In Re: Estate of W. Herold; Apl of: Univ of Pgh.
Supreme Court of Pennsylvania
Todd, Chief Justice Debra
In Re: Estate of W. Herold; Apl of: Univ of Pgh.
Opinion
[J-28-2024]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
BRAD LEE HEROLD, AS EXECUTOR OF : No. 22 WAP 2023
THE ESTATE OF WILLIAM L. HEROLD :
: Appeal from the Order of the
: Commonwealth Court entered
v. : February 16, 2023, at No. 998 CD
: 2021, affirming the Order of the
: Court of Common Pleas of
UNIVERSITY OF PITTSBURGH - OF THE : Allegheny County entered May 17,
COMMONWEALTH SYSTEM OF HIGHER : 2021, at No. GD-19-014532 and
EDUCATION AND 3M COMPANY; ABB : remanding.
MOTORS AND MECHANICAL, INC. F/K/A :
BALDOR ELECTRIC COMPANY; ALLIED : ARGUED: April 10, 2024
GLOVE CORPORATION; A.O. SMITH :
CORPORATION; ARMSTRONG :
INTERNATIONAL, INC.; AURORA PUMP :
COMPANY; BALTIMORE AIRCOIL :
COMPANY, INC.; BEAZER EAST, INC. :
INDIVIDUALLY AND AS SUCCESSOR TO :
KOPPERS COMPANY, INC., AND :
SUCCESSOR-IN INTEREST TO THIEM :
CORPORATION AND UNIVERSAL :
REFRACTORIES COMPANY; BMI :
REFRACTOR SERVICES, INC.; :
INDIVIDUALLY AND AS SUCCESSOR-IN- :
INTEREST TO PREMIER REFRACTORIES, :
INC., F/K/A ADIENCE, INC., SUCCESSOR- :
IN-INTEREST TO ADIENCE COMPANY, :
LP, AS SUCCESSOR TO BMI, INC.; :
BURNHAM BOILER CORPORATION :
N/D/B/A BURNHAM COMMERCIAL; :
BRYAN STEAM, LLC; CARRIER :
CORPORATION; CBS CORPORATION, A :
DELAWARE CORPORATION, F/K/A :
VIACOM INC., SUCCESSOR BY MERGER :
TO CBS CORPORATION, A :
PENNSYLVANIA CORPORATION, F/K/A :
WESTINGHOUSE ELECTRIC :
CORPORATION AND WESTINGHOUSE :
AIR BRAKE COMPANY; CLEAVER :
BROOKS, INC., F/K/A AQUA-CHEM, INC. :
D/B/A CLEAVER BROOKS DIVISION; :
CRANE CO.; DELVAL EQUIPMENT :
CORPORATION; DEZURIK, INC.; DONALD :
MCKAY SMITH, INC.; DUNHAM-BUSH, :
INC.; E.E. ZIMMERMAN COMPANY; :
EATON CORPORATION IN ITS OWN :
RIGHT AND AS SUCCESSOR TO :
CUTLER-HAMMER,INCORPORATED; :
EICHLEAY CORPORATION; FERRO :
ENGINEERING DIVISION OF ON MARINE :
SERVICES COMPANY, LLC, F/K/A :
OGLEBAY NORTON :
COMPANY;FLOWSERVE US, INC., :
INDIVIDUALLY AND AS SUCCESSOR TO :
BYRON JACKSON PUMPS, :
FLOWSERVEGESTRA, DURAMETALLIC :
CORP., ALDRICH PUMPS; CAMERON :
PUMPS; VOGT VALVES;WILSON-SNYDER :
CENTRIFUGAL PUMP; AND ROCKWELL :
VALVES; FMC CORPORATION, :
INDIVIDUALLY AND AS SUCCESSOR-IN- :
INTEREST TO PEERLESS PUMP :
COMPANY, CHICAGO PUMP COMPANY, :
STERLING FLUID SYSTEM, INC. AND :
FORMER SUBSIDIARY CROSBY VALVE, :
INC.; FOSECO, INC.; FOSTER WHEELER :
CORPORATION; GARDNER DENVER, :
INC.; GENERAL ELECTRIC COMPANY; :
GRINNELL LLC; GOULDS PUMPS, LLC; :
I.U. NORTH AMERICA, INC.; AMERICA, :
INC. AS SUCCESSOR-BY-MERGER TO :
THE GARP COMPANY, F/K/A THE GAGE :
COMPANY, F/K/A PITTSBURGH GAGE :
AND SUPPLY COMPANY; IMO :
INDUSTRIES, INC., F/K/A IMO DELAVAL, :
INC., F/K/A TRANSAMERICAN DELAVAL, :
INC., F/K/A DELAVAL TURBIN, INC., :
DELAVAL TURBIN, INC., DEVALCO :
CORPORATION; INGERSOLL-RAND :
COMPANY; INSUL COMPANY, INC.; ITT :
CORPORATION, F/K/A ITT INDUSTRIES, :
INDIVIDUALLY AND AS SUCCESSOR-IN- :
INTEREST TO BELL & GOSSETT :
DOMESTIC PUMP; J.H. FRANCE :
REFRACTORIES COMPANY; KRUMAN :
[J-28-2024] - 2
EQUIPMENT COMPANY; MALLINCKRODT :
US LLC, IN ITS OWN RIGHT AND AS :
SUCCESSOR-IN-INTEREST TO IMCERA :
GROUP, INC., AND INTERNATIONAL :
GROUP, INC., AND INTERNATIONAL :
MINERALS AND CHEMICAL :
CORPORATION, AND AS SUCCESSOR- :
IN-INTEREST TO E.J. LAVINO; MINE :
SAFETY APPLIANCES COMPANY, LLC AS :
SUCCESSOR-IN-INTEREST BY MERGER :
WITH MINE SAFETY APPLIANCES :
COMPANY; MINNOTTE CONTRACTING :
CORPORATION; M.S. JACOBS & :
ASSOCIATES, INC.; NAGLE PUMPS, INC.; :
PEERLESS INDUSTRIES, INC.; POWER :
PIPING COMPANY; RILEY POWER INC.; :
SAFETY FIRST INDUSTRIES, INC., IN ITS :
OWN RIGHT AND AS SUCCESSOR-IN- :
INTEREST TO SAFETY-FIRST SUPPLY, :
INC.; SCHNEIDER ELECTRIC USA, INC. :
F/K/A SQUARE D COMPANY, IN ITS OWN :
RIGHT AND AS SUCCESSOR TO THE :
ELECTRIC CONTROLLER AND :
MANUFACTURING (EC&M); SPIRAX :
SARCO, INC.; SPX COOLING :
TECHNOLOGIES, INC., F/K/A MARLEY :
COOLING TECHNOLOGIES INC., F/K/A :
THE MARLEY COOLING COMPANY; :
TACO, INC. F/K/A TACO HEATERS, INC.; :
THE GOODYEAR TIRE & RUBBER :
COMPANY; THE GORDON-RUPP :
COMPANY; THE H.B. SMITH COMPANY, :
INC.; TRANE U.S. INC., SUCCESSOR-BY- :
MERGER TO AMERICAN STANDARD, :
INC., UNION CARBIDE CORPORATION; :
UNITED STATES STEEL CORPORATION; :
WARREN PUMPS LLC; WEIL-MCLAIN :
COMPANY, INC.; YORK INTERNATIONAL :
CORPORATION; AND ZURN INDUSTRIES, :
LLC F/K/A ZURN INDUSTRIES, INC. A/K/A :
ERIE CITY IRON WORKS :
:
:
APPEAL OF: UNIVERSITY OF :
PITTSBURGH - OF THE :
:
[J-28-2024] - 3
COMMONWEALTH SYSTEM OF HIGHER
EDUCATION
OPINION
CHIEF JUSTICE TODD DECIDED: JANUARY 22, 2025
In this appeal by allowance, we consider, inter alia, the breadth of the exclusive
remedy provision of the Occupational Disease Act (“ODA”)1 and whether a disability or
death resulting from an occupational disease and which occurs beyond the four-year
limitations period set forth in Section 1401(c) of the ODA, 77 P.S. § 1401(c), removes the
claim from the purview of the ODA’s exclusivity clause, 77 P.S. § 1403. For the reasons
that follow, and giving fidelity to the “Grand Bargain” underlying our Commonwealth’s laws
providing compensation to injured workers, we hold that a common law action for relief
for a disability or death resulting from an occupational disease covered by the ODA ―
and which occurs beyond the four-year limitations period contained in the ODA, rendering
such disability or death non-compensable ― does not fall within the purview of the ODA’s
exclusivity provision. Therefore, we find that the exclusivity provision does not preclude
an injured worker from filing a common law action against his employer seeking
compensation for his work-related disability or death. Accordingly, we affirm the decision
of the Commonwealth Court.
1 Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1603. The ODA, as well
as the Workers’ Compensation Act (“WCA”), Act of June 2, 1915, P.L. 735, 77 P.S. §§ 1-
1041.1-2626, provide section numbers that are the official citation to the applicable
section of the ODA. These section numbers are distinct from, but correspond to, the
sections provided in Purdon’s Pennsylvania Statutes, which is an unofficial codification of
Pennsylvania law. For example, Section 303 of the ODA is a citation to the Act, whereas
77 P.S. § 1403 is the citation to the same section in Purdon’s Pennsylvania Statutes. For
clarity, we will refer to provisions of the ODA and WCA only by their Purdon’s citation.
[J-28-2024] - 4
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 evidence attributed the cause of Herold’s mesothelioma to his
asbestos exposures. Herold died on April 30, 2022, due to this cancer. His death was
approximately 18 years after his last date of exposure to asbestos, and 7 years after his
last date of employment with the University.
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
2 Appellee is Brad Lee Herold, who is acting as executor of the estate of William Herold.
We will refer to William as “Herold” and Brad as “Executor.”
3 Mesothelioma is a cancer causally linked to asbestos exposure in the pleural cavity
upon which non-malignant lesions develop and then become malignant. The tumor grows
and pushes the lung aside adversely affecting respiratory function. Mesothelioma has a
lengthy latency period. J.H. France Refractories Co. v. Allstate Insurance Company, 578
A.2d 468, 474(Pa. Super. 1990), affirmed in part and reversed in part,626 A.2d 502
(Pa. 1993). We have long recognized that the estimated latency period for asbestosis and most lung cancers is 10 to 20 years, whereas the latency period for mesothelioma is 30 to 50 years. See Daley v. A.W. Chesterton,37 A.3d 1175, 1188
(Pa. 2012). Thus, even
mesothelioma that manifests at the lower end of this average may not occur for decades
following an employee’s exposure to asbestos.
[J-28-2024] - 5
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)).
4 This exclusivity provision provides that:
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.
[J-28-2024] - 6
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 order, the University argued before the Commonwealth Court
that, inter alia, the ODA’s exclusivity provision required Herold’s claims to be adjudicated
through the Board.
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 5 As our Court has explained, “‘[t]he Workers’ Compensation Act is remedial legislation designed to compensate claimants for earnings loss occasioned by work-related injuries’. . . . The statute seeks ‘to provide recompense commensurate with the damage from accidental injury, as a fair exchange for relinquishing every other right of action against the employer.’” City of Erie v. Workers’ Compensation Appeal Board (Annunziata),838 A.2d 598, 601
(Pa. 2003) (citations omitted). Similarly, the ODA, modeled after, and a supplement to, the WCA, Staller v. Staller,21 A.2d 16, 17
(Pa. 1941), has a remedial and humanitarian purpose. Bley v. Commonwealth, Department of Labor and Industry,399 A.2d 119, 122
(Pa. 1979). Notwithstanding the overlap in coverage for occupational disease, and the similarity of the two pieces of legislation, the two statutes remain separate and distinct. See Pawlosky v. Workmen’s Compensation Appeal Board. (Latrobe Brewing Co.),525 A.2d 1204
, 1210 n.9 (Pa. 1987) (observing that, despite
similarities in coverage, the General Assembly has not repealed the ODA). In Pawlosky,
we suggested that the ODA would eventually become obsolete: “Obviously, one of the
main reasons for not repealing it was to make clear that the 1939 statute was to remain
in force with respect to occupational diseases contracted prior to the effective date of the
1972 disease provisions of the Workmen’s Compensation Act.” Id. The number of
employes who have contracted an occupational disease prior to 1972 will continue to
(continued…)
[J-28-2024] - 7
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 Section 411(2) of the
WCA, which provided 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 occupational
decline, and, while over 50 years have passed since the 1972 contraction date, the ODA
has not been repealed.
[J-28-2024] - 8
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
[J-28-2024] - 9
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 to
compensation [outside of the workers’ compensation system] for disability or death
resulting from occupational disease and (2) the right to select a method of securing
compensation for disability or death,” id. at 504; 77 P.S. § 1403, but that this provision
must be read in conjunction with the definition of “compensable disability or death” under
Section 1401(c), which contains a temporal limitation on compensability. Thus, the court
found that “the exclusive remedy mandate 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. Stated
differently, “[a]bsent compensable disability or death as defined by the ODA, an injured
employee has not surrendered the rights to pursue compensation in a manner of their
6 The parties disagree regarding whether the date of last employment or the date of last
exposure triggers Section 1403’s limitations period. As discussed more fully in footnote
25, infra, we need not resolve this dispute in this appeal, but remand the issue for the trial
court’s resolution.
[J-28-2024] - 10
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
7 As the University’s issues raise pure questions of law, our standard of review is de novo
and our scope of review is plenary. Buffalo Township v. Jones, 813 A.2d 659, 664 n.4 (Pa. 2002). Moreover, as we are reviewing the denial of a motion for summary judgment, we view the record in the light most favorable to the non-moving party. Summers v. Certainteed Corp.,997 A.2d 1152, 1159
(Pa. 2010) (“When considering a motion for
summary judgment, the trial court must take all facts of record and reasonable inferences
therefrom in a light most favorable to the non-moving party. . . . In so doing, the trial court
must resolve all doubts as to the existence of a genuine issue of material fact against the
moving party, and, thus, may only grant summary judgment where the right to such
judgment is clear and free from all doubt.” (citation and quotations omitted)).
[J-28-2024] - 11
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 thereof, other than as provided in article three
of this act.” Appellant’s Brief at 22 (quoting 77 P.S. § 1403) (emphasis omitted). Thus,
the University maintains that, by its express terms, the exclusive method to adjudicate a
claim for disability or death caused by an occupational disease under the ODA ─ including
factual determinations about the date of manifestation and the amount of compensation
potentially available ─ is through the ODA’s administrative process, rather than litigation
in a trial court. Moreover, the University submits that, in cases where there is a question
about which tribunals have jurisdiction, our Court has found that the trial court should
defer to the administrative scheme. See Lord Corporation v. Pollard, 695 A.2d 767 (Pa.
1997) (plurality). The University adds that the doctrine of primary jurisdiction, under which
deference is owed to administrative agencies, is implicated as well and suggests that the
purpose of submitting claims under the ODA to the exclusive jurisdiction of the Board is
“to ensure consistency and uniformity in adjudication of workers’ claims against their
employers.” Appellant’s Brief at 26.
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
[J-28-2024] - 12
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
[J-28-2024] - 13
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 “it” as referring to “this act,” the same cannot be said for “it” in Section
1401(c) of the ODA, because replacing the word “it” with “the act” results in an “illogical
sentence,” which would read as follows: “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.”
Appellant’s Brief at 40 (emphasis, bolding, and brackets original). In the University’s view,
“it” must instead refer to “compensable disability or death,” observing that replacing “it”
with that phrase results in a sentence which is both appropriate and meaningful:
“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.” Id. (emphasis and bolding
original). Moreover, the University claims that replacing the word “it” with “the act” is
grammatically incorrect.
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
[J-28-2024] - 14
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.
The University posits that any perceived inequities in recovery and the application
of the exclusive remedy provision is for the General Assembly to remedy. Furthermore,
the University submits that our Constitution does not guarantee a remedy or
[J-28-2024] - 15
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
[J-28-2024] - 16
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 similar temporal limitations. Based on
these similarities, Executor suggests, consistent with the Commonwealth Court’s opinion
below, that we should interpret Section 1401(c) of the ODA in the same manner as we
construed Section 411(2) of the WCA in Tooey, and thereby allow him to maintain a
common law action.
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:
[J-28-2024] - 17
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
[J-28-2024] - 18
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
Executor then urges that, even if Herold’s mesothelioma is a covered occupational
disease, it is not compensable, as it did not occur and cause disability or death within four
years of exposure to asbestos, as the ODA requires. Executor contends that our Court
in Tooey resolved the issue of coverage versus compensation by finding that the
exclusive remedy provision of the WCA did not bar a common law action for a long latency
disease that is covered, but not compensable. Building upon this, and citing the
Commonwealth Court’s decision below, Executor explains that, under Section 1403, an
8 We disagree. Unlike the WCA, the ODA does not define mesothelioma as an
occupational disease. Compare Section 108 of the WCA, 77 P.S. § 27.1 (including cancer
caused by asbestos exposure), with Section 108 of the ODA, 77 P.S. § 1208 (not
including cancer caused by asbestos exposure). However, as the Commonwealth Court
found, in our view, mesothelioma manifestly qualifies as an occupational disease under
Section 1208(n) of the ODA. See 77 P.S. § 1208(n) (“All other occupational diseases (1)
to which the claimant is exposed by reason of his employment, and (2) which are peculiar
to the industry or occupation, and (3) which are not common to the general population.”);
see also Sedlacek v. A.O. Smith Corp., 990 A.2d 801, 804(Pa. Super. 2010), abrogated on other grounds in Tooey,81 A.3d 851
(Pa. 2013) (asserting without citation that the “catch-all definition [of the ODA] ... has been viewed as including [mesothelioma]”). Indeed, the University’s question certified for interlocutory appeal to the Commonwealth Court implied that the court presumed mesothelioma was an occupational disease under the ODA. See Cmwlth. Ct. Order, 10/25/21, at 1 (“Herold has been diagnosed with asbestos-related mesothelioma, an occupational disease as defined in the [ODA.]”). Our order granting allocatur suggests the same. See Herold v. University of Pittsburgh - of Commonwealth System of Higher Education,305 A.3d 957
(Pa. 2023) (order) (granting
allocatur on whether the Commonwealth Court’s decision “(1) fails to overrule the [t]rial
[c]ourt’s determination that the [t]rial [c]ourt, rather than the workers’ compensation
authorities, has subject matter jurisdiction over Mr. Herold’s asbestos-related
occupational disease claim against his employer under the ODA”). Thus, we find that
mesothelioma is an occupational disease covered by the ODA.
[J-28-2024] - 19
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
9 Article III, Section 18 provides:
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.
10 Article I, Section 11 provides:
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.
[J-28-2024] - 20
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 system and the factual questions at issue
are of the type that trial courts make every day.
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.” 77 P.S. § 411(2). Amici add
that Section 411(2) also provides, in relevant part, that it “shall apply only with respect to
the disability or death of an employe which results in whole or in part from the employe’s
exposure to the hazard of occupational disease after June 30, 1973 in employment
covered by The Pennsylvania Workmen’s Compensation Act.” Id. Similarly, Amici cite
to Pawlosky, supra, wherein we opined that, “the legislature, by including occupational
diseases in the [WCA]’s concept of ‘injury’, was attempting to create a unified, integrated
compensation law for all work-related harm occurring after the effective dates of the 1972
amendments.” 525 A.2d at 1210. In light of all of this, Amici maintain that, given that
Herold’s exposure to occupational disease occurred after June 30, 1973, the WCA
[J-28-2024] - 21
governs this matter, and Herold’s common law claims are permissible pursuant to Tooey.
Notably, Amici concede that neither of the parties nor the courts below addressed 77 P.S.
§ 411(2), or an argument thereunder that the ODA is inapplicable here, but offer that the
Commonwealth Court’s decision may be affirmed if correct for any reason.
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. 1
Pa.C.S. § 1501. Indeed, the General Assembly has mandated that the interpretative
provisions of this act apply to all statutes. 1 Pa.C.S. § 1502(a)(1), (2); id. § 1901. The
polestar in engaging in statutory interpretation is to discern the intent of the General
Assembly. 1 Pa.C.S. § 1921(a) (“The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General Assembly.”).
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. § 1921(b) (“When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.”).
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
[J-28-2024] - 22
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. 1 Pa. C.S. §
1921(c) (“When the words of the statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters: [certain enumerated
factors].”) Moreover, courts may consider various other factors in addition to those set
forth in Section 1921(c) to guide them in determining the General Assembly’s intent. See,
e.g., 1 Pa. C.S. § 1922 (describing presumptions, including that the legislature does not
intend a result that is absurd or unreasonable); 1 Pa. C.S. § 1925 (constitutional
construction of statutes); and 1 Pa. C.S. § 1928 (rules regarding strict and liberal
construction).
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
[J-28-2024] - 23
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) (emphasis added).
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 proposed
construction, asserting that it would lead to multiple redundancies in the use of the phrase
“compensable disability or death,” resulting in surplusage. Additionally, in contrast to the
University’s interpretation, Executor argues that his suggested interpretation of the phrase
“the act” in place of the word “it” would result in a cleaner reading of the statutory language
compared to the duplicative use of the phrase “compensable disability or death”
suggested by the University.
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
[J-28-2024] - 24
according to their common and approved usage.” 1 Pa.C.S. § 1903(a). However, it also
cautions that grammatical errors “shall not vitiate a statute.” 1 Pa.C.S. § 1923(a). Related
thereto, both the ODA and the Statutory Construction Act indicate that singular and plural
may be treated interchangeably. See 77 P.S. § 1202 (“Wherever in this act the singular
is used, the plural shall be included.”); 1 Pa.C.S. § 1902 (“The singular shall include the
plural, and the plural, the singular.”).
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.
[J-28-2024] - 25
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 77 P.S. § 411. Section 411 of the WCA
provides in relevant part:
[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].
77 P.S. § 411(2) (emphasis added). Thus, while the two provisions ― Section 1401 of
the ODA and Section 411 of the WCA ― are similar, they are at least in one respect
distinct, as Section 411 of the WCA defines the applicability of the statute, i.e., it is a
jurisdictional limitation on that statute as we found in Tooey, whereas Section 1401 of the
ODA merely qualifies the meaning of “compensable disability or death” as used in the
statute.
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
[J-28-2024] - 26
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.” 77 P.S. § 1401(c).12 Nonetheless, the ODA’s time
limitation provision becomes critical to our analysis of the ODA’s exclusivity provision,
which we turn to next.
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
11 Notably, the phrase “compensable disability or death” is not used again in the ODA
outside of this definitional section.
12 The University asserts that Executor could invoke the ODA savings clause to obtain
relief beyond the four-year limitations period. Appellant’s Brief at 44-45. Section 1401(i)
provides relief beyond the four-year limitations period for claimants suffering from certain
express diseases: “Notwithstanding any other provisions of this act, compensation for
silicosis, anthraco-silicosis, coal worker’s pneumoconiosis, and asbestosis shall be paid
for each month[.]” 77 P.S. § 1401(i). Herold did not contract one of those diseases, and
absent from this list is mesothelioma. We decline the University’s invitation to find
asbestosis includes mesothelioma, a distinct disease. Therefore, for purposes of the
ODA, we find the trial court and Commonwealth Court correctly determined that the
statute’s savings clause is inapplicable. See Trial Ct. Op. at 2-3; Herold, 291 A.3d at 495
n.12.
[J-28-2024] - 27
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 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.
[J-28-2024] - 28
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. 77 P.S. §1401. Likewise, however, Executor’s
interpretation, focusing on the provision’s language regarding the forfeiting of the right to
compensation outside of the workers’ compensation system, and carving out an
exception to exclusivity where there is no compensation available within the system, is
reasonable as well.
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:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon
the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of
such statute.
1 Pa.C.S. § 1921(c).
In addressing these factors, we initially consider the origins of workers’
compensation laws generally, and the ODA in particular, including the “Grand Bargain” or
“quid pro quo” which serves as the foundation of all worker injury compensation laws.
Barber, 555 A.2d at 769-70; see Ellen Relkin, The Demise of the Grand Bargain:
Compensation for Injured Workers in the 21st Century, 69 Rutgers U.L. Rev. 881, 883
[J-28-2024] - 29
(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
13 Ryan v. Cumberland Valley Railroad Company, 23 Pa. 384 (Pa. 1854)
[J-28-2024] - 30
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 twentieth century, along with most other states,
Pennsylvania began to seriously consider workers’ compensation legislation. Prompted
by society’s belief, writ large, that it had a “moral obligation to remedy workplace injuries
and accidents,”14 particularly in Pittsburgh, which became an epicenter of the crisis and
the subject of a renowned study by Crystal Eastman,15 a commission was established in
14 Michael C. Duff, A Hundred Years of Excellence: But Is the Past Prologue? Reflections
on the Pennsylvania Workers’ Compensation Act, 87 Pa. B.A. Q. 20 (The Pennsylvania
Bar Association 2016).
15 Crystal Eastman, Work Accidents and the Law (The Russel Sage Foundation, New
York (1910)).
[J-28-2024] - 31
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
16 David B. Torrey, 100 Years of Pennsylvania Workers’ Compensation: History, the
Current Scene, and Challenges Ahead, 87 Pa. B.A.Q. 6, 7 (2016).
[J-28-2024] - 32
reasonable recovery for injuries he suffers in the course of his
employment.
Barber, 555 A.2d at 769-70.
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 quid
pro quo rationale” where an employee “receives a guaranteed recovery under the
statutes, while the employer is no longer concerned about the risk of large-scale liability
under traditional common law claims. The goal in enacting these statutes was to speed
up the overall process of workers’ compensation and reduce the cost for all parties
involved.” (footnotes omitted)). While the University’s articulation of the Grand Bargain
stresses the exclusive administrative process to resolve claims of work-related injuries,
its view of the bargain centers on the interests of the employer with little accounting for
the core interest of the injured worker ― compensation.
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. 77 P.S. § 481; 77 P.S. § 1403; Kachinski v. Workmen’s Compensation Appeal Board,532 A.2d 374
(Pa. 1987). An exclusivity
provision restricts the remedies available to an employee for injuries sustained in the
[J-28-2024] - 33
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 77 P.S. § 411(2), removed the claim from the purview of the WCA, such that the
WCA’s exclusivity provision, 77 P.S. § 481, did not apply, and thus did not bar a common
law action against an employer. The WCA time limitations period is akin to the limitations
period found in the ODA, and 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
[J-28-2024] - 34
date of employment in an occupation or industry to which [the claimant] was exposed to
hazards of such disease.” 77 P.S. § 411 (2).
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,
77 P.S. § 411(2). Tooey, 81 A.3d at 857-60. That section placed a time limit on claims
for occupational disease. Reading what we considered to be the plain language of the
WCA’s exclusivity provision as imparting a jurisdictional element to the limitations period
― i.e., that the WCA only applied to those claims manifesting within 300 weeks of
exposure ― we concluded that the WCA did not apply to latent occupational diseases
that manifested more than 300 weeks after the last occupational exposure, and so the
exclusivity provision did not preclude a common law action against an employer. Id. at
865.
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-
[J-28-2024] - 35
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 repose. Thus, we held that the General
Assembly did not intend the WCA’s exclusivity provision to apply to claims for disability
or death resulting from an occupational disease that manifests beyond the 300-week
[J-28-2024] - 36
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
17 Our approach in this regard is akin to giving statutes that stand in pari materia similar
constructions. 1 Pa.C.S. §§ 1921(a), 1932 (observing that statutes or parts of statutes in
pari materia should be construed together, with the court giving effect to each provision,
if possible). While the parties do not explicitly contend that the WCA and ODA stand in
pari materia, the notion that these similar statutes dealing with similar subject matter
should be interpreted consistently has great force. Thus, while Tooey interpreted the
WCA’s time limitations and exclusivity provisions, and, therefore, is not directly binding
upon our interpretation of the ODA’s time limitation and exclusivity provisions, we
conclude there is good reason to interpret the two provisions consistently.
[J-28-2024] - 37
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
exclusivity provision funnels virtually all claims for compensation for workplace injuries
through the workers’ compensation administrative process; that exclusivity provisions
have been strictly construed; and, broadly speaking, that our courts have resisted efforts
to formulate exceptions to the exclusive remedy mandate, the decisions relied upon by
the University offer limited insight to our resolution of the present matter.
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), andSedlacek, supra,
which spoke in even
[J-28-2024] - 38
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), andPollard, 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, 18 The Third Circuit’s decision in Weldon v. Celotex Corporation,695 F.2d 67
(3d Cir. 1982), also fails to advance our analysis in a meaningful fashion. Therein, the court offered that the time limitations provided in the ODA did not restrict coverage for those diseases that were set forth in the statute, but only limited the time within which the claims would be recognized. The court concluded that the claimant’s asbestosis and death were within the coverage of the statute, and, thus, even though his illness did not manifest within the ODA’s limitation period, he nevertheless was barred from bringing a common law claim against his employer.Id. at 71
. First, the Third Circuit in Weldon did what
federal courts do when interpreting a diversity case involving Pennsylvania state law ―
they predict the state of Pennsylvania law. However, the Weldon decision was rendered
in 1982, 40 years before our decision in Tooey, and, thus, the court did not have the
benefit of that decision in forming its exclusivity analysis. At any rate, Weldon is a federal
circuit court decision that is not binding on us.
[J-28-2024] - 39
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 an occupational disease under the ODA.
Similarly, in Pollard, the Court was faced with the question of whether an employee’s civil
action against his employer for cancer acquired through his employment could proceed
before there was a final administrative determination regarding compensability under the
WCA or ODA. The plurality reasoned that the employee’s common law action was not
barred until there was a final determination that the injury or disease was cognizable
under either statute. The plurality remanded the matter, explaining that, “if it is determined
that decedent’s nodular lymphoma is compensable, then [the employee’s] common law
action is barred. Conversely, if the facts do not warrant such a finding, [the employee’s]
common law cause of action may be maintained.” Pollard, 695 A.2d. at 769. Like the
cases proffered by the University, the cases pointed to by Herold ― permitting an action
in common law for work injuries not encompassed by the workers’ compensation law ―
provide only limited value to our inquiry as to whether a disability or death resulting from
an occupational disease which is non-compensable is subject to the ODA’s exclusivity
provision.
We are further mindful that “the General Assembly intends the entire statute to be
effective and certain.” 1 Pa.C.S. § 1922(2). Here, certain provisions in the ODA suggest
a broad sweep for the statute’s exclusivity provision. Specifically, Section 1201 of the
ODA sets forth that the statute “shall apply to disabilities and deaths caused by
occupational disease as defined in [the ODA].” 77 P.S. § 1201. Additionally, Section
1403 requires parties to surrender “their rights to any form or amount of compensation or
[J-28-2024] - 40
damages for any disability or death resulting from occupational disease, or to any method
of determination thereof,” other than provided in the ODA. 77 P.S. § 1403 (emphasis
added). However, the right to compensation is infused throughout the ODA. It is, as
noted above, one of the two pillars of the Grand Bargain, and is reflected in both Section
1401, which requires that “compensation for disability or death of such employe, caused
by occupational disease, arising out of and in the course of his employment, shall be paid
by the employer, without regard to negligence, according to the schedule contained”
thereafter, 77 P.S. § 1401(a), as well as Section 1403, which requires the “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
thereof.” 77 P.S. § 1403. Thus, the General Assembly’s intent to make the entire statute
effective and certain suggests a reading that requires compensation, even if limited.
Additional tools of statutory construction aid our analysis. First, it is the Court’s
settled policy to resolve claims on non-constitutional grounds, when possible. See, e.g.,
Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007). While Executor raised and
preserved the constitutionality of the ODA’s exclusivity provision (should it be deemed to
bar relief), we find that we need not directly entertain the question. Rather, we consider
the constitutional issue as an aid in ascertaining the intent of the General Assembly
regarding the breadth of the ODA’s exclusivity provision.
Specifically, the Statutory Construction Act commands that the legislature does not
intend to violate the Pennsylvania Constitution or the United States Constitution. 1
Pa.C.S. § 1922(3). Indeed, the history of the constitutionality of workers’ compensation
laws at the federal and state level reveal an intent, indeed, a requirement, for
[J-28-2024] - 41
compensation, as well as an exclusive process outside of the common law for resolving
claims for work injuries.19
The Pennsylvania constitutional experience suggests that, for the workers’
compensation system to be constitutional, there must be reasonable compensation, but
permits an exclusive remedy process to replace the civil tort system. Specifically, to
19 At the federal level, state workers’ compensation legislation was immediately met with
constitutional challenges. After New York’s workers’ compensation law was struck as
unconstitutional, later, in 1917, the Supreme Court of the United States upheld New
York’s reenacted workers’ compensation statute against a federal due process challenge
as an acceptable substitute for tort remedies ― so long as that substitute did not
contravene the 14th Amendment. The Court explained that liability without fault was not
new to the law, and that the no-fault liability process was not violative of the 14th
Amendment. Its rationale, however, was based, in part, upon the concept of guaranteed
compensation:
[I]t perhaps may be doubted whether the state could abolish
all rights of action, on the one hand, or all defenses, on the
other, without setting up something adequate in their stead.
No such question is here presented, and we intimate no
opinion upon it. The statute under consideration sets aside
one body of rules only to establish another system in its place.
If the employee is no longer able to recover as much as before
in case of being injured through the employer’s negligence,
he is entitled to moderate compensation in all cases of injury,
and has a certain and speedy remedy without the difficulty and
expense of establishing negligence or proving the amount of
damages.
New York Central Railroad v. White, 243 U.S. 188, 201 (1917) (emphasis added).
Sharpening the point of an absolute duty to compensate an injured employee, the high
Court rejected a claim of unconstitutional arbitrariness:
Viewing the entire matter, it cannot be pronounced arbitrary
and unreasonable for the state to impose upon the employer
the absolute duty of making a moderate and definite
compensation in money to every disabled employee, or,
in case of his death, to those who were entitled to look to
him for support, in lieu of the common-law liability confined to
cases of negligence.
Id. at 205 (emphasis added); see generally Spieler, 69 Rutgers U.L. Rev. at 907; Williams,
69 Rutgers U.L. Rev. at 1090.
[J-28-2024] - 42
ensure that the popular and anticipated workers’ compensation legislation would be
constitutional, in 1915, its proponents succeeded in having the state constitution
amended to allow for a compulsory law to substitute for the ensconced rights to a common
law remedy. Article III, Section 18 of the Constitution empowered the legislature, if it
deemed appropriate, to enact laws to compensate for workplace injuries or diseases,
including those that cause the death of an employee. Specifically, Article III, Section 18
― formerly Article III, Section 2120 ― was amended, by preceding its prohibitory language
with the following declaration:
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 (emphasis added).
Section 18 sets forth the fundamental authorization requirements for workers’
compensation laws in Pennsylvania. Only by virtue of Section 18 ― requiring the
20 The section was renumbered as Article III, Section 18, in the course of the 1968
constitutional convention.
[J-28-2024] - 43
payment by employers of reasonable compensation for workplace injuries ― was the
General Assembly authorized to replace traditional common law rights and create distinct
proceedings and recoveries for work-related injuries that in any other context would be
beyond its legitimate authority. East v. Workers’ Compensation Appeal Board (USX
Corporation/Clairton), 828 A.2d 1016, 1021 (Pa. 2003).
Given that manifest purpose to enshrine in our Constitution the guarantee that
injured workers will receive some compensation for any injury sustained in the course of
employment, we simply recognize that an interpretation of Section 1403 that would make
a work-related injury non-compensable and extinguish any forum in which to recover
compensation from an employer for that injury, would arguably be in tension with Section
18’s requirement that employers pay reasonable compensation for injuries to employees
arising in the course of their employment. Furthermore, an interpretation that would bar
workers from any forum in which to recover damages for a workplace injury or preclude
a worker from receiving any amount of relief would raise serious questions regarding the
constitutionality of that system in light of our Constitution’s Open Court and Remedies
Clause, Article I, Section 11,21 and Due Process and Equal Protection protections
provisions. Cf. Dolan v. Linton’s Lunch, 152 A.2d 887, 892(Pa. 1959) (“To read the act so as to deny plaintiff his existing common-law remedy without permitting him to come within the protective coverage of the Workmen’s Compensation Act might well violate the mandate of Article I, Section 11 of the Constitution of Pennsylvania.”); Greer,380 A.2d at 1222-23
(“It has even been pointed out that an attempt to bar recovery where no
compensation recovery can be had might well violate Article I, Section 11, of the
21 Article I, Section 11 provides: “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.
[J-28-2024] - 44
Constitution.”). Accordingly, interpreting the ODA’s exclusivity provision so as to not
vitiate all recovery avoids a potential constitutional infirmity.22
Finally, we consider the consequences of a particular interpretation. 1 Pa.C.S. §
1921(c)(6). The manifest consequence of the University’s interpretation of the ODA’s
exclusivity provision is that it would prohibit an injured employee from filing an action at
common law, despite the fact that the employee has no opportunity to seek redress under
the ODA. This interpretation would operate as a de facto exclusion of coverage under
the Act for essentially all mesothelioma claims and leave an injured worker with no
remedy against his or her employer. That being the case, the efficacy of the Grand
Bargain, upon which all workers’ compensation laws are based, would be in jeopardy.
22 Another tool of statutory construction employed in discerning the intent of the General
Assembly requires a court to apply a strict or liberal construction depending upon the type
of statute. 1 Pa.C.S. § 1928. With respect to workers’ compensation, our Court has made
clear that, as the goal of the WCA is to make an injured employee whole, the legislation
is “remedial in nature and its purpose is to benefit the workers of this Commonwealth”
and is to be “liberally construed to effectuate its humanitarian objectives” and “borderline
interpretations of the Act are to be construed in the injured party’s favor.” Sporio v.
Workers’ Compensation Appeal Board (Songer Construction), 717 A.2d 525, 528(Pa. 1998); see also Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber–Brown),47 A.3d 831, 839
(Pa. 2012). Thus, when a statutory provision is ambiguous, “it will be construed to favor the worker and his or her right to benefits.” David B. Torrey, The Commonwealth Court of Pennsylvania and the Workers’ Compensation Act: Background and Jurisprudence, Judge Alexander F. Barbieri, and Selected Precedents, 20 Widener L.J. 87, 106 (2010). Likewise, it is well-settled that the ODA must be liberally construed to effectuate its remedial and humanitarian purposes. Bley v. Department of Labor and Industry,399 A.2d 119, 122
(Pa. 1979).
However, we recognize that moderating such a liberal interpretation is the
legislature’s declaration that statutory remedies are preferred over those provided by the
common law. 1 Pa.C.S. § 1504 (“In all cases where a remedy is provided or a duty is
enjoined or anything is directed to be done by any statute, the directions of the statute
shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to
the common law, in such cases, further than shall be necessary for carrying such statute
into effect.”); 1 Pa.C.S. § 1928(a) (“rule that statutes in derogation of the common law are
to be strictly construed, shall have no application to the statutes of this Commonwealth
enacted finally after September 1, 1937”). Thus, as the ODA was enacted in 1939, the
remedy directed to be “done” by the ODA is to be strictly pursued.
[J-28-2024] - 45
The employee would not receive certain but limited compensation for his work injury, and
an employer would be granted full immunity from all liability.23
Conversely, Executor’s interpretation of the ODA’s exclusivity provision would
result in employers who have relied upon its insulating effect being exposed to potentially
significant financial liability, which undermines their part of the Grand Bargain. This
potential financial liability could be exacerbated if an employer has not obtained insurance
to cover work-related claims arising outside of the ODA. Furthermore, in this matter, the
University claims that subjecting it to significant financial liability would undermine its
mission ― education and research.
The University’s claim of liability in “unlimited amounts” and financial ruin, however,
must be tempered by other considerations. Appellant’s Brief at 52. Replacing the
exclusive remedy doctrine with a tort system is hardly a panacea for injured workers. In
bringing a negligence action, an injured worker would be tasked with establishing duty,
breach, causation, and ultimate liability, and be subjected to any and all of an employer’s
common law defenses. An employer may have the financial resources to withstand a
protracted lawsuit, while an injured worker may not. Furthermore, compared to the certain
but limited compensation guaranteed under the ODA, an injured worker risks recovering
nothing after a jury trial. Moreover, injured workers unsuccessful in court would be forced
to rely on health insurance and short-term or long-term disability coverage to protect
against medical bills and lost income. Many workers are simply not covered by these
benefits. If an uninsured worker did not succeed in tort, they would have no other
recourse.
23 We note however that, here, Herold, potentially like other individuals who suffer from
mesothelioma, has brought his civil action against non-employers as well as the
University. Thus, he could be awarded damages from the non-employer defendants for
his disease, even if his claim against the University was not barred by the ODA.
[J-28-2024] - 46
Yet, an injured worker may be awarded a significant amount of compensation for
his work-related disease. While employers are required to obtain insurance or be self-
insured for workers’ compensation liability, here, the University asserts that its reliance
upon the ODA’s exclusivity provision has left it without insurance. Moreover, according
to the University, if Executor’s interpretation was to prevail, obtaining such insurance
would be difficult.
Considering all of the statutory construction factors discussed above, we find they
weigh in favor of interpreting the ODA’s exclusivity provision to not preclude a common
law civil action against an employer for disability or death resulting from an occupational
disease and which occurs four years after the last date of employment in the relevant
occupation or industry.
Such an interpretation reflects the centrality of the Grand Bargain. Under that
foundational understanding, workers’ compensation laws were to serve as a substitute
for a substantive tort right under the common law, and, thus, some remedy for workplace
injury was contemplated. Duff, 87 Pa. B.A. Q. at 22. As we made clear in Barber, “[t]he
employer, in exchange for immunity from lawsuits by injured employees, provides certain
and reasonable compensation to injured employees without regard to fault.” Barber, 555
A.2d at 769. If the ODA is interpreted to shield an employer from all potential liability, the
quid pro quo would be vitiated. When there is no possibility of compensation, the Grand
Bargain is no bargain.
Moreover, leaving such employees with no remedy against his or her employer
contravenes the ODA’s intended purpose. As we stated in Tooey, “[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 Act or at common law.” Tooey, 81
[J-28-2024] - 47
A.3d 864; see Dolan,152 A.2d at 892-93
(“Nowhere in this latter provision is the General
Assembly authorized to enact a law which vitiates an existing common-law remedy
without concurrently providing for some statutory remedy. Of course, the substituted
remedy need not be the same, but that is far different from saying that no remedy at all
may be substituted.” (footnote omitted)).
Thus, we conclude that the General Assembly intended that the ODA’s exclusivity
provision found in Section 1403 be interpreted in light of Section 1401. Specifically,
Section 1401 defines “compensable disability or death” with a temporal component ―
i.e., to be compensable, the disability or death resulting from an occupational disease
must occur within four years after the date of last employment. 77 P.S. § 1401(c). Here,
Section 1403 states that the ODA operates 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.” 77 P.S.
§ 1403. Reading these provisions together, to be subjected to the ODA’s exclusivity
provision, an injured worker must have some potential compensation to surrender.
Accordingly, giving fidelity to the quid pro quo that is the Grand Bargain, we hold
that the ODA’s exclusivity provision extends only to those claims asserting a
compensable disability or death, i.e., a disability or death resulting from an occupational
disease and which occurs within four years after the date of an employee’s last
employment; thus, claims by an injured worker related to disability or death resulting from
an occupational disease and which occur outside of the four-year period are not barred
by the exclusivity provision, and such an employee may seek compensation against his
employer in a common law civil action.24
24 We fully recognize that statutes providing compensation for workplace injuries
constitute social legislation, and that social policy is largely within the legislature’s domain.
(continued…)
[J-28-2024] - 48
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 Weston, we stated:
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
Finding the ODA’s exclusivity provision to be ambiguous, we base our decision today on
application of the tools of statutory construction provided by the legislature itself.
[J-28-2024] - 49
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 judiciary must be cautious in abstaining
“whenever a controversy remotely involves some issue falling arguably within the domain
of the agency’s ‘expertise,’” as such expertise “is no talisman dissolving a court’s
jurisdiction. Accommodation of the judicial and administrative functions does not mean
abdication of judicial responsibility.” Id. at 377. Indeed, our Court warned that “the so- called ‘expert’ looms ominously over our society ― too much so to permit the roles of the court and jury to be readily relinquished absent a true fostering of the purposes of the doctrine of primary jurisdiction.”Id.
Simply stated, when the subject of a dispute is within an agency’s scope, and
where the matter requires special knowledge and experience ― with which a judge or
jury would not have familiarity ― referral of the action to the relevant agency is proper.
Conversely, where a matter is not one uniquely within an agency’s area of expertise, but
is one in which the judiciary is equally adept at resolving, a court should not relinquish its
traditional jurisdiction.
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. 77 P.S. § 1401(c). These determinations are commonplace in civil trials;
they are not peculiarly within the expertise of workers’ compensation authorities. Here,
Executor provided evidence that Herold’s mesothelioma was diagnosed more than four
years after his last workplace exposure to asbestos, and he died more than four years
[J-28-2024] - 50
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
25 Executor asserts that Herold’s mesothelioma is excluded from the jurisdiction of the
ODA by the temporal limitation of Section 1401, which acts as a de facto exclusion of
coverage for occupational diseases that do not cause total disability or death within four
years of the employee’s last exposure to asbestos. Appellee’s Brief at 7. Executor
maintains that the focus of this limitations period is the date of death (as he is not claiming
any disability). According to Executor, Herold’s mesothelioma did not occur and cause
death within four years of his date of last exposure or his last date of employment. Id. at
7. On an even more granular level, Executor claims that, if the date of employment is the
trigger, it is the last date of employment in the occupation in which an injured worker is
exposed to the hazard. Specifically, Executor offers that Herold worked as a stationary
engineer for the University and his last date of occupation in which he was exposed to
asbestos was 2004. His exposure to asbestos ended in 2004 when he became a foreman
at the University’s North Campus, and ultimately worked remotely from February 2015
until July 2015, when he voluntarily retired from the workforce. As Herold died in 2022,
Executor contends his death resulting from an occupational disease did not occur within
four years after his last exposure or his date of last employment in an occupation in which
he was exposed.
The University argues that Section 1401 does not include a reference to exposure, but,
rather, claims that the four-year time limitation on compensable disease or death begins
from the last date of employment rather than the last date of exposure. Appellant’s Brief
at 42-43. The University contrasts this with the WCA which finds the limitations period to
be triggered when a disability or death resulting from an occupational disease “occur[s]
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(2); see Sporio,
717 A.2d 525, 528(finding 300-week period begins on the last day of employment-based exposure to the hazard); Cable v. WCAB (Gulf Oil/Chevron USA),664 A.2d 1349, 1351
(Pa. 1995) (plurality) (reasoning that “period of exposure, not the total period of
employment, is the governing factor”).
Here, Herold’s death (the triggering event, as Executor is not seeking compensation for
Herold’s disability and Herold was not disabled when he retired) did not occur until well
beyond four years after either his last date of exposure, his last date of employment in an
occupation in which he was exposed to asbestos, or his last date of employment in the
industry. Thus, Executor’s claim is not compensable under the ODA as a matter of law.
[J-28-2024] - 51
facts lead to the conclusion that Executor’s claim is not compensable under the ODA and
that the trial court has jurisdiction over this matter as a matter of law. This being the case,
we conclude that the doctrine of primary jurisdiction should not be applied in this matter.
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.
[J-28-2024] - 52
Reference
- Status
- Published