Brad Lee Herold, as Executor of the Estate of William L. Herold v. 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
No. 998 C.D. 2021
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
February 16, 2023
Argued: June 23, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE LORI A. DUMAS, Judge
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
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
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,
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
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
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
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
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,
Under this system, “both the employer and employee relinquish[] certain rights to obtain other advantages.” Wagner, 422 A.2d at 1065. In exchange
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,
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
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
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,
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
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
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,
[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].
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
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.
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,
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
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);
“Words and phrases shall be construed . . . according to their common and approved usage.”
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.
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,
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.
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,
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
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.
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
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.”
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:
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.
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
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.,
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);
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
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.
Brad Lee Herold, as Executor of the Estate of William L. Herold v. 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
No. 998 C.D. 2021
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
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
Notes
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.
Unlike the WCA, the ODA does not define mesothelioma as an occupational disease. Compare Section 108 of the WCA,
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.
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.
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.