Tooey v. Ak Steel Corp.

• Decision Date: 22 November 2013
• Citation: 81 A.3d 851
• Court: Pennsylvania Supreme Court
• Parties: Kathleen TOOEY, Executrix of the Estate of John F. Tooey, Deceased, and Kathleen Tooey in her own right, Appellant v. AK STEEL CORPORATION (Individually and as Successor in interest to Armco Steel Corporation); Crown Cork & Seal Company, Inc. (Individually, as Successor to Mundet Cork Company, and as Successor to Van Dorn Ironworks Company); E.E. Zimmerman Company; Foseco, Inc.; George V. Hamilton, Inc.; Hedman Mines, Ltd.; Insul Company, Inc.; I.U. North America, Inc.; McCann Shields Paint Company; Oglebay Norton Company (Individually and on behalf of its Ferro Engineering Division); Tasco Insulations, Inc. (individually and as Successor–in–Interest to Asbestos Service Company); the Gage Company (Formerly Pittsburgh Gage and Supply Co.); Theim Corporation, and its Division Universal Refractories Corporation; and United States Steel Corporation, Appellees. Spurgeon E. Landis and Mary A. Landis, his wife, Appellants v. A.W. Chesterton Company; Union Carbide Corporation; CBS Corporation, formerly known as Viacom, Inc., as Successor–by–Merger to CBS Corporation, Successor–in–Interest to Westinghouse Electric Corporation; Ingersoll–Rand Company; Grinnell Corporation; Goulds Pumps, Inc.; Greene Tweed & Company; Hedman Mines, Ltd.; Garlock Sealing Technologies, LLC; Crane Company; Certainteed Corporation; Safety First Industries, Inc., in its own right and as Successor–in–Interest to Safety First Supply, Inc.; Alloy Rods Corporation, individually and as Successor–in–Interest to Alloy Rods Company; Chemetron Corporation, Individually and as Successor–in–Interest to Alloy Rods Corporation and Alloy Rod Company; The ESAB Group, Inc., individually and as Successor–in–Interest to Alloy Rods Corporation, Alloy Rods Company and Chemetron Corporation; Saint Gobain Abrasives, Inc. (f/k/a Norton Company–Safety Products Division–USA North Company); and Hajoca Corporation, Appellees. Spurgeon E. Landis and Mary A. Landis, his wife, Appellants v. A.W. Chesterton Company; Union Carbide Corporation; CBS Corporation, Formerly Known as Viacom, Inc., as Successor–by–Merger to CBS Corporation, Successor–in–Interest to Westinghouse Electric Corp.; Ingersoll–Rand Company, Grinnell Corporation; Goulds Pumps, Inc.; Greene Tweed & Company; Hedman Mines Ltd.; Garlock Sealing Technologies, LLC; Crane Company; Certainteed Corporation; Safety First Industries Inc., in its own right and as Successor–in–Interest to Safety First Supply, Inc., Alloy Rods Corporation, individually and as Successor–in–Interest to Alloy Rods Company; Chemetron Corporation, individually and as Successor–in–Interest to Alloy Rods Corporation and Alloy Rods Company; The ESAB Group Inc., individually and as Successor–in–Interest to Alloy Rods Corporation, Alloy Rods Company and Chemetron Corporation; Saint Gobain Abrasives, Inc. (f/k/a Norton Company–Safety Products Division–USA North Company); and Hajoca Corporation, Appellees.

81 A.3d 851

Kathleen TOOEY, Executrix of the Estate of John F. Tooey, Deceased, and Kathleen Tooey in her own right, Appellant

v.AK STEEL CORPORATION (Individually and as Successor in interest to Armco Steel Corporation); Crown Cork & Seal Company, Inc. (Individually, as Successor to Mundet Cork Company, and as Successor to Van Dorn Ironworks Company); E.E. Zimmerman Company; Foseco, Inc.; George V. Hamilton, Inc.; Hedman Mines, Ltd.; Insul Company, Inc.; I.U. North America, Inc.; McCann Shields Paint Company; Oglebay Norton Company (Individually and on behalf of its Ferro Engineering Division); Tasco Insulations, Inc. (individually and as Successor–in–Interest to Asbestos Service Company); the Gage Company (Formerly Pittsburgh Gage and Supply Co.); Theim Corporation, and its Division Universal Refractories Corporation; and United States Steel Corporation, Appellees.

Spurgeon E. Landis and Mary A. Landis, his wife, Appellants

v.A.W. Chesterton Company; Union Carbide Corporation; CBS Corporation, formerly known as Viacom, Inc., as Successor–by–Merger to CBS Corporation, Successor–in–Interest to Westinghouse Electric Corporation; Ingersoll–Rand Company; Grinnell Corporation; Goulds Pumps, Inc.; Greene Tweed & Company; Hedman Mines, Ltd.; Garlock Sealing Technologies, LLC; Crane Company; Certainteed Corporation; Safety First Industries, Inc., in its own right and as Successor–in–Interest to Safety First Supply, Inc.; Alloy Rods Corporation, individually and as Successor–in–Interest to Alloy Rods Company; Chemetron Corporation, Individually and as Successor–in–Interest to Alloy Rods Corporation and Alloy Rod Company; The ESAB Group, Inc., individually and as Successor–in–Interest to Alloy Rods Corporation, Alloy Rods Company and Chemetron Corporation; Saint Gobain Abrasives, Inc. (f/k/a Norton Company–Safety Products Division–USA North Company); and Hajoca Corporation, Appellees.

Spurgeon E. Landis and Mary A. Landis, his wife, Appellants

v.A.W. Chesterton Company; Union Carbide Corporation; CBS Corporation, Formerly Known as Viacom, Inc., as Successor–by–Merger to CBS Corporation, Successor–in–Interest to Westinghouse Electric Corp.; Ingersoll–Rand Company, Grinnell Corporation; Goulds Pumps, Inc.; Greene Tweed & Company; Hedman Mines Ltd.; Garlock Sealing Technologies, LLC; Crane Company; Certainteed Corporation; Safety First Industries Inc., in its own right and as Successor–in–Interest to Safety First Supply, Inc., Alloy Rods Corporation, individually and as Successor–in–Interest to Alloy Rods Company; Chemetron Corporation, individually and as Successor–in–Interest to Alloy Rods Corporation and Alloy Rods Company; The ESAB Group Inc., individually and as Successor–in–Interest to Alloy Rods Corporation, Alloy Rods Company and Chemetron Corporation; Saint Gobain Abrasives, Inc. (f/k/a Norton Company–Safety Products Division–USA North Company); and Hajoca Corporation, Appellees.

Supreme Court of Pennsylvania.

Argued April 10, 2012.

Decided Nov. 22, 2013.

Robert F. Daley, Esq., Robert Peirce & Associates, P.C., Pittsburgh, Roderick Scott Marshall, Esq., Brent M. Rosenthal, Esq., Rosenthal Weiner, LLP, Dallas, TX, R. Scott Marshall, The Nemeroff Law Firm, P.C., Dallas, TX, for Kathleen Tooey and Estate of John F. Tooey in No. 21 WAP 2011.

Daniel King Bricmont, Esq., Caroselli, Beachler, McTiernan & Conboy, L.L.C., Pittsburgh, for Pennsylvania Association for Justice, amicus curiae in Nos. 21 WAP 2011and23 WAP 2011.

Norman A. Coliane, Esq., United States Steel Corporation, for United States Steel Corporation in No. 21 WAP 2011.

Michael D. Heintzman, Esq., Rawle & Henderson, L.L.P., Pittsburgh, for Ferro Engineering and Oglebay Norton Company in No. 21 WAP 2011.

Diana Leigh Johnson, Esq., Michael J. Schessler, Esq., Bowles, Rice, McDavid, Graff & Love, L.L.P., for AK Steel Corporation in No. 21 WAP 2011.

Michael Magee, Esq., Pietragallo, Gordon, Alfano, Bosick & Raspanti, L.L.P., for Theim Corporation and Universal Refractories Corporation in No. 21 WAP 2011.

Joni M. Mangino, Esq., Zimmer Kunz, P.L.L.C., Pittsburgh, for Insul Company, Inc. in No. 21 WAP 2011.

John J. Repcheck, Esq., Marks, O'Niell, O'Brien & Courtney, P.C., Pittsburgh, for E.E. Zimmerman Company in No. 21 WAP 2011.

Terry Allen Schrock, Esq., Maron Pierce, L.L.C., Pittsburgh, for Foseco, Inc. in No. 21 WAP 2011.

Concetta Angela Silvaggio, Esq., Willman & Silvaggio, LLP, for George V. Hamilton, Inc. in No. 21 WAP 2011.

Jeanne Welch Sopher, Esq., Rawle & Henderson, L.L.P., Pittsburgh, for Ferro Engineering in No. 21 WAP 2011.

Robert F. Daley, Esq., Robert Peirce & Associates, P.C., Pittsburgh, Roderick Scott Marshall, Esq., Brent M. Rosenthal, Esq., for Spurgeon E. Landis and wifeMary A. Landis in Nos. 22 WAP 2011and23 WAP 2011.

Andrew Frank Adomitis, Esq., Jeannine Lynn Bertig, Esq., Leo Gerard Daly, Esq., Grogan Graffam, P.C., Pittsburgh, for Goulds Pumps, Inc. in Nos. 22 WAP 2011and23 WAP 2011.

Jeannine Lynn Bertig, Esq., Grogan Graffam, P.C., for Paragon Way, Inc. in No. 23 WAP 2011.

Kenneth M. Argentieri, Esq., Robert L. Byer, Esq., Gerald John Schirato Jr., Esq., Duane Morris, L.L.P., Pittsburgh, for The ESAB Group, Inc. and Chemetron Corporation in Nos. 22 WAP 2011and23 WAP 2011.

Alba E. Arriaga, Esq., Riley, Hewitt, Witte & Romano, P.C., Pittsburgh, for A.W. Chesterton Company in Nos. 22 WAP 2011and23 WAP 2011.

Eric R.I. Cottle, Esq., Nicholas P. Vari, Esq., K & L Gates, L.L.P., Pittsburgh, for Crane Company in Nos. 22 WAP 2011and23 WAP 2011.

William J. Donovan, Esq., Sheila Weis Scanlon, Esq., Burns, White & Hickton, L.L.C., Pittsburgh, for Ingersoll–Rand Corp. in Nos. 22 WAP 2011and23 WAP 2011.

Gregory L. Fitzpatrick, Esq., Margolis Edelstein, for Garlock Sealing Technologies LLC in Nos. 22 WAP 2011and23 WAP 2011.

Andrew Edson Greenberg, Esq., for CBS Corporation in Nos. 22 WAP 2011and23 WAP 2011.

Richard Linwood Walker II, Esq., Robert N. Spinelli, Esq., Kelley, Jasons, McGowan Spinelli & Hanna, L.L.P., Philadelphia, for Union Carbide Corporation in Nos. 22 WAP 2011and23 WAP 2011.

Jennifer E. Watson, Esq., Edward Joseph Wilbraham, Esq., Wilbraham Lawler & Buba, Pittsburgh, for Certainteed Corporation and Saint Gobain Abrasives, Inc. in Nos. 22 WAP 2011and23 WAP 2011.

Anne Loehr Wilcox Lewis, Esq., Robert N. Spinelli, Esq., Kelley, Jasons, McGowan Spinelli & Hanna, L.L.P., Philadelphia, for Hedman Mines, LTD in Nos. 22 WAP 2011and23 WAP 2011.

Dennis F. Wolford, Esq., Reed, Luce, Tosh, Wolford & Douglass, Beaver, for Greene, Tweed & Co. Inc. in Nos. 22 WAP 2011and23 WAP 2011.

Louis C. Long, Esq., Pietragallo, Gordon, Alfano, Bosick & Raspanti, L.L.P., Pittsburgh, for Pennsylvania Defense Institute, amicus curiae in Nos. 22 WAP 2011and23 WAP 2011.

Carl A. Solano, Esq., Schnader Harrison Segal & Lewis, L.L.P., Rohm & Haas Company, Philadelphia, amicus curiae in Nos. 22 WAP 2011and23 WAP 2011.

Eric Lorin Horne, Esq., Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, for CBS Corporation and Alloy Rods Corporation in No. 23 WAP 2011.

John Christie McMeekin II, Esq., Keithley D. Mulvihill, Esq., Peter J. Neeson, Esq., Rawle & Henderson, L.L.P., Philadelphia, for Hajoca Corporation in No. 23 WAP 2011.

Patrick R. Riley, Esq., Riley, Hewitt, Witte & Romano, P.C., Pittsburgh, for A.W. Chesterton Co. in No. 23 WAP 2011.

Livia Langton Santschi, Esq., Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, Daniel Joseph Sinclair, Esq., Schnader Harrison Segal & Lewis, LLP, for CBS Corporation in No. 23 WAP 2011.

Joseph R. Schaper, Esq., Maron Pierce, L.L.C., Pittsburgh, for Safety First Industries Inc. in No. 23 WAP 2011.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice TODD.

In these consolidated appeals, we consider whether the manifestation of an occupational disease outside of the 300–week period prescribed by Section 301(c)(2) of the Workers' Compensation Act(the “WCA” or the “Act”),¹77 P.S. § 411(2), removes the claim from the purview of the Act, such that the exclusivity provision of Section 303(a) of the Act, 77 P.S. § 481, does not apply.For the reasons that follow, we conclude that claims for occupational disease which manifests outside of the 300–week period prescribed by the Act do not fall within the purview of the Act, and, therefore, that the exclusivity provision of Section 303(a) does not apply to preclude an employee from filing a common law claim against an employer.Accordingly,we reverse the decision of the Superior Court.

John Tooey worked for Ferro Engineering (“Ferro”), a division of Oglebay–Norton Co.(“Oglebay”), as an industrial salesman of asbestos products from 1964 until 1982, during which time he was exposed to asbestos dust.In December 2007, Tooey developed mesothelioma and died less than one year later.Spurgeon Landis worked for Alloy Rods, Inc.(“Alloy”), predecessor in interest to Chemetron Corp.(“Che metro n”), and ESAB Group, Inc.(“ESAB”), from 1946 until 1992.He, too, was exposed to asbestos throughout his employment, and, in July 2007, was diagnosed with mesothelioma.

In 2008, Tooey, Landis, and their spouses (hereinafter “Appellants”) filed separate tort actions against multiple defendants, including their respective employers (collectively, “Employers”).Employers filed motions for summary judgment, alleging Appellants' causes of action were barred by the exclusivity provision of Section 303(a) of the Act.²Appellants responded that the Act, the federal and state constitutions, and precedent from this Court, permit a tort action against an employer where, as here, a disease falls outside the jurisdiction, scope, and coverage of the Act.The trial court agreed with Appellants, and denied Employers' motions for summary judgment.

Employers filed an interlocutory appeal with the Superior Court, which reversed in an unpublished memorandum decision.In so doing, the court concluded it was bound by its recent decisions in Ranalli v. Rohm & Haas Co.,983 A.2d 732(P...