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Kathleen Tooey, Executrix of the Estate of John F. Tooey, Deceased v. Ak Steel Corporation (Individually and As Successor In Interest To

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT


May 17, 2011

KATHLEEN TOOEY, EXECUTRIX OF THE ESTATE OF JOHN F. TOOEY, DECEASED, AND KATHLEEN TOOEY IN HER OWN RIGHT, PETITIONER
v.
AK STEEL CORPORATION (INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO ARMCO STEEL CORPORATION); CROWN CORK & SEAL COMPANY, INC. (INDIVIDUALLY, AS SUCCESSOR TO MUNDET CORK COMPANY, AND AS SUCCESSOR TO VAN DORN IRONWORKS COMPANY); E. E. ZIMMERMAN COMPANY; FOSECO, INC.; GEORGE V. HAMILTON, INC.; HEDMAN MINES, LTD; INSUL COMPANY, INC.; I.U. NORTH AMERICA, INC.; MCCANN SHIELDS PAINT COMPANY; OGLEBAY NORTON COMPANY (INDIVIDUALLY AND ON BEHALF OF ITS FERRO ENGINEERING DIVISION); TASCO INSULATIONS, INC. (INDIVIDUALLY AND AS SUCCESSOR- IN-INTEREST TO ASBESTOS SERVICE COMPANY); THE GAGE COMPANY (FORMERLY PITTSBURGH GAGE AND SUPPLY CO.); THEIM CORPORATION, AND ITS DIVISION UNIVERSAL REFRACTORIES CORPORATION; AND UNITED STATES STEEL CORPORATION , RESPONDENTS

Petition for Allowance of Appeal from the Order of the Superior Court

Per curiam.

ORDER

AND NOW, this 17th day of May 2011, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner, are:

(1) Whether application of 77 P.S. § 411(2), the "disease manifestation" provision of the Pennsylvania Workers' Compensation Act ("Act"), in concert with 77 P.S. § 481, the "exclusive remedy" provision of the Act, results in an unconstitutional denial of the "reasonable compensation" mandate of Article III Section 18 of the Pennsylvania Constitution, which underlies the historical quid pro quo worker's compensation bargain, for a latent occupational disease that is invariably non-compensable under the Act?

(2) Whether it is a violation of the Open Courts and Remedies Clause of Article I Section II of the Pennsylvania Constitution and the Due Process and Equal Protection Clauses of the federal and state constitutions to foreclose a commonlaw remedy in exchange for providing a wholly emancipated "substitute remedy" in contravention of the "reasonable compensation" mandate of Article III Section 18 for an occupational disease which is invariably non-compensable under the Act?

(3) Whether the plain language of 77 P.S. § 411(2) defines an "injury" under the Act such that it excludes from its definition an occupational disease that first manifests more than 300 weeks after the last occupational exposure to the hazards of such disease, so that the exclusivity provision of 77 P.S. § 481 is not invoked?

Madame Justice Todd did not participate in the consideration of decision of this matter.

20110517

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