Toxic Tort/Product Liability Alert
March 2009
Authors:
Nicholas P. Vari
nick.vari@klgates.com
+1.412.355.8365
Gregory T. Sturges
gregory.sturges@klgates.com
+1.412.355.8964
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Do Pennsylvania s Workers Compensation
Laws Grant Statutory Immunity to Employers
in Asbestos Cases?
In August 2008, the Supreme Court of Pennsylvania accepted review of
Pennsylvania Electric Company v. Dodson to address whether a former employee s
tort action for an asbestos-related disease arising more than 300-weeks after the
employee s last occupational exposure is barred by the exclusivity provisions of
Pennsylvania s workers compensation laws. Since the Pennsylvania trial courts
have been split on this issue and the Superior Court has not issued a reported
decision on this topic, Dodson promised to resolve an issue that has significant
ramifications for Pennsylvania employers and for litigants in the asbestos tort
system. On March 17, 2009, however, the Supreme Court remanded the
proceedings back to the Superior Court, offering a renewed opportunity for further
consideration of this important and potentially far-reaching issue.
An on-the-merits decision in Dodson had the potential to impact all current and
former Pennsylvania employers whose employees may have encountered asbestos in
the workplace. A decision in plaintiffs favor would have created a new category of
asbestos defendants - - employers who used asbestos-containing materials in their
facilities or whose employees were exposed to asbestos as part of their work-related
duties.
To date, Pennsylvania s workers compensation laws - - the Workers Compensation
Act ( WCA ) and the Occupational Disease Act ( ODA ) - - have provided the
exclusive remedies for employees seeking to recover against their employers for
diseases and injuries covered by those statutes, including asbestos-related injuries.
Both acts preclude recovery for injuries that manifest themselves after a period
following the date when the employee was last exposed to an allegedly harmful
agent in the workplace - - four years under the ODA and 300-weeks under the WCA.
Although asbestos-related illnesses are expressly included within the reach of
Pennsylvania workers compensation statutes1, Pennsylvania asbestos plaintiffs
argue that it is difficult to secure workers compensation benefits because many
claimants cannot establish the onset of disease within the 300-week time period
prescribed by the WCA. Plaintiffs counsel argue that few asbestos claimants are
eligible for workers compensation benefits because of the sometimes substantial
latency period that runs from the claimant s last asbestos exposure to the onset of his
or her asbestos-related disease, such as mesothelioma. In these general
circumstances, plaintiffs lawyers assert that the tort system is the proper avenue of
recovery and that the exclusivity provisions of the WCA and ODA are not only
inapplicable, but unfair, as well.
1
See 77 PA. STAT. ANN. § 27.1(l) (defining the term occupational disease to include: [a]sbestosis
and cancer resulting from direct contact with, handling of, or exposure to the dust of asbestos in any
occupation involving such contact, handling, or exposure. ).
Toxic Tort/Product Liability Alert
In response to these lawsuits, employers argue that
plaintiffs position is predicated upon a misreading
of the statutory language, which is really a statute of
repose that limits the time in which a claim can be
brought against an employer. In any event,
employers argue that the immunity provisions
conferred by the WCA and ODA are fundamentally
necessary to the workers compensation system
established in Pennsylvania, where workers have
traded certainty of benefits in exchange for their
employers immunity from suit, among other things.
To date, trial courts across Pennsylvania have been
split on this issue, and the Superior Court has
provided little meaningful guidance.2
As noted, the impact of this issue is significant to
both sides. If plaintiffs prevail, the immunity
afforded to employers in asbestos-disease claims
will be effectively removed, notwithstanding what
employers argue to be a clear statutory mandate to
the contrary. At the same time, the decision may
open new avenues of recovery for plaintiffs, who
will not be restricted by statute from seeking
damages from former employers in the tort system,
which can exceed, by far, the recoveries available to
employees under the no-fault worker s
compensation system.
In the months following the Supreme Court s
acceptance of this issue for appeal, the parties and
five separate amici curiae fully briefed the issues.
On March 3, 2009, the Supreme Court heard oral
argument on the merits. Notwithstanding a
thorough review, however, on March 17, 2009, the
Supreme Court decided to defer on the substantive
issue at this time. Instead, the Supreme Court
remanded the case to the Superior Court, without
opinion, instructing the Superior Court to decide the
merits of the appeal. The Superior Court already
has a full docket in this area, as Dodson is only one
of several appeals pending before the Superior
Court regarding the exclusivity of the workers
compensation laws in asbestos-related claims.3
While the Supreme Court s ruling forestalls the
ultimate resolution of the substantive issue, it gives
all concerned parties a new opportunity to be heard,
with the understanding that the Supreme Court is
both interested and informed regarding this issue - not only as a matter of law, but policy that can
severely impact Pennsylvania s employers.
Accordingly, any potentially affected party must
reconsider whether it desires to be heard on this
significant issue.
2
A number of Pennsylvania state courts, both Common
Pleas Courts and the Superior Court, have already addressed
this issue, and with mixed results. The Common Pleas Courts
in Allegheny County, Mercer County, and Westmoreland
County have ruled that plaintiffs cannot maintain a tort action
under these circumstances and that the workers
compensation statutes provide the exclusive remedy for an
employee s asbestos-related disease, even when it manifests
itself outside of the 300-week or four-year statutes of repose in
the WCA and ODA. In the Kolbrich case, the Superior Court
affirmed the Allegheny Common Pleas Court, and held that
there is no remedy outside the workers compensation laws, in
an unreported opinion that it has refused to publish. See
Kolbrich v. Allied Glove Corp., No. 999 WDA 2006, 927 A.2d
663 (Pa. Super. Ct. March 7, 2007), appeal denied, No. 273
WAL 2007, 946 A.2d 636 (Pa. March 25, 2008). Subsequent
to Kohlbrich, in two similar cases, the Common Pleas Court in
Allegheny County denied the employer-defendants motions
for judgment on the pleadings on the exclusivity issue, ruling
that a common law cause of action existed when the asbestosrelated disease arises more than 300-weeks after the last
occupational exposure. In addition, the Common Pleas Courts
of Cambria County, Montgomery County, Philadelphia County
and Washington County have also ruled that the workers
compensation statutes do not provide the exclusive remedy for
an employee s asbestos-related disease, because the
exclusivity provision does not apply when the injury arises
outside the statue of repose period.
3
See Petrina v. A.W. Chesterton Co., 429 WDA 2009; Tooey
v. AK Steel Corp., 60 WM 2008 (employer s petition for review
to Supreme Court on hold pending disposition of Dodson);
Landis v. A.W. Chesterton Co., 77 WM 2008 (same); Ranalli
v. Rohm & Haas Co., 871 EDA 2008 (non-asbestos case that
raised a similar issue).
March 2009
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Toxic Tort/Product Liability Alert
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March 2009
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