“[T]he act shall apply only to disability or death [arising from occupational disease that manifests within 300 weeks].” (emphasis added)
How later courts described this case
- “[T]he act shall apply only to disability or death [arising from occupational disease that manifests within 300 weeks].” (emphasis added)
- deferring to Interstate Commerce Commission’s expertise in national transportation policy, where the dispute involved complex issues arising from the merger of rail carriers
- “We are constrained to follow the clear legislative mandate notwithstanding the appealing quality of the arguments marshalled to support a contrary approach.” (emphasis added)
- merely relying on the “historical underpinnings of the exclusive remedy doctrine”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brad Lee Herold, as Executor of the :
Estate of William L. Herold :
:
v. : No. 998 C.D. 2021
: Argued: June 23, 2022
University of Pittsburgh - of :
Commonwealth System of Higher :
Education and 3M Company; Abb :
Motors and Mechanical, Inc. f/k/a :
Baldor Electric Company; Allied Glove :
Corporation; A.O. Smith Corporation; :
Armstrong International, Inc.; Aurora :
Pump Company; Baltimore Aircoil :
Company, Inc.; Beazer East, Inc. :
Individually and as Successor to :
Koppers Company, Inc., and Successor- :
in-Interest to Thiem Corporation and :
Universal Refractories Company; BMI :
Refractor Services, Inc.; Individually :
and as Successor-in-Interest to Premier :
Refractories, Inc., f/k/a Adience, Inc., :
Successor-in-Interest to Adience :
Company, LP, as Successor to BMI, :
Inc.; Burnham Boiler Corporation :
n/d/b/a Burnham Commercial; Bryan :
Steam, LLC; Carrier Corporation; CBS :
Corporation, a Delaware Corporation, :
f/k/a Viacom Inc., Successor by Merger :
to CBS Corporation, a Pennsylvania :
Corporation, f/k/a Westinghouse :
Electric Corporation and Westinghouse :
Air Brake Company; Cleaver Brooks, :
Inc., f/k/a Aqua-Chem, Inc. d/b/a :
Cleaver Brooks Division; Crane Co.; :
Delval Equipment Corporation; :
Dezurik, Inc.; Donald McKay Smith, :
Inc.; Dunham-Bush, Inc.; E.E. :
Zimmerman Company; Eaton :
Corporation in its own right and as :
successor to Cutler-Hammer, :
Incorporated; Eichleay Corporation; :
Ferro Engineering Division of :
on Marine Services Company, :
LLC, f/k/a Oglebay Norton Company; :
Flowserve US, Inc., Individually and as :
Successor to Byron Jackson :
Pumps, FlowserveGestra, Durametallic :
Corp., Aldrich Pumps; Cameron Pumps; :
Vogt Valves; Wilson-Snyder :
Centrifugal Pump; and Rockwell :
Valves; FMC Corporation, Individually :
and as Successor-in-Interest to Peerless :
Pump Company, Chicago Pump :
Company, Sterling Fluid System, Inc. :
and former subsidiary Crosby Valve, :
Inc.; Foseco, Inc.; Foster Wheeler :
Corporation; Gardner Denver, Inc.; :
General Electric Company; Grinnell :
LLC; Goulds Pumps, LLC; I.U. :
North America, Inc.; America, Inc. :
as Successor-by-merger to the Garp :
Company, f/k/a The Gage Company, :
f/k/a Pittsburgh Gage and Supply :
Company; IMO Industries, Inc., :
f/k/a IMO Delaval, Inc., f/k/a :
Transamerican DeLaval, Inc., f/k/a :
DeLaval Turbin, Inc., DeLaval Turbin, :
Inc., DeValco Corporation; Ingersoll- :
Rand Company; Insul Company, Inc.; :
ITT Corporation, f/k/a ITT Industries, :
Individually and as Successor-in-Interest :
to Bell & Gossett Domestic Pump; J.H. :
France Refractories Company; Kruman :
Equipment Company; Mallinckrodt US :
LLC, in its own right and as Successor- :
in-Interest to Imcera Group, Inc., and :
International Group, Inc., and :
International Minerals and Chemical :
Corporation, and as Successor-in- :
Interest to E.J. Lavino; Mine :
Safety Appliances Company, LLC as :
Successor-in-Interest by Merger with :
Mine Safety Appliances Company; :
Minnotte Contracting Corporation; :
M.S. Jacobs & Associates, Inc.; :
Nagle Pumps, Inc.; Peerless Industries, :
Inc.; Power Piping Company; Riley :
Power Inc.; Safety First Industries, Inc., :
in its own right and as Successor-in- :
Interest to Safety-First Supply, :
Inc.; Schneider Electric USA, Inc. f/k/a :
Square D Company, in its own right and :
as successor to The Electric Controller :
and Manufacturing (EC&M); Spirax :
Sarco, Inc.; SPX Cooling Technologies, :
Inc., f/k/a Marley Cooling Technologies :
Inc., f/k/a The Marley Cooling :
Company; TACO, Inc. f/k/a Taco :
Heaters, Inc.; The Goodyear Tire :
& Rubber Company; The Gordon-Rupp :
Company; The H.B. Smith Company, :
Inc.; Trane U.S. Inc., Successor-by- :
Merger to American Standard, Inc., :
Union Carbride Corporation; United :
States Steel Corporation; Warren :
Pumps LLC; Weil-McLain Company, :
Inc.; York International Corporation; :
and Zurn Industries, LLC f/k/a Zurn :
Industries, Inc. a/k/a Erie City Iron :
Works :
:
Appeal of: University of Pittsburgh – :
of the Commonwealth System of :
Higher Education :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION
BY JUDGE DUMAS FILED: February 16, 2023
The University of Pittsburgh (University) appeals from the Order
entered by the Court of Common Pleas of Allegheny County (trial court) on May
17, 2021, which denied the University summary judgment.1 The University asserts
that the common law claims of William L. Herold,2 which relate to his workplace
exposure to asbestos and development of mesothelioma, fall within the purview of
The Pennsylvania Occupational Disease Act (ODA).3 Thus, according to the
University, Herold must file his claims with the Workers’ Compensation Board
(Board). Upon review, we conclude that an occupational disease that manifests more
than 4 years after an employee’s last exposure to hazards causing that disease is not
subject to the exclusive remedy mandate of the ODA.4 Further, we reject the
University’s invocation of the doctrine of primary jurisdiction, which may otherwise
require Herold to seek relief from the Board in the first instance. Therefore, we
affirm the trial court, albeit on different grounds, and remand so that Herold may
proceed with his common law claims against the University.5
I. BACKGROUND6
Herold was employed by the University of Pittsburgh, from 1976 until
he retired in 2015, as a stationary engineer. During his employment, Herold was
1
This Court granted the University’s Petition for Permission to Appeal from the trial
court’s interlocutory order pursuant to Chapter 13 of the Pennsylvania Rules of Appellate
Procedure. Cmwlth. Ct. Order, 10/25/21.
2
William L. Herold passed away on April 30, 2022. This Court substituted Brad Lee
Herold, as Executor of the Estate of William L. Herold, as Appellee in this matter. Cmwlth. Ct.
Order, 8/9/22.
3
Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1603.
4
See Sections 301(c) and 303 of the ODA, 77 P.S. §§ 1401(c) (limiting “compensable
disability or death resulting from occupational disease [as] occurring within four years” after last
exposure), 1403 (mandating an exclusive remedy for compensable disability or death).
5
Following oral argument, Herold filed an application for relief, directing the Court’s
attention to a recent decision of the Board in an unrelated matter. Application for Relief, 10/12/22.
We deny the application.
6
At this stage of the proceedings, we view the record in the light most favorable to the
non-moving party. See Eleven Eleven Pa., LLC v. State Bd. of Cosmetology, 169 A.3d 141, 145
(Pa. Cmwlth. 2017).
2
exposed to asbestos until 2004. In April 2019, approximately 15 years after his last
exposure to asbestos, he was diagnosed with mesothelioma, a cancer in the lining of
the lung. Expert evidence attributed the cause of Herold’s mesothelioma to his
asbestos exposures.
In October 2019, Herold commenced this action in the trial court to
recover damages arising from his development of mesothelioma.7 In January 2021,
the University sought summary judgment based on Section 303 of the ODA, 77 P.S.
§ 1403. Section 303 is an “exclusivity provision,” which purports to limit
compensation for an occupational disease as provided under the ODA, which is
administered solely by the Board.8
The trial court denied the University summary judgment, reasoning: (1)
the ODA defines an occupational disease as one that occurs within 4 years of last
exposure to the hazards of such disease;9 (2) Herold’s last exposure to asbestos
7
Herold’s lawsuit also includes allegations against another former employer, United States
Steel, and various producers and/or distributors of asbestos products. Those allegations are not at
issue in this appeal.
8
The University also had cited a similar exclusivity provision found in the Workers’
Compensation Act (WCA), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-
2710. However, in accepting this interlocutory appeal, this Court limited the issues on appeal to
the applicability of the ODA exclusivity provision. This is because the exclusivity provision in
the WCA is inapplicable beyond a statutorily defined 300-week limitations period, which the
Supreme Court views as jurisdictional. See Tooey v. AK Steel Corp., 81 A.3d 851, 855 (Pa. 2013).
9
The trial court’s definition of an occupational disease is incorrect. Section 108 of the
ODA defines occupational disease by means of an enumerated list of specific diseases. 77 P.S. §
1208. Section 108(n) further provides a catch-all definition:
All other occupational diseases (1) to which the claimant is exposed by
reason of his employment, and (2) which are peculiar to the industry or
occupation, and (3) which are not common to the general population. For
the purposes of this clause, partial loss of hearing due to noise shall not be
considered an occupational disease.
77 P.S. § 1208(n). In defining occupational disease, the trial court’s opinion mistakenly quotes
from Section 301(c) of the ODA, which defines a limitations period for compensation under the
ODA. 77 P.S. § 1401(c).
3
occurred 15 years prior to his diagnosis, far longer than the 4-year limitations period
defined in the ODA; and (3) an ODA “savings clause,” which provides additional
relief beyond the 4-year period for certain enumerated diseases, was inapplicable.10
See Trial Ct. Op., 11/24/21. Thus, the trial court concluded, “the ODA does not
apply,” and Herold could pursue a civil claim. Id. at 3.
The University petitioned this Court for permission to appeal from the
trial court’s interlocutory order. This Court granted the petition, certifying the
following issues:
Whether the trial court erred or abused its discretion in
exercising subject matter jurisdiction over, and refusing to
dismiss or stay, Herold’s common law claim against the
University of Pittsburgh, [1] where Herold has been
diagnosed with asbestos-related mesothelioma, an
occupational disease as defined in the [ODA], Act of June
21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1603,
and [2] Herold failed to provide the workers’
compensation authorities an opportunity to determine
whether Herold’s claims are within the exclusive remedies
of the [ODA].
Cmwlth. Ct. Order, 10/25/21, at 1-2 (unpaginated).
II. THE PARTIES’ ARGUMENTS11
The University asserts that the trial court lacks subject matter
jurisdiction over Herold’s claims because he contracted mesothelioma, an
occupational disease subject to the exclusive jurisdiction of the Board. See Univ.’s
Br. at 11, 13-19. In so doing, the University seeks to distinguish Tooey v. AK Steel
Corp., 81 A.3d 851 (Pa. 2013), in which the Supreme Court recognized an exception
10
Section 301(i) of the ODA, 77 P.S. § 1401(i), provides relief beyond the 4-year
limitations period for claimants who contract “silicosis, anthraco-silicosis, coal workers’
pneumoconiosis, and asbestosis[.]”
11
The Court has received two Amicus Curiae briefs from interested parties. The arguments
contained therein echo those presented.
4
to a similar exclusivity provision in the WCA. Id. at 13-14. The University does
not formulate a robust argument in its attempt to persuade this Court that Tooey is
neither binding nor instructive. Rather, it merely asserts that a similar exception is
inapplicable here because “Tooey did not address the ODA” or abrogate its
administrative processes. Id. at 14. In subsequent arguments to this Court, the
University suggests that a Tooey-type statutory analysis is inappropriate because the
relevant language in the WCA and ODA is completely different, further asserting
that the time limiting language in the ODA is clear and unambiguous, and that
Herold’s attempt to draw parallels between the two acts’ provisions was “tortured,”
“convoluted,” and “nonsensical.” Univ.’s Reply Br. at 4-11.
Pointing to the “grand bargain” or “quid pro quo” of the workers’
compensation system, which eliminates the uncertainties of litigation in exchange
for a no-fault system of defined benefits, the University also criticizes a Tooey-type
exception as unfair because some workers would be permitted to seek civil remedies,
including punitive damages, whereas others would be subject to the various
limitations of the ODA. See Univ.’s Br. at 15-18. Moreover, according to the
University, employers have spent years mitigating the risk of such claims through
costly insurance purchases that may not cover such risks if the long-standing
statutory scheme is altered. See id.12
Even if this Court were inclined to recognize an exception to the ODA
exclusivity provision, the University asserts that Herold must submit his claims to
12
Beyond this, the University implies that Herold could invoke the ODA savings clause to
obtain relief from the Board beyond the 4-year limitations period. See Univ.’s Br. at 14-15. We
decline to address this argument in detail. As stated, supra at note 9, Section 301(i) of the ODA,
77 P.S. § 1401(i), provides relief beyond the 4-year limitations period for claimants who contract
“silicosis, anthraco-silicosis, coal workers’ pneumoconiosis, and asbestosis[.]” Herold did not
contract one of those diseases. Therefore, the trial court properly determined that the ODA savings
clause is inapplicable. See Trial Ct. Op. at 2-3.
5
the Board in the first instance. See Univ.’s Br. at 19-28. Invoking the doctrine of
primary jurisdiction, the University reasons that an employee cannot bypass the
administrative processes defined in the ODA and seek relief directly from the courts
of common pleas. See id. at 24-26. Rather, the doctrine requires judicial abstention
to protect the integrity of the regulatory scheme. Id. at 26. Thus, according to the
University, upon receiving Herold’s complaint, the trial court’s proper course was
to stay adjudication of the civil matter pending exhaustion of an administrative
action under the ODA. See id. at 25-26.13
For his part, Herold responds that the WCA and the ODA share the
same purpose and objective and, further, their respective exclusivity provisions are
similar. See Herold’s Br. at 15-17. Proposing a similar textual analysis as employed
by the Tooey Court, Herold asserts that the ODA only applies to compensable
occupational diseases that cause total disability or death within 4 years of an
employee’s last exposure to a toxin. See id. at 18-24. Thus, Herold concludes, his
latent mesothelioma is beyond the purview of the ODA because it manifested more
than 4 years after his last exposure to asbestos. See id. In addition, according to
Herold, because his claims clearly lack a statutory remedy, the doctrine of primary
jurisdiction does not apply. Id. at 41-44. Herold notes the doctrine is flexible, and
13
The University asserts that the trial court further erred by: (1) making factual findings
rather than deferring to the Board; (2) finding that the ODA is a chapter of the WCA; (3)
considering the limited compensation available under the ODA; and (4) creating a conflict with an
unreported and non-precedential federal decision interpreting Pennsylvania law. See Univ.’s Br.
at 27-38. At this stage of the proceedings, the trial court has not made factual findings; thus, the
University’s claim is without merit. The second and third assertions have merit and constitute
additional errors by the trial court. However, in light of our disposition, they are harmless. The
fourth, in which the University cites Data v. Pennsylvania Power Company (W.D. Pa., No. 19-
879, filed 3/24/21), 2021 WL 1115876, is not persuasive. Data is an unpublished decision from a
federal, trial-level court; it is not binding on this Court.
6
in this case, judicial deference to administrative proceedings is not warranted. See
id. 14
III. ANALYSIS15
A. An Exclusive Remedy for Workplace Injury and Disease
The WCA and ODA together provide a comprehensive, no-fault system
of compensation for employees injured in the course of their employment. Barber
v. Pittsburgh Corning Corp., 555 A.2d 766, 769 (Pa. 1989); Wagner v. Nat’l Indem.
Co., 422 A.2d 1061, 1065 (Pa. 1980). Both acts include similar exclusivity
provisions that reflect the historical quid pro quo between employers and employees.
Barber, 555 A.2d at 769; compare Section 303(a) of the WCA, 77 P.S. § 481, with
Section 303 of the ODA, 77 P.S. § 1403.
Under this system, “both the employer and employee relinquish[]
certain rights to obtain other advantages.” Wagner, 422 A.2d at 1065. In exchange
14
Herold further notes that Section 108 of the ODA does not specify mesothelioma as an
occupational disease. Therefore, according to Herold, the University was required, but failed, to
introduce evidence to meet the three-prong catchall test in Section 108(n) of the ODA. See 77 P.S.
§ 1208(n). See also Herold’s Br. at 34-41. We reject Herold’s argument as hyper-technical.
Unlike the WCA, the ODA does not define mesothelioma as an occupational disease.
Compare Section 108 of the WCA, 77 P.S. § 27.1 (including cancer caused by asbestos exposure),
with Section 108 of the ODA, 77 P.S. § 1208 (not including cancer caused by asbestos exposure).
However, it is indisputable that mesothelioma would qualify as an occupational disease under
Section 108(n) of the ODA. See 77 P.S. § 1208(n). See also Sedlacek v. A.O. Smith Corp., 990
A.2d 801, 804 (Pa. Super. 2010) (asserting without citation that the “catch-all definition [of the
ODA] . . . has been viewed as including [mesothelioma]”). Moreover, the question certified for
this interlocutory appeal implies that the Court has presumed mesothelioma is an occupational
disease under the ODA. See Cmwlth. Ct. Order, 10/25/21, at 1 (“Herold has been diagnosed with
asbestos-related mesothelioma, an occupational disease as defined in the [ODA.]”).
In light of our disposition and settled policy to resolve claims on non-constitutional
grounds, when possible, see, e.g., Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007), we
decline to address further, constitutional arguments asserted by Herold. See Herold’s Br. at 46-
49.
15
The issues certified for appeal present questions of law. Thus, our standard of review is
de novo, and our scope of review is plenary. Tooey, 81 A.3d at 857.
7
for immunity from civil lawsuits by injured employees, and all the risks and costs
associated with such suits, the employer ensures certain and reasonable
compensation to injured employees. Barber, 555 A.2d at 769; Wagner, 422 A.2d at
1065. On the other hand, employees need not prove an employer’s negligence but
“must accept limited, though certain, recovery.” Wagner, 422 A.2d at 1065. Thus,
the exchange benefits both parties.
Our Supreme Court has interpreted the clear language of the acts’
respective exclusivity provisions to mean that “the only remedy available to an
injured employee is statutory.” Barber, 555 A.2d at 769. Thus, it has long been
presumed that employees who suffer from occupational disease must seek benefits
for their disabilities from the Board under either the WCA or the ODA, or under
both in the alternative. See Smith v. Bureau of Workers’ Comp., 537 A.2d 61, 63
(Pa. Cmwlth. 1988); Workmen’s Comp. Appeal Bd. v. Jones & Laughlin Steel Corp.,
353 A.2d 90 (Pa. Cmwlth. 1976) (Jones & Laughlin); Section 444 of the WCA, 77
P.S. § 1000.16
Moreover, the Supreme Court has resisted efforts to formulate
exceptions to the exclusive remedy mandate. In Barber, approximately 75 former
and current employees brought suit in the court of common pleas, alleging
16
Despite similarities in coverage for occupational disease, the two acts remain separate
and distinct. See Jones & Laughlin, 353 A.2d at 90. See also Pawlosky v. Workmen’s Comp.
Appeal Bd. (Latrobe Brewing Co.), 525 A.2d 1204, 1210 n.9 (Pa. 1987) (observing that, despite
similarities in coverage, the General Assembly has not repealed the ODA). In Pawlosky, our
Supreme Court implied that the ODA would eventually become obsolete: “Obviously, one of the
main reasons for not repealing it was to make clear that the 1939 statute was to remain in force
with respect to occupational diseases contracted prior to the effective date of the 1972 disease
provisions of the Workmen’s Compensation Act.” 525 A.2d at 1210 n.9. As it becomes less and
less likely that claimants will have contracted an occupational disease prior to 1972, at this point
more than 50 years ago, the General Assembly should at some point consider whether the ODA
remains a useful component of the workers’ compensation system.
8
intentional misconduct by their employer resulted in their exposure to asbestos.
Barber, 555 A.2d at 767-78. The trial court granted the employer summary
judgment based on the ODA’s exclusivity provision, but the Superior Court
reversed, concluding that “the legislature could have never intended to immunize an
employer from liability for harm caused by his reprehensible intentional wrongdoing
which was reasonably calculated to lead to severe personal injury or death of
employees.” Id. at 768 (cleaned up). On further appeal, however, the Supreme Court
reinstated summary judgment. Id. at 772. According to the Court, “the legislative
intent to provide a blanket exclusivity for employers under the ODA cannot be
ignored. Attempts to induce the Court through policy arguments to the contrary
must be unavailing.” Id. See also, e.g., Poyser v. Newman & Co., Inc., 522 A.2d
548 (Pa. 1987) (rejecting a similar exception under the WCA).
Even where compensation was unavailable, it was long understood that
the WCA and the ODA collectively provide the exclusive remedy for occupational
injury and disease. See, e.g., Moffett v. Harbison-Walker Refractories Co., 14 A.2d
111, 113 (Pa. 1940) (rejecting the civil suit of an employee who had contracted
silicosis at his workplace, even though the ODA provided no compensation for his
partial disability), superseded by statute as stated in Tooey, 81 A.3d at 863; Sedlacek
v. A.O. Smith Corp., 990 A.2d 801, 809 (Pa. Super. 2010) (holding that temporal
limitations to compensation under the WCA and ODA did not alter the exclusive
remedy doctrine), abrogated by Tooey, 81 A.3d at 865.
We think it fair to say that, over the decades that it has been in place,
our comprehensive workers’ compensation system has preserved the historical quid
pro quo between employees and employers. And yet, in our view, it is troubling that
our courts have long felt constrained to accept a rather odd distinction between
9
coverage and compensation. See Sedlacek, 990 A.2d at 809; Ranalli v. Rohm &
Haas Co., 983 A.2d 732 (Pa. Super. 2009). Despite the grand bargain ensconced in
the provisions of the WCA and the ODA, the statutory relief defined therein has not
always fulfilled the promise that employees would secure limited, though certain,
recovery in exchange for the tort immunity accorded employers. The distinction
between coverage and compensation is perhaps an inevitable by-product of the
compromise of interests represented, but it remains an outstanding flaw in an
otherwise competent system.
Therefore, it is hardly surprising that our Supreme Court has come to
view the distinction between coverage and compensation with a critical eye, even as
it has denied relief to injured workers. See, e.g., Lord Corp. v. Pollard, 695 A.2d
767, 769 (Pa. 1997) (Op. in Supp. of Affirm.) (suggesting that unless employee’s
disease was cognizable and compensable under either the WCA or the ODA, her
common law cause of action could proceed); Barber, 555 A.2d at 772 (“We are
constrained to follow the clear legislative mandate notwithstanding the appealing
quality of the arguments marshalled to support a contrary approach.” (emphasis
added)); Greer v. U.S. Steel Corp., 380 A.2d 1221, 1223 (Pa. 1977) (remanding for
determination whether employee’s pulmonary fibrosis qualified as an occupational
disease under the ODA’s catch-all provision, 77 P.S. § 1208(n), and absent such
proof, holding that civil proceedings could proceed).
B. Tooey and the Applicability of the WCA to Latent Occupational Disease
There is no more obvious flaw in the workers’ compensation system
than in the context of latent occupational disease. Our Supreme Court has long
recognized, and it may not be seriously disputed, that the estimated latency period
for asbestosis and most lung cancers is 10 to 20 years, whereas the latency period
10
for mesothelioma can be as long as 50 years. See Daley v. A.W. Chesterton, Inc., 37
A.3d 1175, 1188 (Pa. 2012). However, both the WCA and the ODA purport to limit
compensation for disability or death resulting from occupational disease unless it
manifests well before the average latency period of these most serious ailments. To
wit, Section 301(c) of the WCA, 77 P.S. § 411(2), defines this limitations period to
be 300 weeks from the last workplace exposure, and Section 301(c) of the ODA, 77
P.S. § 1401(c), defines it to be 4 years. Thus, under either statutory regime, these
limitations periods operate as a de facto exclusion of coverage for certain
occupational diseases that are prone to latency.17 See Tooey, 81 A.3d at 863.
In Tooey, the plaintiffs were diagnosed with mesothelioma
approximately 25 years after their last workplace exposure to asbestos. 81 A.3d at
856. The plaintiffs commenced tort actions, and their former employers moved for
summary judgment, asserting that the plaintiffs’ claims were barred by the WCA’s
exclusivity provision. Id.18 In response, the plaintiffs argued that the prolonged
latency of their mesothelioma removed their claims from the jurisdiction, scope, and
coverage of the WCA. Id. The common pleas court agreed with the plaintiffs, but
the Superior Court reversed, concluding that the WCA’s exclusivity provision
included coverage for the plaintiffs’ mesothelioma that precluded their common law
17
As noted, supra at note 10, the ODA includes a savings clause that provides limited relief
beyond the 4-year limitations period for employees who develop silicosis, anthraco-silicosis, coal
workers’ pneumoconiosis, and asbestosis. See Section 301(i) of the ODA, 77 P.S. § 1401(i).
Notably absent from this list is mesothelioma.
18
Section 303(a) of the WCA provides:
The liability of an employer under this act shall be exclusive and in place of
any and all other liability to such employes, 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.
77 P.S. § 481(a).
11
claims despite the lack of compensation available under the workers’ compensation
system. Id.
To resolve this distinction between the scope of coverage and the
availability of compensation, the Supreme Court examined the plain language of
Section 301(c)(2) of the WCA, 77 P.S. § 411(2). Id. at 857-60. That section places
a time limitation on claims for occupational disease and provides in relevant part:
[W]henever 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 occupational exposure].
77 P.S. § 411(2) (emphasis added).
Agreeing with the plaintiffs, the Court concluded that the word “it” in
the phrase, “it shall apply,” must refer to “this act.” Tooey, 81 A.3d at 859-60. Thus,
the Court construed Section 301(c)(2) as follows:
[W]henever 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 occupational exposure].
Id. (emphasis added).
Reading the WCA exclusivity provision in conjunction with this
interpretation of Section 301(c)(2), the Supreme Court imparted a jurisdictional
element to the limitations provision and concluded that the WCA did not apply to
latent occupational diseases that manifest more than 300 weeks after the last
occupational exposure. Id. at 865. Accordingly, the Court reversed the Superior
Court and remanded so that the plaintiffs’ tort actions could proceed. Id.
In an alternative analysis, assuming that Section 301(c)(2) was
ambiguous, the Court further reasoned that the remedial purpose and objectives of
12
the WCA favored an interpretation that would permit the plaintiffs to proceed with
their civil claims. Id. at 860-65. In sifting through the parties’ arguments, certain
themes resonated with the Court. On the one hand, the plaintiffs argued that, in those
cases involving latent mesothelioma, the quid pro quo contemplated by the WCA
could not be effectuated. Id. at 860. Indeed, according to the plaintiffs, the no-fault
liability granted employers was illusory and was, in effect, full immunity with no
reasonable opportunity for employees to obtain any compensation for their injuries.
Id. at 860-61 (quoting from plaintiffs’ arguments).
On the other hand, the Court recognized the long-standing distinction
between coverage and compensation. See id. at 862-63 (discussing cases). The
Court specifically considered the employers’ characterization of Section 301(c)(2)
as “a statute of repose which serves as a legitimate temporal limitation on recovery,
as opposed to a jurisdictional limitation of the [WCA].” Id. at 862.19 The Court
clearly rejected this interpretation:
It is inconceivable that the legislature, in enacting a statute
specifically designed to benefit employees, intended to
leave a certain class of employees who have suffered the
most serious of work-related injuries without any redress
under the [WCA] or at common law.
Id. at 864.
19
Statutes of repose differ from statutes of limitations, although both serve “to limit the
temporal extent or duration of liability for tortious acts.” Dubose v. Quinlan, 173 A.3d 634, 643
(Pa. 2017) (citation omitted). “[A] statute of repose is a judgment that defendants should be free
from liability after the legislatively determined period of time, beyond which the liability will no
longer exist and will not be tolled for any reason.” Id. at 645 (cleaned up). In contrast, “[e]quitable
tolling is applicable to statutes of limitations because their main thrust is to encourage the plaintiff
to pursue his rights diligently, and when an extraordinary circumstance prevents him from bringing
a timely action, the restriction imposed by the statute of limitations does not further the statute’s
purpose.” Id. (cleaned up).
13
The Court also found little merit in concerns that permitting common
law claims would expose employers to “potentially unlimited liability.” Id. at 865-
66. Pointing to the traditional and more onerous requirements of tort liability,
including proof of negligence and causation, the Court concluded that common law
claims arising from a latent occupational disease would not undermine the
compromise of interests manifest to the workers’ compensation system. See id.
In summary, with the Tooey decision, our Supreme Court again
confronted the distinction between coverage and compensation. In Greer and Lord,
the Court addressed the nature of the employee’s particular disease; in Barber, the
Court considered the nature of the employer’s conduct. In Tooey, however, the
Court wrestled with limitations placed on claims in the context of a latent
occupational disease. The Court specifically considered the limitations period
defined at Section 301(c)(2) of the WCA, 77 P.S. § 411(2), which purports to limit
claims to those that manifest within 300 weeks of the employees’ last exposure.
Examining its unambiguous terms, the Court determined that Section 301(c)(2)
narrowed the jurisdictional scope of the WCA. Additionally, mindful of the
remedial purposes of the workers’ compensation system, the Court reasoned that the
system’s humanitarian objectives militated against interpreting Section 301(c)(2) as
a statute of repose. Thus, the Court held that latent occupational diseases that
manifest beyond the 300-week limitations period are not subject to the exclusivity
provision of the WCA.
C. Herold’s Civil Claims are Not Subject to the ODA Exclusivity Provision
The preceding sections provide necessary context to our analysis.
Turning to the first issue certified by this Court, namely whether the trial court erred
in exercising jurisdiction over Herold’s claims, we must examine certain provisions
14
in the ODA. Our analysis proceeds in several steps. First, we lay out several general
principles that guide our analysis. Then, we consider the parties’ interpretations of
Section 301(c) of the ODA, which places a temporal limitation on its definition of
“compensable disability or death.” With this definition in hand, we turn to a
statutory construction of the ODA preferred by Herold. We conclude that this
construction is unpersuasive and, further, unhelpful to Herold. Finally, we address
the scope of the ODA exclusivity provision and whether it mandates an exclusive
remedy for claims arising from latent occupational disease.
1. General principles of statutory construction
“The touchstone of interpreting statutory language is to ascertain and
effectuate the intent of the legislature.” Summit Sch., Inc. v. Dep’t of Educ., 108
A.3d 192, 196 (Pa. Cmwlth. 2015); 1 Pa. C.S. § 1921(a). It is a “guiding principle
of statutory construction that when the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” Summit Sch., Inc., 108 A.3d at 196; 1 Pa. C.S. § 1921(b).
“Words and phrases shall be construed . . . according to their common
and approved usage.” 1 Pa. C.S. § 1903(a). “In giving effect to the words of the
legislature, we should not interpret statutory words in isolation, but must read them
with reference to the context in which they appear.” Giant Eagle, Inc. v. Workers’
Comp. Appeal Bd. (Givner), 39 A.3d 287, 290 (Pa. 2012). Moreover, it is well
settled that the ODA must be liberally construed to effectuate its remedial and
humanitarian purposes. Bley v. Dep’t of Labor & Indus., 399 A.2d 119, 122 (Pa.
1979). Therefore, although we may not disregard the plain statutory meaning and
language, “borderline interpretations are to be construed in the injured party’s
favor.” Tooey, 81 A.3d at 858.
15
If a statute is unclear or ambiguous, then the courts may apply further
principles of statutory construction to ascertain the intent of the legislature. Summit
Sch., Inc., 108 A.3d at 197; see, e.g., 1 Pa. C.S. §§ 1921(c) (enumerating further
considerations), 1922(1) (presuming, inter alia, that the legislature does not intend
a result that is absurd), 1932 (providing that statutes relating to the same things or
class of things, i.e., in pari materia, “shall be construed together . . . as one statute”).
A statute is ambiguous if there are two or more reasonable interpretations of the
statutory language. Tooey, 81 A.3d at 860.
2. The ODA clearly defines “compensable disability or death”
Principally, the parties direct our attention to Section 301(c) of the
ODA, which provides in relevant part:
Wherever compensable disability or death is mentioned as
a cause for compensation under this act, it shall mean only
compensable disability or death resulting from
occupational disease and occurring within four years after
the date of his last employment in such occupation or
industry.
77 P.S. § 1401(c) (emphasis added).
As in Tooey, the parties dispute the meaning of the pronoun “it.”
Herold encourages this Court to adopt the textual analysis preferred by the Supreme
Court in Tooey. Thus, according to Herold, “it” refers to the immediately preceding
noun, “act.” See Herold’s Br. at 21-22. In contrast and citing to different
grammatical rules, the University asserts that “it” refers to the subject of the
preceding dependent clause. Thus, according to the University, “it” must refer to
“compensable disability or death.” See Univ.’s Reply Br. at 8-9.
In our view, Herold’s proposed textual analysis of Section 301(c) is
more persuasive. Not only does it mirror the analysis adopted by our Supreme Court,
16
but we also observe that the University’s analysis would substitute the singular
pronoun “it” for a compound or plural term, i.e., “compensable disability or death.”
Clearly, this would be grammatically incorrect because “[a] pronoun’s number is
guided by that of its antecedent or referent[.]” The Chicago Manual of Style Online,
Rule 5.32 (17th ed. 2017) (https://www.chicagomanualofstyle.org/book/ed17/
part2/ch05/psec032.html) (last visited Jan. 21, 2023).
Therefore, the most reasonable interpretation of the relevant language
in Section 301(c) is:
Wherever compensable disability or death is mentioned as
a cause for compensation under this act, [the act] shall
mean only compensable disability or death resulting from
occupational disease and occurring within four years after
the date of his last employment in such occupation or
industry.
77 P.S. § 1401(c) (emphasis added). It is therefore clear and unambiguous that
Section 301(c) defines “compensable disability or death.” Wherever the ODA
mentions compensable disability or death as a cause for compensation, the ODA
means only compensable disability or death (1) resulting from occupational disease
and (2) manifesting within 4 years after the last workplace exposure. See Summit
Sch., Inc., 108 A.3d at 196; 1 Pa. C.S. §§ 1903(a), 1921(b).20
20
If we were to accept the University’s proposed interpretation, the operative language of
Section 301(c) would be:
Wherever compensable disability or death is mentioned as a cause for
compensation under this act, [compensable disability or death] shall mean
only compensable disability or death resulting from occupational disease
and occurring within four years after the date of his last employment in such
occupation or industry.
77 P.S. § 1401(c). We reject this interpretation of the statutory language but note nonetheless that
this interpretation does not alter the meaning of this provision. Regardless of which substitution
is preferred, it remains clear and unambiguous that the legislature sought to place a temporal limit
on the definition of “compensable disability or death.”
17
3. Herold’s proposed statutory construction is not persuasive
This does not end our statutory analysis. As recognized by the
University, the operative language employed by the legislature in Section 301(c)(2)
of the WCA and Section 301(c) of the ODA is different. See Univ.’s Reply Br. at 6.
In the WCA, the legislature chose language that conveyed a jurisdictional limit,
removing from the WCA’s purview claims involving a latent occupational disease
that manifests beyond the limitations period. See Tooey, 81 A.3d at 859-60 (“[T]he
act shall apply only to disability or death [arising from occupational disease that
manifests within 300 weeks].” (emphasis added)). In the ODA, however, there is no
jurisdictional implication to the relevant statutory language. Rather, the plain
language of Section 301(c) merely refines the definition of “compensable disability
or death.”21
To address this difference in the statutory language of these provisions,
Herold proposes that we construe Section 301(c) in pari materia with Section 101
of the ODA, 77 P.S. § 1201. See Herold’s Br. at 19-24.22 Section 101 provides a
short title and statement of general application; it states as follows:
This act shall be called and may be cited as The
Pennsylvania Occupational Disease Act. It shall apply to
disabilities and deaths caused by occupational disease as
defined in this act, resulting from employment within this
21
The legislature’s choice of words in these provisions makes this distinction clear. The
definition of “apply,” used as an intransitive verb in the WCA is “to have relevance or a valid
connection.” Apply, Merriam-Webster’s Dictionary (online ed.) (https://www.merriam-
webster.com/dictionary/apply) (last visited Jan. 20, 2023). In contrast, the definition of “mean,”
used as a transitive verb in the ODA is “to serve or intend to convey, show, or indicate : signify.”
Mean, Merriam-Webster’s Dictionary (online ed.) (https://www.merriam-webster.com/
dictionary/mean) (last visited Jan. 20, 2023).
22
Statutes are in pari materia when they relate to the same thing or class of things. 1 Pa.
C.S. § 1932(a). If possible, statutes in pari materia shall be construed together. 1 Pa. C.S. §
1932(b).
18
Commonwealth, irrespective of the place where the
contract of hiring was made, renewed, or extended, and
shall not apply to any such disabilities and deaths resulting
from employment outside of the Commonwealth.
77 P.S. § 1201 (emphasis added). The phrase, “[i]t shall apply,” mirrors the
operative language interpreted by the Tooey Court as jurisdictional.
According to Herold, if we were to extract from Section 101 the
statement of general application and read it in concert with the properly refined
definition of “compensable disability or death” set forth in Section 301(c), the
combined statutory language would state:
[The ODA] shall apply to disabilities and deaths caused by
occupational disease as defined in this act . . . [and]
[w]herever compensable disability or death is mentioned
as a cause for compensation under this act, [the act] shall
mean only compensable disability or death resulting from
occupational disease and occurring within four years after
the date of his last employment in such occupation or
industry.
Herold’s Br. at 22. Thus, Herold concludes, the ODA does not apply to his
mesothelioma, which manifested approximately 15 years after his last workplace
exposure, because these provisions together limit the scope of the ODA to those
occupational diseases that manifest within 4 years. Herold’s Br. at 22.
In our view, Herold’s proposed construction is unpersuasive. “[I]t is
well established that resort to the rules of statutory construction is to be made only
when there is an ambiguity in the provision.” Oliver v. City of Pittsburgh, 11 A.3d
960, 965 (Pa. 2011) (emphasis added) (rejecting an in pari materia reading of
employer subrogation rights defined in the WCA and what is known as the Heart
and Lung Act23). We have discerned no ambiguity in Section 301(c), nor does
23
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38.
19
Herold contend that this section is ambiguous. See Herold’s Br. at 13 (asserting his
interpretation is “consistent with [the ODA’s] plain language”). Moreover, these
provisions address similar, but different concepts. Compare 77 P.S. § 1201
(“disabilities and deaths”), with 77 P.S. § 1401(c) (“compensable disability or
death”) (emphasis added). For these reasons, we decline to apply this rule of
construction.
Further, even if we were to adopt Herold’s construction and, essentially,
redraft these provisions into a single legislative statement, it would not eliminate the
distinction between coverage and compensation as Herold intends. By its plain
terms, “[the ODA] shall apply to disabilities and deaths caused by occupational
disease as defined in this act.” 77 P.S. § 1201 (emphasis added). This statement of
general application provides coverage for Herold’s mesothelioma. On the other
hand, Herold cannot establish “compensable disability or death” because his
mesothelioma remained latent and undiagnosed for fifteen years. 77 P.S. § 1401(c)
(emphasis added). Thus, Herold’s construction merely highlights that the ODA
covers his claim but, in fact, offers no compensation for his devastating illness.
4. The ODA exclusivity provision is inapplicable
Finally, we consider whether the ODA provides the exclusive remedy
for Herold’s claims. The University asserts that “[t]he ODA does not require an
employees’ [sic] occupational disease to be compensable under the ODA for the
exclusivity provision to apply.” Univ.’s Reply Br. at 5. Rather, according to the
University, “[i]t applies to occupational diseases that manifest within the time
limitations prescribed by the ODA and those that do not.” Id. at 7.
The exclusivity provision of the ODA is found at Section 303 and states
as follows:
20
Such agreement shall constitute an acceptance of all the
provisions of article three of this act, and shall operate as
a surrender by the parties thereto of their rights [1] to any
form or amount of compensation or damages for any
disability or death resulting from occupational disease, or
[2] to any method of determination thereof, other than as
provided in article three of this act. Such agreement shall
bind the employer and his personal representatives, and
the employe, his or her wife, or husband, widow or
widower, next of kin, and other dependents.
77 P.S. § 1403.24 Our Supreme Court has interpreted this provision as “a forfeiture
by the employee of any and all common law causes of action that the injured
employee may wish to pursue.” Barber, 555 A.2d at 769. However, Barber is easily
distinguished. In that case, our Supreme Court considered whether to recognize an
exception rooted in an employer’s intentional misconduct; thus, the latency of an
occupational disease was not at issue. See Barber, 555 A.2d at 767-78. Further, the
Court did not examine the statutory language of Section 301 of the ODA. See id. at
770 (merely relying on the “historical underpinnings of the exclusive remedy
doctrine”).25
Section 303 does not require so broad a proclamation. In furtherance
of the quid pro quo implicit to the workers’ compensation system, and except as
otherwise provided in the ODA, Section 303 requires that an employee surrender
two rights: (1) the right to compensation for disability or death resulting from
24
The “agreement” is “actually a conclusive presumption that both the employer and the
employee have agreed to be bound by all of the provisions of the statute.” Barber, 555 A.2d at
769 n.9.
25
The same observation applies to relevant precedent from the Superior Court, including
Sedlacek and Ranalli v. Rohm & Haas Co., 983 A.2d 732 (Pa. Super. 2009), in which the court
considered claims arising from latent mesothelioma. Those decisions are not persuasive because
the court failed to consider the relevant statutory language. Further, those decisions were
abrogated by our Supreme Court in Tooey. See Scott v. Duquesne Light Co. (Pa. Super., No. 2139
WDA 2009, filed May 12, 2014) (unreported).
21
occupational disease and (2) the right to select a method of securing compensation
for disability or death. See 77 P.S. § 1403. As we have discussed, supra, Section
301(c) defines “compensable disability or death” in clear and unambiguous terms,
and that definition includes a temporal limitation. Applying that definition here, we
conclude that the exclusive remedy mandate extends only to those claims asserting
compensable disability or death resulting from occupational disease and manifesting
within 4 years after the last workplace exposure. See Summit Sch., Inc., 108 A.3d at
196; 1 Pa. C.S. §§ 1903(a), 1921(b).
This reasonable interpretation does not eliminate per se the distinction
between coverage and compensation in the ODA for claims involving latent
occupational diseases, but it does recognize an exception to the exclusive remedy
mandate of the workers’ compensation system. Absent compensable disability or
death as defined by the ODA, an injured employee has not surrendered the rights to
pursue compensation in a manner of their choosing. Therefore, we hold that the
exclusivity provision does not apply to Herold’s claims, and the Board lacks
exclusive jurisdiction to adjudicate these claims.
We acknowledge that neither party has addressed the plain language of
Section 303 in arguments to this Court, choosing instead to focus on the ODA’s
limitations provision at Section 301(c). However, both parties have presented policy
arguments in favor of their preferred statutory interpretations. See Univ.’s Br. at 15-
18; Herold’s Br. at 24-28. Therefore, assuming for purposes of argument that there
may be other reasonable interpretations of the statutory language, such that Section
303 is ambiguous, we may consider policies underlying the statute and the
consequences of a particular interpretation. Summit Sch., Inc., 108 A.3d at 197; see,
e.g., 1 Pa. C.S. §§ 1921(c).
22
The policy considerations voiced by our Supreme Court in Tooey are
persuasive. See Tooey, 81 A.3d at 860-65. Clearly, the Court has rejected any
construction that grants full immunity to employers, leaving injured employees
without an opportunity for reasonable compensation for their injuries. Id. at 864.
This would do irreparable harm to the basic compromise inherent to the workers’
compensation system. Further, the Court has rejected concerns for the financial
implications of permitting certain limited claims to proceed in the courts of common
pleas. Id. at 865-66. As the Court concluded, it would be inconceivable that the
legislature intended to leave those employees who have suffered the most without
any redress under the workers’ compensation system or at common law. Id. at 864.
For these reasons, we reject the University’s policy arguments against
a Tooey-type exception for claims involving latent occupational diseases. See
Univ.’s Br. at 15-18. Considering the remedial purpose of the ODA and the
consequences of denying Herold and others like him any chance for compensation,
we conclude that the legislature did not intend for employees suffering from an
occupational disease that manifests outside the ODA’s 4-year limitations period to
surrender their rights as indicated in the ODA’s exclusivity provision.
D. The Doctrine of Primary Jurisdiction is Inapplicable
We turn now briefly to the second issue certified for appellate review.
Considering our interpretation of Section 303, and the simplicity of the relevant
factual and legal issues, Herold is not required to present his claims to the Board in
the first instance.
The courts of common pleas have unlimited jurisdiction over all actions
and proceedings, except as otherwise prescribed by law. Cnty. of Erie v. Verizon N.,
Inc., 879 A.2d 357, 363 (Pa. Cmwlth. 2005); 42 Pa. C.S. § 931. The doctrine of
23
primary jurisdiction creates “a workable relationship” between the courts and
administrative agencies. Elkin v. Bell Tel. Co. of Pa., 420 A.2d 371, 376 (Pa. 1980).
“[I]n appropriate circumstances, the courts can have the benefit of the agency’s
views on issues within the agency’s competence.” Id. Indeed, the chief benefit is
“derived by making use of the agency’s special experience and expertise in complex
areas with which judges and juries have little familiarity.” Id.; see, e.g., Weston v.
Reading Co., 282 A.2d 714, 722-26 (Pa. 1971) (deferring to Interstate Commerce
Commission’s expertise in national transportation policy, where the dispute
involved complex issues arising from the merger of rail carriers).
However, courts should not develop a dependence on administrative
agencies simply because a controversy implicates agency expertise. Elkin, 420 A.2d
at 377. Therefore, “[w]here . . . the matter is not one peculiarly within the agency’s
area of expertise, but is one which the courts or jury are equally well-suited to
determine, the court must not abdicate its responsibility.” Id. This would be a
wasteful exercise that produces no appreciable benefits. Id.
Here, Herold provided evidence that his mesothelioma was diagnosed
more than 4 years after his last workplace exposure to asbestos. Opp’n to Univ.’s
Mot. For Summ. J., 1/21/21, at 5 (citing Dep. of Herold, 1/21/20). Mindful of the
procedural posture of this case, we view this evidence in the light most favorable to
Herold. See Eleven Eleven Pa., LLC, 169 A.3d at 145. At some point, the University
may challenge this evidence, and a fact finder will determine its sufficiency and
weight, but such determinations are commonplace in civil trials; they are not
peculiarly within the Board’s expertise. Further, the legal implications of this
evidence are straightforward. If a fact finder credits this evidence, then Herold’s
claims are not subject to the exclusive remedy mandate of the ODA, and his civil
24
claims can proceed. On the other hand, if a fact finder does not accept this evidence,
then the exclusive remedy mandate applies, and the trial court lacks jurisdiction over
Herold’s claims. For these reasons, we discern no appreciable benefits in requiring
the trial court to stay proceedings and transfer the matter for initial review by the
Board, which would then be required to transfer the matter back to the trial court if
it found Herold’s latency evidence sufficient.26
IV. CONCLUSION
In conclusion, the ODA remains an integral part of a comprehensive,
no-fault system of compensation for employees that suffer disability or death in the
course of their employment. Generally, in exchange for reasonable and certain
compensation administered by the Board, an employee surrenders the rights to
pursue compensation in a manner of the employee’s choosing. However, absent
compensable disability or death, the employee has not surrendered these rights.
Thus, we recognize an exception to the exclusive jurisdiction of the Board to
adjudicate claims asserted by an employee diagnosed with an occupational disease
more than 4 years after the employee’s last workplace exposure to the hazards of
that disease. Finally, because the issues relevant to the latency of an employee’s
occupational disease are not peculiarly within the Board’s expertise, the employee
may commence civil proceedings in an appropriate court of original jurisdiction.
Order affirmed. Case remanded to the trial court for further
proceedings. Jurisdiction relinquished.
LORI A. DUMAS, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
26
Although this case comes before us following the denial of summary judgment, we note
there is no need to await the close of pleadings before challenging latency evidence as there are
jurisdictional implications parties can raise via preliminary objection. See Pa. R.C.P. 1028(a)(1).
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brad Lee Herold, as Executor of the :
Estate of William L. Herold :
:
v. : No. 998 C.D. 2021
:
University of Pittsburgh - of :
Commonwealth System of Higher :
Education and 3M Company; Abb :
Motors and Mechanical, Inc. f/k/a :
Baldor Electric Company; Allied Glove :
Corporation; A.O. Smith Corporation; :
Armstrong International, Inc.; Aurora :
Pump Company; Baltimore Aircoil :
Company, Inc.; Beazer East, Inc. :
Individually and as Successor to :
Koppers Company, Inc., and Successor- :
in-Interest to Thiem Corporation and :
Universal Refractories Company; BMI :
Refractor Services, Inc.; Individually :
and as Successor-in-Interest to Premier :
Refractories, Inc., f/k/a Adience, Inc., :
Successor-in-Interest to Adience :
Company, LP, as Successor to BMI, :
Inc.; Burnham Boiler Corporation :
n/d/b/a Burnham Commercial; Bryan :
Steam, LLC; Carrier Corporation; CBS :
Corporation, a Delaware Corporation, :
f/k/a Viacom Inc., Successor by Merger :
to CBS Corporation, a Pennsylvania :
Corporation, f/k/a Westinghouse :
Electric Corporation and Westinghouse :
Air Brake Company; Cleaver Brooks, :
Inc., f/k/a Aqua-Chem, Inc. d/b/a :
Cleaver Brooks Division; Crane Co.; :
Delval Equipment Corporation; :
Dezurik, Inc.; Donald McKay Smith, :
Inc.; Dunham-Bush, Inc.; E.E. :
Zimmerman Company; Eaton :
Corporation in its own right and as :
successor to Cutler-Hammer, :
Incorporated; Eichleay Corporation; :
Ferro Engineering Division of :
on Marine Services Company, :
LLC, f/k/a Oglebay Norton Company; :
Flowserve US, Inc., Individually and as :
Successor to Byron Jackson :
Pumps, FlowserveGestra, Durametallic :
Corp., Aldrich Pumps; Cameron Pumps; :
Vogt Valves; Wilson-Snyder :
Centrifugal Pump; and Rockwell :
Valves; FMC Corporation, Individually :
and as Successor-in-Interest to Peerless :
Pump Company, Chicago Pump :
Company, Sterling Fluid System, Inc. :
and former subsidiary Crosby Valve, :
Inc.; Foseco, Inc.; Foster Wheeler :
Corporation; Gardner Denver, Inc.; :
General Electric Company; Grinnell :
LLC; Goulds Pumps, LLC; I.U. :
North America, Inc.; America, Inc. :
as Successor-by-merger to the Garp :
Company, f/k/a The Gage Company, :
f/k/a Pittsburgh Gage and Supply :
Company; IMO Industries, Inc., :
f/k/a IMO Delaval, Inc., f/k/a :
Transamerican DeLaval, Inc., f/k/a :
DeLaval Turbin, Inc., DeLaval Turbin, :
Inc., DeValco Corporation; Ingersoll- :
Rand Company; Insul Company, Inc.; :
ITT Corporation, f/k/a ITT Industries, :
Individually and as Successor-in-Interest :
to Bell & Gossett Domestic Pump; J.H. :
France Refractories Company; Kruman :
Equipment Company; Mallinckrodt US :
LLC, in its own right and as Successor- :
in-Interest to Imcera Group, Inc., and :
International Group, Inc., and :
International Minerals and Chemical :
Corporation, and as Successor-in- :
Interest to E.J. Lavino; Mine :
Safety Appliances Company, LLC as :
Successor-in-Interest by Merger with :
Mine Safety Appliances Company; :
Minnotte Contracting Corporation; :
M.S. Jacobs & Associates, Inc.; :
Nagle Pumps, Inc.; Peerless Industries, :
Inc.; Power Piping Company; Riley :
Power Inc.; Safety First Industries, Inc., :
in its own right and as Successor-in- :
Interest to Safety-First Supply, :
Inc.; Schneider Electric USA, Inc. f/k/a :
Square D Company, in its own right and :
as successor to The Electric Controller :
and Manufacturing (EC&M); Spirax :
Sarco, Inc.; SPX Cooling Technologies, :
Inc., f/k/a Marley Cooling Technologies :
Inc., f/k/a The Marley Cooling :
Company; TACO, Inc. f/k/a Taco :
Heaters, Inc.; The Goodyear Tire :
& Rubber Company; The Gordon-Rupp :
Company; The H.B. Smith Company, :
Inc.; Trane U.S. Inc., Successor-by- :
Merger to American Standard, Inc., :
Union Carbride Corporation; United :
States Steel Corporation; Warren :
Pumps LLC; Weil-McLain Company, :
Inc.; York International Corporation; :
and Zurn Industries, LLC f/k/a Zurn :
Industries, Inc. a/k/a Erie City Iron :
Works :
:
Appeal of: University of Pittsburgh – :
of the Commonwealth System of :
Higher Education :
ORDER
AND NOW, this 16th day of February, 2023, the Order of the Court of
Common Pleas of Allegheny County, entered May 17, 2021, and which denied the
University of Pittsburgh summary judgment, is AFFIRMED. Brad Lee Herold’s
Application for Relief, filed October 12, 2022, is DENIED. This matter is remanded
for further proceedings. Jurisdiction relinquished.
LORI A. DUMAS, Judge