Plaintiffs in these consolidated cases appeal from the district court's dismissal, pursuant to Fed.R.Civ.P. 12(c), of their common law asbestos personal injury claims. The district court held that the suits were barred by the exclusivity provisions of the Pennsylvania Workmen's Compensation and Occupational Disease Acts ("comp-bar"), which give employers immunity from common law suits by employees.1 In so holding, the court rejected the plaintiffs' contention that they had pleaded a cause of action within the "intentional tort" exception to the comp-bar. We shall affirm on that point. However, because we also find that plaintiffs pleaded a cause of action within the "dual capacity" exception to the comp-bar, we shall reverse the judgment of the district court and remand the case for further proceedings.

Appellants, former employees of Raymark Industries, Inc., and their spouses, brought ten separate actions against Raymark in the United States District Court for the Eastern District of Pennsylvania. Each of the complaints alleged that plaintiffs had contracted asbestosis and/or bronchogenic carcinoma and/or mesothelioma, as a result of asbestos exposure to which they had been subjected by defendant.2 According to the complaints, plaintiffs reside near Raymark's plant in Manheim, Pennsylvania. The complaints averred that Raymark's misconduct resulted in the release of asbestos throughout the community, so that plaintiffs were exposed to asbestos in the normal course of their lives away from the workplace, as well as during their employment.

On September 13, 1985, Raymark moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), in each of the ten cases, alleging that plaintiffs' sole remedies were through Pennsylvania's workmen's compensation scheme. To secure a uniform decision with respect to the motions, the Eastern District judges arranged for the ten cases against Raymark to be consolidated before a panel of six judges.3

Defendant's memorandum accompanying its motion to dismiss stressed that plaintiffs had failed to state a cause of action within the intentional tort exception to the comp-bar. In a footnote, defendants asserted that plaintiffs also failed to state a cause of action within the dual capacity exception to the comp-bar. In their memorandum opposing the motion to dismiss, plaintiffs argued that their complaint stated a cause of action within the intentional tort exception. Their memorandum also included a section discussing their exposure to asbestos away from the workplace.

The district court granted defendant's motion to dismiss. Its opinion dealt exclusively with the intentional tort exception to the comp-bar, explaining why plaintiffs' claims failed to come within that exception. The court made no mention of the allegations of exposure away from the workplace or of the dual capacity exception. On appeal, plaintiffs raise two arguments: 1) that the district court erred in finding that plaintiffs failed to state a claim within the intentional tort exception to the comp-bar; and 2) that the district court ignored the fact that plaintiffs' allegations of exposure away from the workplace stated a cause of action under the dual capacity exception to the comp-bar.4

There is no doubt that the district court correctly decided the intentional tort exception issue, for subsequent to its decision, this court held that under Pennsylvania law, suits virtually identical to those of plaintiffs did not state a claim within the intentional tort exception to the comp-bar. Wilson v. Asten-Hill Manufacturing Co., 791 F.2d 30 (3d Cir.1986). Wilson controls and requires that we affirm the district court's decision insofar as it held that plaintiffs did not state a claim within the intentional tort exception. Therefore, the remaining issue in this case is whether the allegations in the complaint concerning plaintiffs' exposure to asbestos away from the workplace stated a claim within the "dual capacity" exception to the comp-bar, first applied in the Pennsylvania Supreme Court case of Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).

II. The Dual Capacity Doctrine Under Pennsylvania Law

In Tatrai, supra, a hospital employee became ill while on the job and went to the hospital emergency room to seek medical attention. The foot stand of the X-ray table on which she was perched in the emergency room was loose, and she fell. When Ms. Tatrai sued the hospital, it pleaded the comp-bar defense. The opinion of the court, written by Justice Nix, held for plaintiff on the ground that, because her injury was not suffered in the course of employment, she was not eligible for workmen's compensation, hence the comp-bar did not apply. However, none of the other justices on the court joined Justice Nix's opinion. Rather, Justice Roberts wrote a concurring opinion, joined by three justices,5 that supported plaintiff on a somewhat different basis. Justice Roberts essentially invoked the "dual capacity" doctrine:

In holding itself out to the public as a provider of medical services, appellee hospital owed a duty to all its patients. There is no basis for distinguishing appellant, a paying customer, from any other member of the public injured during the course of treatment.

Id., 497 Pa. at 255, 439 A.2d at 1166 (Roberts, J., concurring). Under this theory, plaintiff's eligibility for workmen's compensation was simply irrelevant. Id., 497 Pa. at 257, 439 A.2d at 1168. She was suing not as an employee injured by her employer, but as a member of the public.

Because Justice Roberts' opinion was a concurrence (albeit joined by a majority of the court), and Justice Nix's opinion for the court decided the case on a different basis, there is uncertainty as to whether the dual capacity doctrine is good law in Pennsylvania. After Tatrai, the Pennsylvania Supreme Court faced a case involving the doctrine, but provided no answer. See Budzichowski v. Bell Telephone Co., 503 Pa. 160, 469 A.2d 111 (1983) (court "assumed arguendo" that the doctrine is good law in the course of finding that, on the facts of the case, it did not apply in any event).

The lower Pennsylvania courts have not provided definitive guidance either. In Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 465 A.2d 1069 (1983), the Superior Court stated that Tatrai "did not adopt generally the doctrine of dual capacity." Id. at 1072. However, it reached that conclusion by analyzing Justice Nix's lone opinion while simply ignoring the concurring opinion that had the support of four justices. Another superior court decision, Silvestri v. Strescon Industries, Inc., 312 Pa.Super. 82, 458 A.2d 246 (1983), noting the concurrence in Tatrai, concluded that the dual capacity doctrine is the law of Pennsylvania.

Our task, of course, is to predict what the Pennsylvania Supreme Court would do. Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir.1982). Even if the Pennsylvania Supreme Court cannot be said to have adopted the dual capacity doctrine in Tatrai, it surely gave us grounds for predicting that it will do so--four out of seven justices explicitly endorsed the doctrine, and none opposed it. Under the circumstances, we predict that the Pennsylvania Supreme Court, if called upon to decide the status of the dual capacity doctrine, would find the doctrine viable.

III. Did Plaintiffs' State a Claim Under the Dual Capacity

Doctrine?

We must next consider whether plaintiffs stated a claim for relief within the dual capacity exception. Paragraph 10 of plaintiffs' complaints states:

Such exposure to defendants' asbestos products occurred at the Manheim Plant, in and around their homes, on their way to and from their employment, before and after they began work for Raybestos-Manhattan.

The aforesaid exposures occurred both during work in the work environment and outside work in the general atmosphere from ambient air....

(emphasis added). The crux of plaintiffs' dual capacity argument, then, is that they were injured not only during their employment, but also in their role as part of the general public. They point out that, while defendant may be protected by the comp-bar from being sued in its capacity as an employer, it is obviously susceptible to suit by members of the general public who were injured by its polluting of the environment. In the latter case, Raymark is sued not in its capacity as an employer, but in its capacity as a private party. Plaintiffs contend that they are bringing suit as members of the public, alleging that they were injured by the asbestos dust that defendants released into the ambient air. They argue that the fact that they are also employees of Raymark is purely coincidental and should not deprive them of a cause of action.6 See Anastasi v. Pacor, Inc., 7 Phil. County Rptr. 488, 515 (1982) (dual capacity exception applies where those injured "are by coincidence employees but at the time of injury are not engaged in the business of the employer and are in their independent capacities as members of the general public.").

In our view, plaintiffs' claims fall squarely within the dual capacity exception to the comp-bar as enunciated in the Tatrai concurrence. If plaintiffs were injured by exposure away from the workplace, it is unreasonable to deprive them of a cause of action that is available to the general public. Plaintiffs' allegations with respect to defendant's polluting the environment, which must be taken as true for the purposes of the motion to dismiss, stand entirely apart from plaintiffs' employment; under the pleadings, the environmental exposure would have occurred exactly as it did even if plaintiffs had never worked for defendant. These allegations concern defendant's violations of its duty to the general public, not its specific duty to its employees.

Defendants cite several cases refusing to apply Tatrai to permit employees recovery from their employer. Koslop v. Cabot Corporation, 622 F. Supp. 222 (M.D.Pa.1985); Oyster v. Johns Manville Corp., 568 F. Supp. 83 (E.D.Pa.1983); Kohr v. Raybestos-Manhattan, 522 F. Supp. 1070 (E.D.Pa.1981) (pre-Tatrai decision); Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 465 A.2d 1069 (1983) (non-asbestos case); Silvestri v. Strescon Industries, 312 Pa.Super. 82, 458 A.2d 246 (1983) (same). However, in all but one of these cases,7 the plaintiff's injury was entirely work-related and the plaintiff tried to avoid the comp-bar simply by citing the fact that the employer manufactured or sold goods to the public, as well as employed the plaintiff. In the present case, by contrast, to the extent plaintiffs alleged exposure away from the workplace, they alleged violations that were entirely unrelated to their employment. Thus, as noted, the instant case genuinely resembles Tatrai in that plaintiffs allege violations that affected them as members of the general public, simply living in the neighborhood.

It is likely that most of plaintiffs' exposure to asbestos occurred at the workplace. This circumstance does not mean that plaintiffs failed to state a claim under the dual capacity exception. It does suggest, however, that plaintiffs may have a difficult time establishing a relationship between their injuries and their exposure away from the workplace that is sufficient to justify recovery.8 That issue, however, is beyond the scope of this appeal.

Plaintiffs indisputably alleged that their injuries stemmed, in part, from exposure away from the workplace. Thus, they stated a cause of action outside of the comp-bar.

For the reasons set forth above, we will reverse the judgment of the district court and remand this case for further proceedings.