The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL DATA, DARLENE DATA, )
EXECUTRIX OF THE ESTATE OF )
MICHAEL DATA, DECEASED, )
AND DARLENE DATA IN HER OWN )
RIGHT. )
)
Plaintiffs, ) Civil No. 19-879
)
v. )
)
PENNSYLVANIA POWER COMPANY, )
et al )
)
Defendants. )
OPINION
This case has been referred to United States Magistrate Judge Cynthia Reed Eddy for
pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and
Rule 72 of the Local Rules for Magistrate Judges.
On May 11, 2023, Magistrate Judge Eddy issued an Order (ECF No. 1339) denying
Plaintiffs’ Motion for Remand without prejudice to refile after the stay has been lifted. (ECF No.
1335). On May 24, 2023, Plaintiff filed Objections to said Order. (ECF No. 1340). The matter
is now ripe for this Court’s consideration.
Following consideration of Plaintiff’s Objections and the respective briefs of the parties
(ECF Nos. 1340, and 1342), and for the reasons stated below, Plaintiffs’ Objections will be
sustained. The stay will be lifted, and this Court will proceed with a decision on the merits of
Plaintiffs’ Motion for Remand (ECF No. 1335). Following consideration of Plaintiffs’ Motion
for Remand (ECF No. 1335), the respective briefs (ECF No. 1336 and 1338), and for the
reasons stated below, Plaintiff’s Motion for Remand will be granted.
I. Relevant Background
This matter arises out of Plaintiffs’ decedent, Michael Data’s, alleged asbestos exposure
from the named defendants. One of the defendants, Penn Power, employed Mr. Data from 1983
to 2009. As one of its defenses in this matter, Penn Power maintains that Plaintiffs’ claims are
barred by the Pennsylvania Occupational Disease Act, Pa. Stat. Ann. Tit. 77, § 1201, et. seq.
(“ODA”). Penn Power contended that the same must be pursued and adjudicated before the
Worker’s Compensation Appeal Board (Board), and thereby requested a stay. On March 24,
2021, this Court granted Penn Power’s request for a stay of the proceedings as follows:
The Court agrees with Penn Power to the extent that, if Plaintiff has a cognizable
claim under the ODA, then her common law tort claim against Mr. Data’s former
employer is barred. This raises the question of whether Plaintiff’s claim is
cognizable under the ODA. Plaintiff maintains her claim is not cognizable under
the ODA, and that, pursuant to Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.3d 851
(2013), her common law tort claims are permitted to be brought in the first
instance in this Court. Penn Power maintains that there is no doubt that Plaintiff's
claim must be brought under the ODA; however, whether the claim is cognizable
under the ODA is a matter to be determined in the first instance through the
administrative process. Lord [v. Pollard], 695 A.2d [767], 768 [(Pa. 1997)] (final
administrative determination as to whether claim is cognizable under WCA or
ODA must be made before claimant can bring civil tort claim). Therefore, it is
premature to dismiss the Plaintiff's claim at this time. As such, the Court will
deny Penn Power’s Motion to Dismiss but grant Penn Power’s alternative request
for a stay of the proceedings pending administrative resolution of Plaintiff's claim
under the ODA. Consistent with Pennsylvania Supreme Court precedent, all
proceedings as to Penn Power will be stayed pending the filing and disposition of
Plaintiff's ODA administrative proceedings.
(ECF No. 971 at pp. 2-4).
On June 14, 2021, Plaintiffs’ counsel filed an ODA Claim Petition listing Michael Data
but not Mrs. Data. The Claim Petition sought benefits under Section 301(i) of the ODA only.
During the course of the ODA claim, Plaintiffs’ counsel (who was also involved in the ODA
administrative claim) argued that Penn Power lacked standing to take any position on the ODA
Claim Petition and that the ODA Claim Petition should be denied. On January 24, 2022,
following briefing and argument, Workers’ Compensation Judge (WCJ) Michael Hetrick
determined that “Claimant has not met his burden on the Occupational Disease Claim Petition
under Section 301(i) of the ODA” and dismissed the Claim Petition. (ECF No. 1322 at pp. 19-
23). Penn Power subsequently appealed the January 24, 2022 Order of WCJ Hetrick to the
Workers’ Compensation Appeal Board (“Board”).
Plaintiff’s counsel moved to quash the appeal on the ground that Penn Power lacked
standing in the ODA administrative matter. In response, Penn Power maintained that it had
standing because, as Mr. Data’s last employer per the ODA Claim Petition itself, it could be
responsible for paying any ODA benefits awarded. On September 29, 2022, following briefing,
the Board quashed the appeal on the ground that Penn Power lacked standing to appeal:
Claimant filed the Occupational Disease Claim Petition against Defendant,
alleging that he contracted malignant mesothelioma as a result of an asbestos
exposure that occurred while employed by Defendant. He listed Penn Power as a
previous employer from 1983 to 2009, but did not allege that he contracted
malignant mesothelioma as a result of exposure to asbestos while employed by
Penn Power. Although the WCJ permitted Penn Power’s counsel to participate in
this matter as a result of Judge Horan’s Order, Penn Power was not a party in the
Claim Petition proceeding before the WCJ. In addition, Penn Power was not
aggrieved by the WCJ’s Decision and Order. The WCJ’s dismissal of the Claim
Petition against Defendant did not directly or immediately establish any liability on
the part of Penn Power…. Therefore, we must grant the parties’ Motions to
Dismiss Penn Power’s Appeal.
(ECF No. 1322 at p. 27-30). The Board’s decision stated that “[a]n appeal to the Commonwealth
Court of Pennsylvania may be taken by any party aggrieved by the Board’s decision….” Id. On
October 31, 2022, Penn Power filed a Petition for Review with the Pennsylvania Commonwealth
Court as well as a Notice of Appeal with the Court of Common Pleas of Lawrence County
pursuant to 42 Pa.C.S. § 933(a)(1)(iv) and 77 P.S. § 1527 where the appeal is by right. Id. at pp
34-50.
On April 17, 2023, the Court of Common Pleas of Lawrence County quashed Penn
Power’s appeal. (ECF No. 1340-1). In its opinion, the common pleas court based its decision
upon Herold v. Univ. of Pittsburgh - of Commonwealth Sys. of Higher Educ., 291 A.3d 489
(Pa.Cmwlth. 2023), reargument denied (Apr. 11, 2023), wherein the Commonwealth Court of
Pennsylvania held that the development mesothelioma more than four years after an employee’s
last exposure to asbestos is not subject to the exclusive remedy mandate of the Occupational
Disease Act (ODA). Penn Power has appealed said decision to the Commonwealth Court.
Herrold has also been appealed to the Pennsylvania Supreme Court. Both remain pending.
On April 26, 2023, by Plaintiffs’ motion and court order, Penn Power became the sole
defendant in this matter. (ECF No. 1334). With Penn Power as the remaining defendant,
Plaintiffs now argue that the stay should be lifted and move to remand this case to the Allegheny
Court of Common Pleas because there remains no basis for federal jurisdiction. Penn Power
opposes both the lifting of the stay and motion for remand.
II. Standard of Review
The Federal Magistrates Act, 28 U.S.C. §§ 631-639, provides two separate standards for
judicial review of a magistrate judge's decision: (i) “de novo,” for magistrate resolution of
dispositive matter, 28 U.S.C. § 636(b)(1)(B)-(C), accord Fed. R. Civ. P. 72(b) (referring to “a
pretrial matter dispositive of a claim or defense”), and (ii) “clearly erroneous or contrary to law,”
for magistrate resolution of nondispositive matters, 28 U.S.C. § 636(b)(1)(A), accord Fed. R.
Civ. P. 72(a) (referring to “a pretrial matter not dispositive of a party's claim or defense”).
In this case, the appealed Order, which both denies the lifting of the stay and the motion
for remand, contains both a non-dispositive and dispositive component, which this Court will
address in turn.
III. Discussion
A. Stay
Plaintiffs argue that, now that the Herold decision has set a controlling precedent on the
relevant provisions of the ODA, this matter can move forward. Penn Power contends that its
appeal to the Commonwealth Court and Herold’s petition for allowance of appeal to the
Pennsylvania Supreme Court, regarding interpretation of the ODA, remain pending.
“A United States district court has broad power to stay proceedings,” and “[i]n the
exercise of its sound discretion, a court may hold one lawsuit in abeyance to abide the outcome
of another which may substantially affect it or be dispositive of the issues.” Bechtel Corp. v.
Local 215, Laborers’ Int'l Union of N.A., AFL-CIO, 544 F.2d 1207, 1215 (3d Cir. 1976). “In
determining whether to stay an action under its inherent authority, a court must weigh the
competing interests of and possible harms to the parties.” Stokes v. Real Page, Inc., No. 15-1520,
2016 WL 9711699 at *1 n.1 (E.D. Pa. Jan. 25, 2016) (quotation marks omitted). In making this
determination, the Court weighs whether a stay would create prejudice, whether a party would
suffer a hardship or inequity, and whether granting the stay would further the interest of judicial
economy. Id. “[T]he same court that imposes a stay of litigation has the inherent power and
discretion to lift the stay.” McCall v. Avco Corp., 4:18-CV-01350, 2019 WL 2004358, at *1
(M.D. Pa. May 7, 2019) (citations omitted).
Here, Judge Eddy’s decision to deny the lifting of the stay is non-dispositive, and while
said decision contains no error of law in said decision, this Court will exercise its broad
discretion in weighing whether to lift the stay. At the time the Court entered a stay, the question
of whether Plaintiff had a cognizable claim under the ODA was open and without state appellate
court guidance. During the pendency of the stay, the Commonwealth Court decided Herold, and
this Court now has a precedent to determine whether the common law claims against Penn
Power could proceed. Under Herold’s interpretation of the ODA, Plaintiffs would need to have
filed his ODA claim with the Worker’s Compensation Board within four years of his last
workplace asbestos exposure, which was 2013. Because the record and pleadings indicate that
Plaintiffs did not file within the proscribed time period, Plaintiffs are not subject to the exclusive-
remedy provision of the ODA. Therefore, under Herold and its application by the Lawrence
County Court of Common Pleas, Plaintiffs’ common law claims against Penn Power are not
barred under ODA. While Penn Power argues that it has appealed the common pleas court
decision, the Commonwealth Court, who has decided Herold and denied rehearing en banc, will
almost certainly affirm the same. And even though Herold itself has been appealed to the
Pennsylvania Supreme Court, there exists no certainty or indication that the state supreme court
will either grant review or reverse the Commonwealth Court. Thus, at this juncture, the Court
will accord due weight to the Herold decision1 and lift the stay so that the parties may
expeditiously proceed with this litigation.2
1 In the absence of guidance from the Pennsylvania Supreme Court, we look to decisions of the
intermediate appellate courts for assistance in predicting how the Supreme Court would rule.
Gares v. Willingboro Twp., 90 F.3d 720, 725 (3d Cir.1996) (citation omitted). Indeed, rulings of
the intermediate appellate courts are “accorded significant weight and should not be disregarded
absent a persuasive indication that the highest state court would rule otherwise.” U.S.
Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir.1996) (citation omitted).
Indeed, under the Pennsylvania scheme, Pennsylvania lower courts must follow the precedential
rulings of the Superior Court. See Benson ex rel. Patterson v. Patterson, 782 A.2d 553, 555–56
(Pa.Super. 2001).
2 The Court will ultimately be remanding this matter to state court, and its decision to lift the stay
in light of the Herold decision is not intended as a mandate or directive to the state court’s
decision to await further appellate guidance or proceed with litigation activities. This Court
affords all due deference to the state court on remand on how it wishes to proceed relative to the
ODA remedies. Because this Court’s basis for jurisdiction operates independently of the ODA
interpretation, it is prudent to remand the case without regard to the state appellate process.
B. Remand
Plaintiffs move for remand because the only basis for this Court’s jurisdiction, dismissed
defendants’ invocation of a federal officer defense under 28 U.S.C. § 1442, no longer exists.
Penn Power maintains that this Court should continue to exercise supplemental jurisdiction under
28 U.S.C. § 1367 because of the length of the litigation and the Court’s perceived familiarity
with the dispute.
The dismissal of the removing defendants does not eliminate the Court's subject matter
jurisdiction over the remaining claims. See New Rock Asset Partners, L.P. v. Preferred Entity
Advancement, Inc., 101 F.3d 1492, 1505 (3d Cir.1996) (“Once a court has decided to exercise
jurisdiction over the state claim, however, elimination of the federal claim does not deprive the
court of the constitutional power to adjudicate the pendent claim.”); see also In Re: Asbestos
Products Liab. Litig. N.D. Pipefitter II Grp. Plaintiffs, 536 F. App'x 183, 190 n. 15 (3d
Cir.2013). Rather, after the dismissal of the jurisdiction-conferring party, the district courts
“may decline to exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c); Gulati v. Zuckerman,
723 F.Supp. 353, 358 (E.D.Pa.1989) (“Once the federal parties (or, in this case, the claims based
upon actions taken pursuant to federal direction) are dismissed from a case which has been
removed under § 1442(a)(1), a federal district court has the power either to adjudicate the
remaining state claims or to remand to state court.”). When determining whether to maintain
jurisdiction, the district courts should consider “judicial economy, convenience and fairness to
litigants.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966); Growth Horizons, Inc. v. Del. Cnty., Pa., 983 F.2d 1277, 1284 (3d Cir.1993).
Here, the Court finds that, in its discretion to exercise supplemental jurisdiction, remand
is warranted. Because of the delays in the administrative process regarding the ODA, as
discussed supra, very little litigation as between Plaintiffs and Penn Power has occurred. And
while the parties may have developed discovery relative to Mr. Data’s medical records, Penn
Power has yet to answer Plaintiffs’ discovery. (See ECF No. 1335 at p. 3, fn. 3). Any facts
relative to Mr. Data’s exposure, as it specifically relates to his employment at Penn Power, are
yet to be developed. Further, but for the dismissed defendants, the matter between Plaintiffs and
Penn Power would have been litigated in state court. Therefore, the Court finds that the interests
of fairness, convenience, and judicial economy do not necessitate the invocation of supplemental
jurisdiction.
Accordingly, Plaintiffs’ Motion for Remand will be granted and the matter remanded to
the Allegheny County Court of Common Pleas. A separate order will follow. .
Dated: Junel2, 2023 Me hrhn. yore
Marilyn J? Hora
United States District Court Judge