Case Bulletin – Pennsylvania’s Superior Court Rejects Tolling Claims in Latent Disease Cases
On November 16, 2018, Pennsylvania’s Superior Court addressed whether claims of latent disease against an employer were tolled until the seminal Tooey ruling was issued in 2013. Moeller v. Armstrong World Indus., Inc., 361 MDA 2018, (Pa. Super. 2018); Riley v. Armstrong World Indus., Inc., 122 MDA 2018 (Pa. Super. 2018),
Michael Moeller was employed by Armstrong for 27 years where he was exposed to trichloroethylene and methylene chloride. On February 23, 2010, he died of blood cancer caused by his exposure to the toxic chemicals at Armstrong. Likewise, Jeffrey Riley was employed by Armstrong for 16 years where he was exposed to trichloroethylene and methylene chloride manufactured by Brenntag. Mr. Riley died on November 1, 2010 from multiple myeloma caused by his exposure to the toxic chemicals at Armstrong.
On August 4, 2015, Mr. Riley’s Estate initiated suit against Armstrong and Brenntag. Mr. Moeller’s Estate filed suit against Armstrong September 30, 2015. Both suits alleged wrongful death claims and survival actions. In response, Armstrong filed preliminary objections in both cases and Brenntag filed preliminary objections in Riley with both arguing that the statute of limitations barred the claims. While improper in procedure, neither Plaintiff filed preliminary objections to the preliminary objections, permitting the trial court to rule on the statute of limitations. The trial court sustained all preliminary objections and dismissed the cases. On appeal, Plaintiffs submitted that their claims were not time barred. The court noted that the statute of limitations begins to run on the date of death for wrongful death claims and, at the latest, on the date of death for a survival action. However, Plaintiffs argued that the statute of limitations did not begin to run on claims against an employer until Pennsylvania’s Supreme Court issued its ruling in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). The court rejected Plaintiffs’ argument that Tooey created a new cause of action. The court further rejected Plaintiffs’ argument that their claims were barred prior to Tooey. Instead, the court held that Plaintiffs’ claims expired in 2012, reasoning that both Plaintiffs could have filed their claims within two years of the deaths of Mr. Moeller and Mr. Riley and argue that the Worker’s Compensation Act did not bar the claims just as many plaintiffs throughout the Commonwealth had argued, which culminated with the Tooey decision.
The opinions in Moeller and Riley confirm that employers in Pennsylvania should remain cognizant of the statute of limitations in all latent disease cases. Plaintiffs are still required to file wrongful death and survival action claims within two years of the date of death, at the latest, even if their claims arose prior to the Tooey decision.