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Employer Liability in PA Asbestos Litigation: Is Tooey about to be Dethroned?

November 17, 2021
Robert Shope
Posted in: Toxic Tort

For almost a decade, the Supreme Court of Pennsylvania’s decision in Tooey v. AK Steel Corp., has permitted former employees to circumvent Pennsylvania’s Workers’ Compensation Act (“WCA”) and bring claims directly against their former employers under certain circumstances. Specifically, Tooey permits a former employee to sue a former employer based on his/her development of an occupational disease as a result of exposures or injuries sustained during their employment that manifests more than 300 weeks after the employee’s employment ended. This opinion has resulted in former employers being regularly sued by former employees who developed asbestos born illnesses due to the long latency period between asbestos exposure and disease manifestation. However, a recent appeal filed in the Court of Common Pleas of Allegheny County case, Marshall Jarrett v. American Honda Motor, Co., Inc., has been accepted by the Commonwealth Court of Pennsylvania, and will determine whether former employers are entitled to protections through another Pennsylvania Statute, the Occupational Disease Act (“ODA”).

By way of brief background, the ODA preceded the WCA, and remains separate and distinct therefrom. The ODA was created to provide a remedy to employees who develop occupational diseases or illnesses that are either developed or aggravated by a type of work. For former employees who contract diseases within four years of their last employment, said employees can receive a certain amount of money, plus $75.00 per month. For employees that develop an occupational disease after the four-year mark, they are only entitled to $75.00 a month. Importantly, where compensation is barred under the WCA, but available under the ODA, an individual is required to pursue recovery before the Workers’ Compensation Board under the ODA, as opposed to seeking common law damages before the courts. See 77 P.S. §§ 1401 and 1403. Although the ODA is an old statute, it has never been repealed and is in effect to this day.

Turning to the Jarrett lawsuit that is the subject of this article, the plaintiff there has alleged that the decedent, Marshall Jarrett, Sr., contracted, and died from, mesothelioma as a result of his occupational exposure to asbestos. One of the many defendants sued therein, Weld Tooling Corporation, allegedly employed the decedent during the course of his career. Although Tooey precluded the application of the WCA to bar plaintiff’s claims against any of decedent’s employers, Weld Tools has filed a motion to dismiss for lack of subject matter jurisdiction pursuant to the ODA. Therein, Weld Tools argued that plaintiff is required to exhaust the administrative remedies under the ODA before filing suit against it, and thus, argued that the trial court lacks subject matter jurisdiction over the lawsuit. The Honorable Alan Hertzberg heard oral argument on the motion, but like many motions based on the ODA that came before it, Weld Tools’ motion was denied on May 28, 2021. However, Weld Tools appealed this order, and in an extremely interesting turn of events, the Commonwealth Court of Pennsylvania granted the petition for appeal on September 22, 2021.

Judge Hertzberg filed his Opinion in support of his order denying Weld Tools’ motion to dismiss on October 21, 2021. Therein, the court argued that the ODA is an old act, which only remains in place today to cover claims for occupational diseases contracted prior to the effective date of the WCA’s occupational disease provisions. Although the court agreed that the WCA and ODA are separate acts, it opined that the diseases covered in both acts are essentially the same. In that regard, the court argued that the ODA is extremely specific with regard to what types of diseases are covered by the ODA. Mesothelioma is not one of the listed diseases. Additionally, the court argued that the ODA should not be interpreted to apply to claims based on the contraction of mesothelioma because the monetary relief available is a woefully inadequate remedy.

Margolis Edelstein will be sure to monitor this matter, as its outcome will significantly impact all Tooey claims against employers moving forward.