LEGAL NEWSLINE

HARRISBURG Pa. (Legal Newsline) - A Pennsylvania appeals court has reversed a summary judgment order for an electricity company on the grounds that the Workers' Compensation Act's "300 week" requirement does not apply to mesothelioma cases.

Judge John Musmanno delivered the opinion in the Superior Court of Pennsylvania. Judges Jacqueline Shogan and Cheryl Allen concurred.

Plaintiffs Howard A. Scott, on behalf of the estate of Albert L. Scott, and Laverne Scott appealed an order granting summary judgment to defendant Duquesne Light Company entered on Nov. 17, 2009, in the Court of Common Pleas of Washington County.

According to the May 12 opinion, Albert Scott was an employee of Duquesne Light from 1941 to 1943 and again from 1945 to 1985 in various locations around Pittsburgh.

Scott was diagnosed with mesothelioma on Sept. 17, 2007, and died on March 26, 2008.

Prior to his death, the decedent filed an asbestos lawsuit against Duquesne Light, alleging asbestos exposure during his employment with the defendant.

However, Duquesne Light filed preliminary objections arguing the claims should be dismissed due to the exclusivity provision of the Pennsylvania Workers' Compensation Act, which implies that an employer's liability is "exclusive and in place of all other liability" to employees on account of injury or death.

Duquesne Light claims the decedent was last employed by the company more than 300 weeks before developing mesothelioma, prohibiting him from his claims.

Based on Duquesne Light's arguments, the trial court granted its motion for summary judgment.

In response, the plaintiffs appealed the summary judgment. The Supreme Court of Pennsylvania granted the petition for appeal and remanded the case to the Superior Court for further proceedings based upon the Tooey decision.

In Tooey, plaintiffs John Tooey, who worked for Ferro Engineering from 1964 to 1982, and Spurgeon Landis, who worked for Alloy Rods, Inc. from 1946 to 1992, both alleged they developed mesothelioma from asbestos exposure at work.

They filed lawsuits against several defendants, including their respective employers, which in turn filed motions for summary judgment.

The defendants in Tooey argued that the plaintiffs' causes of action were barred by the exclusivity provision of the Workers' Compensation Act.

However, the plaintiffs responded that their claims were permitted because their injuries fell outside the jurisdiction, scope and coverage of the Workers' Compensation Act, the opinion states.

In Tooey, the trial court denied the motions for summary judgment, then the appeals court reversed the decision on appeal. The plaintiffs then appealed to the state Supreme Court.

Musmanno explained that the Supreme Court reviewed the Workers' Compensation Act, "under the assumption that the language was ambiguous, and determined that the employers' interpretation would leave workers without any remedy for essentially all late-manifesting occupational diseases."

The Supreme Court explained that the average latency period for mesothelioma is 30 to 50 years, meaning employees would not show symptoms of the injury until well past the 300 week mark.

Therefore, the court in Tooey found that the "300 week time window operates as a de facto exclusion of coverage under the Act for essentially all mesothelioma claims."

Musmanno added that the Supreme Court concluded that "where the plaintiffs' injuries from the occupational disease do not manifest within 300 weeks of the last employment-based exposure, the [Workers' Compensation Act] is inapplicable and an employee may file a common law tort claim against his/her employers."

Regarding the case on hand, the Scotts questioned whether the lower court erred by granting summary judgment in favor of Duquesne Light. They argued Duquesne Light's claims were barred by the exclusivity provision of the Workers' Compensation Act, when it was uncontested that the Scotts have no recovery against Duquesne under the Act.

Similar to the Tooey case, the Scotts claimed that because decedent's disease resulting in death occurred more than 300 weeks after his last occupational asbestos exposure, his injury did not trigger the Workers' Compensation Act's exclusivity provision, Musmanno stated.

The court remanded the case back to the trial court for further proceedings.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com