IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brad Lee Herold, as Executor of the :

Estate of William L. Herold :

:

v. : No. 998 C.D. 2021

: Argued: June 23, 2022

University of Pittsburgh - of :

Commonwealth System of Higher :

Education and 3M Company; Abb :

Motors and Mechanical, Inc. f/k/a :

Baldor Electric Company; Allied Glove :

Corporation; A.O. Smith Corporation; :

Armstrong International, Inc.; Aurora :

Pump Company; Baltimore Aircoil :

Company, Inc.; Beazer East, Inc. :

Individually and as Successor to :

Koppers Company, Inc., and Successor- :

in-Interest to Thiem Corporation and :

Universal Refractories Company; BMI :

Refractor Services, Inc.; Individually :

and as Successor-in-Interest to Premier :

Refractories, Inc., f/k/a Adience, Inc., :

Successor-in-Interest to Adience :

Company, LP, as Successor to BMI, :

Inc.; Burnham Boiler Corporation :

n/d/b/a Burnham Commercial; Bryan :

Steam, LLC; Carrier Corporation; CBS :

Corporation, a Delaware Corporation, :

f/k/a Viacom Inc., Successor by Merger :

to CBS Corporation, a Pennsylvania :

Corporation, f/k/a Westinghouse :

Electric Corporation and Westinghouse :

Air Brake Company; Cleaver Brooks, :

Inc., f/k/a Aqua-Chem, Inc. d/b/a :

Cleaver Brooks Division; Crane Co.; :

Delval Equipment Corporation; :

Dezurik, Inc.; Donald McKay Smith, :

Inc.; Dunham-Bush, Inc.; E.E. :

Zimmerman Company; Eaton :

Corporation in its own right and as :

successor to Cutler-Hammer, :

Incorporated; Eichleay Corporation; :
Ferro Engineering Division of :

on Marine Services Company, :

LLC, f/k/a Oglebay Norton Company; :

Flowserve US, Inc., Individually and as :

Successor to Byron Jackson :

Pumps, FlowserveGestra, Durametallic :

Corp., Aldrich Pumps; Cameron Pumps; :

Vogt Valves; Wilson-Snyder :

Centrifugal Pump; and Rockwell :

Valves; FMC Corporation, Individually :

and as Successor-in-Interest to Peerless :

Pump Company, Chicago Pump :

Company, Sterling Fluid System, Inc. :

and former subsidiary Crosby Valve, :

Inc.; Foseco, Inc.; Foster Wheeler :

Corporation; Gardner Denver, Inc.; :

General Electric Company; Grinnell :

LLC; Goulds Pumps, LLC; I.U. :

North America, Inc.; America, Inc. :

as Successor-by-merger to the Garp :

Company, f/k/a The Gage Company, :

f/k/a Pittsburgh Gage and Supply :

Company; IMO Industries, Inc., :

f/k/a IMO Delaval, Inc., f/k/a :

Transamerican DeLaval, Inc., f/k/a :

DeLaval Turbin, Inc., DeLaval Turbin, :

Inc., DeValco Corporation; Ingersoll- :

Rand Company; Insul Company, Inc.; :

ITT Corporation, f/k/a ITT Industries, :

Individually and as Successor-in-Interest:

to Bell & Gossett Domestic Pump; J.H. :

France Refractories Company; Kruman :

Equipment Company; Mallinckrodt US :

LLC, in its own right and as Successor- :

in-Interest to Imcera Group, Inc., and :

International Group, Inc., and :

International Minerals and Chemical :

Corporation, and as Successor-in- :

Interest to E.J. Lavino; Mine :

Safety Appliances Company, LLC as :

Successor-in-Interest by Merger with :

Mine Safety Appliances Company; :

Minnotte Contracting Corporation; :
M.S. Jacobs & Associates, Inc.; :

Nagle Pumps, Inc.; Peerless Industries, :

Inc.; Power Piping Company; Riley :

Power Inc.; Safety First Industries, Inc., :

in its own right and as Successor-in- :

Interest to Safety-First Supply, :

Inc.; Schneider Electric USA, Inc. f/k/a :

Square D Company, in its own right and :

as successor to The Electric Controller :

and Manufacturing (EC&M); Spirax :

Sarco, Inc.; SPX Cooling Technologies, :

Inc., f/k/a Marley Cooling Technologies :

Inc., f/k/a The Marley Cooling :

Company; TACO, Inc. f/k/a Taco :

Heaters, Inc.; The Goodyear Tire :

& Rubber Company; The Gordon-Rupp :

Company; The H.B. Smith Company, :

Inc.; Trane U.S. Inc., Successor-by- :

Merger to American Standard, Inc., :

Union Carbride Corporation; United :

States Steel Corporation; Warren :

Pumps LLC; Weil-McLain Company, :

Inc.; York International Corporation; :

and Zurn Industries, LLC f/k/a Zurn :

Industries, Inc. a/k/a Erie City Iron :

Works :

:

Appeal of: University of Pittsburgh – :

of the Commonwealth System of :

Higher Education :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION 

BY JUDGE DUMAS FILED: February 16, 2023

The University of Pittsburgh (University) appeals from the Order 

entered by the Court of Common Pleas of Allegheny County (trial court) on May 
2

17, 2021, which denied the University summary judgment.1 The University asserts 

that the common law claims of William L. Herold,2 which relate to his workplace 

exposure to asbestos and development of mesothelioma, fall within the purview of 

The Pennsylvania Occupational Disease Act (ODA).3 Thus, according to the 

University, Herold must file his claims with the Workers’ Compensation Board 

(Board). Upon review, we conclude that an occupational disease that manifests more 

than 4 years after an employee’s last exposure to hazards causing that disease is not 

subject to the exclusive remedy mandate of the ODA.4 Further, we reject the 

University’s invocation of the doctrine of primary jurisdiction, which may otherwise 

require Herold to seek relief from the Board in the first instance. Therefore, we 

affirm the trial court, albeit on different grounds, and remand so that Herold may 

proceed with his common law claims against the University.5

I. BACKGROUND6

Herold was employed by the University of Pittsburgh, from 1976 until 

he retired in 2015, as a stationary engineer. During his employment, Herold was 

1 This Court granted the University’s Petition for Permission to Appeal from the trial 

court’s interlocutory order pursuant to Chapter 13 of the Pennsylvania Rules of Appellate 

Procedure. Cmwlth. Ct. Order, 10/25/21. 

2 William L. Herold passed away on April 30, 2022. This Court substituted Brad Lee 

Herold, as Executor of the Estate of William L. Herold, as Appellee in this matter. Cmwlth. Ct. 

Order, 8/9/22.

3 Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1603.

4

See Sections 301(c) and 303 of the ODA, 77 P.S. §§ 1401(c) (limiting “compensable 

disability or death resulting from occupational disease [as] occurring within four years” after last 

exposure), 1403 (mandating an exclusive remedy for compensable disability or death). 

5 Following oral argument, Herold filed an application for relief, directing the Court’s 

attention to a recent decision of the Board in an unrelated matter. Application for Relief, 10/12/22. 

We deny the application.

6 At this stage of the proceedings, we view the record in the light most favorable to the 

non-moving party. See Eleven Eleven Pa., LLC v. State Bd. of Cosmetology, 169 A.3d 141, 145 

(Pa. Cmwlth. 2017).
3

exposed to asbestos until 2004. In April 2019, approximately 15 years after his last 

exposure to asbestos, he was diagnosed with mesothelioma, a cancer in the lining of 

the lung. Expert evidence attributed the cause of Herold’s mesothelioma to his 

asbestos exposures. 

In October 2019, Herold commenced this action in the trial court to

recover damages arising from his development of mesothelioma.7 In January 2021, 

the University sought summary judgment based on Section 303 of the ODA, 77 P.S. 

§ 1403. Section 303 is an “exclusivity provision,” which purports to limit 

compensation for an occupational disease as provided under the ODA, which is 

administered solely by the Board.8

The trial court denied the University summary judgment, reasoning: (1) 

the ODA defines an occupational disease as one that occurs within 4 years of last 

exposure to the hazards of such disease;9(2) Herold’s last exposure to asbestos 

7 Herold’s lawsuit also includes allegations against another former employer, United States 

Steel, and various producers and/or distributors of asbestos products. Those allegations are not at 

issue in this appeal.

8 The University also had cited a similar exclusivity provision found in the Workers’ 

Compensation Act (WCA), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-

2710. However, in accepting this interlocutory appeal, this Court limited the issues on appeal to 

the applicability of the ODA exclusivity provision. This is because the exclusivity provision in 

the WCA is inapplicable beyond a statutorily defined 300-week limitations period, which the 

Supreme Court views as jurisdictional. See Tooey v. AK Steel Corp., 81 A.3d 851, 855 (Pa. 2013).

9 The trial court’s definition of an occupational disease is incorrect. Section 108 of the 

ODA defines occupational disease by means of an enumerated list of specific diseases. 77 P.S. § 

1208. Section 108(n) further provides a catch-all definition:

All other occupational diseases (1) to which the claimant is exposed by 

reason of his employment, and (2) which are peculiar to the industry or 

occupation, and (3) which are not common to the general population. For 

the purposes of this clause, partial loss of hearing due to noise shall not be 

considered an occupational disease.

77 P.S. § 1208(n). In defining occupational disease, the trial court’s opinion mistakenly quotes 

from Section 301(c) of the ODA, which defines a limitations period for compensation under the 

ODA. 77 P.S. § 1401(c).
4

occurred 15 years prior to his diagnosis, far longer than the 4-year limitations period

defined in the ODA; and (3) an ODA “savings clause,” which provides additional 

relief beyond the 4-year period for certain enumerated diseases, was inapplicable.10 

See Trial Ct. Op., 11/24/21. Thus, the trial court concluded, “the ODA does not 

apply,” and Herold could pursue a civil claim. Id. at 3.

The University petitioned this Court for permission to appeal from the 

trial court’s interlocutory order. This Court granted the petition, certifying the 

following issues: 

Whether the trial court erred or abused its discretion in 

exercising subject matter jurisdiction over, and refusing to 

dismiss or stay, Herold’s common law claim against the 

University of Pittsburgh, [1] where Herold has been 

diagnosed with asbestos-related mesothelioma, an 

occupational disease as defined in the [ODA], Act of June 

21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1603, 

and [2] Herold failed to provide the workers’ 

compensation authorities an opportunity to determine 

whether Herold’s claims are within the exclusive remedies 

of the [ODA]. 

Cmwlth. Ct. Order, 10/25/21, at 1-2 (unpaginated).

II. THE PARTIES’ ARGUMENTS11

The University asserts that the trial court lacks subject matter 

jurisdiction over Herold’s claims because he contracted mesothelioma, an 

occupational disease subject to the exclusive jurisdiction of the Board. See Univ.’s 

Br. at 11, 13-19. In so doing, the University seeks to distinguish Tooey v. AK Steel 

Corp., 81 A.3d 851 (Pa. 2013), in which the Supreme Court recognized an exception 

10 Section 301(i) of the ODA, 77 P.S. § 1401(i), provides relief beyond the 4-year 

limitations period for claimants who contract “silicosis, anthraco-silicosis, coal workers’ 

pneumoconiosis, and asbestosis[.]”

11 The Court has received two Amicus Curiae briefs from interested parties. The arguments 

contained therein echo those presented.
5

to a similar exclusivity provision in the WCA. Id. at 13-14. The University does 

not formulate a robust argument in its attempt to persuade this Court that Tooey is 

neither binding nor instructive. Rather, it merely asserts that a similar exception is 

inapplicable here because “Tooey did not address the ODA” or abrogate its 

administrative processes. Id. at 14. In subsequent arguments to this Court, the 

University suggests that a Tooey-type statutory analysis is inappropriate because the 

relevant language in the WCA and ODA is completely different, further asserting 

that the time limiting language in the ODA is clear and unambiguous, and that 

Herold’s attempt to draw parallels between the two acts’ provisions was “tortured,” 

“convoluted,” and “nonsensical.” Univ.’s Reply Br. at 4-11. 

Pointing to the “grand bargain” or “quid pro quo” of the workers’ 

compensation system, which eliminates the uncertainties of litigation in exchange 

for a no-fault system of defined benefits, the University also criticizes a Tooey-type 

exception as unfair because some workers would be permitted to seek civil remedies, 

including punitive damages, whereas others would be subject to the various 

limitations of the ODA. See Univ.’s Br. at 15-18. Moreover, according to the 

University, employers have spent years mitigating the risk of such claims through 

costly insurance purchases that may not cover such risks if the long-standing 

statutory scheme is altered. See id.

12

Even if this Court were inclined to recognize an exception to the ODA

exclusivity provision, the University asserts that Herold must submit his claims to 

12 Beyond this, the University implies that Herold could invoke the ODA savings clause to 

obtain relief from the Board beyond the 4-year limitations period. See Univ.’s Br. at 14-15. We 

decline to address this argument in detail. As stated, supra at note 9, Section 301(i) of the ODA, 

77 P.S. § 1401(i), provides relief beyond the 4-year limitations period for claimants who contract 

“silicosis, anthraco-silicosis, coal workers’ pneumoconiosis, and asbestosis[.]” Herold did not 

contract one of those diseases. Therefore, the trial court properly determined that the ODA savings 

clause is inapplicable. See Trial Ct. Op. at 2-3.
6

the Board in the first instance. See Univ.’s Br. at 19-28. Invoking the doctrine of 

primary jurisdiction, the University reasons that an employee cannot bypass the 

administrative processes defined in the ODA and seek relief directly from the courts 

of common pleas. See id. at 24-26. Rather, the doctrine requires judicial abstention

to protect the integrity of the regulatory scheme. Id. at 26. Thus, according to the 

University, upon receiving Herold’s complaint, the trial court’s proper course was 

to stay adjudication of the civil matter pending exhaustion of an administrative 

action under the ODA. See id. at 25-26.

13

For his part, Herold responds that the WCA and the ODA share the 

same purpose and objective and, further, their respective exclusivity provisions are 

similar. See Herold’s Br. at 15-17. Proposing a similar textual analysis as employed 

by the Tooey Court, Herold asserts that the ODA only applies to compensable 

occupational diseases that cause total disability or death within 4 years of an 

employee’s last exposure to a toxin. See id. at 18-24. Thus, Herold concludes, his 

latent mesothelioma is beyond the purview of the ODA because it manifested more

than 4 years after his last exposure to asbestos. See id. In addition, according to 

Herold, because his claims clearly lack a statutory remedy, the doctrine of primary 

jurisdiction does not apply. Id. at 41-44. Herold notes the doctrine is flexible, and 

13 The University asserts that the trial court further erred by: (1) making factual findings

rather than deferring to the Board; (2) finding that the ODA is a chapter of the WCA; (3) 

considering the limited compensation available under the ODA; and (4) creating a conflict with an 

unreported and non-precedential federal decision interpreting Pennsylvania law. See Univ.’s Br. 

at 27-38. At this stage of the proceedings, the trial court has not made factual findings; thus, the 

University’s claim is without merit. The second and third assertions have merit and constitute 

additional errors by the trial court. However, in light of our disposition, they are harmless. The 

fourth, in which the University cites Data v. Pennsylvania Power Company (W.D. Pa., No. 19-

879, filed 3/24/21), 2021 WL 1115876, is not persuasive. Data is an unpublished decision from a 

federal, trial-level court; it is not binding on this Court.
7

in this case, judicial deference to administrative proceedings is not warranted. See 

id. 14

III. ANALYSIS15

A. An Exclusive Remedy for Workplace Injury and Disease

The WCA and ODA together provide a comprehensive, no-faultsystem 

of compensation for employees injured in the course of their employment. Barber 

v. Pittsburgh Corning Corp., 555 A.2d 766, 769 (Pa. 1989); Wagner v. Nat’l Indem. 

Co., 422 A.2d 1061, 1065 (Pa. 1980). Both acts include similar exclusivity 

provisionsthat reflect the historical quid pro quo between employers and employees. 

Barber, 555 A.2d at 769; compare Section 303(a) of the WCA, 77 P.S. § 481, with

Section 303 of the ODA, 77 P.S. § 1403. 

Under this system, “both the employer and employee relinquish[] 

certain rights to obtain other advantages.” Wagner, 422 A.2d at 1065. In exchange 

14 Herold further notes that Section 108 of the ODA does not specify mesothelioma as an 

occupational disease. Therefore, according to Herold, the University was required, but failed, to 

introduce evidence to meet the three-prong catchall test in Section 108(n) of the ODA. See 77 P.S. 

§ 1208(n). See also Herold’s Br. at 34-41. We reject Herold’s argument as hyper-technical.

Unlike the WCA, the ODA does not define mesothelioma as an occupational disease. 

Compare Section 108 of the WCA, 77 P.S. § 27.1 (including cancer caused by asbestos exposure), 

with Section 108 of the ODA, 77 P.S. § 1208 (not including cancer caused by asbestos exposure). 

However, it is indisputable that mesothelioma would qualify as an occupational disease under 

Section 108(n) of the ODA. See 77 P.S. § 1208(n). See also Sedlacek v. A.O. Smith Corp., 990 

A.2d 801, 804 (Pa. Super. 2010) (asserting without citation that the “catch-all definition [of the 

ODA] . . . has been viewed as including [mesothelioma]”). Moreover, the question certified for 

this interlocutory appeal implies that the Court has presumed mesothelioma is an occupational 

disease under the ODA. See Cmwlth. Ct. Order, 10/25/21, at 1 (“Herold has been diagnosed with 

asbestos-related mesothelioma, an occupational disease as defined in the [ODA.]”).

In light of our disposition and settled policy to resolve claims on non-constitutional 

grounds, when possible, see, e.g., Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007), we 

decline to address further, constitutional arguments asserted by Herold. See Herold’s Br. at 46-

49.

15 The issues certified for appeal present questions of law. Thus, our standard of review is 

de novo, and our scope of review is plenary. Tooey, 81 A.3d at 857.
8

for immunity from civil lawsuits by injured employees, and all the risks and costs

associated with such suits, the employer ensures certain and reasonable 

compensation to injured employees. Barber, 555 A.2d at 769; Wagner, 422 A.2d at 

1065. On the other hand, employees need not prove an employer’s negligence but 

“must accept limited, though certain, recovery.” Wagner, 422 A.2d at 1065. Thus, 

the exchange benefits both parties. 

Our Supreme Court has interpreted the clear language of the acts’ 

respective exclusivity provisions to mean that “the only remedy available to an 

injured employee is statutory.” Barber, 555 A.2d at 769. Thus, it has long been 

presumed that employees who suffer from occupational disease must seek benefits 

for their disabilities from the Board under either the WCA or the ODA, or under 

both in the alternative. See Smith v. Bureau of Workers’ Comp., 537 A.2d 61, 63 

(Pa. Cmwlth. 1988); Workmen’s Comp. Appeal Bd. v. Jones & Laughlin Steel Corp., 

353 A.2d 90 (Pa. Cmwlth. 1976) (Jones & Laughlin); Section 444 of the WCA, 77 

P.S. § 1000.16 

Moreover, the Supreme Court has resisted efforts to formulate 

exceptions to the exclusive remedy mandate. In Barber, approximately 75 former 

and current employees brought suit in the court of common pleas, alleging

16 Despite similarities in coverage for occupational disease, the two acts remain separate 

and distinct. See Jones & Laughlin, 353 A.2d at 90. See also Pawlosky v. Workmen’s Comp.

Appeal Bd. (Latrobe Brewing Co.), 525 A.2d 1204, 1210 n.9 (Pa. 1987) (observing that, despite 

similarities in coverage, the General Assembly has not repealed the ODA). In Pawlosky, our 

Supreme Court implied that the ODA would eventually become obsolete: “Obviously, one of the 

main reasons for not repealing it was to make clear that the 1939 statute was to remain in force 

with respect to occupational diseases contracted prior to the effective date of the 1972 disease 

provisions of the Workmen’s Compensation Act.” 525 A.2d at 1210 n.9. As it becomes less and 

less likely that claimants will have contracted an occupational disease prior to 1972, at this point 

more than 50 years ago, the General Assembly should at some point consider whether the ODA

remains a useful component of the workers’ compensation system.
9

intentional misconduct by their employer resulted in their exposure to asbestos. 

Barber, 555 A.2d at 767-78. The trial court granted the employer summary 

judgment based on the ODA’s exclusivity provision, but the Superior Court 

reversed, concluding that “the legislature could have never intended to immunize an 

employer from liability for harm caused by his reprehensible intentional wrongdoing 

which was reasonably calculated to lead to severe personal injury or death of 

employees.” Id. at 768 (cleaned up). On further appeal, however, the Supreme Court 

reinstated summary judgment. Id. at 772. According to the Court, “the legislative 

intent to provide a blanket exclusivity for employers under the ODA cannot be 

ignored. Attempts to induce the Court through policy arguments to the contrary 

must be unavailing.” Id. See also, e.g., Poyser v. Newman & Co., Inc., 522 A.2d 

548 (Pa. 1987) (rejecting a similar exception under the WCA). 

Even where compensation was unavailable, it was long understood that 

the WCA and the ODA collectively provide the exclusive remedy for occupational 

injury and disease. See, e.g., Moffett v. Harbison-Walker Refractories Co., 14 A.2d 

111, 113 (Pa. 1940) (rejecting the civil suit of an employee who had contracted 

silicosis at his workplace, even though the ODA provided no compensation for his 

partial disability), superseded by statute as stated in Tooey, 81 A.3d at 863; Sedlacek 

v. A.O. Smith Corp., 990 A.2d 801, 809 (Pa. Super. 2010) (holding that temporal 

limitations to compensation under the WCA and ODA did not alter the exclusive 

remedy doctrine), abrogated by Tooey, 81 A.3d at 865.

We think it fair to say that, over the decades that it has been in place, 

our comprehensive workers’ compensation system has preserved the historical quid 

pro quo between employees and employers. And yet, in our view, it is troubling that

our courts have long felt constrained to accept a rather odd distinction between 
10

coverage and compensation. See Sedlacek, 990 A.2d at 809; Ranalli v. Rohm &

Haas Co., 983 A.2d 732 (Pa. Super. 2009). Despite the grand bargain ensconced in 

the provisions of the WCA and the ODA, the statutory relief defined therein has not 

always fulfilled the promise that employees would secure limited, though certain, 

recovery in exchange for the tort immunity accorded employers. The distinction 

between coverage and compensation is perhaps an inevitable by-product of the 

compromise of interests represented, but it remains an outstanding flaw in an 

otherwise competent system. 

Therefore, it is hardly surprising that our Supreme Court has come to 

view the distinction between coverage and compensation with a critical eye, even as 

it has denied relief to injured workers. See, e.g., Lord Corp. v. Pollard, 695 A.2d 

767, 769 (Pa. 1997) (Op. in Supp. of Affirm.) (suggesting that unless employee’s 

disease was cognizable and compensable under either the WCA or the ODA, her 

common law cause of action could proceed); Barber, 555 A.2d at 772 (“We are 

constrained to follow the clear legislative mandate notwithstanding the appealing 

quality of the arguments marshalled to support a contrary approach.” (emphasis 

added)); Greer v. U.S. Steel Corp., 380 A.2d 1221, 1223 (Pa. 1977) (remanding for 

determination whether employee’s pulmonary fibrosis qualified as an occupational 

disease under the ODA’s catch-all provision, 77 P.S. § 1208(n), and absent such 

proof, holding that civil proceedings could proceed).

B. Tooey and the Applicability of the WCA to Latent Occupational Disease

There is no more obvious flaw in the workers’ compensation system 

than in the context of latent occupational disease. Our Supreme Court has long 

recognized, and it may not be seriously disputed, that the estimated latency period 

for asbestosis and most lung cancers is 10 to 20 years, whereas the latency period 
11

for mesothelioma can be as long as 50 years. See Daley v. A.W. Chesterton, Inc., 37 

A.3d 1175, 1188 (Pa. 2012). However, both the WCA and the ODA purport to limit 

compensation for disability or death resulting from occupational disease unless it 

manifests well before the average latency period of these most serious ailments. To 

wit, Section 301(c) of the WCA, 77 P.S. § 411(2), defines this limitations period to 

be 300 weeks from the last workplace exposure, and Section 301(c) of the ODA, 77 

P.S. § 1401(c), defines it to be 4 years. Thus, under either statutory regime, these

limitations periods operate as a de facto exclusion of coverage for certain 

occupational diseases that are prone to latency.17 See Tooey, 81 A.3d at 863.

In Tooey, the plaintiffs were diagnosed with mesothelioma 

approximately 25 years after their last workplace exposure to asbestos. 81 A.3d at 

856. The plaintiffs commenced tort actions, and their former employers moved for 

summary judgment, asserting that the plaintiffs’ claims were barred by the WCA’s 

exclusivity provision. Id.18 In response, the plaintiffs argued that the prolonged 

latency of their mesothelioma removed their claims from the jurisdiction, scope, and 

coverage of the WCA. Id. The common pleas court agreed with the plaintiffs, but 

the Superior Court reversed, concluding that the WCA’s exclusivity provision 

included coverage for the plaintiffs’ mesothelioma that precluded their common law 

17 As noted, supra at note 10, the ODA includes a savings clause that provides limited relief 

beyond the 4-year limitations period for employees who develop silicosis, anthraco-silicosis, coal 

workers’ pneumoconiosis, and asbestosis. See Section 301(i) of the ODA, 77 P.S. § 1401(i). 

Notably absent from this list is mesothelioma. 

18 Section 303(a) of the WCA provides:

The liability of an employer under this act shall be exclusive and in place of 

any and all other liability to such employes, his legal representative, 

husband or wife, parents, dependents, next of kin or anyone otherwise 

entitled to damages in any action at law or otherwise on account of any 

injury or death as defined in section 301(c)(1) and (2) or occupational 

disease as defined in section 108. 

77 P.S. § 481(a).
12

claims despite the lack of compensation available under the workers’ compensation 

system. Id.

To resolve this distinction between the scope of coverage and the 

availability of compensation, the Supreme Court examined the plain language of 

Section 301(c)(2) of the WCA, 77 P.S. § 411(2). Id. at 857-60. That section places 

a time limitation on claims for occupational disease and provides in relevant part:

[W]henever occupational disease is the basis for 

compensation, for disability or death under this act, it shall 

apply only to disability or death resulting from such 

disease and occurring within three hundred weeks after the

[last occupational exposure]. 

77 P.S. § 411(2) (emphasis added). 

Agreeing with the plaintiffs, the Court concluded that the word “it” in 

the phrase, “it shall apply,” must refer to “this act.” Tooey, 81 A.3d at 859-60. Thus, 

the Court construed Section 301(c)(2) as follows:

[W]henever occupational disease is the basis for 

compensation, for disability or death under this act, [the 

act] shall apply only to disability or death resulting from 

such disease and occurring within three hundred weeks 

after the [last occupational exposure]. 

Id. (emphasis added).

Reading the WCA exclusivity provision in conjunction with this 

interpretation of Section 301(c)(2), the Supreme Court imparted a jurisdictional 

element to the limitations provision and concluded that the WCA did not apply to 

latent occupational diseases that manifest more than 300 weeks after the last 

occupational exposure. Id. at 865. Accordingly, the Court reversed the Superior 

Court and remanded so that the plaintiffs’ tort actions could proceed. Id.

In an alternative analysis, assuming that Section 301(c)(2) was 

ambiguous, the Court further reasoned that the remedial purpose and objectives of 
13

the WCA favored an interpretation that would permit the plaintiffs to proceed with 

their civil claims. Id. at 860-65. In sifting through the parties’ arguments, certain 

themes resonated with the Court. On the one hand, the plaintiffs argued that, in those 

cases involving latent mesothelioma, the quid pro quo contemplated by the WCA 

could not be effectuated. Id. at 860. Indeed, according to the plaintiffs, the no-fault

liability granted employers was illusory and was, in effect, full immunity with no 

reasonable opportunity for employees to obtain any compensation for their injuries. 

Id. at 860-61 (quoting from plaintiffs’ arguments). 

On the other hand, the Court recognized the long-standing distinction 

between coverage and compensation. See id. at 862-63 (discussing cases). The 

Court specifically considered the employers’ characterization of Section 301(c)(2) 

as “a statute of repose which serves as a legitimate temporal limitation on recovery, 

as opposed to a jurisdictional limitation of the [WCA].” Id. at 862.19 The Court 

clearly rejected this interpretation:

It is inconceivable that the legislature, in enacting a statute 

specifically designed to benefit employees, intended to 

leave a certain class of employees who have suffered the 

most serious of work-related injuries without any redress 

under the [WCA] or at common law.

Id. at 864.

19 Statutes of repose differ from statutes of limitations, although both serve “to limit the 

temporal extent or duration of liability for tortious acts.” Dubose v. Quinlan, 173 A.3d 634, 643

(Pa. 2017) (citation omitted). “[A] statute of repose is a judgment that defendants should be free 

from liability after the legislatively determined period of time, beyond which the liability will no 

longer exist and will not be tolled for any reason.” Id. at 645 (cleaned up). In contrast, “[e]quitable 

tolling is applicable to statutes of limitations because their main thrust is to encourage the plaintiff 

to pursue his rights diligently, and when an extraordinary circumstance prevents him from bringing 

a timely action, the restriction imposed by the statute of limitations does not further the statute’s 

purpose.” Id. (cleaned up).
14

The Court also found little merit in concerns that permitting common 

law claims would expose employers to “potentially unlimited liability.” Id. at 865-

66. Pointing to the traditional and more onerous requirements of tort liability, 

including proof of negligence and causation, the Court concluded that common law 

claims arising from a latent occupational disease would not undermine the 

compromise of interests manifest to the workers’ compensation system. See id.

In summary, with the Tooey decision, our Supreme Court again 

confronted the distinction between coverage and compensation. In Greer and Lord, 

the Court addressed the nature of the employee’s particular disease; in Barber, the 

Court considered the nature of the employer’s conduct. In Tooey, however, the 

Court wrestled with limitations placed on claims in the context of a latent 

occupational disease. The Court specifically considered the limitations period 

defined at Section 301(c)(2) of the WCA, 77 P.S. § 411(2), which purports to limit 

claims to those that manifest within 300 weeks of the employees’ last exposure. 

Examining its unambiguous terms, the Court determined that Section 301(c)(2)

narrowed the jurisdictional scope of the WCA. Additionally, mindful of the 

remedial purposes of the workers’ compensation system, the Court reasoned that the 

system’s humanitarian objectives militated against interpreting Section 301(c)(2) as 

a statute of repose. Thus, the Court held that latent occupational diseases that 

manifest beyond the 300-week limitations period are not subject to the exclusivity 

provision of the WCA. 

C. Herold’s Civil Claims are Not Subject to the ODA Exclusivity Provision

The preceding sections provide necessary context to our analysis. 

Turning to the first issue certified by this Court, namely whether the trial court erred 

in exercising jurisdiction over Herold’s claims, we must examine certain provisions 
15

in the ODA. Our analysis proceeds in several steps. First, we lay out several general 

principles that guide our analysis. Then, we consider the parties’ interpretations of 

Section 301(c) of the ODA, which places a temporal limitation on its definition of 

“compensable disability or death.” With this definition in hand, we turn to a

statutory construction of the ODA preferred by Herold. We conclude that this 

construction is unpersuasive and, further, unhelpful to Herold. Finally, we address 

the scope of the ODA exclusivity provision and whether it mandates an exclusive 

remedy for claims arising from latent occupational disease.

1. General principles of statutory construction

“The touchstone of interpreting statutory language is to ascertain and 

effectuate the intent of the legislature.” Summit Sch., Inc. v. Dep’t of Educ., 108 

A.3d 192, 196 (Pa. Cmwlth. 2015); 1 Pa. C.S. § 1921(a). It is a “guiding principle 

of statutory construction that when the words of a statute are clear and free from all 

ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its 

spirit.” Summit Sch., Inc., 108 A.3d at 196; 1 Pa. C.S. § 1921(b). 

“Words and phrases shall be construed . . . according to their common 

and approved usage.” 1 Pa. C.S. § 1903(a). “In giving effect to the words of the 

legislature, we should not interpret statutory words in isolation, but must read them 

with reference to the context in which they appear.” Giant Eagle, Inc. v. Workers’

Comp. Appeal Bd. (Givner), 39 A.3d 287, 290 (Pa. 2012). Moreover, it is well 

settled that the ODA must be liberally construed to effectuate its remedial and 

humanitarian purposes. Bley v. Dep’t of Labor & Indus., 399 A.2d 119, 122 (Pa. 

1979). Therefore, although we may not disregard the plain statutory meaning and 

language, “borderline interpretations are to be construed in the injured party’s 

favor.” Tooey, 81 A.3d at 858.
16

If a statute is unclear or ambiguous, then the courts may apply further 

principles of statutory construction to ascertain the intent of the legislature. Summit 

Sch., Inc., 108 A.3d at 197; see, e.g., 1 Pa. C.S. §§ 1921(c) (enumerating further 

considerations), 1922(1) (presuming, inter alia, that the legislature does not intend 

a result that is absurd), 1932 (providing that statutes relating to the same things or 

class of things, i.e., in pari materia, “shall be construed together . . . as one statute”). 

A statute is ambiguous if there are two or more reasonable interpretations of the 

statutory language. Tooey, 81 A.3d at 860. 

2. The ODA clearly defines “compensable disability or death”

Principally, the parties direct our attention to Section 301(c) of the 

ODA, which provides in relevant part:

Wherever compensable disability or death is mentioned as 

a cause for compensation under this act, it shall mean only 

compensable disability or death resulting from 

occupational disease and occurring within four years after 

the date of his last employment in such occupation or 

industry.

77 P.S. § 1401(c) (emphasis added).

As in Tooey, the parties dispute the meaning of the pronoun “it.” 

Herold encourages this Court to adopt the textual analysis preferred by the Supreme 

Court in Tooey. Thus, according to Herold, “it” refers to the immediately preceding 

noun, “act.” See Herold’s Br. at 21-22. In contrast and citing to different 

grammatical rules, the University asserts that “it” refers to the subject of the 

preceding dependent clause. Thus, according to the University, “it” must refer to 

“compensable disability or death.” See Univ.’s Reply Br. at 8-9.

In our view, Herold’s proposed textual analysis of Section 301(c) is 

more persuasive. Not only does it mirror the analysis adopted by our Supreme Court, 
17

but we also observe that the University’s analysis would substitute the singular 

pronoun “it” for a compound or plural term, i.e., “compensable disability or death.” 

Clearly, this would be grammatically incorrect because “[a] pronoun’s number is 

guided by that of its antecedent or referent[.]” The Chicago Manual of Style Online, 

Rule 5.32 (17th ed. 2017) (https://www.chicagomanualofstyle.org/book/ed17/

part2/ch05/psec032.html) (last visited Jan. 21, 2023).

Therefore, the most reasonable interpretation of the relevant language 

in Section 301(c) is:

Wherever compensable disability or death is mentioned as 

a cause for compensation under this act, [the act] shall 

mean only compensable disability or death resulting from 

occupational disease and occurring within four years after 

the date of his last employment in such occupation or 

industry.

77 P.S. § 1401(c) (emphasis added). It is therefore clear and unambiguous that 

Section 301(c) defines “compensable disability or death.” Wherever the ODA

mentions compensable disability or death as a cause for compensation, the ODA 

means only compensable disability or death (1) resulting from occupational disease 

and (2) manifesting within 4 years after the last workplace exposure. See Summit 

Sch., Inc., 108 A.3d at 196; 1 Pa. C.S. §§ 1903(a), 1921(b).20

20 If we were to accept the University’s proposed interpretation, the operative language of 

Section 301(c) would be:

Wherever compensable disability or death is mentioned as a cause for 

compensation under this act, [compensable disability or death] shall mean 

only compensable disability or death resulting from occupational disease 

and occurring within four years after the date of his last employment in such 

occupation or industry.

77 P.S. § 1401(c). We reject this interpretation of the statutory language but note nonetheless that 

this interpretation does not alter the meaning of this provision. Regardless of which substitution 

is preferred, it remains clear and unambiguous that the legislature sought to place a temporal limit 

on the definition of “compensable disability or death.”
18

3. Herold’s proposed statutory construction is not persuasive

This does not end our statutory analysis. As recognized by the 

University, the operative language employed by the legislature in Section 301(c)(2) 

of the WCA and Section 301(c) of the ODA is different. See Univ.’s Reply Br. at 6. 

In the WCA, the legislature chose language that conveyed a jurisdictional limit, 

removing from the WCA’s purview claims involving a latent occupational disease

that manifests beyond the limitations period. See Tooey, 81 A.3d at 859-60 (“[T]he 

act shall apply only to disability or death [arising from occupational disease that 

manifests within 300 weeks].” (emphasis added)). In the ODA, however, there is no 

jurisdictional implication to the relevant statutory language. Rather, the plain 

language of Section 301(c) merely refines the definition of “compensable disability 

or death.”21 

To address this difference in the statutory language of these provisions, 

Herold proposes that we construe Section 301(c) in pari materia with Section 101 

of the ODA, 77 P.S. § 1201. See Herold’s Br. at 19-24.22 Section 101 provides a 

short title and statement of general application; it states as follows:

This act shall be called and may be cited as The 

Pennsylvania Occupational Disease Act. It shall apply to 

disabilities and deaths caused by occupational disease as 

defined in this act, resulting from employment within this 

21 The legislature’s choice of words in these provisions makes this distinction clear. The 

definition of “apply,” used as an intransitive verb in the WCA is “to have relevance or a valid 

connection.” Apply, Merriam-Webster’s Dictionary (online ed.) (https://www.merriamwebster.com/dictionary/apply) (last visited Jan. 20, 2023). In contrast, the definition of “mean,” 

used as a transitive verb in the ODA is “to serve or intend to convey, show, or indicate : signify.” 

Mean, Merriam-Webster’s Dictionary (online ed.) (https://www.merriam-webster.com/

dictionary/mean) (last visited Jan. 20, 2023). 

22 Statutes are in pari materia when they relate to the same thing or class of things. 1 Pa. 

C.S. § 1932(a). If possible, statutes in pari materia shall be construed together. 1 Pa. C.S. § 

1932(b). 
19

Commonwealth, irrespective of the place where the 

contract of hiring was made, renewed, or extended, and 

shall not apply to any such disabilities and deaths resulting 

from employment outside of the Commonwealth.

77 P.S. § 1201 (emphasis added). The phrase, “[i]t shall apply,” mirrors the

operative language interpreted by the Tooey Court as jurisdictional.

According to Herold, if we were to extract from Section 101 the 

statement of general application and read it in concert with the properly refined 

definition of “compensable disability or death” set forth in Section 301(c), the 

combined statutory language would state:

[The ODA] shall apply to disabilities and deaths caused by 

occupational disease as defined in this act . . . [and] 

[w]herever compensable disability or death is mentioned 

as a cause for compensation under this act, [the act] shall 

mean only compensable disability or death resulting from 

occupational disease and occurring within four years after 

the date of his last employment in such occupation or 

industry.

Herold’s Br. at 22. Thus, Herold concludes, the ODA does not apply to his 

mesothelioma, which manifested approximately 15 years after his last workplace 

exposure, because these provisions together limit the scope of the ODA to those 

occupational diseases that manifest within 4 years. Herold’s Br. at 22. 

In our view, Herold’s proposed construction is unpersuasive. “[I]t is 

well established that resort to the rules of statutory construction is to be made only

when there is an ambiguity in the provision.” Oliver v. City of Pittsburgh, 11 A.3d 

960, 965 (Pa. 2011) (emphasis added) (rejecting an in pari materia reading of 

employer subrogation rights defined in the WCA and what is known as the Heart 

and Lung Act23). We have discerned no ambiguity in Section 301(c), nor does 

23 Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38.
20

Herold contend that this section is ambiguous. See Herold’s Br. at 13 (asserting his 

interpretation is “consistent with [the ODA’s] plain language”). Moreover, these 

provisions address similar, but different concepts. Compare 77 P.S. § 1201

(“disabilities and deaths”), with 77 P.S. § 1401(c) (“compensable disability or 

death”) (emphasis added). For these reasons, we decline to apply this rule of 

construction.

Further, even if we were to adopt Herold’s construction and, essentially, 

redraft these provisions into a single legislative statement, it would not eliminate the 

distinction between coverage and compensation as Herold intends. By its plain 

terms, “[the ODA] shall apply to disabilities and deaths caused by occupational 

disease as defined in this act.” 77 P.S. § 1201 (emphasis added). This statement of 

general application provides coverage for Herold’s mesothelioma. On the other 

hand, Herold cannot establish “compensable disability or death” because his 

mesothelioma remained latent and undiagnosed for fifteen years. 77 P.S. § 1401(c) 

(emphasis added). Thus, Herold’s construction merely highlights that the ODA 

covers his claim but, in fact, offers no compensation for his devastating illness. 

4. The ODA exclusivity provision is inapplicable

Finally, we consider whether the ODA provides the exclusive remedy 

for Herold’s claims. The University asserts that “[t]he ODA does not require an 

employees’ [sic] occupational disease to be compensable under the ODA for the 

exclusivity provision to apply.” Univ.’s Reply Br. at 5. Rather, according to the 

University, “[i]t applies to occupational diseases that manifest within the time 

limitations prescribed by the ODA and those that do not.” Id. at 7.

The exclusivity provision of the ODA is found at Section 303 and states 

as follows:
21

Such agreement shall constitute an acceptance of all the 

provisions of article three of this act, and shall operate as 

a surrender by the parties thereto of their rights [1] to any 

form or amount of compensation or damages for any 

disability or death resulting from occupational disease, or 

[2] to any method of determination thereof, other than as 

provided in article three of this act. Such agreement shall 

bind the employer and his personal representatives, and 

the employe, his or her wife, or husband, widow or 

widower, next of kin, and other dependents.

77 P.S. § 1403.24 Our Supreme Court has interpreted this provision as “a forfeiture 

by the employee of any and all common law causes of action that the injured 

employee may wish to pursue.” Barber, 555 A.2d at 769. However, Barber is easily 

distinguished. In that case, our Supreme Court considered whether to recognize an 

exception rooted in an employer’s intentional misconduct; thus, the latency of an 

occupational disease was not at issue. See Barber, 555 A.2d at 767-78. Further, the 

Court did not examine the statutory language of Section 301 of the ODA. See id. at 

770 (merely relying on the “historical underpinnings of the exclusive remedy 

doctrine”).25

Section 303 does not require so broad a proclamation. In furtherance 

of the quid pro quo implicit to the workers’ compensation system, and except as 

otherwise provided in the ODA, Section 303 requires that an employee surrender 

two rights: (1) the right to compensation for disability or death resulting from 

24 The “agreement” is “actually a conclusive presumption that both the employer and the 

employee have agreed to be bound by all of the provisions of the statute.” Barber, 555 A.2d at 

769 n.9.

25 The same observation applies to relevant precedent from the Superior Court, including 

Sedlacek and Ranalli v. Rohm & Haas Co., 983 A.2d 732 (Pa. Super. 2009), in which the court 

considered claims arising from latent mesothelioma. Those decisions are not persuasive because 

the court failed to consider the relevant statutory language. Further, those decisions were 

abrogated by our Supreme Court in Tooey. See Scott v. Duquesne Light Co. (Pa. Super., No. 2139 

WDA 2009, filed May 12, 2014) (unreported).
22

occupational disease and (2) the right to select a method of securing compensation

for disability or death. See 77 P.S. § 1403. As we have discussed, supra, Section

301(c) defines “compensable disability or death” in clear and unambiguous terms, 

and that definition includes a temporal limitation. Applying that definition here, we 

conclude that the exclusive remedy mandate extends only to those claims asserting

compensable disability or death resulting from occupational disease and manifesting 

within 4 years after the last workplace exposure. See Summit Sch., Inc., 108 A.3d at 

196; 1 Pa. C.S. §§ 1903(a), 1921(b). 

This reasonable interpretation does not eliminate per se the distinction 

between coverage and compensation in the ODA for claims involving latent 

occupational diseases, but it does recognize an exception to the exclusive remedy 

mandate of the workers’ compensation system. Absent compensable disability or 

death as defined by the ODA, an injured employee has not surrendered the rights to 

pursue compensation in a manner of their choosing. Therefore, we hold that the 

exclusivity provision does not apply to Herold’s claims, and the Board lacks 

exclusive jurisdiction to adjudicate these claims.

We acknowledge that neither party has addressed the plain language of 

Section 303 in arguments to this Court, choosing instead to focus on the ODA’s 

limitations provision at Section 301(c). However, both parties have presented policy 

arguments in favor of their preferred statutory interpretations. See Univ.’s Br. at 15-

18; Herold’s Br. at 24-28. Therefore, assuming for purposes of argument that there 

may be other reasonable interpretations of the statutory language, such that Section 

303 is ambiguous, we may consider policies underlying the statute and the 

consequences of a particular interpretation. Summit Sch., Inc., 108 A.3d at 197; see, 

e.g., 1 Pa. C.S. §§ 1921(c).
23

The policy considerations voiced by our Supreme Court in Tooey are 

persuasive. See Tooey, 81 A.3d at 860-65. Clearly, the Court has rejected any 

construction that grants full immunity to employers, leaving injured employees 

without an opportunity for reasonable compensation for their injuries. Id. at 864. 

This would do irreparable harm to the basic compromise inherent to the workers’ 

compensation system. Further, the Court has rejected concerns for the financial 

implications of permitting certain limited claims to proceed in the courts of common 

pleas. Id. at 865-66. As the Court concluded, it would be inconceivable that the 

legislature intended to leave those employees who have suffered the most without 

any redress under the workers’ compensation system or at common law. Id. at 864.

For these reasons, we reject the University’s policy arguments against 

a Tooey-type exception for claims involving latent occupational diseases. See

Univ.’s Br. at 15-18. Considering the remedial purpose of the ODA and the 

consequences of denying Herold and others like him any chance for compensation, 

we conclude that the legislature did not intend for employees suffering from an 

occupational disease that manifests outside the ODA’s 4-year limitations period to 

surrender their rights as indicated in the ODA’s exclusivity provision.

D. The Doctrine of Primary Jurisdiction is Inapplicable

We turn now briefly to the second issue certified for appellate review. 

Considering our interpretation of Section 303, and the simplicity of the relevant 

factual and legal issues, Herold is not required to present his claims to the Board in 

the first instance. 

The courts of common pleas have unlimited jurisdiction over all actions 

and proceedings, except as otherwise prescribed by law. Cnty. of Erie v. Verizon N., 

Inc., 879 A.2d 357, 363 (Pa. Cmwlth. 2005); 42 Pa. C.S. § 931. The doctrine of 
24

primary jurisdiction creates “a workable relationship” between the courts and 

administrative agencies. Elkin v. Bell Tel. Co. of Pa., 420 A.2d 371, 376 (Pa. 1980).

“[I]n appropriate circumstances, the courts can have the benefit of the agency’s 

views on issues within the agency’s competence.” Id. Indeed, the chief benefit is 

“derived by making use of the agency’s special experience and expertise in complex 

areas with which judges and juries have little familiarity.” Id.; see, e.g., Weston v. 

Reading Co., 282 A.2d 714, 722-26 (Pa. 1971) (deferring to Interstate Commerce 

Commission’s expertise in national transportation policy, where the dispute 

involved complex issues arising from the merger of rail carriers). 

However, courts should not develop a dependence on administrative 

agencies simply because a controversy implicates agency expertise. Elkin, 420 A.2d 

at 377. Therefore, “[w]here . . . the matter is not one peculiarly within the agency’s 

area of expertise, but is one which the courts or jury are equally well-suited to 

determine, the court must not abdicate its responsibility.” Id. This would be a 

wasteful exercise that produces no appreciable benefits. Id.

Here, Herold provided evidence that his mesothelioma was diagnosed 

more than 4 years after his last workplace exposure to asbestos. Opp’n to Univ.’s 

Mot. For Summ. J., 1/21/21, at 5 (citing Dep. of Herold, 1/21/20). Mindful of the 

procedural posture of this case, we view this evidence in the light most favorable to 

Herold. See Eleven Eleven Pa., LLC, 169 A.3d at 145. At some point, the University 

may challenge this evidence, and a fact finder will determine its sufficiency and 

weight, but such determinations are commonplace in civil trials; they are not 

peculiarly within the Board’s expertise. Further, the legal implications of this 

evidence are straightforward. If a fact finder credits this evidence, then Herold’s 

claims are not subject to the exclusive remedy mandate of the ODA, and his civil 
25

claims can proceed. On the other hand, if a fact finder does not accept this evidence, 

then the exclusive remedy mandate applies, and the trial court lacks jurisdiction over 

Herold’s claims. For these reasons, we discern no appreciable benefits in requiring 

the trial court to stay proceedings and transfer the matter for initial review by the 

Board, which would then be required to transfer the matter back to the trial court if 

it found Herold’s latency evidence sufficient.26

IV. CONCLUSION

In conclusion, the ODA remains an integral part of a comprehensive, 

no-fault system of compensation for employees that suffer disability or death in the 

course of their employment. Generally, in exchange for reasonable and certain

compensation administered by the Board, an employee surrenders the rights to 

pursue compensation in a manner of the employee’s choosing. However, absent 

compensable disability or death, the employee has not surrendered these rights. 

Thus, we recognize an exception to the exclusive jurisdiction of the Board to 

adjudicate claims asserted by an employee diagnosed with an occupational disease 

more than 4 years after the employee’s last workplace exposure to the hazards of 

that disease. Finally, because the issues relevant to the latency of an employee’s 

occupational disease are not peculiarly within the Board’s expertise, the employee 

may commence civil proceedings in an appropriate court of original jurisdiction.

Order affirmed. Case remanded to the trial court for further 

proceedings. Jurisdiction relinquished.

 

 LORI A. DUMAS, Judge

Judge Fizzano Cannon did not participate in the decision in this case.

26 Although this case comes before us following the denial of summary judgment, we note 

there is no need to await the close of pleadings before challenging latency evidence as there are 

jurisdictional implications parties can raise via preliminary objection. See Pa. R.C.P. 1028(a)(1).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brad Lee Herold, as Executor of the :

Estate of William L. Herold :

:

v. : No. 998 C.D. 2021

:

University of Pittsburgh - of :

Commonwealth System of Higher :

Education and 3M Company; Abb :

Motors and Mechanical, Inc. f/k/a :

Baldor Electric Company; Allied Glove :

Corporation; A.O. Smith Corporation; :

Armstrong International, Inc.; Aurora :

Pump Company; Baltimore Aircoil :

Company, Inc.; Beazer East, Inc. :

Individually and as Successor to :

Koppers Company, Inc., and Successor- :

in-Interest to Thiem Corporation and :

Universal Refractories Company; BMI :

Refractor Services, Inc.; Individually :

and as Successor-in-Interest to Premier :

Refractories, Inc., f/k/a Adience, Inc., :

Successor-in-Interest to Adience :

Company, LP, as Successor to BMI, :

Inc.; Burnham Boiler Corporation :

n/d/b/a Burnham Commercial; Bryan :

Steam, LLC; Carrier Corporation; CBS :

Corporation, a Delaware Corporation, :

f/k/a Viacom Inc., Successor by Merger :

to CBS Corporation, a Pennsylvania :

Corporation, f/k/a Westinghouse : 

Electric Corporation and Westinghouse :

Air Brake Company; Cleaver Brooks, :

Inc., f/k/a Aqua-Chem, Inc. d/b/a :

Cleaver Brooks Division; Crane Co.; :

Delval Equipment Corporation; :

Dezurik, Inc.; Donald McKay Smith, :

Inc.; Dunham-Bush, Inc.; E.E. :

Zimmerman Company; Eaton :

Corporation in its own right and as :

successor to Cutler-Hammer, :

Incorporated; Eichleay Corporation; :
Ferro Engineering Division of :

on Marine Services Company, :

LLC, f/k/a Oglebay Norton Company; :

Flowserve US, Inc., Individually and as :

Successor to Byron Jackson :

Pumps, FlowserveGestra, Durametallic :

Corp., Aldrich Pumps; Cameron Pumps; : 

Vogt Valves; Wilson-Snyder :

Centrifugal Pump; and Rockwell :

Valves; FMC Corporation, Individually :

and as Successor-in-Interest to Peerless :

Pump Company, Chicago Pump :

Company, Sterling Fluid System, Inc. :

and former subsidiary Crosby Valve, :

Inc.; Foseco, Inc.; Foster Wheeler :

Corporation; Gardner Denver, Inc.; :

General Electric Company; Grinnell :

LLC; Goulds Pumps, LLC; I.U. :

North America, Inc.; America, Inc. :

as Successor-by-merger to the Garp :

Company, f/k/a The Gage Company, :

f/k/a Pittsburgh Gage and Supply :

Company; IMO Industries, Inc., :

f/k/a IMO Delaval, Inc., f/k/a :

Transamerican DeLaval, Inc., f/k/a :

DeLaval Turbin, Inc., DeLaval Turbin, :

Inc., DeValco Corporation; Ingersoll- :

Rand Company; Insul Company, Inc.; :

ITT Corporation, f/k/a ITT Industries, :

Individually and as Successor-in-Interest:

to Bell & Gossett Domestic Pump; J.H. :

France Refractories Company; Kruman :

Equipment Company; Mallinckrodt US :

LLC, in its own right and as Successor- :

in-Interest to Imcera Group, Inc., and :

International Group, Inc., and :

International Minerals and Chemical :

Corporation, and as Successor-in- :

Interest to E.J. Lavino; Mine :

Safety Appliances Company, LLC as :

Successor-in-Interest by Merger with :

Mine Safety Appliances Company; :

Minnotte Contracting Corporation; :
M.S. Jacobs & Associates, Inc.; :

Nagle Pumps, Inc.; Peerless Industries, :

Inc.; Power Piping Company; Riley :

Power Inc.; Safety First Industries, Inc., :

in its own right and as Successor-in- :

Interest to Safety-First Supply, :

Inc.; Schneider Electric USA, Inc. f/k/a : 

Square D Company, in its own right and : 

as successor to The Electric Controller :

and Manufacturing (EC&M); Spirax :

Sarco, Inc.; SPX Cooling Technologies, :

Inc., f/k/a Marley Cooling Technologies :

Inc., f/k/a The Marley Cooling : 

Company; TACO, Inc. f/k/a Taco :

Heaters, Inc.; The Goodyear Tire :

& Rubber Company; The Gordon-Rupp :

Company; The H.B. Smith Company, :

Inc.; Trane U.S. Inc., Successor-by- :

Merger to American Standard, Inc., :

Union Carbride Corporation; United :

States Steel Corporation; Warren :

Pumps LLC; Weil-McLain Company, :

Inc.; York International Corporation; :

and Zurn Industries, LLC f/k/a Zurn :

Industries, Inc. a/k/a Erie City Iron :

Works : 

:

Appeal of: University of Pittsburgh – :

of the Commonwealth System of :

Higher Education :

O R D E R

AND NOW, this 16th day of February, 2023, the Order of the Court of 

Common Pleas of Allegheny County, entered May 17, 2021, and which denied the 

University of Pittsburgh summary judgment, is AFFIRMED. Brad Lee Herold’s 

Application for Relief, filed October 12, 2022, is DENIED. This matter is remanded 

for further proceedings. Jurisdiction relinquished.

 

 LORI A. DUMAS, Judge