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Pennsylvania Supreme Court: Common Law Claims Against Employers Allowed For Latent Occupational Diseases


By Richard I. Nemeroff and R. Scott Marshall 

[Editor's Note:  Mr. Nemeroff is the principal of The Nemeroff Law Firm, P.C., with offices in Dallas, TX, Houston, TX, Pittsburgh, PA, and New Orleans, LA and focuses his firm's practice on asbestos, pharmaceutical and catastrophic personal injury litigation. Copyright © 2014 by Richard I. Nemeroff. The appeal herein was briefed by R. Scott Marshall of The Nemeroff Law Firm and Brent Rosenthal of The Law Office of Brent M. Rosenthal with oral argument by Robert F. Daley of Robert N. Peirce & Associates, P.C. Inquiries and responses are welcome.] 

In December, 2013, The Nemeroff Law Firm won a major victory for victims of mesothelioma and other latent occupational diseases in Pennsylvania. In a landmark decision, the Pennsylvania Supreme Court reversed a Superior Court decision and recognized an employee's right to bring a civil action against an employer for a latent occupational disease. 

The Pennsylvania Supreme Court ruled that employers cannot use the Pennsylvania Workers' Compensation Act ("Act") to deny workers the opportunity to obtain compensation for latent occupational diseases.1

In a five-to-one decision, the Court in the consolidated case of Tooey v. A.K. Steel, et al. and Landis v. A. W. Chesterton, et al. [enhanced opinion available to subscribers] held that an employee is able to seek compensation through a civil action because their latent occupational disease, mesothelioma, was outside the jurisdiction of the Act.2 

Under prior interpretations of the Act those legal options were blocked for Nemeroff's clients and other employees that develop latent occupational diseases. The Court said that the previous interpretation would leave "the employee with no remedy against his or her employer, a consequence that clearly contravenes the Act's intended purpose of benefitting the injured worker."3 In its decision, the Court stated that the Act does not apply to latent occupational disease claims because it is "inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees which have suffered the most serious of work-related injuries without any redress under the Act or at common law."4 

To reverse years of precedent and succeed where other plaintiffs had failed, The Nemeroff Law Firm argued that latent occupational diseases, such as mesothelioma, were outside the jurisdiction of the Act and that the Act's provisions, when applied to these cases, were unconstitutional. 

Although neither client lived to see the results of their appeal, the Court's decision brings some measure of justice to those unfortunate employees suffering from occupational diseases that do not develop until years after their toxic exposure has ended. 

The Act As A Roadblock To Compensation 

For years, the Pennsylvania Workers Compensation Act had been interpreted as barring employees, usually long since retired, from even the opportunity to make their cases and obtain compensation for latent occupational disease.5 Specifically, under Section 301(c)(2) of the Act, compensation is only available if the occupational disease first manifests within 300 weeks of the date of last exposure to the occupational toxin in the workplace.6 Importantly, that same statutory provision goes on to define "injury": 

The terms "injury," "personal injury" and "injury arising in the course of employment" as used in this act, shall include …… occupational disease as defined in section 108 of this act [i.e., 77 § P.S. 27.1]:  Provided, That whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability and death resulting from such disease and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease:  And provided further, That if the employee's compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable.7 

Due to this 300-week limitation, many employees that developed latent occupational cancers and other life threatening diseases were unable to obtain compensation under the Act, simply because those conditions take too long to manifest. 

Separately, the Act's "exclusivity provision" 8 goes further, denying compensation through a civil action for latent occupational disease cases, stating: 

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.9 

Sadly, these provisions meant injured workers and their families had no means to obtain compensation from those parties that may have been the most culpable for their latent occupational disease - their employers, who have an obligation to provide a safe work environment. 

After hearing Nemeroff's arguments, the Pennsylvania Supreme Court took a major step forward to protect the rights of these ill-fated workers, entering a decision that Section 301(c)(2) of the Act does more than set a time limit for obtaining compensation under the Act.10 It defines these latent occupational diseases outside the jurisdiction and purview of the Act, so that they are no longer subject to the Act and its exclusivity provision.11 In other words, the same section of the Act that sets a 300-week limitation was also found to exclude latent occupational diseases, by definition, from the Act. 

The Trial Court And Underlying Appeal 

During his career as an industrial salesman from 1964 to 1982, John Tooey sold asbestos-containing products for his employer, Ferro Engineering, a division of Oglebay-Norton Company. In December 2007, Tooey was diagnosed with mesothelioma, a fatal and debilitating occupational disease caused by exposure to asbestos. Unfortunately, Tooey's mesothelioma diagnosis came at least 1,300 weeks after his last exposure to asbestos, which meant the Pennsylvania Worker's Compensation Act's standing interpretation prevented Tooey or his family from pursuing legal action against his employer.

In a separate case, Spurgeon Landis was a laborer from 1946 until 1992 at Alloy Rods, Inc., a predecessor to Chemetron Corporation ("Chemetron") and The ESAB Group, Inc., ("ESAB"). During that time, Landis was exposed to asbestos dust in an occupational setting where welding rods were being manufactured. In July 2007, Landis was also diagnosed with mesothelioma. His diagnosis came at least 780 weeks after his last exposure to asbestos, and like Tooey, he was also unable to seek compensation under current legal interpretation of the Act. 

In 2008, Tooey and Landis each filed civil actions in the Court of Common Pleas for Allegheny County, Pennsylvania, naming their employers, among others, as having substantially contributed to their development of mesothelioma. In response, the employer defendants Ferro, Chemetron and ESAB ("Employers") filed motions for summary judgment asserting that the claims were covered by the Act and were barred by its exclusivity provision. 

The trial court denied summary judgment relying on its prior decisions in Sedlacek v. A.O. Smith Corp., [enhanced opinion] and Estate of Cline v. Pittsburgh Metals Purifying, Inc. and adopted Nemeroff's argument that Section 301(c)(2) construes latent occupational diseases outside the jurisdiction of the Act, meaning the exclusive remedy provision could not apply. 

In response, the Employers appealed to the Superior Court where, a three-judge panel relied on its decisions in Ranalli v. Rohm & Haas Co. [enhanced opinion] and Sedlacek v. A. O. Smith Corp. to reverse the trial court.12 In Ranalli and Sedlacek, the Superior Court improperly relied on Kline v. Arden H. Verner Co. [enhanced opinion] where the injured employee received some compensation for an underlying injury, but not all of the injury's consequences.13 However, in reversing the trial court, the Superior Court in Tooey stated it was "bound" by its decisions in Ranalli and Sedlacek.14 

The Supreme Court's Review 

R. Scott Marshall of the Nemeroff Law Firm, working with Brent Rosenthal of The Law Offices of Brent Rosenthal and Robert Daley of Robert N. Pierce & Associates, drafted an appeal to the Pennsylvania Supreme Court, which accepted the appeal based on three discrete issues:  (1) whether the definition of an "injury" in the Act excludes latent occupational diseases; (2) whether the combined effect of Section 301(c)(2) and the exclusivity provision of the Act violated the reasonable compensation requirement of the state constitution; and (3) whether the Act, as interpreted, violated the state's Open Court and Remedies Clause and the Due Process and Equal Protection Clauses of the federal and state constitutions.15 

Because the lower Courts had previously addressed issues (1) and (3) and petitions for appeal to the Supreme Court based on those arguments had not been accepted, Nemeroff's attorney's anticipated the Court would reach its decision based on issue (2):  whether concurrent application of Section 301(c)(2) of the Act setting a 300-week manifestation period with Section 303(a) of the Act, the exclusivity provision, eviscerated the quid pro quo between the employee and employer and violated the reasonable compensation requirement embodied in Article III, Section 18 of the Pennsylvania Constitution. Instead, the Court, which attempts to resolve claims on non-constitutional grounds when possible, ultimately reached its decision based on Nemeroff's statutory construction argument and defined a latent occupational disease outside the jurisdiction and purview of the Act.16 

Section 301(c)(2) — A Jurisdictional Statute 

Initially, the Pennsylvania Supreme Court's decision noted the Act "was designed to compensate claimants for earnings loss occasioned by work-related injuries" and "to provide recompense commensurate with the damage from accidental injury, as a fair exchange for relinquishing every other right of action against the employer."17 Likewise, the Court recognized the "goal of the workers' compensation legislative scheme is to relieve the employee of the economic consequences of his injury and make [those consequences] a part of the cost of operation of the business, to be paid ultimately by the consuming public."18 

The simplicity of Nemeroff's statutory construction argument was that the pronoun "it" in Section 301(c)(2) should refer to the immediately preceding noun — "Act," as follows: 

whenever occupational disease is the basis for compensation, for disability or death under this Act, [it] shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment.19 

should be read as: 

whenever occupational disease is the basis for compensation, for disability or death under this Act, [the Act] shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment.20 

This interpretation removes latent occupational diseases that first manifest more than 300 weeks from the date of last exposure from the jurisdiction and purview of the Act. Nemeroff argued that this interpretation was the most reasonable because it was consistent with the rules of grammar and that it served the humanitarian purposes of the Act.21 

The Court went on to reject the Employers' alternative interpretation that "it" referred to "compensation" because the intervening phrase was an unnecessary, non-restrictive clause.22 

Quite simply, the Court found Nemeroff's interpretation to be "the most reasonable."23 

Additional Considerations 

While Nemeroff's statutory construction argument prevailed, the Court went further, attempting to determine the original intent of the legislature when drafting Section 301(c)(2),24 keeping in mind that "[t]he Act is remedial in nature and intended to benefit the worker, and, therefore, the Act must be liberally construed to effectuate its humanitarian objectives."25 

Nemeroff argued the 300-week limitation prevented the "quid pro quo contemplated by the Act."26 If an employee was unable to receive reasonable compensation, granting the employer full immunity would violate the spirit of the Act.27 

Nemeroff was able to prevail relying on Lord Corp. v. Pollard, 548 Pa. 124 Shepardize, 695 A.2d 767 (1997) [enhanced opinion], Boniecke v. McGraw Edison Co., 485 Pa. 163 Shepardize, 401 A.2d 345 (1979) [enhanced opinion] and Greer v. U.S. Steel Corp., 475 Pa. 448 Shepardize, 380 A.2d 1221 (1997) [enhanced opinion]. In each of these cases, the employees' civil action would survive the exclusivity provision if it was determined the injury was not compensable.28 

In their response, the Employers argued the Act was not meant to provide compensation or an opportunity for legal action for every workplace injury, even though the result might be harsh.29 They suggested that employees who contracted mesothelioma or other latent diseases could seek compensation from defendants other tan their employers.30 In addition, they drew a distinction between coverage and compensability and maintained that Section 301(c)(2) is a statute of repose, offering a time limit on recovery instead of a jurisdictional limit.31 

In addition, the Court acknowledged the Employers' and dissent's concern that allowing common law action for latent occupational diseases "would expose employers to potentially unlimited liability for occupational diseases," but noted that a plaintiff bears the high burden of proof of negligence while the employer retains all its traditional common law defenses.32 The Employers' interpretation would leave "the employee with no remedy against his or her employer, a consequence that clearly contravenes the Act's intended purpose of benefitting the injured worker.33 It is inconceivable that the legislature, in enacting a statue specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work related injuries without redress under the Act or at common law."34 

Implications Of The Court's Decision 

The Supreme Court's decision in Tooey v. A.K. Steel, et al. and Landis v. A. W. Chesterton puts Pennsylvania on the same negligence standard as Louisiana. As a result, it is safe to assume that tort reform organizations and the Chamber of Commerce will pressure the legislature to react to the Court's decision. How these forces will constitutionally circumvent the Court's ruling remains to be seen. 

While this decision was based on the occupational disease mesothelioma, there is nothing in the Court's reasoning to indicate that employers will be shielded from providing compensation for other occupational diseases with long latency periods. Other latent cancers, such as those in Ranalli, and benzene-induced leukemia, should fall within the Court's decision as long as the occupational disease first manifests more than 300 weeks from the date of last exposure to the industrial toxin. 

Third party defendants such as manufacturers, suppliers and distributors of asbestos containing products should also view the Court's opinion favorably because their liability will now be shared with the employer. In cases where manufacturers, suppliers and other parties have filed bankruptcy or where the employee is unable to identify a specific product defendant, the Court's opinion will now provide the employee with an opportunity to obtain compensation through his employer. 

The Court's opinion in Tooey and Landis represents a significant shift in Pennsylvania law in favor of the injured employee. The argument put forth by Nemeroff, that language was being misinterpreted in a way that did not meet the humanitarian spirit of the Pennsylvania Workers' Compensation Act, was compelling enough to cause the reversal of previous decisions. 

The significance of this recent Pennsylvania Supreme Court decision is substantial. As a result of this humanitarian interpretation of the Act, employees diagnosed with latent occupational disease, and the families they often leave behind, can now pursue the reasonable compensation opportunities that the Act's legislators intended. 


1. Tooey v. AK Steel Corp., et al., 2013 Pa. LEXIS 2816 Shepardize, ___ A.3d ____ (Nov. 22, 2013). 

2. Id. at 1 Shepardize

3. Id. at 9.

4. Id

5. See, Barber v. Pittsburgh Corning Corp., 555 A.2d 766 Shepardize, 521 Pa. 29 (1989) (finding no exception existed to the exclusivity provision for intentionally exposing an employee to asbestos); but see, Greer v. U.S. Steel Corp., 380 A.2d 1221 Shepardize, 475 Pa. 448 (1977) (finding an employee could maintain a civil action for an occupation disease, pulmonary fibrosis, which was not a listed disease within the Occupational Disease Act). 

6. 77 P.S. § 411(2); Section 301(c)(2); (As it related to the Mr. Landis' and Mr. Tooey's specific occupational disease, mesothelioma, the comprehensive listing of "occupational diseases" found in Section 108 of the Act included:  [a]sbestosis and cancer resulting from the direct contact with handling of, or exposure to the dust of asbestos in any occupation involving such contact, handling or exposure.). 

7. Id

8. 77 P.S 481(a); 303(a). 

9. Id

10. Tooey at 4. 

11. Id

12. Ranalli v. Rohm & Haas Co., 983 A.2d 732 Shepardize (Pa. Super. 2009) and Sedlacek v. A.O. Smith Corp., 990 A.2d 801 Shepardize (Pa. Super. 2010). 

13. Ranalli at 734 Shepardize, Sedlacek at 809. 

14. Tooey at 1. 

15. Id. at 2. 

16. Id. at 4. 

17. Tooey at 2, citing City of Erie v. W.C.A.B. (Annunziata), 575 Pa. 594, 601 Shepardize, 838 A.2d 598, 602 (2003) (quoting Rudy v. McClosky Corp., 348 Pa. 401 Shepardize, 35 A.2d 250, 253 (1944). 

18. Id. Shepardize 

19. Id. at 4 Shepardize

20. Id

21. Id. at 3 Shepardize

22. Id. at 4 Shepardize

23. Id

24. Id. at 5-9. 

25. Id. at 9 Shepardize

26. Id. at 5 Shepardize

27. Id

28. Id. at 8 Shepardize

29. Id. Shepardize at 7. 

30. Id

31. Id

32. Id. at 9. 

33. Id

34. Id

Copyright © 2014 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. 

This commentary originally appeared in the Jan. 8, 2014, issue of LexisNexis Mealey's Litigation Report: Asbestos. 

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