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Jarrett v. Consolidated Rail Corp.

Superior Court of Pennsylvania

April 24, 2018


          Appeal from the Order Entered March 17, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2015 No. 1295

          BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.


          LAZARUS, J.

         Margaret Jarrett ("Jarrett"), as Executrix of the Estate of Philip Jarrett, Deceased ("Decedent"), and in her own right, appeals from the order entered in the Court of Common Pleas of Philadelphia County, entering summary judgment in favor of Appellee Consolidated Rail Corporation ("Conrail"). Upon careful review, we affirm.

         This matter arises from asbestos-related injuries sustained by Decedent in the course of his employment with Conrail and its predecessors-in-interest. In 1997, Decedent filed suit in the Philadelphia Court of Common Pleas under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51, et seq., [1] against Conrail and other defendants, after he developed non-malignant asbestosis. The case was settled in 2004 and Decedent executed a release which provided, in relevant part, as follows:

PHILLIP E. JARRETT, . . . on behalf of myself, my heirs, personal representatives and assigns, does hereby RELEASE AND FOREVER DISCHARGE . . . [Conrail] . . . of and from all liability for all claims or actions for all known and unknown, manifested and unmanifested, suspected and unanticipated pulmonary-respiratory diseases, and/or injuries including but not limited to medical and hospital expenses, pain and suffering loss of income, increased risk of cancer, fear of cancer, and any and all forms of cancer, including mesothelioma and silicosis, arising in any manner whatsoever, either directly or indirectly, in whole or in part, out of exposure to any and all toxic substances, including asbestos, silica, sand, diesel fumes, welding fumes, chemicals, solvents, toxic and other pathogenic particulate matters, coal dust, and all other dusts, fibers, fumes, vapors, mists, liquids, solids, or gases, during RELEASOR'S employment with RELEASEE. The parties agree that a portion of the consideration paid for this RELEASE is for the risk, fear, and/or possible future manifestation of the injuries or diseases described in this paragraph.
In entering into the RELEASE, RELEASOR declares that I have relied wholly upon my own judgment; that I am competent to understand and enter into this RELEASE; that I am not under any restraint or duress; that no representations about the nature and extent of my present or future condition, disabilities or damages made by any physician, attorney or agent of those hereby released, nor any representations regarding the nature and extent of legal liability of those hereby released, have induced me to make this settlement; that in determining the amount of settlement there has been taken into consideration not only my ascertained condition, disabilities and damages, but also that my present condition is permanent and may be progressive and recovery therefrom uncertain and indefinite, so that consequences may not now be fully known and could be more numerous and serious than now believed and that consequences not now anticipated may result.
RELEASOR hereby declares that he has executed this RELEASE on the advice and approval of his counsel; that he knows and understands the contents hereof and signs the same as his own free act with full knowledge that the effect hereof shall be such so as to extinguish and he hereby declares extinguished, now and forever, any and all claims described in this RELEASE.
I hereby certify that on the day and year above specified, I explained the foregoing RELEASE to PHILLIP E. JARRETT, that I explained to him the legal consequences of the execution and delivery of said RELEASE and that he executed the same voluntarily and appeared to have full knowledge thereof[.]
Attorney for RELEASOR /s/

Release Agreement, 1/6/04 (emphasis added).

         Subsequently, in October 2014, Decedent was diagnosed with lung cancer. The Jarretts commenced another FELA action in the Philadelphia Court of Common Pleas on February 9, 2015, alleging that Decedent's workplace exposure to asbestos caused his cancer.[2] On January 10, 2017, Conrail filed a motion for summary judgment, arguing that the release Decedent signed in 2004 precluded recovery in the instant matter, as it had released Conrail from future liability related to any workplace-related pulmonary-respiratory diseases and/or injuries, including cancer, contracted after the execution of the release. In response, Jarrett argued that the issue of whether a release for a non-malignancy claim bars recovery for future malignancy claims is a question for a jury to decide. On March 17, 2017, the trial court granted summary judgment in favor of Conrail; Jarrett's motion for reconsideration was denied on March 29, 2017.

         Jarrett filed a timely notice of appeal on April 5, 2017, followed by a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). ...

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