McCloskey, W. v. Cemline Corp. ( 2015 )

J. A01014/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
WENDY ANN McCLOSKEY, EXECUTRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF ARTHUR PARTNER,: PENNSYLVANIA
DECEASED, AND PATRICIA PARTNER, :
IN HER OWN RIGHT, :
:
Appellants :
:
v. :
:
CEMLINE CORPORATION, CERRO WIRE :
AND CABLE COMPANY, INC., :
THE LINCOLN ELECTRIC COMPANY, :
MADDEN BOILER WORKS, INC., :
METROPOLITAN LIFE INSURANCE :
COMPANY, PPG INDUSTRIES, INC., : No. 482 WDA 2014
PPG AUTO GLASS, LLC, AND :
RHEEM MANUFACTURING COMPANY :
Appeal from the Order Entered March 5, 2014,
in the Court of Common Pleas of Cambria County
Civil Division at No. GD 2008-5730
WENDY ANN McCLOSKEY, EXECUTRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF ARTHUR PARTNER,: PENNSYLVANIA
DECEASED, AND PATRICIA PARTNER, :
IN HER OWN RIGHT :
:
v. :
:
CEMLINE CORPORATION, CERRO WIRE :
AND CABLE COMPANY, INC., :
THE LINCOLN ELECTRIC COMPANY, :
MADDEN BOILER WORKS, INC., :
METROPOLITAN LIFE INSURANCE :
COMPANY, PPG INDUSTRIES, INC., :
PPG AUTO GLASS, LLC, AND :
RHEEM MANUFACTURING COMPANY :
:
J. A01014/15
APPEAL OF: PPG INDUSTRIES, : No. 530 WDA 2014
:
Appellant :
Appeal from the Order Dated March 5, 2014,
in the Court of Common Pleas of Cambria County
Civil Division at No. 2008-5730
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 17, 2015
PPG Industries (“PPG”) and Wendy Ann McCloskey (“McCloskey”),
executrix of the estate of Arthur Partner, deceased, and Patricia Partner, in
her own right as the widow of Mr. Partner, have filed cross-appeals in this
asbestos-related personal injury action. After careful review, we vacate and
remand for further proceedings.
The plaintiffs alleged that while employed by PPG, Mr. Partner
developed mesothelioma as a result of his exposure to asbestos. PPG filed a
motion for judgment on the pleadings on the basis that the action was
barred by the exclusivity provision of the Workers’ Compensation Act,
77 P.S. § 481. Under controlling authority at the time, the trial court
granted the motion on August 31, 2010. Trial was scheduled for
September 3, 2013, against the remaining defendants.
On August 8, 2013, the trial court granted summary judgment for
Madden Boiler Works, Inc., Rheem Manufacturing Co., Lincoln Electric Co.,
and PGW Auto Glass, LLC, f/k/a PPG Auto Glass, LLC. On August 28, 2013,
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the trial court granted the motion for voluntary discontinuance as to Cemline
Corp. On November 26, 2013, plaintiffs filed a praecipe to settle,
discontinue, and end as to Dravo Corp. The praecipe was filed after a jury
had already been empaneled. Pursuant to local rule, on January 7, 2014,
the trial court issued an order apportioning jury selection costs between
plaintiffs and Dravo.
At that point, two named defendants remained, Metropolitan Life
Insurance Co. (“Met Life”) and Cerro Wire and Cable Co., Inc. (“Cerro”). On
March 5, 2014, the trial court granted plaintiffs’ “Motion for Final Order.”
The trial court ordered that, “All claims against all parties are disposed of,
and this Order constitutes the Final Order in the above captioned action.”
Plaintiffs filed an appeal on March 24, 2014. On April 11, 2014, PPG’s
motion for clarification and/or reconsideration of the March 5, 2014 order
was denied. PPG filed its cross-appeal on April 1, 2014. The trial court did
not order the parties to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.
Appellants, plaintiffs below, have raised the following issue for this
court’s review:
1. Whether the Trial Court erred by granting
judgment on the pleadings against Plaintiffs
and in favor of PPG Industries, Inc., on the
basis that Plaintiffs’ claims against PPG were
barred by the exclusivity provision of the
Workers’ Compensation Act?
McCloskey’s brief at 4.
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Cross-appellant, PPG, argues that the instant appeal is untimely and
must be quashed:
Whether the trial court’s August 31, 2010 order
granting PPG’s motion for judgment on the pleadings
became a final, appealable order more than 30 days
before Plaintiff[s] filed this appeal?
Brief of PPG at 3.
We will address PPG’s issue on cross-appeal first, as it implicates this
court’s jurisdiction.
Our Court may reach the merits of an appeal taken
from “([1]) a final order or an order certified as a
final order; (2) an interlocutory order [appealable]
as of right; (3) an interlocutory order [appealable]
by permission; or (4) a collateral order.”
Commerce Bank v. Kessler, 2012 Pa. Super. 100,
46 A.3d 724, 728 (Pa.Super.2012), quoting Stahl v.
Redcay, 897 A.2d 478, 485 (Pa.Super.2006)
(internal citations omitted), appeal denied, 591 Pa.
704, 918 A.2d 747 (2007). “As a general rule, only
final orders are appealable, and final orders are
defined as orders disposing of all claims and all
parties.” American Independent Insurance Co.
v. E.S., 809 A.2d 388, 391 (Pa.Super.2002); see
Pa.R.A.P. 341. Once an appeal is filed from a final
order, all prior interlocutory orders become
reviewable. Quinn v. Bupp, 955 A.2d 1014, 1020
(Pa.Super.2008), appeal denied, 605 Pa. 688, 989
A.2d 918 (2009).
In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa.Super. 2012).
This court ordinarily has jurisdiction only over
appeals taken from final orders. 42 Pa.C.S. § 742.
A final order is an order which effectively ends the
litigation or disposes of the entire case. DiDio v.
Philadelphia Asbestos Corp., 434 Pa.Super. 191,
642 A.2d 1088 (1994). As defined in the Rules of
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Appellate Procedure, a final order disposes of all
claims or of all parties. Pa.R.A.P. 341.
Hahalyak v. Integra Financial Corp., 678 A.2d 818, 819 (Pa.Super.
1996). “A trial court order declaring a case settled as to all remaining
parties renders prior grants of summary judgment final for Rule 341
purposes, even if the prior orders entered disposed of fewer than all claims
against all parties.” Gutteridge v. A.P. Green Services, Inc., 804 A.2d
643, 650 (Pa.Super. 2002), appeal denied, 829 A.2d 1158 (Pa. 2003),
citing Baker v. Cambridge Chase, Inc., 725 A.2d 757, 762 (Pa.Super.
1999).
PPG argues that the matter became final and appealable on
November 26, 2013, when the plaintiffs discontinued their claim against
Dravo. According to PPG, Dravo was the only remaining defendant in the
case. PPG claims that the trial court’s January 7, 2014 order assessing jury
selection costs against plaintiffs and Dravo constituted its final
administrative act in the case and confirmed that the case became final on
November 26, 2013. PPG characterizes the plaintiffs’ March 5, 2014 motion
for a final order as unnecessary and redundant. PPG contends that the
30-day appeal period expired on December 26, 2013.
PPG’s argument ignores the fact that Cerro and Met Life remained in
the case until the March 5, 2014 order. While PPG characterizes them as
“completely inactive,” Cerro and Met Life remained defendants of record and
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plaintiffs’ claims against them were not disposed of until the March 5, 2014
final order. Therefore, plaintiffs’ appeal was timely filed.
We now turn to plaintiffs’ claim on appeal.
Our scope of review on an appeal from the grant of
judgment on the pleadings is plenary. Meehan v.
Archdiocese of Philadelphia, 870 A.2d 912, 918
(2005). Entry of judgment on the pleadings is
permitted under Pennsylvania Rule of Civil Procedure
1034, which provides that “after the pleadings are
closed, but within such time as not to unreasonably
delay trial, any party may move for judgment on the
pleadings.” Pa.R.C.P. 1034(a). A motion for
judgment on the pleadings is similar to a demurrer.
Citicorp North America, Inc. v. Thornton, 707
A.2d 536, 538 (Pa.Super.1998). It may be entered
when there are no disputed issues of fact and the
moving party is entitled to judgment as a matter of
law. Id. In determining if there is a dispute as to
facts, the court must confine its consideration to the
pleadings and relevant documents. Id. On appeal,
we accept as true all well-pleaded allegations in the
complaint. Meehan, supra.
On appeal, our task is to determine whether
the trial court’s ruling was based on a clear error of
law or whether there were facts disclosed by the
pleadings which should properly be tried before a
jury or by a judge sitting without a jury. Citicorp,
supra.
Neither party can be deemed to have
admitted either conclusions of law or
unjustified inferences. Moreover, in
conducting its inquiry, the court should
confine itself to the pleadings themselves
and any documents or exhibits properly
attached to them. It may not consider
inadmissible evidence in determining a
motion for judgment on the pleadings.
Only when the moving party’s case is
clear and free from doubt such that a
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trial would prove fruitless will an
appellate court affirm a motion for
judgment on the pleadings.
Kelly v. Nationwide Insurance Company, 414
Pa.Super. 6, 606 A.2d 470, 471-72 (1992)
(quotations and citations omitted).
Consolidation Coal Co. v. White, 875 A.2d 318, 325-326 (Pa.Super.
2005).
In granting PPG’s motion for judgment on the pleadings, the trial court
relied on this court’s opinion in Sedlacek v. A.O. Smith Corp., 990 A.2d
801 (Pa.Super. 2010), appeal denied, 4 A.3d 1054 (Pa. 2010), in which we
held that the exclusivity provisions of the WCA applied to bar the plaintiffs’
common law negligence claims even though more than 300 weeks had
passed since the date of last employment and they could no longer seek
recovery under the WCA. We found that the WCA’s exclusivity provision
does not violate due process even when no recovery is provided by the Act.
In Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), our supreme
court held that the WCA does not bar a common law cause of action where
the claims are not compensable under the Act. In Tooey, the plaintiffs were
diagnosed with mesothelioma more than 300 weeks after the last
employment-based exposure, and therefore, the Act did not apply to their
claims. As such, the Tooey court concluded that, consistent with the
remedial goals of the statute, the exclusivity provision did not preclude the
plaintiffs from seeking compensation for their injuries via a common law
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action: “to prohibit an employee from filing an action at common law,
despite the fact that employee has no opportunity to seek redress under the
Act, leaves the employee with no remedy against his or her employer, a
consequence that clearly contravenes the Act’s intended purpose of
benefitting the injured worker.” Tooey, 81 A.3d at 864 (emphasis in
original).
In granting PPG’s motion for judgment on the pleadings, the trial court
relied on Sedlacek, which was subsequently abrogated by Tooey. Plaintiffs
allege that Mr. Partner’s workplace exposure ended by 1995 and he was
diagnosed with mesothelioma in 2007, a period greater than 300 weeks. If
these allegations are true, his claims would not fall within the purview of the
Act, and he would not be barred from bringing a common law cause of
action alleging PPG’s negligence. PPG argues that since Tooey issued in
November 2013, after the trial court’s ruling on PPG’s motion for judgment
on the pleadings, the parties have conducted no discovery and developed no
evidence relevant to a Tooey analysis, including Mr. Partner’s last
occupational exposure to asbestos. (PPG’s reply brief at 12.) Therefore, it is
necessary to vacate the order and remand for further proceedings.
Order vacated. Remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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