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Weldon v. Celotex Corp.

decided: December 14, 1982.



Weis, Becker and Van Dusen, Circuit Judges.

Author: Weis

WEIS, Circuit Judge.

In this negligence action plaintiff seeks damages for the death of her husband caused by exposure to asbestos on the job. In the alternative, she presents a claim for aggravation of the disease caused by the employer's failure to warn decedent after his employment ended of the risks to his health. At the time relevant to this appeal, the Pennsylvania Occupational Disease Act compensated victims of asbestosis and other specified diseases for disability or death occurring within three years after the date of their last employment. There can be no recovery at common law against an employer for a disease that is covered by the Act. Plaintiff contends that her claims fall outside the Act because her decedent did not develop asbestosis until twenty-five years after his employment ended. The district court held that the exclusive remedy provisions of the Act barred plaintiff's suit on both theories. We agree and affirm.

The complaint filed sought damages from The Celotex Corporation, successor-in-interest to decedent's former employer, under the Pennsylvania wrongful death and survival statutes. 42 PA. CON. STAT. ANN. §§ 8301, 8302 (Purdon Supp. 1982). The district court at first denied, but later granted, defendant's motion to dismiss the complaint for failure to state a claim. FED. R. CIV. P. 12(b)(6).

The facts in this case are not complicated. From 1952 to 1955, the decedent, Monroe Weldon, worked at an asbestos manufacturing plant owned and operated by Philip Carey Manufacturing Company in Plymouth Meeting, Pennsylvania. The company was later acquired by defendant. In 1980, Weldon was diagnosed as suffering from asbestosis, a disease that was partially responsible for his death the following year.

The complaint alleges two causes of action.*fn1 First, plaintiff attributes Weldon's illness and death to the company's "negligence, recklessness, carelessness, wantonness, and willfulness" in exposing him to asbestos on the job. Specifically, plaintiff charges that the company failed to advise its employees of the dangerous characteristics of asbestos, and failed to provide proper safety equipment, supervision, and training. Second, the complaint states that the company was "negligent, reckless and careless" in failing to warn decedent after he left its employ. The company is said to have become aware of the health hazards to its former employees through a study performed sometime after 1955. Nevertheless, plaintiff alleges, the company did not notify decedent so that he could take measures, including medical observation, to protect himself.

Defendant's 12(b)(6) motion was based on the proposition that the Pennsylvania Occupational Disease Act provides the exclusive remedy for asbestosis claims arising out of employment. PA. STAT. ANN. tit. 77, §§ 1201-1603 (Purdon 1952 & Supp. 1982). The company contended that the Act also bars the claim for post-employment failure to warn because any such duty would be inextricably bound to the employment relationship.

The district court initially held that plaintiff's claims were not covered by the Act because decedent's disability and death did not occur within the statutory period of "three years after the date of his last employment" with the company. Id. § 1401(c).*fn2 In the absence of coverage, the court concluded, plaintiff's common law negligence remedy remains available.

Defendant asked the court to reconsider, contending that the three-year provision in the statute is a period of limitations and not a delineation of coverage. Relying on a recent decision of the Pennsylvania Supreme Court, the district court agreed with defendant and dismissed the complaint. The judge stated "It is now clear . . . that plaintiff's decedent did have coverage under the Occupational Disease Act. Given such coverage . . . the exclusivity feature of the [Act] is applicable, and as I read the cases, cannot be circumvented by invoking a theory that post-employment failure to warn constitutes a separate and independent tort."

Plaintiff advances three arguments on appeal. First, she contends that statutory coverage is limited to disability or death actually occurring within the three-year period following cessation of employment. Under this theory, the Act does not cover her claims, and therefore does not bar her suit. Second, plaintiff maintains that the company's failure to warn decedent after he left its service was a separate tort -- an event that is outside the employment scheme and therefore also outside the scope of the Act. Finally, she argues that a section of the Act which grants a stipend to those workers whose claims are otherwise time-barred only provides a disability pension, and does not bar her right to recover under the Wrongful Death Act.


Our consideration of this case begins with a review of The Pennsylvania Occupational Disease Act of 1939. The legislature modeled the statute on the Workmen's Compensation Act, PA. STAT. ANN. tit. 77, §§ 1-1066 (Purdon 1952 & Supp. 1982), even though, unlike a traumatic injury caused by accident in the workplace, the onset of an occupational disease is not readily determinable. See generally Note, "Compensating Victims of Occupational Disease," 93 HARV. L. REV. 916 (1980).

Like the Workmen's Compensation Act, the Occupational Disease Act is based on a theory of "trade offs." It provides that "compensation for disability or death of [an] 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 in the Act. PA. STAT. ANN. tit. 77, § 1401(a). In return for this no-fault ...

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