BRAD LEE HEROLD, AS EXECUTOR OF THE ESTATE OF WILLIAM L. HEROLD v. UNIVERSITY OF PITTSBURGH
No. 22 WAP 2023
IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
DECIDED: JANUARY 22, 2025
William Herold (“Herold”)2 worked for Appellant, the University of Pittsburgh (“University”), as a stationary engineer for approximately 40 years ― from 1976 until 2004 ― during which time he was exposed to asbestos. In 2004, Herold became a foreman, a position in which he was no longer exposed to asbestos. He retired from his employment with the University in 2015. In April 2019, approximately 15 years after his last exposure to asbestos, Herold was diagnosed with mesothelioma, a cancer in the lining of the lung.3 Expert
In October 2019, Herold commenced a common law negligence action against, inter alia, the University in the Allegheny County Court of Common Pleas to recover damages arising from his exposure to asbestos and subsequent development of mesothelioma. In January 2021, the University sought summary judgment contending that the trial court lacked subject matter jurisdiction over Herold’s claim, as he suffered from mesothelioma, which the University asserted was an occupational disease under the ODA and subject to its “exclusivity provision.” 77 P.S. § 1403. Section 1403 of the
ODA is a provision which limits claims and compensation for an occupational disease to those provided under the ODA;4 such claims are processed exclusively by the “Workmen‘s Compensation Board” (“Board”). See 77 P.S. §§ 1207, 1510 (providing that claims for compensation under the ODA are presented to the Board).
On May 17, 2021, the trial court denied the University’s motion for summary judgment, finding that the ODA defines an occupational disease as one that occurs within four years of last exposure to the hazards of such disease, and that Herold’s last exposure to asbestos occurred far longer than the four-year limitations period defined in the ODA. Based on this foundation, the trial court explained that the only section of the ODA that could potentially apply to Herold’s claim was the “savings clause,” which provides relief beyond the four-year period for specific employees who contract certain enumerated diseases. 77 P.S. § 1401(i); Trial Ct. Op., 11/24/21, at 2. However, the court opined that the savings clause applied only to “silicosis, anthraco-silicosis, coal worker’s pneumoconiosis, and asbestosis.” Trial Ct. Op., 11/24/21, at 2 (citing 77 P.S. § 1401(i)).
Such agreement [referenced in Section 1402 between the employer and employee accepting provisions of Article III of the ODA] 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 to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or 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 (footnote omitted). 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 v. Pittsburgh Corning Corp., 555 A.2d 766, 769 n.9 (Pa. 1989). To reject this “‘elective compensation’ [the parties] must carefully comply with the rejection procedures described in the Act in order to overcome the conclusive presumption of acceptance.” Id.
According to the trial court, the savings clause was inapplicable, as Herold did not suffer from one of these enumerated occupational diseases. Therefore, the trial court concluded that, as the ODA did not apply to Herold, he did not need to pursue a claim before the Board before pursuing his civil claim, and, as a result, the court denied the University’s motion for summary judgment. Id. at 3. After receiving permission to appeal the trial court’s interlocutory
On appeal, a unanimous three-judge panel of the Commonwealth Court, in a published opinion authored by Judge Lori Dumas, affirmed and remanded for further proceedings. Herold v. University of Pittsburgh, 291 A.3d 489 (Pa. Cmwlth. 2023). As a preliminary matter, the court explained that the WCA and the ODA have together provided “a comprehensive, no-fault system of compensation for employees injured in the course of their employment.” Id. at 496.5 Noting that both acts contain similar exclusivity
provisions, the court observed that these provisions “reflect the historical quid pro quo between employers and employees,” requiring employees who suffer from occupational disease to seek benefits for their diseases from the workers’ compensation administrative process under the WCA or ODA. Id. Nevertheless, the court commented that “the statutory relief defined [in the WCA and the ODA] has not always fulfilled the promise that employees would secure a limited, though certain, recovery in exchange for the tort immunity accorded employers,” highlighting the critical distinction between coverage and compensation under the acts. Id. at 497-98.
The court believed this distinction was most pronounced in the context of latent occupational diseases. In support thereof, the court pointed out that the latency period for mesothelioma can be as long as 50 years, but that the WCA limits compensation to occupational diseases manifesting within 300 weeks (i.e., less than 6 years) from the last workplace exposure, and the ODA limits compensation to occupational diseases manifesting within 4 years of the last workplace exposure. Thus, the court opined that, “under either statutory regime, these limitations periods operate as a de facto exclusion of coverage for certain occupational diseases that are prone to latency.” Id. at 498.
The Commonwealth Court noted that our Court addressed this paradox in the context of the WCA in Tooey v. AK Steel Corp., 81 A.3d 851, 855 (Pa. 2013), discussed in greater depth infra. In Tooey, plaintiffs were diagnosed with mesothelioma 25 years after their last workplace exposure. The focus of the opinion was
exposure].” 77 P.S. § 411(2) (emphasis added). Our Court viewed “it” in the phrase “it shall apply” as referring to “this act,” such that the act, that is, the WCA, “shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the [last occupational exposure.]” Id. Thus, as the limitations period in Section 411(2) of the WCA limited compensation to occupational injuries which manifested within 300 weeks of final exposure, the Tooey Court held that claims for latent occupational disease manifesting more than 300 weeks after final exposure were excluded from the WCA’s exclusivity provision and could be brought in a civil action.
The Commonwealth Court then turned to the definition of “compensable disability or death” under Section 1401(c) of the ODA:
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 [claimant’s] last employment in such occupation or industry.
77 P.S. § 1401(c) (emphasis added). Noting that the parties disputed the meaning of “it” in the statute, the court believed that the most reasonable interpretation of this statutory language ─ and consistent with our Court’s approach in Tooey ─ was to construe “it” as referring to the immediately preceding noun, “act,” such that Section 301(c) effectively read:
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.
Id. (emphasis added). Thus, based on its interpretation, the court declared that “[w]herever 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.” Herold, 291 A.3d at 502.6
However, the court emphasized that, unlike the language in Section 411(2) of the WCA (which we held in Tooey conveyed a jurisdictional limit), the operative language in Section 1401(c) of the ODA did not expressly remove from the ODA’s purview claims involving a latent occupational disease which manifests beyond the limitation period. Rather, the ODA merely refined the definition of “compensable disability or death.” Thus, the court explained that, while the ODA covered Herold’s claim, it offered no compensation for his disability or death resulting from his work-related disease.
Nevertheless, the court declared that the ODA does not provide the exclusive remedy for Herold’s claims. The court reasoned that the ODA’s exclusivity provision in Section 1403 requires only that “an employee surrender two rights: (1) the right
choosing.” Id. As a result, the Commonwealth Court held that the exclusivity provision did not apply to Herold’s claims, and that the Board did not have exclusive jurisdiction to adjudicate such claims.
Further, addressing the doctrine of primary jurisdiction, the court remarked that the doctrine provides courts with the advantage of an agency’s view on complex issues within the agency’s special experience and expertise with which judges and juries have limited knowledge, and so requires implicated claims to be channeled through the agency’s process. Nevertheless, the court determined that, “because the issues relevant to the latency of [Herold’s] occupational disease are not peculiarly within the [Workers’ Compensation] Board’s expertise, [Herold] may commence civil proceedings in an appropriate court of original jurisdiction.” Id. at 506. Accordingly, the Commonwealth Court affirmed the trial court’s order denying summary judgment and remanded the matter to that court for further proceedings.
The University sought further review, and we granted allocatur to consider whether the ODA’s exclusivity provision, or the doctrine of primary jurisdiction, mandates that the Board, rather than a trial court, has jurisdiction over an injured worker’s claim for a disability or death resulting from an occupational disease and that occurs outside of the four-year period contained in the ODA.7
The University argues that the Commonwealth Court erred in finding that Herold’s occupational disease falls outside the ODA and the purview of the Board. First, the University recounts the flawed framework to recover compensation for workplace injuries which existed at the turn of the 20th Century and which led to the enactment of workers’ compensation legislation. The University surveys the relevant provisions of the WCA and ODA, focusing on the exclusive remedy provision in Section 1403 of the ODA which expressly “operate[s] as a surrender by the parties . . . of their rights to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or to any method of determination
Specifically, the University contends that the Commonwealth Court erred in failing to uphold the ODA’s exclusive remedy provision. While the Commonwealth Court recognized an exception to the exclusivity provision for occupational injuries manifesting
after the ODA’s four-year limitation period, i.e., when the disease is no longer “compensable,” the University stresses that there is no support for such an exception in either the plain language of the ODA (urging that compensability is not a prerequisite to the application of the exclusive remedy provision) or case law. Appellant’s Brief at 28. Indeed, pointing to the statutory language, the University contends that the ODA does not identify “compensability” as a necessary prerequisite for the exclusive remedy provision to apply. The University further points out that courts previously have declined to find exceptions to the ODA’s exclusive remedy provision. See Barber, 555 A.2d at 769 (holding that the ODA provides the exclusive remedy for asbestos-related disease even when the plaintiffs alleged that their injuries were intentionally inflicted by their employer). In the University’s view, Section 1403 “requires employees to accept the provisions of article three of the ODA (which necessarily includes the temporal limitation set forth in Section [1401(c)]) and surrender their rights to ‘any form or amount of compensation or damages,’” regardless of compensability. Appellant’s Brief at 32 (citing 77 P.S. § 1403). According to the University, this “may mean no compensation under certain circumstances,” as well as the surrender of certain methods for determining compensation, including by a civil trial. Appellant’s Brief at 32-33.
Additionally, the University faults the Commonwealth Court for improperly relying upon our decision in Tooey when interpreting Section 1401(c) of the ODA. The University would limit Tooey to the specific language of Section 411(2) of the WCA, which, the University maintains, is substantially different from the operative language in the ODA. To illustrate this point, the University highlights that the language in Section 411(2) of the WCA at issue in Tooey provides 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.” 77 P.S. § 411 (emphasis added). The University explains that, while our Court interpreted the term
Next, the University takes issue with the Commonwealth Court’s construction of Section 1401(c) of the ODA. Specifically, the University points out that the Commonwealth Court erroneously stated that Section 1401(c) of the ODA provides no compensation for disability or death manifesting more than four years after an employee’s last “exposure” to hazards, when, by its terms, Section 1401(c) denies compensation for disability or death manifesting more than four years “after the date of his last employment.” 77 P.S. § 1401(c). The University maintains that Herold’s occupational disease claim arguably meets the four-year temporal limitation in Section 1401(c), as he
was last employed by the University in June 2015, and his symptoms manifested in October 2018, less than four years from his last date of employment. Related thereto, the University argues that the Commonwealth Court’s remand to the trial court for a determination of this question violates the doctrine of primary jurisdiction.
The University then pivots, suggesting that mesothelioma might fall within Section 1401(i) of the ODA, which removes time limitations for a variety of latent occupational diseases, including “asbestosis,” a disease involving exposure to asbestos which the University claims is akin to mesothelioma, and urges our Court to interpret the term “asbestosis” in Section 1401(i) of the ODA to include “mesothelioma,” asserting that it would preserve the legislative intent of the ODA to provide occupational disease benefits regardless of the amount of time between the date of last employment and the disability claimed. Appellant’s Brief at 44-45.
The University then provides additional arguments for reversal, including that the workers’ compensation system was not designed to provide compensation under all circumstances, citing the limitation on compensation benefits based upon years of employment in the Commonwealth. 77 P.S. § 1401. The University adds that allowing mesothelioma claimants to take their claims into the tort system creates a “privileged” class of those afforded special rights other occupational disease claimants do not enjoy. Appellant’s Brief at 46. The University cautions that the Commonwealth Court’s opinion opens the door for claimants with occupational diseases which are not compensable or fully compensable under the ODA to seek redress in the civil courts, leading to uncertainty and confusion among employees, employers, and the public at large.
compensation for every alleged wrong but, consistent with due process, only entitles an injured employee to an administrative process and forum in which to seek redress for a work-related disease. Indeed, the University offers that a guarantee of monetary compensation is not contained in the ODA, WCA, or our Constitution. The University suggests that deleterious effects will occur if we allow such access to civil courts, including forcing employers like itself to redirect resources for public education and research, and exposing them to “unlimited amounts for subjective jury verdicts that may award compensation for pain and suffering and, potentially, punitive damages ― remedies not available or contemplated in the workers’ compensation scheme.” Id. at 52. The University avers that construing the ODA to permit claims for mesothelioma in civil courts is akin to promulgating an ex post facto law, stressing that employers reasonably relied on the “agreement” between employers and employees; ignoring this contract, it submits, upends the workers’ compensation system, causes monetary harm, and infringes upon the substantive rights of employers. Id. at 53. The University claims that workers’ compensation insurance is unavailable for such mesothelioma claims and that general liability insurance does not provide coverage for such awards, resulting in awards potentially being paid out of “funds intended for the academic and research programs that benefit not only students, but the public in general.” Id. at 55. Indeed, the University goes so far as to warn that permitting claims for occupational diseases outside of the workers’ compensation system “threatens the financial foundation on which its educational mission depends.” Id. at 56.
Amici Pennsylvania State University and Temple University filed a joint brief in support of the University, and provide beneficial advocacy, although they make arguments which largely track those made by the University. Amici accuse the Commonwealth Court of substituting its policy concerns for the plain language of the ODA
and submit that our Court is bound to accept the legislative judgments made in the ODA. Amici note that plaintiffs like Herold are not without a remedy for their disease, as they may assert tort claims against manufacturers or suppliers of products to which they were exposed during their employment. They proffer that the ODA’s exclusivity provision is essential to the “compromise” which they describe as no-fault liability on one hand, and limitations on exposure, i.e., tort immunity, on the other. According to Amici, the time limitation was designed to prevent stale claims, and they suggest it functions “similarly to a statute of repose.” Amici’s Brief at 30. Amici also aver that allowing a tort remedy for some claims is unfair to workers, creating two classes of employees, as well as to employers, who face exposure due to liability not covered by other insurance policies.
In response, Executor begins by emphasizing that, without the Commonwealth Court’s interpretation of the ODA, a worker in Herold’s position will have no opportunity to obtain the certain compensation that is an essential part of the quid pro quo between employer and employee. Specifically, he points to the similarities between the ODA and the WCA, including that both statutes are designed to provide “certain” compensation to employees who are injured in the course of their employment and that Section 411(c) of the WCA and Section 1401(c) of the ODA contain
Specifically, Executor argues that the ODA applies to disabilities and death caused by an occupational disease as defined in that statute. 77 P.S. § 1201. Like the Commonwealth Court, he offers that the word “it” in Section 1401(c) refers to the immediately preceding noun phrase “this act,” reading the provision as follows:
Wherever compensable disability or death is mentioned as a cause for compensation under this act, [this 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). Executor maintains that this interpretation is the most grammatically correct and reasonable interpretation of Section 1401(c), and he criticizes the University’s substitution of the phrase “compensable disability or death” in the place of “it” as creating mere surplusage, improperly substituting the singular pronoun “it” for the plural term “compensable disability or death,” and engaging in an “overly complex, grammatical examination,” contrary to the plain language of the statute. Appellee’s Brief at 17.
Executor asserts that Herold’s mesothelioma is not covered or compensable, agreeing with the Commonwealth Court that the exclusive remedy provision in Section 1403 of the ODA “extends only to those claims asserting compensable disability or death resulting from occupational disease and manifesting within 4 years after the last workplace exposure.” Herold, 291 A.3d at 504. He points out that mesothelioma is not one of the four enumerated occupational diseases that have no temporal limitation under the ODA. 77 P.S. § 1401(i). Thus, because Herold’s mesothelioma is not an occupational disease, and it did not cause disability or death within four years of his last date of exposure to asbestos, Executor argues that the exclusivity provision does not apply, and so he may bring a civil action.
Moreover, Executor contends that, as Herold did not suffer from asbestosis, a listed “occupational disease” under Section 1201, his mesothelioma would have to meet the definition of Section 1208(n) of the ODA, which provides that an occupational disease is a disease: (1) to which the claimant is exposed by reason of his employment; (2) which is peculiar to the industry or occupation; and (3) which is not common to the general population. Executor argues that Herold’s mesothelioma does not meet these
requirements, observing that the expert reports relied upon by the University indicate that asbestos (the sole cause of mesothelioma) can be found in a variety of products which are not exclusive to the industry in which he was employed. Additionally, Executor asserts that mesothelioma is not a disease which is exclusively related to occupational exposures.8
employee does not surrender his right to a remedy where there is no opportunity to be compensated under the ODA. 77 P.S. § 1403. Indeed, Executor complains that a contrary result would violate the reasonable compensation mandate of Article III, Section 189 and the open courts provision of Article I, Section 1110 of the Pennsylvania Constitution. He also asserts that the purpose of the ODA is to enhance recovery for injured workers, and the quid pro quo underlying the workers’ compensation system
The General Assembly may enact laws requiring the payment by employers, or employers and employees jointly, of reasonable compensation for injuries to employees arising in the course of their employment, and for occupational diseases of employees, whether or not such injuries or diseases result in death, and regardless of fault of employer or employee, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes different from those fixed by general laws regulating actions against natural persons, and such acts now existing are avoided.
Pa. Const. art III, § 18.
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
Pa. Const. art I, § 11.
includes assured recovery for disabled workers; these principles would be undercut if a claimant had no opportunity for compensation. Finally, Executor presses that the doctrine of primary jurisdiction does not compel a different result, as Herold‘s claim is outside of the jurisdiction of the workers’ compensation
In its brief filed on behalf of Executor, Amicus Pennsylvania Association for Justice agrees with the Commonwealth Court that, pursuant to Tooey, Section 1401(c) of the ODA excludes Herold‘s claim because his mesothelioma manifested more than four years after the date of his last exposure, that the doctrine of primary jurisdiction was not implicated in this case, and warns that requiring Herold and similarly situated workers to pursue “obviously futile claims in the workers’ compensation system before pursuing a negligence claim would have disastrous practical implications.” Amicus’ Brief at 5.
Amici Darlene Data and Ronald Holby, in support of Executor, argue that the WCA applies to this matter, not the ODA, which Amici describe as “functionally archaic.” Amici‘s Brief at 3. Specifically, Amici note that the WCA broadly applies to “injury,” “personal injury,” and “injury arising in the course of his employment.”
The question before us calls for statutory interpretation. Our interpretation of the statutes of the Commonwealth is guided by the Statutory Construction Act of 1972.
In engaging in statutory interpretation, the Statutory Construction Act provides, and our courts have engaged in, a well-established framework to discern legislative intent. Courts are confronted with an initial inquiry: whether the statutory language is plain and unambiguous. If the meaning of the word or language employed is unmistakable, courts construe the statute according to its clear meaning. Id.
If, however, the statutory language is not explicit, but, rather, is susceptible to two or more reasonable interpretations, the statute is deemed to be ambiguous. Delaware County v. First Union Corp., 992 A.2d 112, 118 (Pa. 2010); Snyder Brothers, Inc. v. Pennsylvania Public Utilities Commission, 198 A.3d 1056, 1073 (Pa. 2018) (“If a statutory term, when read in context with the overall statutory framework in which it appears, has at least two reasonable interpretations, then the term is ambiguous.“). In construing and giving effect to the text, courts “should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.” Roethlein v. Portnoff Law Assoc., 81 A.3d 816, 822 (Pa. 2013) citing Mishoe v. Erie Insurance Co., 824 A.2d 1153, 1155 (Pa. 2003)); see generally King v. Burwell, 576 U.S. 473, 486 (2015) (“If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks and citations omitted)).
When analyzing an ambiguous statute, courts discern legislative intent by considering some or all of the factors the General Assembly has identified.
Thus, employing this well-trodden analytical construct, we consider whether the meaning of the words of the statute are explicit or ambiguous. The parties first analyze Section 1401(c) of the ODA, which contains a time limitation for compensable claims, and so we do likewise. As noted supra, Section 1401(c) provides:
Compensation for the occupational diseases enumerated in this act shall be paid only when such occupational disease is peculiar to the occupation or industry in which the employe was engaged and not common to the general population. 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 noted above in greater detail, the University argues that the meaning of the word “it” is clear and unambiguous. The University relies upon both grammatical rules and logic to support its position that the word “it” refers solely to the prior phrase “compensable disability or death.” In short, and critiquing the Commonwealth Court‘s interpretation, the University submits that, not only is substitution of “the act” for the pronoun “it” grammatically improper, but doing so results in a stilted and unnatural sentence.
Executor, also taking a plain meaning approach, counters, offering his own grammatical critique of the proffered meaning of the word “it” and claims that the term refers to the immediately preceding noun, “this act.” Executor stresses that it would violate the rules of grammar to use the singular pronoun “it” for the plural phrase “compensable disability or death.” Moreover, Executor rebuffs the University‘s
Initially, before resolving these competing, grammatically-based interpretations, we note that there is some tension in the guidance the legislature has provided to the courts regarding statutory interpretation in this regard. The Statutory Construction Act provides that “[w]ords and phrases shall be construed according to rules of grammar and
according to their common and approved usage.”
Here, application of these tools of construction to the rules of grammar is unclear. As a result, we believe that both parties have set forth reasonable grammatical bases for their respective interpretations of the meaning of the word “it.” Yet, we find that both interpretations suffer from drawbacks regarding the fluidity and clarity of the challenged sentence. The University‘s proffered interpretation contains multiple unnecessary redundancies, and Executor‘s interpretation leads to somewhat stilted phrasing, as in “this act shall mean,” which could be accomplished more directly. In short, we find the statutory language to be ambiguous.
As noted above, typically, after finding statutory language to be ambiguous, a court would engage in consideration of the relevant tools of statutory construction to discern the legislature‘s intent regarding its meaning. However, we believe that employment of either party‘s proffered tools of statute construction lead to the same place.
Section 1401 is a definitional provision which gives meaning to the phrase “compensable disability or death,” and places a time limit on when a disability or death is compensable. Specifically, the University‘s suggested phrasing reads:
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.
Similarly, Executor‘s interpretation would have the statute read:
Wherever compensable disability or death is mentioned as a cause for compensation under this act, [this 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.
The language of Section 1401 can be contrasted with the similar, albeit distinct, provision in the WCA which was the focus in Tooey. See
[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].
The Commonwealth Court below recognized as much in its analysis: The court explained that the legislature chose language in Section 411 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)); Herold, 291 A.3d at 502. By contrast, the Commonwealth Court reasoned that, under the ODA, “there is no jurisdictional implication
to the relevant statutory language. Rather, the plain language of Section [1401(c)] merely refines the definition of ‘compensable disability or death.‘” Herold, 291 A.3d at 502.
In our view, whether we use “compensable disease or death” as proffered by the University or “this act” as argued by Executor, the meaning of “compensable disability or death” is temporally qualified as later specified in the provision. That is, we simply do not discern the import of choosing one interpretation over the other.11 Far from being dispositive of the ultimate question before our Court regarding the breadth of the ODA‘s exclusivity provision, we conclude either interpretation serves to confine the meaning of “compensable disability or death” to “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.”
The crux of this appeal is the breadth of the ODA‘s exclusivity provision. Section 1403 provides:
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 to any form or
amount of compensation or damages for any disability or death resulting from occupational disease, or 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.
The University argues, in sum, that the ODA does not require a claimant‘s occupational disease to be compensable for the exclusivity provision to apply, but, rather, under a plain reading of that provision, and focusing upon the phrase “for any disability or death,” it contends that the exclusivity provision applies to occupational diseases regardless of whether they manifest within the time limitations prescribed by the ODA in Section 1401. That is, the University asserts that compensability is irrelevant to the scope of the exclusivity provision. Thus, according to the University, even if an injured employee‘s disability or death occurs outside of Section 1403‘s four-year limitations period, the injured employee could not receive compensation, as the ODA‘s exclusivity provision bars such claims. The University adds that Tooey involved the interpretation of specific language in the WCA that does not exist in the ODA, and, therefore, is inapplicable to this matter.
In contrast, Executor emphasizes that, under the exclusivity provision, employees surrender “their rights to any form or amount of compensation or damages” other than provided by the ODA. Appellee‘s Brief at 40. Executor develops that, as the exclusivity provision requires some form or amount of compensation be available to surrender, and, as Section 1403 limits compensation to disability or death occurring within four years after the date of one‘s last exposure, the exclusivity provision does not apply to Herold‘s non-compensable (as it occurred beyond four years after his last exposure) disability or death claim; thus, his common law claim is not barred. Id. at 41.
After considering the parties’ arguments advanced above, as well as the statutory language employed by the General Assembly placed in the context of the provisions of the ODA, we find the exclusivity provision to be ambiguous in this regard, as there are competing reasonable interpretations. The broad interpretation advanced by the University, based upon the statutory language applying the exclusivity provision to “any disability or death,” is reasonable.
This being the case, as instructed by the General Assembly, we turn to the enumerated tools of statutory construction to discern its intent. These factors are:
- The occasion and necessity for the statute.
- The circumstances under which it was enacted.
- The mischief to be remedied.
- The object to be attained.
- The former law, if any, including other statutes upon the same or similar subjects.
- The consequences of a particular interpretation.
- The contemporaneous legislative history.
- Legislative and administrative interpretations of such statute.
In addressing these factors, we initially consider the origins of workers’ compensation laws generally, and the ODA in particular, including the “Grand Bargain”
(2017); Robert F. Williams, Can State Constitutions Block the Workers’ Compensation Race to the Bottom?, 69 Rutgers U.L. Rev. 1081, 1082 (2017).
During the 1800‘s and into the early 1900‘s, with the advent of the industrial revolution and the explosion of factory work, there came a drastic increase in workplace injuries and death. Recovery for such injuries was complicated and difficult. Specifically, injured workers in this time rarely brought lawsuits against their employers due in part to a prevailing fear of resulting unemployment, the lack of legal resources, the cost of litigation, and the Herculean task of proving an employer‘s negligence. Establishing an employer‘s negligence was especially onerous because of the limited duties employers owed their workers; thus, it was especially difficult for workers to prove a breach of duty. Perhaps more fatal to an injured worker‘s recovery were three common law defenses to employer liability for negligently-caused injuries called the “unholy trinity” ― the assumption of risk doctrine, the fellow servant rule (holding employers immune from liability to its workers because of negligence of a fellow employee),13 and the doctrine of contributory negligence. Emily A. Spieler, (Re)assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017, 69 Rutgers U.L. Rev. 891, 901 n.35 (2017). Together, these defenses served to largely insulate employers from adverse judgments.
The playing field, however, was not tilted exclusively in favor of employers. Those injured employees who were able to establish negligence, and who were able to surmount employer defenses, were at times rewarded with significant monetary jury awards, including for pain and suffering, loss of consortium, as well as punitive damages, leaving employers both with potentially large monetary outlays, and without an ability to estimate such costs in their business finances. In addition to employers being subjected to
substantial verdicts, insuring for such employer liability was expensive, and tension existed in labor management relations due to the lack of compensation for workplace injuries. See David Torrey, The Centennial of the Pennsylvania Workers’ Compensation Act, 28-29 (The Pennsylvania Bar Association 2015). Thus, for employers, civil actions had, despite the availability of tort law defenses, become costly and unpredictable. Indeed, the existing civil system was viewed as unsatisfactory by both employees and employers. As explained by Lawrence Friedman, the law of “industrial accidents” at this time was “no longer an efficient device for allocating costs. It did not have the courage of its cruelty, nor the strength to be humane. It satisfied neither capital nor labor. It siphoned millions of dollars into the hands of lawyers, court systems, administrators, insurers, claims adjustors. Companies spent and spent, yet did not buy industrial harmony – and not enough of the dollars flowed to the injured workmen.” Friedman, A History of American Law, 424-25 (Simon and Schuster, New York (ed. 1973)).
Because of this mutual dissatisfaction with the common law negligence system for remedying workers for their work-related injuries, and by broad social consensus, the demand for an efficient, low-cost process by which to secure compensation for injured workers emerged. In the early
1911 by the Commonwealth to make recommendations with regard to the advisability and form of such legislation, which culminated in the Workers’ Compensation Act of 1915.16
The original legislation, however, intentionally omitted coverage for occupational disease. By the mid-1930‘s, the idea that workers should assume the risk of disease injury as part of their efforts to make a living had come under attack, and political and social pressures for the law to cover clearly related occupational diseases could no longer credibly be resisted by industry. As a result, the 1937 amendments to the Act added coverage for certain occupational diseases. While that legislation was short-lived, the legislature in 1939 enacted a new, but related law, the ODA. This statute was modeled on the WCA even though, unlike a traumatic injury caused by an accident in the workplace, the onset of an occupational disease is not readily determinable.
Broadly, these statutory compensation systems for work-related injuries were founded upon a mutually agreeable compromise. Generally speaking, workers gave up the right to sue their employers for job-related injuries and uncertain common law tort remedies in return for certain, but reduced, benefits, without an assessment of fault of the employer. In turn, employers embraced a no-fault system and gave up the unholy trinity of defenses in return for the elimination of trial by jury, and the potential of punitive damages and exorbitant unexpected costs. This compromise became the bedrock of all workers’ compensation laws and is known as the “Grand Bargain.”
Our Court has described this quid pro quo in the context of the ODA as follows:
In each instance, the employer, in exchange for immunity from lawsuits by injured employees, provides certain and reasonable compensation to injured employees without regard to fault. By the same token, the employee relinquishes his right to sue at common law in exchange for a certain
reasonable recovery for injuries he suffers in the course of his employment.
Indispensable to the Grand Bargain is certain compensation for the injured worker: “The ODA and the WCA are similar statutes, designed to provide certain compensation for employees injured in the course of their employment.” Id. at 769; see also Alston v. St. Paul Insurance Companies, 612 A.2d 421, 424 (Pa. 1992); Kevin R. Sander, The Cold Shoulder of Occupational Disease Recovery: Ganske v. Spahn & Rose Lumber Co., 25 J. Corp. L. 407, 413-14 (2000) (“The exclusiveness of these statutes arose from the
Equally important, the quid pro quo is implemented, in part, via the “exclusive remedy doctrine.” The exclusivity of the statutory remedy, and requirement of the administrative process, is part of “the historical quid pro quo that employers received in return for being subjected to a statutory, no-fault system of compensation for worker injuries.” Poyser v. Newman & Co., Inc., 522 A.2d 548, 550 (Pa. 1987). The WCA and ODA are intended to provide the exclusive means for obtaining compensation for injuries, substituting for common law tort actions.
course of employment and closes any recourse against the employer at common law for negligence. Tsarnas v. Jones & Laughlin Steel Corporation, 412 A.2d 1094 (Pa. 1980). As scholarly analysis of the doctrine of exclusivity has reasoned, however, there must be some possibility of recovery by the injured worker to justify the substitution of a statutory process for a common law civil action:
If . . . the exclusiveness defense is a “part of the quid pro quo by which the sacrifices and gains of employees and employers are to some extent put in balance,” it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee‘s point of view, rights of action for damages should not be deemed taken away except where something of value has been put in their place.
6 Arthur Larson, Larson‘s Workers’ Compensation Law, § 100.4 (2013) (footnotes omitted).
With this background, two essentials of the system become clear: (1) certain compensation for the injured worker without regard to fault; and (2) the exclusivity of the administrative forum for resolving such guaranteed compensation, i.e., employer immunity from common law liability. We turn to relevant case law interpreting the exclusivity provisions under the WCA and the ODA, beginning with our decision in Tooey.
Over a decade ago, our Court in Tooey analyzed the circumstances in which an occupational disease, which manifested outside of the 300-week limitations period set forth in
date of employment in an occupation or industry to which [the claimant] was exposed
In Tooey, employees were diagnosed with mesothelioma approximately 25 years after their last workplace exposure to asbestos. 81 A.3d at 856. The injured workers and their spouses commenced tort actions against their former employers; the employers moved for summary judgment, asserting that the plaintiffs’ claims were barred by the WCA‘s exclusivity provision. Id. In response, the plaintiffs argued that the prolonged latency period of their mesothelioma removed their claims from the jurisdiction, scope, and coverage of the WCA. Id. The trial court agreed with the plaintiffs, but the Superior Court reversed, concluding that the WCA‘s exclusivity provision remained applicable, even though the plaintiffs’ mesothelioma had manifested more than 300 weeks after their last employment, rendering their claims non-compensable under the workers’ compensation system. Id. To resolve this distinction between the scope of coverage and the availability of compensation, we examined the language in Section 411 of the WCA,
Assuming, in the alternative, that the WCA was ambiguous, in this regard, we further reasoned that the remedial purpose and objectives of the WCA favored an interpretation that would permit the plaintiffs to proceed with their civil claims. Id. at 860-
65. In considering the parties’ arguments on this point, certain themes resonated with our Court. On the one hand, the plaintiffs argued that, in those cases involving latent mesothelioma, the historic quid pro quo contemplated by the WCA‘s exclusivity provision could not be effectuated, as employers were, in effect, granted full immunity, with no reasonable chance of workers recovering compensation. Id. at 860. On the other hand, we recognized the long-standing distinction between coverage of a claim under the statute and compensation for a claim under that act. See id. at 862-63 (discussing cases). We specifically addressed the employers’ characterization of Section 411 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. Our Court rejected this interpretation, stressing that “[i]t 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.
We also dismissed concerns that permitting common law claims would expose employers to “potentially unlimited liability.” Id. at 865. Referencing such requisites of tort liability such as proving negligence and causation, the Tooey Court concluded that common law claims arising from a latent occupational disease would not undermine the employer‘s side of the quid pro quo manifest in the workers’ compensation system. See id. Additionally, giving the remedial purposes of the workers’ compensation system its full due, the Tooey Court reasoned that the system‘s humanitarian objectives militated against interpreting Section 411 as a statute of
limitations period, and that, as a result, the provision did not preclude the injured workers’ common law actions.
Our Court‘s landmark decision in Tooey is instructive with respect to our statutory construction analysis sub judice. While we recognize the textual asymmetry of the exclusivity language used in the WCA and the ODA, the two provisions are nevertheless “very similar.” Barber, 555 A.2d at 769 (“Although the language varies slightly, the exclusive remedy provisions of both the WCA and the ODA are very similar.“). Thus, consistent with the spirit of Section 1922(4) (regarding legislature‘s intent relating to a subsequently enacted statute on same subject matter), and common sense, we conclude that exclusivity provisions in the statutes should be given a similar interpretation.
Indeed, our Tooey decision – which was filed in 2013 – apprised the General Assembly that the WCA, as interpreted by our Court, allowed a civil action for injuries for occupational diseases which manifested outside of the WCA‘s 300-week limitations period. Because of the similarity of the time periods set forth in the ODA and WCA, as well as their analogous exclusivity provisions, there was good reason for the legislature to conclude we would apply Tooey‘s interpretation under the ODA.17 Yet, in the past decade, the General Assembly has not acted to indicate it disagreed with Tooey.
The parties offer decisions in addition to Tooey which merit some discussion. The University points to a number of our decisions as supporting the proposition that the ODA‘s exclusivity provision eliminates any common law cause of action for an
occupational disease. According to the University, the workers’ compensation system was not intended to provide, in every case, either compensation for a workplace injury or an opportunity to seek redress at common law. See Franczyk v. Home Depot, Inc., 292 A.3d 852, 863 (Pa. 2023) (rejecting assertion that claimant who was compensated under the WCA for a dog bite was able to bring a common law action against her employer for impairing her ability to file a third-party action against the dog owner); Barber, 555 A.2d at 769-70 (finding ODA‘s exclusivity provision bars common law claim for injuries caused by employer‘s intentional conduct); Poyser, 522 A.2d at 549 (rejecting injured worker‘s claim for tort recovery on the basis that his injury was caused by deliberate derelictions of the employer and refusing to recognize an exclusivity carve-out for an employer‘s intentional wrongdoing); Kline v. Arden H. Verner Co., 469 A.2d 158, 160 (Pa. 1983) (determining that painter who fell from a ladder and was compensated for such injury under the WCA could not bring a common law claim for resulting impotency).
Other than standing for the unremarkable and general proposition that the ODA‘s
Indeed, unlike the instant matter, in each of these decisions, the claimant was deemed to be entitled, at least to some degree, to compensation for his or her work-related injury under the WCA or ODA. Moreover, our decisions in Barber, Poyser, and Kline were issued prior to our watershed decision in Tooey. The same can be said of other decisions that the University relies upon, such as Moffett v. Harbison-Walker Refractories, Co., 14 A.2d 111 (Pa. 1940), and Sedlacek, supra, which spoke in even
stronger terms regarding the breadth of the exclusivity provision, but whose holdings were undermined by our subsequent decision in Tooey.
Sharpening the point that these decisions are of limited value in this appeal, Franczyk, which again emphasized the strength of the WCA‘s exclusivity provision, and in which a claimant received compensation under the WCA for a dog bite, involved a claimant‘s attempt to sue her employer, outside of the workers’ compensation system, for interfering with her ability to bring an action against a third party. Based upon the breadth of the WCA‘s exclusivity provision, we rejected such an attempt. Our recent decision in Franczyk, however, in no way diminished the import of Tooey; indeed, it neither discussed nor cited Tooey, let alone suggested a retreat from Tooey‘s holding. As Barber, Poyser, and Kline dealt with issues regarding a lack of compensation distinct from an employee‘s total inability to recover compensation, they do not significantly inform our decision, and we conclude that Tooey remains the most relevant decision to our analysis.18
In the same vein, Executor points to our decisions in Greer v. United States Steel, 380 A.2d 1221 (Pa. 1977), and Pollard, supra, which we likewise observe are of limited assistance. In Greer, our Court was faced with the question of whether an employee suffering from pulmonary fibrosis, allegedly contracted in the course of his employment,
could bring a civil action. It was undisputed that common law recovery was precluded if recovery for the injury could be achieved under the ODA, and we surmised that the converse would be true as well: that recovery in common law would not be barred if recovery could not be had under the ODA. Thus, we remanded for a determination of whether the claimant‘s disease constituted
We are further mindful that “the General Assembly intends the entire statute to be effective and certain.”
Having concluded that a civil claim related to disability or death resulting from an occupational disease and which occurs outside of the ODA’s four-year limitations period is not barred by the ODA’s exclusivity provision, we turn to the University’s argument that, even if a common law claim survives outside of the ODA, such a plaintiff must still file a claim within the workers’ compensation system, pursuant to the primary jurisdiction doctrine.
The doctrine of primary jurisdiction is jurisprudential, and centers on the relationship between the courts and administrative agency tribunals for which it is assumed, in appropriate circumstances, the courts may benefit from the agency’s views on issues within the agency’s competence. See Weston v. Reading Co., 282 A.2d 714 (Pa. 1977). In
The principles of the doctrine of primary jurisdiction are well settled. The United States Supreme Court “... recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge.... The doctrine of primary jurisdiction has become one of the key judicial switches through which this current has passed.” Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Trans-Atlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 208, 27 L.Ed.2d 203 (1970) (footnote and citations omitted). The doctrine “... requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.” United States v. Western Pacific Railroad Co., 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). (further citations omitted).
282 A.2d at 723 (alterations original). The doctrine serves several purposes, including fostering an agency’s special experience and expertise in complex areas of the law with which judges and juries lack familiarity, respecting the statutory creation of administrative agencies, and promoting consistency and uniformity in administrative law. Elkin v. Bell Telephone Company of Pennsylvania, 420 A.2d 371, 376-77 (Pa. 1980).
Our Court has explained, however, that the
Simply stated, when the subject of a dispute is within an agency’s scope, and where the matter requires special
As persuasively explained by the Commonwealth Court below, the instant matter does not involve complex or technical questions requiring special competence with which a judge or jury would be unfamiliar. Rather, it involves a straightforward factual determination of whether Herold’s death resulted from an occupational disease, and when it occurred.
from his last date of employment with the University.25 The University does not seriously contest that Herold contracted mesothelioma, and, indeed, contends that mesothelioma should be covered by the ODA. See Appellant’s Brief at 44-45. Likewise, the University does not dispute the date Herold died. While certain determinations involving a disability or diagnosis may require findings of fact, here, the legal ramifications flowing from these
facts lead to the conclusion that Executor’s
Order affirmed. Case remanded to the Commonwealth Court for remand to the trial court for further proceedings consistent with our decision today. Jurisdiction relinquished.
Justices Donohue, Dougherty, Mundy and McCaffery join the opinion.
Justice Wecht files a dissenting opinion.
Justice Brobson files a dissenting opinion.