An appellant's reliance on a Pennsylvania Supreme Court decision clarifying the scope of the Workers' Compensation Act was misplaced in the wrongful death context, the state Superior Court has ruled.

In Riley v. Armstrong World Industries, a three-judge panel consisting of Judges Anne Lazarus, Judith Ference Olson and John Musmanno ruled that the Pennsylvania Supreme Court's 2013 decision in Tooey v. AK Steel did not give more time for plaintiff Sherry Riley to file her wrongful death claim.

Riley, the widow of Jeffrey Riley, filed her lawsuit against the defendant after her husband died from multiple myeloma, caused by exposure to toxic chemicals manufactured by Brenntag at the Armstrong facility where he worked. Brenntag was previously dismissed from the case.

The case was dismissed after preliminary objections by the defendants were sustained. The defendants argued that the claim was time-barred because the applicable statute of limitations had run. The court held that the statute began to run when Jeffrey Riley died on Nov. 1, 2012—33 months before Riley filed her lawsuit.

On appeal, Riley argued that the statute of limitations did not start running until the Supreme Court's Tooey ruling came down.

“Tooey clarified the scope of the Workers' Compensation Act. Our Supreme Court held that the Workers' Compensation Act's exclusivity provision does not cover an occupational disease-based disability that manifests over 300 weeks after the last occupational exposure,” Olson wrote in the court's opinion. “Contrary to appellant's arguments, Tooey did not create a new cause of action nor did the Workers' Compensation Act previously bar appellant's claims. Instead, our Supreme Court clarified the scope of the Workers' Compensation Act's exclusivity provision, which had not changed. Moreover, Tooey did not overturn prior decisions of our Supreme Court. Instead, it overturned prior decisions of this court.”

Olson added, “Appellant could have filed her lawsuit within two years of Riley's death and argued that the Workers' Compensation Act's exclusivity provision did not bar her claims. Many plaintiffs throughout our commonwealth, including Tooey, filed such suits and argued that this court's prior interpretation of the Workers' Compensation Act was incorrect. Appellant failed to do so, and our Supreme Court's Tooey decision did not extend the statute of limitations for her survival and wrongful death claims.”

Todd Mosser of Mosser Legal in Philadelphia represents Riley and did not return a call seeking comment.

George C. Werner of Barley Snyder in Lancaster represents Armstrong and also did not return a call seeking comment.

(Copies of the five-page opinion in Riley v. Armstrong World Industries, PICS No. 18-1428, are available at http://at.law.com/PICS.)