J. A01014/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WENDY ANN McCLOSKEY, EXECUTRIX  :           IN THE SUPERIOR COURT OF
OF THE ESTATE OF ARTHUR PARTNER,:                 PENNSYLVANIA
DECEASED, AND PATRICIA PARTNER, :
IN HER OWN RIGHT,               :
                                :
                    Appellants  :
                                :
                v.              :
                                :
CEMLINE CORPORATION, CERRO WIRE :
AND CABLE COMPANY, INC.,        :
THE LINCOLN ELECTRIC COMPANY,   :
MADDEN BOILER WORKS, INC.,      :
METROPOLITAN LIFE INSURANCE     :
COMPANY, PPG INDUSTRIES, INC.,  :                No. 482 WDA 2014
PPG AUTO GLASS, LLC, AND        :
RHEEM MANUFACTURING COMPANY     :


                 Appeal from the Order Entered March 5, 2014,
               in the Court of Common Pleas of Cambria County
                       Civil Division at No. GD 2008-5730




WENDY ANN McCLOSKEY, EXECUTRIX  :           IN THE SUPERIOR COURT OF
OF THE ESTATE OF ARTHUR PARTNER,:                 PENNSYLVANIA
DECEASED, AND PATRICIA PARTNER, :
IN HER OWN RIGHT                :
                                :
                v.              :
                                :
CEMLINE CORPORATION, CERRO WIRE :
AND CABLE COMPANY, INC.,        :
THE LINCOLN ELECTRIC COMPANY,   :
MADDEN BOILER WORKS, INC.,      :
METROPOLITAN LIFE INSURANCE     :
COMPANY, PPG INDUSTRIES, INC.,  :
PPG AUTO GLASS, LLC, AND        :
RHEEM MANUFACTURING COMPANY     :
                                :
J. A01014/15


APPEAL OF: PPG INDUSTRIES,              :         No. 530 WDA 2014
                                        :
                       Appellant        :


                  Appeal from the Order Dated March 5, 2014,
               in the Court of Common Pleas of Cambria County
                        Civil Division at No. 2008-5730


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 17, 2015

     PPG Industries (“PPG”) and Wendy Ann McCloskey (“McCloskey”),

executrix of the estate of Arthur Partner, deceased, and Patricia Partner, in

her own right as the widow of Mr. Partner, have filed cross-appeals in this

asbestos-related personal injury action. After careful review, we vacate and

remand for further proceedings.

     The plaintiffs alleged that while employed by PPG, Mr. Partner

developed mesothelioma as a result of his exposure to asbestos. PPG filed a

motion for judgment on the pleadings on the basis that the action was

barred by the exclusivity provision of the Workers’ Compensation Act,

77 P.S. § 481.     Under controlling authority at the time, the trial court

granted the motion on August 31, 2010.            Trial was scheduled for

September 3, 2013, against the remaining defendants.

     On August 8, 2013, the trial court granted summary judgment for

Madden Boiler Works, Inc., Rheem Manufacturing Co., Lincoln Electric Co.,

and PGW Auto Glass, LLC, f/k/a PPG Auto Glass, LLC. On August 28, 2013,


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the trial court granted the motion for voluntary discontinuance as to Cemline

Corp.     On November 26, 2013, plaintiffs filed a praecipe to settle,

discontinue, and end as to Dravo Corp. The praecipe was filed after a jury

had already been empaneled.       Pursuant to local rule, on January 7, 2014,

the trial court issued an order apportioning jury selection costs between

plaintiffs and Dravo.

        At that point, two named defendants remained, Metropolitan Life

Insurance Co. (“Met Life”) and Cerro Wire and Cable Co., Inc. (“Cerro”). On

March 5, 2014, the trial court granted plaintiffs’ “Motion for Final Order.”

The trial court ordered that, “All claims against all parties are disposed of,

and this Order constitutes the Final Order in the above captioned action.”

Plaintiffs filed an appeal on March 24, 2014.      On April 11, 2014, PPG’s

motion for clarification and/or reconsideration of the March 5, 2014 order

was denied. PPG filed its cross-appeal on April 1, 2014. The trial court did

not order the parties to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.

        Appellants, plaintiffs below, have raised the following issue for this

court’s review:

             1.    Whether the Trial Court erred by granting
                   judgment on the pleadings against Plaintiffs
                   and in favor of PPG Industries, Inc., on the
                   basis that Plaintiffs’ claims against PPG were
                   barred by the exclusivity provision of the
                   Workers’ Compensation Act?

McCloskey’s brief at 4.


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      Cross-appellant, PPG, argues that the instant appeal is untimely and

must be quashed:

             Whether the trial court’s August 31, 2010 order
             granting PPG’s motion for judgment on the pleadings
             became a final, appealable order more than 30 days
             before Plaintiff[s] filed this appeal?

Brief of PPG at 3.

      We will address PPG’s issue on cross-appeal first, as it implicates this

court’s jurisdiction.

             Our Court may reach the merits of an appeal taken
             from “([1]) a final order or an order certified as a
             final order; (2) an interlocutory order [appealable]
             as of right; (3) an interlocutory order [appealable]
             by permission; or (4) a collateral order.”
             Commerce Bank v. Kessler, 2012 PA Super 100,
             46 A.3d 724, 728 (Pa.Super.2012), quoting Stahl v.
             Redcay, 897 A.2d 478, 485 (Pa.Super.2006)
             (internal citations omitted), appeal denied, 591 Pa.
             704, 918 A.2d 747 (2007). “As a general rule, only
             final orders are appealable, and final orders are
             defined as orders disposing of all claims and all
             parties.” American Independent Insurance Co.
             v. E.S., 809 A.2d 388, 391 (Pa.Super.2002); see
             Pa.R.A.P. 341. Once an appeal is filed from a final
             order, all prior interlocutory orders become
             reviewable. Quinn v. Bupp, 955 A.2d 1014, 1020
             (Pa.Super.2008), appeal denied, 605 Pa. 688, 989
             A.2d 918 (2009).

In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa.Super. 2012).

             This court ordinarily has jurisdiction only over
             appeals taken from final orders. 42 Pa.C.S. § 742.
             A final order is an order which effectively ends the
             litigation or disposes of the entire case. DiDio v.
             Philadelphia Asbestos Corp., 434 Pa.Super. 191,
             642 A.2d 1088 (1994). As defined in the Rules of



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              Appellate Procedure, a final order disposes of all
              claims or of all parties. Pa.R.A.P. 341.

Hahalyak v. Integra Financial Corp., 678 A.2d 818, 819 (Pa.Super.

1996).      “A trial court order declaring a case settled as to all remaining

parties renders prior grants of summary judgment final for Rule 341

purposes, even if the prior orders entered disposed of fewer than all claims

against all parties.”    Gutteridge v. A.P. Green Services, Inc., 804 A.2d

643, 650 (Pa.Super. 2002), appeal denied, 829 A.2d 1158 (Pa. 2003),

citing Baker v. Cambridge Chase, Inc., 725 A.2d 757, 762 (Pa.Super.

1999).

      PPG     argues    that     the   matter   became   final and appealable       on

November 26, 2013, when the plaintiffs discontinued their claim against

Dravo.   According to PPG, Dravo was the only remaining defendant in the

case. PPG claims that the trial court’s January 7, 2014 order assessing jury

selection     costs    against     plaintiffs   and   Dravo   constituted   its   final

administrative act in the case and confirmed that the case became final on

November 26, 2013. PPG characterizes the plaintiffs’ March 5, 2014 motion

for a final order as unnecessary and redundant.               PPG contends that the

30-day appeal period expired on December 26, 2013.

      PPG’s argument ignores the fact that Cerro and Met Life remained in

the case until the March 5, 2014 order.           While PPG characterizes them as

“completely inactive,” Cerro and Met Life remained defendants of record and




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plaintiffs’ claims against them were not disposed of until the March 5, 2014

final order. Therefore, plaintiffs’ appeal was timely filed.

      We now turn to plaintiffs’ claim on appeal.

            Our scope of review on an appeal from the grant of
            judgment on the pleadings is plenary. Meehan v.
            Archdiocese of Philadelphia, 870 A.2d 912, 918
            (2005).     Entry of judgment on the pleadings is
            permitted under Pennsylvania Rule of Civil Procedure
            1034, which provides that “after the pleadings are
            closed, but within such time as not to unreasonably
            delay trial, any party may move for judgment on the
            pleadings.”     Pa.R.C.P. 1034(a).     A motion for
            judgment on the pleadings is similar to a demurrer.
            Citicorp North America, Inc. v. Thornton, 707
            A.2d 536, 538 (Pa.Super.1998). It may be entered
            when there are no disputed issues of fact and the
            moving party is entitled to judgment as a matter of
            law. Id. In determining if there is a dispute as to
            facts, the court must confine its consideration to the
            pleadings and relevant documents. Id. On appeal,
            we accept as true all well-pleaded allegations in the
            complaint. Meehan, supra.

                  On appeal, our task is to determine whether
            the trial court’s ruling was based on a clear error of
            law or whether there were facts disclosed by the
            pleadings which should properly be tried before a
            jury or by a judge sitting without a jury. Citicorp,
            supra.

                  Neither party can be deemed to have
                  admitted either conclusions of law or
                  unjustified inferences.      Moreover, in
                  conducting its inquiry, the court should
                  confine itself to the pleadings themselves
                  and any documents or exhibits properly
                  attached to them. It may not consider
                  inadmissible evidence in determining a
                  motion for judgment on the pleadings.
                  Only when the moving party’s case is
                  clear and free from doubt such that a


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                   trial would prove fruitless will      an
                   appellate court affirm a motion       for
                   judgment on the pleadings.

            Kelly v. Nationwide Insurance Company, 414
            Pa.Super. 6, 606 A.2d 470, 471-72 (1992)
            (quotations and citations omitted).

Consolidation Coal Co. v. White, 875 A.2d 318, 325-326 (Pa.Super.

2005).

     In granting PPG’s motion for judgment on the pleadings, the trial court

relied on this court’s opinion in Sedlacek v. A.O. Smith Corp., 990 A.2d

801 (Pa.Super. 2010), appeal denied, 4 A.3d 1054 (Pa. 2010), in which we

held that the exclusivity provisions of the WCA applied to bar the plaintiffs’

common law negligence claims even though more than 300 weeks had

passed since the date of last employment and they could no longer seek

recovery under the WCA.     We found that the WCA’s exclusivity provision

does not violate due process even when no recovery is provided by the Act.

     In Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), our supreme

court held that the WCA does not bar a common law cause of action where

the claims are not compensable under the Act. In Tooey, the plaintiffs were

diagnosed   with   mesothelioma   more    than   300   weeks   after   the   last

employment-based exposure, and therefore, the Act did not apply to their

claims.   As such, the Tooey court concluded that, consistent with the

remedial goals of the statute, the exclusivity provision did not preclude the

plaintiffs from seeking compensation for their injuries via a common law



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action:      “to prohibit an employee from filing an action at common law,

despite the fact that employee has no opportunity to seek redress under the

Act, leaves the employee with no remedy against his or her employer, a

consequence that clearly contravenes the Act’s intended purpose of

benefitting the injured worker.”     Tooey, 81 A.3d at 864 (emphasis in

original).

      In granting PPG’s motion for judgment on the pleadings, the trial court

relied on Sedlacek, which was subsequently abrogated by Tooey. Plaintiffs

allege that Mr. Partner’s workplace exposure ended by 1995 and he was

diagnosed with mesothelioma in 2007, a period greater than 300 weeks. If

these allegations are true, his claims would not fall within the purview of the

Act, and he would not be barred from bringing a common law cause of

action alleging PPG’s negligence.   PPG argues that since Tooey issued in

November 2013, after the trial court’s ruling on PPG’s motion for judgment

on the pleadings, the parties have conducted no discovery and developed no

evidence relevant to a Tooey analysis, including Mr. Partner’s last

occupational exposure to asbestos. (PPG’s reply brief at 12.) Therefore, it is

necessary to vacate the order and remand for further proceedings.

      Order vacated. Remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2015




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