Wygant, E. v. General Electric

J-A35041-14
2015 PA Super 56ELIZABETH WYGANT, ADMINISTRATRIX IN THE SUPERIOR COURT OF
OF THE ESTATE OF MARGARET H. KLAN, PENNSYLVANIA
DECEASED,
Appellant
v.
GENERAL ELECTRIC COMPANY; HUNTER
SALES CORPORATION; READING CRANE
& ENGINEERING CO.,
Appellees No. 470 WDA 2014
Appeal from the Order March 20, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. 14-000269
ELIZABETH WYGANT, ADMINISTRATRIX IN THE SUPERIOR COURT OF
OF THE ESTATE OF MARGARET H. KLAN, PENNSYLVANIA
DECEASED,
Appellant
v.
GENERAL ELECTRIC COMPANY; HUNTER
SALES CORPORATION; READING CRANE
& ENGINEERING CO.,
Appellees No. 471 WDA 2014
Appeal from the Order Dated March 19, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. 14-000269
ELIZABETH WYGANT, ADMINISTRATRIX IN THE SUPERIOR COURT OF
OF THE ESTATE OF MARGARET H. KLAN, PENNSYLVANIA
DECEASED,
Appellant
J-A35041-14
v.
GENERAL ELECTRIC COMPANY; HUNTER
SALES CORPORATION; READING CRANE
& ENGINEERING CO.,
Appellees No. 472 WDA 2014
Appeal from the Order Entered March 20, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. 14-000269
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
OPINION BY BOWES, J.: FILED MARCH 19, 2015
This appeal involves the timeliness of an asbestos-related wrongful
death action in light of our High Court’s decision in Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013), which struck down Act 152 and its statute
of limitations for asbestos actions, 42 Pa.C.S. § 5524.1, as violative of the
Single Subject Rule of the Pennsylvania Constitution. Elizabeth Wygant,
administratrix (“Administratrix”) of the Estate of Margaret H. Klan, deceased,
(“Decedent”) appeals from the orders entered March 19 and 20, 2014,
granting judgment on the pleadings in favor of General Electric Company,
Hunter Sales Corporation, and Reading Crane & Engineering Co. (collectively
“GE”), based upon the court’s finding that the action was time-barred under
42 Pa.C.S. § 5524(8). After thorough review, we affirm.
Decedent was diagnosed with mesothelioma on June 17, 2011. She
died from the disease thirteen months later on July 9, 2012. Decedent did
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not commence an action for her asbestos-related injuries during her lifetime.
On January 9, 2014, more than two years after the mesothelioma diagnosis
but less than two years after Decedent’s death, Administratrix filed the
instant wrongful death and survival actions. GE filed a motion for judgment
on the pleadings based upon the statute of limitations, which was granted
following oral argument. Administratrix timely appealed. She does not
contest that trial court’s ruling that the survival action is time-barred, but
challenges the trial court’s application of 42 Pa.C.S. § 5524(8) to bar her
wrongful death claim. Specifically, she questions:
1. Whether 42 Pa.C.S. § 5524(8) is the current law of
Pennsylvania regarding the statute of limitations in asbestos
cases.
2. Whether 42 Pa.C.S. § 5524(8) overruled the prior case law
which held that the statute of limitations in an asbestos action
for a wrongful death claim began to run from the date of
death if that death occurred within two years of the date of
diagnosis.
3. Whether 42 Pa.C.S. § 5524(8) is ambiguous, thus
necessitating an investigation into the legislative intent to
only change the statute of limitations for the survival claim.
4. Whether 42 Pa.C.S. § 5524(8) permits the running of the
statute of limitations before a right to the cause of action
accrues.
Appellant’s brief at 5.
Judgment on the pleadings should be granted only where, on the facts
averred, the law says with certainty that no recovery is possible.
Insurance. Federation of Pennsylvania, Inc. v. Commonwealth, 970
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A.2d 1108 (Pa. 2009). At issue herein is a legal question. Thus, our
standard of review is de novo and our scope of review is plenary. Craley v.
State Farm Fire and Casualty Company, 895 A.2d 530, 539 n.14 (Pa.
2006).
Administratrix starts from the premise that there is currently no
enactment setting forth the applicable statute of limitations for asbestos
claims. She acknowledges that SB 216 of 2001 enacted such a statute at 42
Pa.C.S. § 5524(8). In 2004, the legislature enacted Act 152 (Senate Bill 92
of 2004), which deleted that provision and re-enacted a substantially similar
provision at 42 Pa.C.S. § 5524.1. However, in Commonwealth v. Neiman,
84 A.3d 603 (Pa. 2013), our Supreme Court struck down Act 152 as violative
of the Single Subject Rule of the Pennsylvania Constitution, rendering void
42 Pa.C.S. § 5524.1. In support of her position, she points to a footnote in
Daley v. A.W. Chesterton, 37 A.3d 1175, 1183 n.10 (Pa. 2012), where our
High Court stated that as a result of Neiman, “it appears there is no specific
statutory provision which addresses the statute of limitations for asbestos
claims.” She argues that the net effect of Neiman is that pre-§5524(8) law,
as enunciated in Baumgart v. Keene Building Products Corp., Inc., 633
A.2d 1189, 1191 (Pa.Super. 1993) (en banc), (affirmed by an equally
divided court at 666 A.2d 238 (Pa. 1995)), governs.
In Baumgart, on identical facts, a wrongful death action was not
time-barred. The decedent was diagnosed with mesothelioma in January
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1985, and died March 31, 1985. The plaintiff commenced a wrongful death
and survival action on March 26, 1987, more than two years after the date
of diagnosis but within two years of death. This Court held that the survival
action was barred by the two-year statute of limitations, but that the
wrongful death action was timely as “the rule is that an action for the
wrongful death of another person must be brought no later than two years
after the date of death.” Baumgart, supra at 1194. Administratrix
maintains that after Neiman, Baumgart’s statement is the applicable law,
and the wrongful death action was timely filed.
GE counters that, when Neiman struck down Act 152, which included
§ 5524.1, it simultaneously invalidated the provision deleting § 5524(8). It
relies upon Mazurek v. Farmers’ Mutual Fire Insurance Co., 181 A. 570(Pa. 1935), for the proposition that the voiding of the repealing statute
revives the original, repealed statute. See also 1 Pa.C.S. § 1962
(“Whenever a statute is repealed and its provisions are at the same time
reenacted in the same or substantially the same terms by the repealing
statute, the earlier statute shall be construed as continued in active
operation.”). Furthermore, GE dismisses the footnote in Daley as dicta
since that case did not involve the statute of limitations in an asbestos case.
According to GE, since the deleting of the § 5524(8) statute of limitations
was inoperative, it must be construed as continuing in active operation.
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The trial court concluded, “because Neiman held that Act 152 was
unconstitutional in its entirety, no consequence of its passage may be
enforced and any purported mandate of its passage is void ab initio. As
such, 42 Pa.C.S. §5524(8) never went out of existence, and as a matter of
law, 42 Pa.C.S. §5524(8) has remained the law since its original creation.”
Trial Court Opinion, 5/21/14, at 5. We agree. Since Act 152 is void, and
renders invalid 42 Pa.C.S. § 5524.1, Act 152’s deletion of §5524(8) is also
void. The deletion and re-enactment occurred in the same unconstitutional
statute. Thus, 42 Pa.C.S. §5524(8) remains operative and supplies the
applicable statute of limitations in an asbestos case.
Administratrix continues that, even if 42 Pa.C.S. §5524(8) governs,
that statute was intended to apply to only asbestos-related claims for injury
and survival actions. It provides:
(8) An action to recover damages for injury to a person or for
the death of a person caused by exposure to asbestos shall be
commenced within two years from the date on which the
person is informed by a licensed physician that the person
has been injured by such exposure or upon the date on
which the person knew or in the exercise of reasonable
diligence should have known that the person had an
injury which was caused by such exposure, whichever date
occurs first.
42 Pa.C.S. § 5524(8) (emphasis added). She baldly asserts, without more,
that the plain language of the statute does not support its application to a
wrongful death claim, and that prior law supplies the statute of limitations
for wrongful death actions.
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We find nothing in the statutory language to support Administratrix’s
position. The prefatory language of another subsection of § 5524 begins:
(2) “ An action to recover damages for injuries to the person or for the death
of an individual.” 42 Pa.C.S. § 5524(2). That subsection has been
construed as applying to both wrongful death and survival actions. See
Moyer v. Rubright, 651 A.2d 1139 (Pa.Super. 1994) (42 Pa.C.S. § 5524(2)
provides the statute of limitations applicable to both wrongful death and
survival actions). Similar language was employed by the legislature in 42
Pa.C.S. § 5524(8): “An action to recover damages for injury to a person or
for the death of a person.” The primary difference in the two provisions is
that § 5524(2) does not state when the statute commences to run.
Generally, 42 Pa.C.S. § 5502(a) supplies the commencement date for
limitations periods under § 5524(2), and provides that the two-year period is
computed “from the time the cause of action accrued.” The accrual date for
a survival action is the date of the tort; a wrongful death action generally
accrues when the cause of action can be maintained to a successful
conclusion, i.e., the date of death. See Matharu v. Muir, 29 A.3d 375, 383
(Pa.Super. 2011). However, 42 Pa.C.S. § 5502(b) provides that the
§5502(a) accrual date “may be made more specifically applicable to
particular classes of matters by general rules defining the acts, omissions or
events from which the limitation shall be computed.” Section 5524(8) is the
type of rule contemplated in 42 Pa.C.S. § 5502(b) because the legislature
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has specifically defined the event from which the statute of limitations for
asbestos claims is to be computed. The statutory language, on its face,
indicates that the legislature intended to measure the time for commencing
all asbestos-related actions, including wrongful death actions, from the date
of formal diagnosis or from the date when the affected person knew or
should have known with the exercise of reasonable diligence of the asbestos-
related injury.1
Administratrix complains that such an interpretation may result in
wrongful death actions being time-barred before they can be instituted.2
____________________________________________
1
We surmise that the legislature chose the date of a physician’s diagnosis in
an attempt to remove some of the uncertainty surrounding when an affected
person had sufficient knowledge to start the running of the statute of
limitations. See Trieschock v. Owens Corning Fiberglas Co., 511 A.2d
863 (Pa.Super. 1986) (acknowledging that if physicians are not reasonably
certain as to diagnosis in a creeping disease case, the plaintiff should not be
required to have greater knowledge).
2
The legislature’s intent to treat wrongful death cases like survival actions
for purposes of the statute of limitations is further evidenced by its definition
of an asbestos claim in 15 Pa.C.S. § 1929.1, incorporated by reference in
5524.1 (now void) as including
Any claim, wherever or whenever made, for damages, losses,
indemnification, contribution or other relief arising out of, based
on or in any way related to asbestos, including property damage
caused by the installation, presence or removal of asbestos, the
health effects of exposure to asbestos, including any claim for
personal injury, death, mental or emotional injury, risk of
disease or other injury or the costs of medical monitoring or
surveillance. The term shall also include any claim made by
or on behalf of any person exposed to asbestos or any
(Footnote Continued Next Page)
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She labels this consequence absurd, and points to this anomaly as proof the
legislature did not include wrongful death actions in § 5524(8). We do not
agree. Even the statute providing for wrongful death actions eliminates such
an action if a survival action was commenced during the decedent’s lifetime.
See 42 Pa.C.S. § 8301(a) (“General Rule. -- An action may be brought,
under procedures prescribed by general rules, to recover damages for the
death of an individual caused by the wrongful act or neglect or unlawful
violence or negligence of another if no action for damages was brought by
the injured individual during his lifetime.”).
Furthermore, prior to the enactment of § 5524(8), this Court held that
wrongful death actions could not be maintained if the decedent, had he
lived, could not have recovered for his injuries. See Ingenito v. AC&S,
Inc., 633 A.2d 1172 (Pa.Super. 1993) (en banc); Moyer, supra.Additionally, as we noted in Pisano v. Extendicare Homes, Inc., 77 A.3d
651 (Pa.Super. 2013), our decision in DiSerafino v. Bucyrus-Erie
Corporation, 470 A.2d 574 (Pa.Super. 1983), stood for the proposition that
the legislature, “through the Workers’ Compensation Act or otherwise, may
statutorily limit recoveries in wrongful death suits.” Pisano, supra at 658.
Thus, even prior to the enactment of § 5524(8), the legislature placed
_______________________
(Footnote Continued)
representative, spouse, parent, child or other relative of
any such person.
15 Pa.C.S. § 1929.1 (emphasis added).
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limitations upon the availability of a wrongful death action in certain
instances.
Wrongful death actions did not exist at common law and are solely
creatures of statute. Hodge v. Loveland, 690 A.2d 243, 245 (Pa.Super.
1997) (citing Frazier v. Oil Chemical Co., 179 A.2d 202 (Pa. 1962)). The
purpose of the Wrongful Death Statute is to compensate the decedent's
relatives for their loss. Tulewicz v. Southeastern Pennsylvania
Transportation Authority, 606 A.2d 427, 431 (Pa. 1999). Gillette v.
Wurst, 937 A.2d 430, 436 (Pa. 2007) (plurality). Although § 5524(8) may
have the effect of foreclosing some wrongful death causes of action even
before they can be maintained, that is the prerogative of the legislature. In
reading this statute “in light of reason and common sense,” we find nothing
in its application to the instant facts that “the Legislature, as a reasonably-
minded body, could never have intended.” Cochran v. GAF Corp., 633
A.2d 1195, 1197 (Pa.Super. 1993) (quoting The Statutory Construction Act
of May 28, 1937, P. L. 1019, Article IV, § 52, 46 PS § 552).
Next, Administratrix argues that the statute is ambiguous as applied to
a wrongful death action and that its application leads to absurd results. She
maintains that the word “person” is undefined, and when interpreted as
consistently referring to the “asbestos-harmed person,” it makes little sense.
She argues that the “person” for purposes of a wrongful death action is the
wrongful death beneficiary. The statute starts to run when the wrongful
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death beneficiary, through the exercise of reasonable diligence, learned of
the harm from the death of the asbestos-exposed individual. Otherwise,
according to Administratrix, the action could be barred before it accrued, an
absurd and unreasonable result. Appellant’s brief at 15. Administratrix
concludes, “Governing presumptions are that the General Assembly intended
the entire statute at issue to be effective and certain, and that the General
Assembly does not intend an absurd result or one that is impossible of
execution.” Board of Revision of Taxes, City of Philadelphia v. City of
Philadelphia, 1 A.3d 610, 622 (Pa. 2010).
GE disputes any ambiguity in the use of the word “person” in the
statute, and reminds us that the “letter of [the statute] is not to be
disregarded under the pretext of pursuing its spirit.” GE’s brief at 17
(quoting Pa.C.S. § 1921(b)). In enacting this provision, GE contends the
legislature intended to establish a single accrual date for all asbestos claims,
including wrongful death claims. That triggering date for the statute of
limitations is the date when the afflicted person is informed by a licensed
physician that he has been injured by exposure to asbestos. GE readily
concedes that some wrongful death actions may be time-barred before the
decedent dies. However, it argues that this result is consistent with the
prior rule that “no action for wrongful death can be maintained where the
decedent, had he lived, could not himself have recovered for the injuries
sustained.” Ingenito, supra at 1176.
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When interpreting a statute, the court must begin with the plain
meaning of the language used in the statute. Ludmer v. Nernberg, 699
A.2d 764 (Pa.Super. 1997). Unless the statute is ambiguous, we do not
engage in statutory construction or look at legislative intent. See
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)
("Canons of construction are no more than rules of thumb that help courts
determine the meaning of legislation, and in interpreting a statute a court
should always turn first to one, cardinal canon before all others. We have
stated time and again that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there.").
We do not find the word “person” to be ambiguous. As used in the
statute, it consistently refers to the person with asbestos-related disease.
The language of § 5524(8) clearly states, in pertinent part, that the statute
of limitations on any asbestos-related claim, including one for death, starts
to run from the date the afflicted person is diagnosed with asbestos-related
disease. It thus defines diagnosis as the event that triggers the statute of
limitations.
Undoubtedly, with respect to asbestos-related wrongful death actions,
the passage of 42 Pa.C.S. § 5524(8) changed prior law. Before the
enactment of § 5524(8), asbestos-related wrongful death actions were
treated no differently than any other wrongful death claims; the statute of
limitations on wrongful death claims commenced to run when the action
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accrued upon the death of the decedent. For non-asbestos-related wrongful
death claims, that remains the law. However, in enacting 42 Pa.C.S. §
5524(8), the legislature provided that, in all actions for injury or death
related to asbestos specifically, the two-year statute of limitations would
commence to run either when the afflicted person was formally diagnosed
with asbestos-related disease, or, with reasonable diligence, should have
been diagnosed. No exception was made for wrongful death actions. Title
42 Pa.C.S. § 5524.1, now void, was a substantial re-enactment of that
provision.
We find some merit in Administratrix’s contention that the designation
of the date of diagnosis as the commencement of the running of the statute
of limitations in a wrongful death action does not provide the clear notice
that death provided. Additionally, some of the consequences of applying
§5524(8) to wrongful death actions may seem harsh. Admittedly, some
asbestos-related wrongful death actions may be time-barred before they can
be instituted. Moreover, if a decedent dies just short of two years after
diagnosis, there may be insufficient time for the appointment of a personal
representative and the commencement of an action. Nonetheless, it is the
prerogative of the legislature to set the limitations on actions.
In sum, after Neiman, the formerly-deleted 42 Pa.C.S. § 5524(8) is
operative and provides the applicable statute of limitations for asbestos-
related claims, including wrongful death actions. The statute is not
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ambiguous. Thus, we need not resort to determining legislative intent
through statutory construction. The statute of limitations on Administratrix’s
wrongful death action started to run on June 17, 2011, the date when
Decedent was informed by a physician that she had mesothelioma.
Decedent had two years to commence an action for her asbestos-related
injury. Had she timely commenced such an action during her lifetime, that
action would have survived her death and been prosecuted by her personal
representative. If the decedent had commenced an action during her
lifetime, however, no wrongful death action could have been filed upon her
death. Where, as here, no action for asbestos-related injuries was
commenced by Decedent during her lifetime, Administratrix was free to
pursue both wrongful death and survival actions. However, any wrongful
death action had to be commenced after Decedent’s July 9, 2012 death and
prior to June 17, 2013, two years from the date Decedent received her
diagnosis.3 Hence, the wrongful death action filed January 9, 2014 is time-
barred.
Order affirmed.
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3
Administratrix did not appeal the trial court’s holding that the survival
action, filed more than two years after the date of diagnosis, was time-
barred.
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accrued upon the death of the decedent. For non-asbestos-related wrongful
death claims, that remains the law. However, in enacting 42 Pa.C.S. §
5524(8), the legislature provided that, in all actions for injury or death
related to asbestos specifically, the two-year statute of limitations would
commence to run either when the afflicted person was formally diagnosed
with asbestos-related disease, or, with reasonable diligence, should have
been diagnosed. No exception was made for wrongful death actions. Title
42 Pa.C.S. § 5524.1, now void, was a substantial re-enactment of that
provision.
We find some merit in Administratrix’s contention that the designation
of the date of diagnosis as the commencement of the running of the statute
of limitations in a wrongful death action does not provide the clear notice
that death provided. Additionally, some of the consequences of applying
§5524(8) to wrongful death actions may seem harsh. Admittedly, some
asbestos-related wrongful death actions may be time-barred before they can
be instituted. Moreover, if a decedent dies just short of two years after
diagnosis, there may be insufficient time for the appointment of a personal
representative and the commencement of an action. Nonetheless, it is the
prerogative of the legislature to set the limitations on actions.
In sum, after Neiman, the formerly-deleted 42 Pa.C.S. § 5524(8) is
operative and provides the applicable statute of limitations for asbestos-
related claims, including wrongful death actions. The statute is not
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