This is an asbestos personal injury action brought by four workers and their spouses against their former employer. The district court granted defendant's motion to dismiss for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiffs' claims were barred by the Pennsylvania Workmen's Compensation and Occupational Disease Acts. Plaintiffs' appeal is grounded on the argument that their complaint stated a claim for relief under the "intentional tort" exception to the Workmen's Compensation exclusivity provisions ("comp-bar"). We conclude that, even assuming that the judicially created intentional tort exception to the comp-bar is still viable under Pennsylvania law, see infra note 3, plaintiffs' allegations fail to state a claim within that exception. Accordingly, we affirm.

Appellants, former employees of appellee Asten-Hill Manufacturing Company ("Asten-Hill") and their spouses, brought suit in Philadelphia Common Pleas Court on December 19, 1978, against Asten-Hill and various suppliers of asbestos, alleging that during their employment at Asten-Hill they were exposed to asbestos fibers, and that, as a result, they contracted asbestosis.1 Some of Asten-Hill's co-defendants and certain third-party defendants filed counterclaims or crossclaims against Asten-Hill. On January 1, 1979, the case was removed to the district court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. Sec. 1441 (1982). The federal court's jurisdiction was based on diversity of citizenship, 28 U.S.C. Sec. 1332 (1982).

In their complaint, appellants alleged that Asten-Hill had long possessed medical and scientific data that clearly indicated that the inhalation of asbestos dust and fibers in the course of the ordinary and foreseeable use of its asbestos products was unreasonably dangerous and carcinogenic. They further alleged that Asten-Hill withheld scientific data and disseminated outdated scientific data, failed to provide warnings of known risks, and failed to test products adequately. The complaint further stated that the defendants had acted "willfully, maliciously, callously, deliberately, and with wanton disregard for the rights, safety, and position of plaintiffs and other persons similarly situated," and that they had "fraudulently and deliberately" exposed the plaintiffs to asbestos fibers.

Asten-Hill moved to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. The basis of Asten-Hill's motion was that the exclusivity provisions of both the Pennsylvania Workmen's Compensation and the Occupational Disease Acts barred plaintiffs' action against their employer.2 On April 6, 1983, the district court granted the motion and simultaneously dismissed the claims of the other defendants and third-party defendants against Asten-Hill. The plaintiffs' claims against the remaining defendants were tried on April 15 and 16, 1985. On May 15, 1985, the district court entered judgment on plaintiffs' behalf against one of the suppliers, Bell Asbestos Mines, and dismissed the claims against the other suppliers. At this time, the district court made final the April, 1983 dismissal of the claims against Asten Hill. We are now presented with plaintiffs' appeal of that dismissal. The other defendants and third-party defendants have not appealed the dismissal of their crossclaims against Asten-Hill.

A federal court sitting in a diversity action must apply the substantive law of the state in which it sits and thus must predict how the highest state court would resolve the case. Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir.1982). In this case, we must predict whether the Pennsylvania Supreme Court would permit employees who are eligible for benefits under the Pennsylvania Workmen's Compensation and Occupational Disease Acts to bring a third-party claim against their employer on an intentional tort theory predicated upon the allegations of the complaint in this case.

Pennsylvania enacted its Workmen's Compensation Act in 1915, Pa.Stat.Ann. tit. 77, Sec. 1, et seq., and its Occupational Disease Act in 1938, Pa.Stat.Ann.tit. 77, Sec. 1201, et seq. Both Acts were based on a theory of "trade-offs." They provided certain compensation for the disability or death of an employee caused by an injury or occupational disease arising out of and in the course of employment. In return for these guaranteed payments, the employer was given immunity from common law suits by employees. 77 Pa.Stat.Ann. Secs. 481(a), 1403. This Court has explained the purpose of these provisions:

The statutory scheme thus operates on a law of averages. In some instances where he could prove negligence, an employee may receive less compensation than he would recover in damages in a common law suit. In other situations, an employer may have to pay compensation where he would not be liable for any sum at common law. Despite inequities in specific cases, the underlying assumption is that, on the whole, the legislation provides substantial justice.

Weldon v. Celotex Corp., 695 F.2d 67, 70 (3d Cir.1982).

In Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963), a panel of the Pennsylvania Superior Court established an exception to the comp-bar, holding that an intentional assault upon an employee by an employer was actionable. Thus was born in Pennsylvania the "intentional tort" exception to the comp-bar. Our present task is to predict the scope of the exception. A canvas of the case law convinces us that the Pennsylvania Supreme Court would not consider allegations such as plaintiffs' as falling within the exception.3

The Pennsylvania Supreme Court has dealt with the scope of the intentional tort exception just once, and then only implicitly. In Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969), the court held that despite allegations of an employer's willful and unlawful failure to provide safeguards on a conveyor system, the employee-plaintiff's sole remedy was under the Workmen's Compensation Act. The court made no reference to the intentional tort exception.

The Pennsylvania Superior Court, in a detailed and thoughtful discussion of the intentional tort exception, recently attached much significance to Evans. The reasoning of that case, Higgins v. Clearing Machine Corporation, 344 Pa.Super. 325, 496 A.2d 818 (1985), strongly suggests that appellants in the instant case did not state a claim within the intentional tort exception.

In Higgins, the plaintiff, who had been injured while operating an unguarded punchpress, alleged intentional misconduct by the defendants in not taking action to prevent a known hazard. The Higgins panel held that such actions do not bring a case within the intentional tort exception, observing:

Kelsey-Hayes' alleged "intentional, wanton and willful" conduct herein comprises its repeated violation of safety regulations and its neglect of a known dangerous condition. Clearly, these allegations should properly be aligned with those presented to our Supreme Court in Evans, supra. No allegation is made that Kelsey-Hayes intended to injure Higgins.

Id. at 331, 496 A.2d at 821 (emphasis added). Similarly, in the case at bar plaintiffs did not allege that it was the purpose of defendants to injure them. Higgins, which is a very recent opinion by the highest Pennsylvania court directly addressing the scope of the intentional tort exception, strongly counsels that we affirm the dismissal of plaintiffs' case. See Goodwin v. Elkins & Co., 730 F.2d 99, 111 n. 23 (3d Cir.1984) ("In the absence of a starkly defined irregularity of decision, therefore, we decline to hypothesize a disagreement between the Pennsylvania Supreme Court and the state's intermediate appellate court.").4

Larson's treatise on workmen's compensation, regarded as influential by Pennsylvania courts, supports this conclusion:

Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute or other misconduct of the employer short of genuine intentional injury.... Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.

2A Larson, The Law of Workmen's Compensation, Sec. 68.13 (1975). This summary strikes us as a fair rendering of Pennsylvania law on the issue.

In sum, we predict that the Pennsylvania Supreme Court would not extend the intentional tort exception to the allegations of this case. It is, of course, for that court to settle the matter definitively, and in view of the large number of cases in the federal courts raising this issue, we urge it to do so as soon as the opportunity presents itself.5

The judgment of the district court will be affirmed.