Testimony of Katherine Black
Pennsylvania State Senate Judiciary Committee
SB 1025, The Pennsylvania Safety & Justice Act
October 13, 1999



Good afternoon, Senators, and thank you for the opportunity 
To speak today in support of two provisions of S.B. 1025 which are of vital importance to Pennsylvania workers. My name is Kathy Black 
and I am the Occupational Health and Safety Director of AFSCME 
District Council 47 in Philadelphia. Our Union represents the 
professional and technical employees of the City of Philadelphia, as 
well thousands of workers in the city court system, at two universities, 
at the Philadelphia Zoo and at a number of other workplaces. Today I 
am also speaking as Chair of the Executive Board of PhilaPOSH, the 
Philadelphia Area Project on Occupational Safety and Health. 
PhilaPOSH is a member of a national network of groups which
provide training, technical assistance, legal referrals and political
advocacy for workers and their Unions in all aspects of workplace 
health and safety. I also serve as President of the Philadelphia Chapter 
of the Coalition of Labor Union Women (CLUW), which is a partner in 
the coalition supporting this Bill.
My testimony pertains to Subchapter A, Unsafe Conditions, 
And Subchapter B, Workplace Safety Actions of SB 1025, which 
would give workers the right to sue their employers when they have 
suffered physical harm due to the employers' reckless, willful and 
wanton disregard for that worker's safety. The glaring need for these 
provisions is best illustrated by a review of two cases that were decided 
by the Pennsylvania Supreme Court in the late 1980s. In Poyser v. 
Newman & Co., Inc., Stephen Poyser lost a finger in a notching 
machine which was manufactured by his employer. The notching 
machine employed six sharp saw-

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1025 Page 2
blades, which would spin when the machine was operating. There was 
no cover or guard on the blades, and the employer had deliberately 
forbade employees from using a "feeding" device, which would have 
reduced the risk of hand injury, but also would have slowed production. 
Further, the employer clearly recognized the machine was hazardous 
and not OSHA compliant, because he directed Mr. Poyser to put away 
the machine on the eve of an OSHA inspection. When the inspectors 
left, the machine was put back in full operation. Eleven days later the 
accident occurred which cost Mr. Poyser his finger. Mr. Poyser 
argued that Newman's willful and wanton disregard for employee 
safety, and its deliberate concealment of the defective machine from the 
OSHA inspectors, should disqualify it from the statutory immunity 
provisions of the Workers' Compensation Act . He further argued, that 
if gross intentional misconduct by an employer causes harm to a worker 
and is allowed to escape civil penalties, then government policies 
aimed at promoting job safety and protecting workers are stood on their head.
Supreme Court Justice Nix noted that while some other states' 
workers' compensation statutes preserve the right of an employee to sue
when his or her injury was caused by an employer's intentional 
wrongdoing, the Pennsylvania General Assembly had failed to provide 
this right for the Commonwealth's working citizens. In Pennsylvania, 
only employees who cause intentional harm to a fellow employee are 
exempted from liability immunity in the workplace. Justice Nix upheld 
the summary judgement award granted the employer by the Superior 
Court, and called on the General Assembly to resolve this issue.
Two years later, the Supreme Court heard arguments on 
Barber vs. Pittsburgh Corning Corporation. Mr. Barber, other 
employees and their spouses, instituted an action against PCC 

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1025 Page 3
claiming they contracted asbestosis, lung cancer and other asbestos
related diseases, as a result of their exposure to asbestos dust during 
their employment with PCC. The employer admitted that its 
employees were exposed to asbestos, that it knew of the health hazards 
associated with asbestos exposure, that it provided inadequate 
protections for its workers, that it failed to warn employees of the risks 
they were subject to, and in fact, that they told the workers that their 
working conditions were safe. 
A three-member panel of the Superior Court had reversed the 
Trial court's order for summary judgement, concluding that the 
Pennsylvania legislature could not possibly have intended to immunize 
an employer from liability for harm under the Occupational Disease 
Act, when that harm was caused by his "reprehensible intentional 
wrongdoing [which was] reasonably calculated to lead to severe 
personal injury or death of employees." (Anthony A. Barber, et al v. 
Pittsburgh Corning Corporation, et al., 365 Pa.Super. 247, 253, 529 
A.2d 491, 495 (1987).
Once again, however, Justice Nix was forced to disagree. His
analysis of the language of the Workers' Compensation Act and the 
Occupational Disease Act, and their respective legislative histories led
him to conclude that the legislature knowingly granted immunity to 
employers, even when they were clearly guilty of reprehensible 
intentional wrongdoing. He ruled that the only remedies available to an
injured employee are the pitiful few dictated by the Workers 
Compensation Act, and he overturned the Superior Court decision. 
However, in his Opinion, he also pointed out in very clear, deliberate, if 
Dispassionate language, that the Court had apprised the General 
Assembly two years previously, in the Poyser case, that this was the 
court's reading of the legislature's intentions, and that in those two years 
the legislature had failed to take any action which would indicate that 
the Poyser decision did not reflect their 

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1025 Page 4
wishes. In other words, Justice Nix had issued what could almost be
viewed as a plea to the legislature to fix this glaring inequity in the
law. To date, you have failed to accept his invitation.
So today we ask you, was this gross injustice truly your intent? 
The current message is that employers' blatant threats to employees'
health and safety, that the loss of workers' limbs, good health and even
life, are acceptable, perhaps even necessary, costs of doing business. 
The message is that employers are permitted to engage in any kind of
reckless, willful, wanton wrongdoing, so long as it adds to their bottom
line. The message is that employers' acts, which would be considered
criminal and would be prosecuted accordingly if they occurred outside 
the workplace, are sanctioned by this legislature.
Even in business-friendly Pennsylvania, we know we can do 
Better than this. We cannot accept that our elected officials could be so
callous as to believe that the limited benefits available under the
Workers' Compensation system are adequate compensation for these 
Workers who have been treated like capitalist fodder. We much prefer 
to believe that you were unaware of these cases and the despicable way 
these workers were treated. Now, here is your chance to fix this 
statutory nightmare and to be viewed as heroes by Pennsylvania's hard 
working citizens.
Those of us who are supporting this Bill are not looking to put
people in jail, or close workplaces and displace workers. We are 
looking for stronger incentives for employers to act responsibly when it 
comes to their employees' safety and health. At least fourteen states, 
from Massachussetts to West Virginia to California, to those bastions 
of liberalism, Maine and Montana, have held that participation in a 
Workers' Compensation system does not buy an employer the right to 
Intentionally harm his employees; that the law should not allow a 
wrongdoer to benefit from his wrongs. In the most egregioius cases, 
some employers have been 

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1025 Page 5
prosecuted. And yet those states' economies have not crumbled, and 
the criminal court dockets are not clogged with the cases of evil 
employers.
Nor should Pennsylvania employers be permitted to benefit 
from their wrongs. The language in this Bill has been carefully crafted. 
Good employers are protected. Employers who make honest mistakes 
Are protected. Employers whose workers violate legitimate safety 
Practices are protected. Only those who knowingly and intentionally 
inflict harm would be liable, and only those who have been harmed 
would have recourse through the courts. 
Since reading the Barber decision, a disturbing scene has 
playedover and over in my mind and it is an image I would like to leave 
with you. The Pennsylvania Supreme Court is in session, hearing 
arguments on a motion for summary judgement in this case. In the 
courtroom is Anthony Barber, his wife and children, those of his 75 
coworkers who have so far survived their asbestos-related diseases, 
their spouses, their families and supporters and their attorneys. They sit 
and listen as Pittsburgh Corning's army of defense lawyers stipulate 
that their client exposed its workers to asbestos, knowing full well the 
serious health hazards that exposure posed; that they chose not to 
provide adequate safeguards for the workers; that they not only failed 
to warn their employees of the risks they were subject to, but they 
actually lied to them and claimed their working conditions were safe. 
Then the lawyers smugly cloak themselves in the immunity protections 
of the Occupational Disease Act, and insist that the court must hold 
them harmless for the years of pain, disability, disease and death 
suffered by at least 75 of their employees. The packed courtroom waits 
expectantly for justice to be served. We know the outcome. The 
Justices' hands are tied. Please untie them.