., British South Africa Co., Ltd., Consolidated Mines Selection Co., Ltd., Transvaal Consolidated Land & Exploration Company, Ltd., X, Y and Z Corporations v. COMMONWEALTH of Pennsylvania and American Flint Glass Workers Union, AFL-CIO. Robert FORTNER, Donald Fortner, Marietta E. (Mrs. Donald) Fortner, Otis J. Carl, Ramsey Dalaba, Gary L. Daugherty, Joseph Finster, Bessie Painter, Richard Yentzer, Minnie J. (Mrs. Otis J.) Carl, Gertruse (Mrs. Ramsey) Dalaba, Helen P. (Mrs. Gary L.) Daugherty, Ernestine (Mrs. Joseph) Finster, Hazel B. (Mrs. Richard) Yentzer, Leroy W. Earle, Peter P. Pesock, Jerry N. Ludwig, James A. Tilley, Ruberta A. (Mrs. Leroy W.) Earle, Betty W. (Mrs. Peter P.) Pesock, Jacqueline C. (Mrs. James) Tilley, Richard F. Barth, Grace H. (Mrs. Richard F.) Barth, Darrel F. Van Sickles, Donna (Mrs. Darrel F.) Van Sickles, Appellants, v. PITTSBURGH CORNING CORPORATION, PPG Industries, Inc., Corning Glass Works, Inc., Charter Consolidated, Ltd., Cape Industries, Ltd., Cape Asbestos Fibres, Ltd., Cape Asbestos South Africa Proprietary Ltd., Egnep (PTY) Ltd., Amosa Ltd., North America Asbestos Corporation, Charles G. Morgan, Geoffrey Higham, Dr. Richard Gaze, Cape Board & Panels, Ltd., W.B. Arnold Co., Charter Consolidated Investments, Ltd., Central Mining Finance Ltd., Charter Consolidated Services, Ltd., British South Africa Company, Ltd., Consolidated Mines Selection Company, Ltd., Transvaal, Consolidated Land & Exploration Company, Ltd., X, Y and Z Corporations v. COMMONWEALTH of Pennsylvania, and American Flint Glass Workers Union, AFL-CIO. Lois YENTZER, Administratrix of the Estate of Ronald Yentzer, Deceased, Appellant, v. PITTSBURGH CORNING CORPORATION, PPG Industries, Inc., Dr. Lee B. Grant (Individually and as Medical Director of PPG Industries, Inc.), Charter Consolidated, Ltd., Charter Consolidated Investments, Ltd., Cape Industries, Ltd., Cape Asbestos Fibres, Ltd., and North American Asbestos Corporation. James A. RINAMON and Dorothy Rinamon, Appellants, v. PITTSBURGH CORNING CORPORATION, PPG Industries, Inc., Charter Consolidated, Ltd., Charter Consolidated Investments, Ltd., Cape Industries, Ltd., and Cape Asbestos Fibres, Ltd.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed July 23, 1987.

      See also 317 Pa.Super. 285, 464 A.2d 323.
    George H. Cohen, Pittsburgh, for appellants.
    Gerald C. Paris, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

This is a consolidated appeal from orders granting appel-lee’s motion for summary judgment and dismissing appellants’ complaint.

Appellants are present or former employees of appellee, Pittsburgh Corning Corporation, and spouses of these employees and have alleged in their complaint that they or their spouse suffer from asbestosis which was intentionally inflicted upon them by appellee. The action seeks damages for personal injury and loss of spousal consortium.

The trial court, in a lengthy opinion, sets forth its reasons for granting appellee’s motion concluding that the Occupational Disease Act precludes any tort action against an employer for the contraction of ah occupational disease including one for an intentional tort. Hence, we are called upon to decide whether an employee is precluded by the provisions of the Occupational Disease Act from bringing an action for an intentional tort against an employer, an issue which has heretofore escaped decision by an appellate court of this Commonweálth.

For the reasons set forth below, we reverse the order appealed from and remand to the trial court for proceedings consistent with this opinion.

I.

The question of whether or not Worker’s Compensation and/or Occupational Disease Acts possessing the commonly found exclusivity provisions preclude actions by employees against employers for intentional infliction of injury is one which has brought forth both conflict and debate in many jurisdictions. In this Commonwealth, the debate or conflict has arisen, at least in part, from the actual wording in the statute. The so-called exclusivity provision of the Occupational Disease Act, 77 P.S. § 1403, states:

Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or to any method of determination thereof, other than as provided in article three of this act____ [Emphasis added].

However, 77 P.S. § 1401(a), which section in part of article three, states:

When employer and employe shall by agreement, either express or implied, ... accept the provisions of ... this act, compensation for disability or death of such employee, caused by occupational disease, arising out of and in the course of his employment, shall be paid by the employer, without regard to negligence, according to the schedule contained in [the Act]____ [Emphasis added].

Supporters of the absolute exclusivity point to § 1403 and argue that this section requires preclusion of all tort actions, even those for intentional torts. Others point to § 1401(a) and argue that had the legislature intended to completely bar all common law actions including an intentional tort action they would have utilized the language “without regard to negligence or intent.” Appellate courts of this Commonwealth have provided guidance, either in related holdings or in dicta, but have not definitively answered the question under the occupational disease act.

The case of Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963), decided by a panel of this court, did consider this issue under the Workmen’s Compensation Act. In that case an action was brought by an employee against an employer for conduct which was tantamount to a deliberate assault by the employer upon the employee. This court found that the exclusivity clause of the Workmen’s Compensation Act did not bar or preclude an action for an intentional tort. We analyzed there that an intentional tort could not be thought of as an “accident,” which was an operative word under that version of the act providing for compensation to employees injured by an accident occurring in the course of employment, and consequently found such an action without the scope of the act. Subsequent to the Readinger decision the Workmen’s Compensation Act was amended and no longer contains the “accidental” language relied upon in Readinger, hence leading some to question the ongoing validity of the Readinger decision. We do not feel tjhat the issue can be disposed of nor be given its due regard by relying simply upon a single word of the statute. Nor does the court wish to engage in a semantical game where at issue is the intent of the legislature or the judicial interpretation of a legislative enactment. Rather, we find it more appropriate in determining the issue before us to consider the nature of the legislation in question, its purpose and effect.

What appears to be generally undisputed is that passage of the Workmen’s Compensation and Occupational Disease Acts was an element of social and industrial reform intended to provide a certain basis of recovery for injured employees. Prior to passage of these acts an injured employee, like any injured individual, had recourse to the courts and common law actions but like in any action for personal injury, was required to establish legal responsibility and liability prior to recovery. After passage of the Acts any employee injured in the course of employment had the right to compensation under provisions of the applicable act without having to prove fault. Apparently the legislature was more conscious of injury occurring by trauma or “accident” in drafting the original Workmen’s Compensation Act as it employed that language which resulted in courts construing that statute as not encompassing occupational disease. Consequently, in 1989, the Occupational Disease Act was enacted to provide relief for individuals stricken with such injuries. From that point on, an injured worker had recourse to the compensatory scheme of the appropriate statute regardless of whether injury resulted from accident or exposure to one of the enumerated dangerous substances found in the Occupational Disease Act. The distinction between injury as a result of trauma and occupational disease was effectively eliminated in the 1972 amendments to the Workmen’s Compensation Act with 77 P.S. § 411 being redrafted to encompass all injury arising in the course of employment whether caused by trauma or an occupational disease.

As a reformative measure, the passage of these acts has been often referred to as a trading off of certain features of tort litigation. The employee gives up his right to sue in court while being awarded a more certain recovery. The employer gives up his right to be found faultless, and therefore not liable, while also enjoying a limited liability. Hence, assuming the legislature intended to provide more certain protection to employees without imposing an overwhelming financial burden upon employers, relieving an employee from showing fault while limiting recovery would seem to balance these interests well. However, it does not logically follow that a reformative measure designed to maximize compensable injuries at a workable cost was also contemplated to provide an absolute shield to tort liability or to encourage, or at least allow, reprehensible intentional wrongdoing reasonably calculated to lead to severe personal injury or death of employees. If the passage of the Workmen’s Compensation and Occupational Disease Acts are thought of as humanitarian reform designed to benefit workers overall, it cannot be thought of as a shield against liability for the intentional infliction of harm by an employer. Nor is there any indication that it was meant to be.

As previously indicated, no appellate court of this Commonwealth has held that either the Workmen’s Compensation Act or the Occupational Disease Act shields an employer from liability for harm intentionally inflicted upon an employee. The Act itself indicates that when death or diability is caused by occupational disease arising out of and in the course of one’s employment, compensation shall be paid by the employer, without regard to negligence, as per the schedule in the act. As posed earlier, it is logical, but perhaps not necessary, to assume that had the legislature intended to limit an employee to the compensation schedule of the act when his injury is intentionally inflicted by the employer, they would have added the language “or intent” to “without regard to negligence”. The Act itself mentions intentional infliction of harm in only one section, at 77 P.S. § 1305, which was added to the original act in 1963. Section 1305, in essence, extends the “statutory immunity” features of the Occupational Disease Act to fellow employees. Under this section an injured employee could not, after his injury being found compensable under the Act, subsequently sue a fellow employee for his injury unless intentionally inflicted by the fellow employee. This reflects an intent to protect an employee from liability for his negligent infliction of harm upon a fellow employee while retaining his legal culpability and liability if the harm is intentionally inflicted. In our opinion, this reflects the legislature’s general intention or understanding that the Act should not operate as a shield against liability for intentional infliction of harm.

Appellee and the trial court argue that the fact that intentional harm is specifically excluded in § 1305 and is not otherwise or elsewhere addressed to the employer, indicates an intention of the legislature to shield the employer from such liability. We are not convinced by this argument. Section 1305 was added 24 years after the Occupational Disease Act was enacted and addresses a specific class of individuals, fellow employees. It would not be logical for the legislature to address employer liability or immunity in this section. Nor is it expected that our legislature would make wholesale revision of a statute where no problem in its application is perceived. Consequently, we will not infer a legislative intent to provide wholesale immunity to one class of individuals, employers, simply because the legislature chose, at a later date, to add a section granting a limited immunity to an entirely different class of individuals, employees, but did not otherwise clarify the existing immunity provisions.

Similar argument has been advanced by appellee regarding the 1972 amendments to the Workmen’s Compensation Act. As previously indicated, our holding in Readinger v. Gottschall, supra, found that the Workmen’s Compensation Act did not preclude a suit against an employer for an intentional tort. In that opinion, our analysis focused on the usage of the word “accident” and found intentional injury was not “accidental,” and consequently, that the act did not preclude such an action. In 1972, amendments to the Workmen’s Compensation Act were drafted which resulted in the deletion of the “accident” language. Appellee would have us believe that the legislature, by such action, intended to eliminate the “intentional tort exception” which Readinger had created. As in appellee’s preceding argument, we are unconvinced by this argument as well. A review of the 1972 amendments indicates the legislature intended to expand coverage of the Workmen’s Compensation Act to encompass all injury arising out of and in the course of employment, whether caused by trauma or occupational disease. As the word “accident” did not, in common understanding and by judicial interpretation, encompass occupational disease, it was deleted. There is no express intent exhibited by the legislature that its action was designed to counteract the Readinger holding or to otherwise provide an intentional tort immunity to employers. Furthermore, we find it difficult to believe that had the legislature possessed that intent it would have taken these steps to accomplish it. We believe instead that had the legislature intended to effectively overrule our Read-inger decision and undergo a statutory revision to effectuate such intent, and in view of the labor such a revision entails, it would have provided explicitly that an employer was immune, under the Act, from an intentional tort action.

The ongoing validity of this position seems to be borne out by our Supreme Court’s language as well. In Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158, 160 (1983), eleven years after the 1972 amendments, our Supreme Court, in discussing the constitutionality of the Act’s exclusivity provision, stated “the workmen’s compensation law does not address losses incurred by intentional injury by employee or employer.” Although this was not a holding of the court, the language used by the court in discussing the exclusivity provision is far from equivocal and cannot be ignored. Other statements by our Supreme Court and this Court also support an ongoing validity of this position.

In Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 519, 412 A.2d 1094, 1097 (1980), our Supreme Court stated: Immediately preceding this language in Tsarnas appears language of this court quoted from Hefferin v. Stempkow-ski, 247 Pa.Super. 366, 372 A.2d 869 (1977), discussing recommendations from the National Commission on State Workmen’s Compensation laws, which in relevant part states:

Indeed, the United States Supreme Court has consistently held that the purpose of this kind of legislation was to restrict the remedy available to an employee against the employer to compensation, and to close to the employee, and to third parties, any recourse against the employer in tort for negligence. (Emphasis added).
Recommendations R 2.18 and R 2.19 address immunity and exclusivity of employers from negligence actions when an employee is impaired or dies because of work related injury or disease.

In Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980), our Supreme Court stated with regard to both the Workmen’s Compensation Act and Occupational Disease Act that:

both the employer and employee relinquished certain rights to obtain other advantages. For the worker, he no longer had to prove negligence; in return the employee had to accept a limited, though certain, recovery. The employer, on the other hand, guaranteed compensation to an injured employee in return for the exclusivity of the workmen’s compensation liability to its employees.

Additionally, a recent panel decision of this court affirmatively stated that the exclusive protection provided by the Workmen’s Compensation Act does not exclude an action for an intentional tort. Jones v. P.M.A. Insurance Company, 343 Pa.Super. 411, 495 A.2d 203 (1985). More recently, this Court sitting en banc has stated that an action by an employee can lie against an employer if the employer has harmed its employee through an intentional wrongful act. Boris v. Liberty Mutual Insurance Company, 356 Pa.Super. 532, 515 A.2d 21 (1986).

We lastly address appellee’s argument, one which is frequently made in circumstances such as these, that to “carve out a judicially-created intentional tort exception” to acts like the Workmen’s Compensation and Occupational Disease Act usurps the legislative function. We cannot agree. We are called on here to decide whether passage of the Occupational Disease Act precludes an action by the employee against the employer for intentional tort. We cannot escape the issue before us. Consequently, our decision and interpretation of the statute will govern until overruled by our Supreme Court or effectively overruled by legislative amendment.

When a statute is not explicit on an issue, as is the case here, we frequently attempt to effectuate “legislative intent”. If, as is also the case here, we believe that our legislature would not have intended a certain result, we are not serving them by abstaining from so holding due to a misguided fear of usurping their legislative role. For by so abstaining we give effect to the opposite intent. Consequently, if we believe that our legislature would not, and did not, wish to immunize an employer when it intentionally harms its employees we must so hold. Or alternatively, if we believe the legislature did not really contemplate this issue when drafting the Act we must credit them by providing a just interpretation to their enactment rather than allow unjust results to continue until such time as they can rectify the situation by amendment. If we improperly perceive or estimate the legislature’s intent, we trust they will amend the statute to explicitly indicate so. However, in the meantime, at least we have attempted to provide a just result and a just interpretation of the legislature’s enactment and, certainly, this cannot be faulted.

Consequently, in light of the various statements made by this Court and our Supreme Court and our understanding of the legislative intent of these compensatory statutes, we are compelled to hold that the Occupational Disease Act does not preclude a suit by an employee against the employer for an intentional tort.

II.

Having found that the Occupational Disease Act does not preclude the type of suit in question here, and as the trial court relied on this fact in granting summary judgment, we must determine if the entry of summary judgment in favor of appellee was proper for other reasons.

It is axiomatic that entry of summary judgment is proper where there exists no dispute as to material facts and the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035..

However, here there is a dispute as to the intention of appellee which is a material fact. Accordingly, we cannot affirm the entry of summary judgment unless the facts and allegations of record, and all reasonable inferences therefrom, are insufficient as a matter of law for a reasonable jury to find that appellee committed an intentional tort.

Appellants allege, in their complaint and their brief, that appellee knowingly exposed the appellants to asbestos dust and fibers in quantities that far exceeded the currently accepted safety levels; that the exposure to asbestos was substantially certain to result in the exposed individual’s contraction of asbestosis and other related injurious diseases; that appellee knew appellants were substantially certain to contract asbestosis and in fact many were exhibiting signs of having contracted that disease and failed to take adequate precautions and, also, that it misrepresented the dangerous nature of the working conditions to appellants.

Additional facts gleaned from various depositions indicates that in 1962, two years prior to the date appellee started the production of unibestos, they were provided with medical literature outlining the threshold limits of asbestos exposure and indicating that prevention of asbestosis depends entirely upon preventing exposure to concentrations above the threshold limits. The chief scientist at Cape Industries specifically informed appellee’s management that asbestos was dangerous to human health and that specific precautions must be taken to protect workers. A few months after operations were underway at appellee’s plant, appellee was informed by the Commonwealth’s Health Department that the asbestos dust levels substantially exceeded the threshold limit. Subsequent to this, one of appellee’s managers was sent to Cape’s manufacturing plant in England to study asbestos dust controls and found that Cape had previously lost a predictable number of employees to the contraction of asbestosis and related diseases. To deal with the problem Cape had instituted controls in its plants to encapsulate dust producing processes and reduce airborne concentrations of dust.

Based on findings from the trip to England, appellee’s engineers drew up an engineering report to implement engineering controls comparable to Cape’s at a projected cost of $180,000. A statement at deposition by the work manager indicated that, from the report, it was clear that when exposed to such quantities of asbestos dust employees “would eventually contract asbestosis.” A meeting took place with appellee’s president in which adoption of the engineering controls was urged by managers working at plant 8. However, the reported response from the president was negative as appellee was “losing money.” Furthermore, certain of the appellants indicated that appellee’s managers, at different times, assured them that there was no health risk as a result of being exposed to the asbestos.

In the context of tort litigation intent has been defined thusly:

‘Intent’ is the word commonly used to describe the desire to bring about the physical consequences [of an act] ... Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. Prosser, Law of Torts, § 8 at 31 (4th ed. 1971).

Likewise, the Restatement of Torts 2d, § 81 (1965), defines “intent” as follows,

“the word ‘intent’ ... denote[s] that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

Furthermore, the Comments to Section 8A describe the relationship between “intentional” wrongdoing and “recklessness” as follows:

If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. Comment b, § 8A, (emphasis added).

The above excerpts from Prosser and the Restatement of Torts provide some of the better explanation of intent in the body of tort law and allow analysis of the issue here. In light of these excerpts we cannot find that an issue for the jury is non-existent, nor can we find that, as a matter-of-law, appellee was without the requisite intent to impose liability.

There is evidence of record which would allow a jury to find that appellee knew that its employees were exposed to excessive levels of asbestos dust and fibers, knew and believed that employees exposed to these levels of dust were substantially certain to contract asbestosis and related carcinoma and despite this knowledge, continued to operate its plant without taking adequate measures to reduce the exposure to asbestos dust while assuring its employees that there was no health risk due to the exposure.

Consequently, while it is possible that a trial by jury will result in the painting of a different picture than that presented by appellants, we would be improperly invading the province of the fact finding body if we were to hold here that, as a matter of law, appellee did not possess the requisite intent or that an issue of material fact did not exist. Nor do we find that our decision today conflicts with previous decisions of our appellate courts.

Appellee and the trial court have pointed out certain decisions which they believe mandate affirmance of the order in question. In one of these, Evans v. Allentown Portland Cement Company, 433 Pa. 565, 252 A.2d 646 (1969), our Supreme Court stated “that even where neglect of a statutory duty is alleged, the employee’s only remedy is under the Workmen’s Compensation Act.” In that case the plaintiff alleged that the decedent’s employer had operated an electrically powered conveyor system without safeguards required by law and that plaintiff’s decedent met his death as a result thereof. As our Supreme Court noted, the plaintiff’s complaint in that case further alleged that because of the employer’s unlawful activity plaintiff was not bound by the Workmen’s Compensation Act. The Supreme Court disagreed making the commentary quoted above.

In another, Higgins v. Clearing Machine Corporation, 344 Pa.Super. 325, 496 A.2d 818 (1985), a panel of this Court found Evans controlling and affirmed an order sustaining preliminary objections in the nature of a demurrer. There it was alleged that appellant was injured while operating a punch press which was inadequately guarded according to OSHA regulations and that there were at least two prior incidents of injury to press punch operators at this plant resulting from a lack of appropriate safeguards. The complaint further alleged that appellants’ injury was the result of the employer’s “intentional, wanton and willful” conduct. This court, quoted the Evans language that even when neglect of statutory duty is alleged the employees’ remedy remains under the Workmen’s Compensation Act.

The distinction between Evans, Higgins and the present case is that the two former cases, although involving allegations of regulatory violations, did not allege conduct sufficient to meet the level of intent necessary to impose intentional tort liability. Consequently, in both cases the complaints were dismissed for failure to state a cause of action. However, as the excerpts from the Restatement of Tort indicated, there is a point where conduct of an individual rises to a level of culpable intent even though perhaps the actor did not actually “desire” the result received. The Evans opinion never discusses intent or the theory of intentional tort only neglect of a statutory duty. On the other hand, Higgins discusses Evans and provides the key distinction to the case sub judice that the employees’ death in Evans, despite the statutory violation, was still presumptively accidental. Likewise, the decision in Higgins hinged upon essentially the same criterion as this court stated “[n]o allegation is made that Kelsey-Hayes intended to injure Higgins.” 496 A.2d at 818. Here, however, it is argued extensively by appellant that appellee “intended” to injure appellants as that term has been legally defined in the large body of tort law and, as discussed earlier in this opinion, have presented sufficient evidence to present an issue for the jury. While Evans and Higgins involved alleged willful violation of safety regulations, there is no indication that this created a situation where injury was either desired or substantially certain to occur nor was the same alleged. Consequently, the allegations regarding intent were insufficient. In the present case it appears established that individuals exposed to excessive levels of asbestos dust and fibers for an extended period of time are substantially certain to contract asbestosis or other injurious symptoms. Thus, the appellants here have overcome the pitfall found in both Evans and Higgins. Accordingly, we do not find a conflict between Evans, Higgins and the present case.

As we find that the Occupational Disease Act does not preclude an action for intentional tort, and as we find that sufficient evidence exists to present a triable issue, we find the granting of summary judgment was erroneous. Accordingly, we reverse the orders appealed from.

Orders granting summary judgment reversed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

With great deference to my colleagues, the Majority, I dissent. I believe that under the controlling language of our recent Supreme Court case, Poyser v. Newman and Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987), we must conclude that an employee is barred from advancing an intentional tort action against his/her employer under the Occupational Disease Act (hereinafter referred to as the “ODA”).

In Poyser, our Supreme Court recognized that some sister states have held that their workmen’s compensation statutes’ exclusive remedy provisions are inapplicable with respect to intentional tortious conduct committed by an employer against an employee. Id., 514 Pa. at 37-38, 522 A.2d at 551. However, the Poyser court illuminated a sharp contrast between those states’ statutes and the Pennsylvania Workmen’s Compensation Act (hereinafter referred to as the “WCA”). Specifically, those cases in which an employee was permitted to sue the employer were grounded upon provisions in the workmen’s compensation statutes “which expressly preserved the right of an employee to sue in tort where his injury was caused by the employer’s intentional wrongdoing.” Ibid. No such provision exists under this Commonwealth’s “WCA”.

By that Opinion, the Poyser court set out an interpretative process by which I believe this court is constrained to follow in construing the “WCA” and similar statutes. That is, unless explicitly preserved under the terms of the Act, an employee is barred from bringing actions that are not provided for as remedies under the Act.

In analyzing the issues before it in that case, the Poyser court first looked to the “WCA’s” very terms. It was concluded that in devising the statute the legislature was mindful of the issue of intentionally caused harm but chose to narrowly proscribe the types of actionable intentional torts. This is evidenced by 77 P.S. § 411(1) which provides that an injury inflicted by a third person intended to injure an employee does not fall within the statutory definition of a covered injury. Further, 77 P.S. § 72 expresses an exception for the intentional infliction of harm caused by an employee against a fellow employee. From this it was held that the legislature did not intend to carve out an exception for intentional tort actions brought by an employee against his/her employer. With this analysis in mind, I turn to the terms of the “ODA”.

As can be readily determined, the exclusivity clause of the “ODA” is strikingly similar to that of the “WCA”. See 77 P.S. §§ 1401, 1403. Likewise, the “ODA” contains an identical exception from the Act for intentional tortious conduct by one employee against a fellow employee that is found in the “WCA”. See 77 P.S. § 1305. Insofar as the two statutes are similar in nature, I believe that Poyser is dispositive of the manner in which we are to decide whether or not the legislature intended to permit an employee to sue his/her employer for intentional harm under the “ODA”.

The starting point under Poyser is to operate from the premise that, unless a cause of action has been expressly preserved, the employee’s sole remedies for injuries sustained are found in the “ODA”. As a matter of observation, the “ODA” simply does not contain a provision for the type of action the Majority would allow. The next step, therefore, is to determine whether or not the legislature was mindful of the issue of intentionally caused harm. This is done by examining the provisions of the Act. Under § 1305 of the “ODA”, an employee is immunized from tort actions for harm caused to a fellow employee unless such harm is intentionally inflicted. From this portion of the statute, it is clear that the legislature recognized the potential for intentional tort actions under the “ODA” but did not make provisions to preserve for an employee the right to sue his/her employer for intentional wrong. Thus, under the Poyser directives, I am convinced that we must arrive at the conclusion that the legislature did not intend for such actions to be instituted by an employee.

I duly recognize the Majority’s valiant attempt to distinguish the instant case from Poyser. Of a particular persuasive nature is the Majority’s second argument which emphasizes the fact that § 1305 was added approximately 24 years after the original Act. The Majority does not “believe the addition of § 1305 some 24 years after the passage of the Act warrants a negative inference that the legislature intended to extend, at that time, immunity to an employer from an intentional tort action.” (op., 499, n. 8).

However enticing it may be to follow this rationale, I remain unpersuaded of Poyser’s nonapplicability for two reasons. First, the Majority’s position that, had the legislature possessed an intent to preclude an employee’s recovery from an employer for intentional wrong, it would have explicitly provided so runs contrary to the interpretative guidelines set out by Poyser. It bears repeating that Poyser operates from the presumption that the remedies provided for in the Act are exclusive unless other actions are preserved under the statute. This becomes abundantly apparent from our Supreme Court’s historical analysis of the quid pro quo relationship between an employer and an employee in accepting a statutory no-fault system of compensation for worker injuries. Id., 514 Pa. at 36, 522 A.2d at 550. Thus, the Majority’s contention that, unless specifically precluded by the legislature, we cannot infer an intent to bar intentional tort actions brought by an employee against an employer does not comport with Poyser. Poyser calls for the opposite approach: unless explicitly preserved, such actions are not permitted.

Second, the Majority aptly points out that only upon the addition of § 1305, 24 years after the inception of the “ODA”, did the Act discuss intentionally caused harm, (op., 499, n. 8). The Majority’s purpose in bringing this fact to light would be to infer that the inclusion of § 1305 after such a lapse of time does not demonstrate that the legislature was mindful of intentional harm, but chose not to grant to the employee the right to institute this type of action against the employer. It is true that the “ODA” did not originally discuss intentional torts. I am unconvinced, however, that we can ignore the fact that § 1305 was eventually added to the Act. The legislature did consider intentional torts in the realm of “ODA” coverage at one point, yet decided not to make similar provisions with respect to an employee versus employer action.

The validity of the “time lapse” argument is further weakened when the “WCA” is viewed from this perspective. Admittedly, § 411(l)’s provision in reference to third person intentional torts was contained in the original version of the Act. However, § 72, which forms an exception for intentional harm caused by fellow employees, was not added until 1963, nearly 50 years after §§ 481 and 411 were written. It is evident from Poyser that our Supreme Court did not view the time lapse as a mitigating factor in arriving at the conclusion that the legislature considered intentional torts, but did not intend the result the Majority reaches today. Thus, this argument must fail.

As a practical matter, I am in complete agreement with the manner of construing the exclusivity clause of the “ODA” which the Majority would adopt. I, too, would hold that an employee is not deemed to have waived his/her common law rights to sue an employer unless the “ODA” specifically bars a particular cause of action. Unfortunately, our Supreme Court has adamantly adopted the inverse approach of statutory construction. Therefore, it is remiss to ignore the mandate that we are constrained to follow.

Accordingly, I am of the opinion that, under the language of Poyser, we are compelled to hold that Appellants’ lawsuit is barred by the “ODA”. For these reasons, I must dissent.

      . The Occupational Disease Act only addresses certain enumerated occupational diseases. Post 1972 occupational diseases would be covered under one of the two acts, at least, and possibly under both.

      . For example, see, Wagner v. National Indemnity Company, infra.

      . In this respect perhaps the proper focus of attention is not whether the Occupational Disease Act allows an employee to bring an action for intentional tort against his employer but whether the passage of that Act was intended to take such an action away from the employee.

      . Although certain cases might appear to have held so, upon closer scrutiny they have not truly done so. (But, see the dictum in Poyser v.

        Newman & Company, discussed more fully in footnote 8, infra.) Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A.2d 646 (1969) and Higgins v. Clearing Machine Corporation, 344 Pa.Super. 325, 496 A.2d 818 (1985), discussed more fully infra, have dealt with situations where knowing disregard of statutory safety regulations was alleged. Both cases found the Workmen’s Compensation Act an exclusive remedy. Although both cases contained allegations of intentional wrongdoing of the employer, neither case found the employer had "intended” the injurious result. This may seem to be an overly technical distinction but it is a key one. A man in a rural neighborhood may decide to target shoot with a rifle in his backyard in violation of a local safety ordinance. If a bullet ricocheted off a rock and struck an individual out of sight he would not have committed an intentional tort even though he intended to fire and the firing of the rifle was wrongful. If, however, a group of individuals had been walking behind the rifleman’s target and he fired anyway disregarding the group’s safety and one of the group was struck, he quite possibly would be found liable by a jury for intentional tort for the jury could find that there had been a substantial certainty that one of the group would be struck. Therefore, he would have legally "intended” the injurious result even if he had not desired that it come about.
      In the context of industry, employers make conscious decisions and take "intentional" actions every business day. Some of these may prove unwise and some may prove even a bit unsafe. However, this is common to some degree in the work place and does not mean that a resultant injury was "intended”. Most likely this was recognized by our legislature, (ás most likely was the fact that no matter how cautious employers are some injuries are likely to occur), and was meant to be "forgiven", in the sense that compensation would be payable under the provisions of the Act and the employer would not be subjected to a personal injury action and unlimited liability despite the fact that injury may have resulted from a less than prudent decision. However, it does not necessarily follow that the legislature intended to immunize an employer from tort liability when he knowingly engages in conduct which is substantially certain to cause injury. Such a reading could literally work to immunize an employer who commits murder from tort liability and could also provide an employer incentive to intentionally disregard safety standards and precautions even though injury or death is certain to result therefrom. Consequently, in this context it becomes apparent that allegations that, or a holding that, an employer wilfully disregarded safety regulations which increased the risk of the harm actually sustained does not necessarily indicate that an employer has committed an intentional tort. In fact, when stated in such a manner, it sounds extremely similar to the substantial factor test of causation recognized in a negligence action.

      . Throughout the first part of this Opinion we analyze both the Workmen’s Compensation Act and Occupational Disease Act as we find that, although addressing different types of injury, they are similar in nature and intent and therefore developments and decisions under both are relevant in deciding the issue before us.

      . The language "intentional tort exception" appears in quotes because the Readinger decision and the issue before us are commonly referred to in this manner and have been referred to in this manner by the trial court and appellee. However, as previously alluded to, this is a somewhat misleading characterization of that decision and the issue itself. The right of an employee to sue an employer is a right which existed unconditionally prior to the passage of the Workmen's Compensation and Occupational Disease Acts. Passage of these acts affected the employee's right to sue to a degree which is still being judicially determined. However, a more accurate description of our Readinger holding is that the passage of the Workmen’s Compensation Act did not bar or take away the employee’s right to recover in tort for injury intentionally inflicted by the employer. Consequently, in Readinger we did not, in logical reality, "carve out” an exception to the exclusivity provisions of the Act. Rather, we began to define the extent to which that provision affected an employee’s previously unconditional right to sue in tort.
      We express no opinion as to the ongoing validity of the Readinger decision in light of the Supreme Court’s recent decision in Poyser v. Newman & Company, see footnote 8 infra. Nor do we rely on that case in reaching the decision made here. Rather, we find Readinger and subsequent cases which discuss this issue instructive on the matter but not dispositive of our decision.

      . This language is quoted in In re Turner, 44 Pa.Cmwlth. 326, 403 A.2d 1346 (1979).

      . This position was recently upheld by our Supreme Court in Poyser v. Newman & Company, Inc., 514 Pa. 32, 522 A.2d 548 (1987). Similar to the statement used in Evans the Court said it granted allowance of appeal to consider whether appellant’s asserted ground for tort recovery, that his injury was caused by deliberate derelictions of the employer, operated to take the action out of the exclusivity provision of the Workmen’s Compensation Act. The Court concluded that it did not. As that decision interprets provisions of the Workmen’s Compensation Act which differ, to some degree, from those found in the Occupational Disease Act and does not find that the employer’s conduct rose to the level of intentional tort, we do not believe it affects our determination here.
      Upon review of the Poyser opinion, it is apparent that some critical factors in the court’s determination in Poyser are not applicable here. First the exclusivity sections of the respective statutes, although similar, are not identical. The "exclusivity section” of the Occupational Disease Act, 77 P.S. § 1403 makes reference to other sections of that article where it states “other than as provided in article three of this act.” This requires that the different sections be read in conjunction with one another. The acceptance section, 77 P.S. § 1401(a), states that compensation for injury shall be paid by the employer “without regard to negligence.” Although not conclusive on the issue, the legislature’s failure to state "without regard to negligence or intent” at least opens to debate the question of what happens if there is evidence of intentional infliction of harm. It does not appear reasonable to argue that these provisions evidence an explicit intent of the legislature to take away an employee’s right to sue for intentional tort, and it is entirely possible that the legislature did not contemplate intentional tort actions at all when it passed the original act.
      In contrast, the Workmen’s Compensation Act has an “exclusivity section” which is self contained and does not make reference to other sections of the Act. Consequently, while the Workmen’s Compensation Act has similar “without regard to negligence” language in its acceptance of provisions section, its exclusivity provision does not make reference to other sections of that Act and does not require that they be read together. Therefore, it may be appropriate to read the "exclusivity provision” of the Workmen’s Compensation Act more narrowly than that provision in the Occupational Disease Act, which specifically makes reference to other sections of the Act and requires reading that section in conjunction with the others.
      Secondly, in a related vein, the Supreme Court in Poyser made much of the fact that the legislature had considered intentional wrong of fellow employees and third persons in the Workmen's Compensation Act while not addressing intentional wrong of employers, and interpreted this to mean that the legislature had not intended that an employee’s right to sue for intentional infliction of harm by an employer had survived passage of that Act. (Note that the "fellow employee" section of the Workmen’s Compensation Act was added in 1963 and not contained in the original act.) In contrast, the original version of the Occupational Disease Act did not address intentionally caused harm. Only upon the addition of 77 P.S. § 1305, also in 1963, which deals with fellow employee liability, did the Act discuss intentionally caused harm or intentional wrong.
      Consequently, while we have no quarrel with the inference drawn by our Supreme Court from the language of the Workmen’s Compensation Act we cannot draw from the non-existence of language in the Occupational Disease Act the same inference of legislative intent that our Supreme Court drew with regard to the Workmen's Compensation Act; and, as noted in the text of our opinion, we do not believe the addition of § 1305 some 24 years after passage of the original Act warrants a negative inference that the legislature intended to extend, at that time, immunity to an employer from an intentional tort action. Had the legislature possessed such intent, we believe they would have explicitly provided so.
      Thirdly, in Poyser, as pointed out in Justice Larsen’s dissenting opinion, the majority found that the employer’s conduct did not rise to the level of intentional tort and there is no discussion of allegations that the employer intentionally harmed Poyser, only that the employer intentionally disregarded safety precautions. As indicated in footnote 4, supra, although subtle, this is an important distinction. The key to an intentional tort action is that there exist an intent to injure. The "intentional” disregard of safety regulations may constitute evidence of an "intent" to injure, however, it does not necessarily constitute an intent to injure. The present case differs in that it considers allegations of this sort and, for purposes of deciding the scope of the exclusivity provision, assumes that “intent" to injure existed as defined in our body of tort law.
      Fourthly, although, as pointed out by our Supreme Court, some of our sister states have allowed intentional tort actions by employees against employers pursuant to specific provisions in their Acts, at least two of our sister states, Illinois and Ohio, have allowed intentional tort actions despite exclusivity provisions similar to ours. The Supreme Court of Ohio, in Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), considered the viability of an intentional tort action under the Ohio Act which • provided that employers shall not be liable to respond in damages at common law or by statute for any injury or occupational disease received or contracted by any employee in the course of his employment. The Ohio Supreme Court found that the Act did not expressly extend employers immunity from intentional tort actions and found that the purpose of the Act did not encompass shielding employees from that form of liability. They stated:
      Indeed, workers' compensation Acts were designed to improve the plight of the injured worker, and to hold that intentional torts are covered under the Act would be tantamount to encouraging such conduct, and this clearly cannot be reconciled with the motivating spirit and purpose of the Act.
      433 N.E.2d at 577.
      In a similar vein, the appellate court of Illinois in Handley v. Unarco Industries, Inc., 124 Ill.App.3d 56, 79 Ill.Dec. 457, 463 N.E.2d 1011 (1984), considered an action by employees against employer for injury due to exposure to asbestos. Similar to this case the allegations in Handley indicated that the employer knew that exposure to asbestos dust could and would cause disease and/or death yet withheld this information from employees while representing to them that exposure was not harmful. The Court indicated that while it remained to be seen whether the plaintiffs could prove their allegations they would not construe their statute to provide the employer immunity from an intentional tort action. The exclusivity provision stated that there was no right of the employee to recover from the employer for injury or disease other than the compensation provided in the statute. The Court went on to state:
      The Workers’ Occupational Diseases Act, establishes a system of liability without fault, and abolished traditional defenses available to the employer in exchange for the prohibition against common-law suits by employees, but we are not persuaded that this legislative balance was meant to permit an employer who encourages, commands, or commits an intentional tort to use the act as a shield against liability by raising the bar of the statute and then shifting liability throughout the system on other innocent employers.
      79 Ill.Dec. at 469, 463 N.E.2d at 1023.
      Even the Supreme Court of Connecticut, while deciding the issue under their statute in apparent contrast to the Ohio Supreme Court, made the following express holding, "the common law liability of the employer cannot, ... be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional ...” conduct of the employer, (emphasis added) Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368, 378 (1985). Of course, if the injury is found accidental then it could not bring rise to an intentional tort action even if caused by intentional conduct. See footnote 4 supra. Consequently, as we do not find Poyser controlling our decision here we do find comfort in the fact that other respected courts have come to a conclusion similar to ours while interpreting very similar provisions.