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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN MOELLER

Appellant

v.

ARMSTRONG WORLD INDUSTRIES, INC. : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 361 MDA 2018
Appeal from the Order Entered January 26, 2018 In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI

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- 08405

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 16, 2018 Appellant, John Moeller, appeals from the January 26, 2018 order sustaining the preliminary objections of Armstrong World Industries , Inc. (“Armstrong ”). We affirm. As this case was disposed of on preliminary objections, we set forth the
facts as pled in Appellant’s second amended complaint. For approximately 27 years, Michael Moeller (“Moeller”) was an Armstrong employee. During his employment with Armstrong, Moeller was exposed to trichloroethylene and methylene chloride. On February 23, 2 010, Moeller died due to blood cancer caused by his exposure to the toxic chemicals at Armstrong’s facility. On September 30, 2015, Appellant, as administrator of Moeller’s estate
and on his own behalf , filed the instant lawsuit. On October 26 , 2017, App ellant filed an amended complaint asserting claims for wrongful death andJ

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survival. Armstrong filed preliminary objections in which it argued that the applicable statute of limitations barred Appellant’s claims. 1 On January 26,
2018 , the trial court sust ained Armstrong’s preliminary objections and dismissed the case with prejudice. This timely appeal followed. 2 Appellant presents one issue for our review: [Did the trial court err in concluding that the applicable statute of limitations bars Appellant’s claims?] Appellant’s Brief at 4. Appellant argues that the applicable statute of limitations does not bar
his claims. “ Issues involving the interpretation of a statute of limitations are questions of law for which our standard of review is de novo and o ur scope of review is plenary .” Erie Ins. Exch. v. Bristol , 174 A.3d 578, 585 n.13 (Pa. 2017) (citation omitted). We conclude that Appellant’s argument is without merit. We begin with a review of wrongful death and survival claims: At common law, an action for personal injury did not survive a person's death. To counter this, our legislature enacted a s urvival statute providing that all causes of action or proceedings, real or personal, shall survive the death of a plaintiff. All a ctions that survive the decedent, however, must be brought by or against the personal represent ative of the decedent's estate. Likewise, Pennsylvania law provides that an action may be brought, under

_________________ __________ ______ ____ _______
1 A statute of limitations defense should be pled as new matter; not as a preliminary objection. Nonetheless, Appellant failed to fil e preliminary objections to Armstrong’s preliminary objections. Hence, the trial court could rule on the statute of limitations preliminary objection. Hvizdak v. Linn , 190 A.3d 1213, 1228 (Pa. Super. 2018) (citation omitted).

2 Appellant and the trial c ourt complied with Pennsylvania Rule of Appellate Procedure 1925.J

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procedures prescribed by general rules, to recover dama ges for the death of an individual caused by the wrongful act, neglect, unlawful violence [,] or negligence of another. This wrongful death action exists onl y for the benefit of a decedent’ s spouse, children or parents. As with survival actions, an action for wrongful death may only be brought by the personal representative of a decedent for the benefit of those persons entitled by law to recover damages for the decedent's wrongful death. Bouchon v. Citizen Care, Inc. , 176 A.3d 244, 258 (Pa. Super. 2017), appeal
denied , 189 A.3d 993 (Pa. 2018) (cleaned up).
“P ursuant to 42 Pa.C.S.A. § 5524, the statute of limitations for a wrongful death an d survival action is two years[.]” Krapf v. St. Luke's Hosp. , 4 A.3d 642, 649 (Pa. Super. 2010) , appeal denied , 34 A .3d 832 (Pa. 2011). The statute of limitations begins to run with respect to a survival action
“at the latest” on the date the decedent dies. Dubose v. Quinlan , 173 A.3d 634, 645 (Pa. 2017) (citation omitted). The statute of limitations for a wrongful d eath action always begins to run on the date the decedent dies.
See id. at 637. Hence, assuming arguendo that the statute of limitations for Appellant’s survival claim began to run when Moeller passed away (the latest date possible), the statute of limit ations for both claims expired on February 23, 2012, over 43 months prior to Appellant filing the instant lawsuit. Appellant argues that the statute of limitations did not begin to run until our Supreme Court’s decision in Too ey v. AK Steel Corp. , 81 A.3d 851 (Pa. 2013). 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 thatJ

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manifest s over 300 weeks after the last occupational exposure. Id. at 859

- 864. 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. See id. at 856. Appellant could have filed his lawsuit within two years of Moeller’s death and argued that the Workers’ Compensation Act’s exclusivity provision did not
bar his claims. Many plaintiffs throughout our Commonwealth, including Tooey , filed such suits and argued that this Court’s prior int erpretation 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
his survival and wrongful death claims. Accordingly, the trial court correctly sustained Armstrong’s preliminary objections and dismissed the claims with prejudice.
Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/16/2018