NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P HOWARD A. SCOTT, EXECUTOR OF IN THE SUPERIOR COURT OF THE ESTATE OF ALBERT L. SCOTT, PENNSYLVANIA DECEASED AND LAVERNE SCOTT, IN HER OWN RIGHT, Appellant v. DUQUESNE LIGHT COMPANY, Appellee No WDA 2009 Appeal from the Order entered on November 17, 2009 in the Court of Common Pleas of Washington County, Civil Division, No BEFORE MUSMANNO, SHOGAN and ALLEN, JJ. MEMORANDUM BY MUSMANNO, J. FILED May 12, 2014 Howard A. Scott, executor of the estate of Albert L. Scott, deceased, and Laverne Scott ( Laverne ), in her own right (collectively the Scotts ) appeal from the trial court Order granting summary judgment in favor of Duquesne Light Company ( Duquesne Light ). We reverse and remand. Albert L. Scott ( Decedent ) worked as an employee for Duquesne Light from and in various capacities and locations around Pittsburgh. Decedent was diagnosed with mesothelioma on September 17, 2007, and died on March 26, Decedent, later substituted by his estate, and his wife, Laverne, filed the underlying action against Duquesne Light raising various claims premised upon Decedent s exposure to asbestos during his employment with

2 Duquesne Light. Duquesne Light filed Preliminary Objections stating that the action should be dismissed because the exclusivity provision of the Pennsylvania Workers Compensation Act ( WCA ) prohibits recovery for Decedent, who was last employed by Duquesne Light more than 300 weeks before the manifestation of mesothelioma. 1 The trial court overruled the preliminary objections concluding that the issues should be raised at the 1 The exclusivity provision of the WCA, 77 P.S. 1 et seq., provides that [t]he 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 P.S. 481(a) (footnotes omitted). Section 108 of the WCA states that the term occupational disease includes, inter alia, [a]sbestosis and cancer resulting from direct contact with, handling of, or exposure to the dust of asbestos in any occupation involving such contact, handling or exposure. 77 P.S. 27.1(l). Further, Section 301(c)(2) of the WCA provides, in pertinent part The terms injury, personal injury, and injury arising in the course of his employment, as used in this act, shall include... occupational disease as defined in section 108 of this act [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 or 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 employe s compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable. 77 P.S. 411(2) (footnote omitted)

3 summary judgment stage of proceedings. After discovery, Duquesne Light filed a Motion for Summary Judgment raising the same claim raised in its Preliminary Objections. The trial court ultimately granted summary judgment in favor of Duquesne Light based upon the holding of Ranalli v. Rohm and Haas Co., 983 A.2d 732 (Pa. Super. 2009), appeal denied, 9 A.3d 631 (Pa. 2010). 2 This Court affirmed the trial court s Order based upon Ranalli and Sedlacek v. A.O. Smith, 990 A.2d 801 (Pa. Super. 2010), appeal denied, 4 A.3d 1055 (Pa. 2010). 3 See Scott v. Duquesne Light Co., 26 A.3d 1176 (Pa. Super. 2011) (unpublished memorandum). The Scotts filed a Petition for Allowance of Appeal. The Supreme Court of Pennsylvania entered a per curiam Order granting the Petition for Allowance of Appeal, vacating the this Court s Order, and remanding the matter to this 2 In Ranalli, a former employee died of a brain tumor resulting from her exposure to vinyl chloride. Ranalli, 983 A.2d at 733. The action involving the employee was brought more than 300 weeks after the employee was last employed by the employer. Id. Our Court concluded that the employee was not allowed to bring suit against her employer because the exclusivity provision of the WCA applied, even though the alleged disease did not manifest itself until after the 300-week limit for raising a claim. Id. at In Sedlacek, two employees, who had occupational exposure to asbestos, developed mesothelioma over 20 years after their employment had terminated. Sedlacek, 990 A.2d at 803. Our Court held that the employees could not bring suit against their employer because both the WCA and Occupational Disease Act ( ODA ) contained provisions that limited compensation for disability or death resulting from occupational disease to disability/death occurring within a defined period from the date of last employment; and it was clear that recovery could not be had for former employees who contracted mesothelioma many years after their employment terminated. Id. at ,

4 Court for further proceedings based upon its decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). Thus, we will address the Scotts claim based upon the Tooey decision. The Scotts raise the following question for our review Whether the lower court erred by granting summary judgment against [the Scotts] and in favor of Duquesne Light [], on the basis that [the Scotts ] claims against Duquesne Light [] were barred by the exclusivity provision of the [WCA], when it was uncontested that [the Scotts have] no recovery against Duquesne Light [] under [the WCA]? Brief for Appellants at 4. Our standard and scope of review is as follows Our scope of review of a trial court s order granting or denying summary judgment is plenary, and our standard of review is clear the trial court s order will be reversed only where it is established that the court committed an error of law or abused its discretion. Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment. Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (citation omitted). In Tooey, plaintiffs John Tooey ( Tooey ), who worked for Ferro Engineering from 1964 to 1982, and Spurgeon Landis ( Landis ), who worked for Alloy Rods, Inc. from 1946 to 1992, both alleged they developed - 4 -

5 mesothelioma from occupational exposure to asbestos. Tooey, 81 A.3d at 856. Tooey, Landis, and their spouses (collectively the plaintiffs ) filed separate tort actions against several defendants, including their respective employers. Id. The employers filed motions for summary judgment, arguing that the plaintiffs causes of action were barred by the exclusivity provision of the WCA. Id. The plaintiffs responded that a tort action was permitted where a disease falls outside the jurisdiction, scope, and coverage of the WCA. Id. The trial court denied the motions; however, this Court, in a consolidated appeal, reversed based upon the Ranalli and Sedlacek decisions. Tooey, 81 A.3d at Our Supreme Court granted the plaintiff s petitions for allowance of appeal. Id. at 857. The Supreme Court initially construed the plain language of Section 301(c)(2) of the WCA and determined that these sections only apply to disability or death from occupational diseases occurring within 300 weeks after a worker s last day of employment. See id. at In the alternative, the Supreme Court reviewed Section 301(c)(2), under the assumption that the language was ambiguous, and determined that the employers interpretation would leave workers without any remedy for essentially all late-manifesting occupational diseases. See id. at ; see also id. at 865 (stating that the legislature did not intend the Act to apply to claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational - 5 -

6 exposure. ); id. at 864 (stating that the consequences of prohibiting an employee from seeking redress under the [WCA], leaves the employee with no remedy against his or her employer, a consequence that clearly contravenes the [WCA s] intended purpose of benefitting the injured worker. ) (emphasis in original). The Supreme Court pointed out that, because the average latency time for mesothelioma is 30 to 50 years and employees would not manifest symptoms until well past 300 weeks, the 300-week time window operates as a de facto exclusion of coverage under the Act for essentially all mesothelioma claims. Id. at 863. The Supreme Court abrogated Ranalli and Sedlacek, and concluded that where the plaintiffs injuries from the occupational disease do not manifest within 300 weeks of the last employment-based exposure, the WCA is inapplicable and an employee may file a common law tort claim against his/her employers. See id. at 865 (stating that employers not covered by the WCA will be subject to traditional tort liability requiring a showing by the [employee] of, inter alia, negligence on the part of the employer, and employers will retain all of their common law defenses. [Employees], in turn, will bear the higher burden of proof in terms of causation and liability. ). The Scotts, similar to the plaintiffs in Tooey, assert that because Decedent s occupational disease resulting in death occurred more than 300 weeks after his last occupational exposure to asbestos, his injury did not trigger the WCA s exclusivity provision, and they should be allowed to file - 6 -

7 common law tort claim against Duquesne Light. Brief for Appellants at Based upon the reasoning in Tooey, we conclude that the WCA is inapplicable in this case and the Scotts may file a common law tort claim against Duquesne Light. See Tooey, supra. Thus, the trial court erred in granting summary judgment in favor of Duquesne Light. 4 Based upon the foregoing, we reverse the trial court s Order granting Duquesne Light s Motion for Summary Judgment and remand for further proceedings. Order reversed. Cased remanded for further proceedings. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 5/12/ Based upon our conclusion, we need not address the Scotts constitutional claims regarding the WCA and ODA. See Brief for Appellants at 13-17; see also Tooey, 81 A.3d at 865 n.7 (stating that, in light of their conclusion that Section 303(a) s exclusivity provision did not bar the plaintiffs tort actions, the Supreme Court did not reach the plaintiffs constitutional claims)

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