J-A35041-14

                          2015 PA Super 56

ELIZABETH WYGANT, ADMINISTRATRIX          IN THE SUPERIOR COURT OF
OF THE ESTATE OF MARGARET H. KLAN,              PENNSYLVANIA
DECEASED,

                     Appellant

                v.

GENERAL ELECTRIC COMPANY; HUNTER
SALES CORPORATION; READING CRANE
& ENGINEERING CO.,

                     Appellees                 No. 470 WDA 2014


                 Appeal from the Order March 20, 2014
          In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): G.D. 14-000269


ELIZABETH WYGANT, ADMINISTRATRIX          IN THE SUPERIOR COURT OF
OF THE ESTATE OF MARGARET H. KLAN,              PENNSYLVANIA
DECEASED,

                     Appellant

                v.

GENERAL ELECTRIC COMPANY; HUNTER
SALES CORPORATION; READING CRANE
& ENGINEERING CO.,

                     Appellees                 No. 471 WDA 2014


             Appeal from the Order Dated March 19, 2014
          In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): G.D. 14-000269


ELIZABETH WYGANT, ADMINISTRATRIX          IN THE SUPERIOR COURT OF
OF THE ESTATE OF MARGARET H. KLAN,              PENNSYLVANIA
DECEASED,

                     Appellant
J-A35041-14



                   v.

GENERAL ELECTRIC COMPANY; HUNTER
SALES CORPORATION; READING CRANE
& ENGINEERING CO.,

                        Appellees                   No. 472 WDA 2014


              Appeal from the Order Entered March 20, 2014
            In the Court of Common Pleas of Allegheny County
                  Civil Division at No(s): G.D. 14-000269


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

OPINION BY BOWES, J.:                              FILED MARCH 19, 2015

      This appeal involves the timeliness of an asbestos-related wrongful

death action in light of our High Court’s decision in Commonwealth v.

Neiman, 84 A.3d 603 (Pa. 2013), which struck down Act 152 and its statute

of limitations for asbestos actions, 42 Pa.C.S. § 5524.1, as violative of the

Single Subject Rule of the Pennsylvania Constitution.      Elizabeth Wygant,

administratrix (“Administratrix”) of the Estate of Margaret H. Klan, deceased,

(“Decedent”) appeals from the orders entered March 19 and 20, 2014,

granting judgment on the pleadings in favor of General Electric Company,

Hunter Sales Corporation, and Reading Crane & Engineering Co. (collectively

“GE”), based upon the court’s finding that the action was time-barred under

42 Pa.C.S. § 5524(8). After thorough review, we affirm.

      Decedent was diagnosed with mesothelioma on June 17, 2011.          She

died from the disease thirteen months later on July 9, 2012. Decedent did


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not commence an action for her asbestos-related injuries during her lifetime.

On January 9, 2014, more than two years after the mesothelioma diagnosis

but less than two years after Decedent’s death, Administratrix filed the

instant wrongful death and survival actions. GE filed a motion for judgment

on the pleadings based upon the statute of limitations, which was granted

following oral argument.    Administratrix timely appealed.     She does not

contest that trial court’s ruling that the survival action is time-barred, but

challenges the trial court’s application of 42 Pa.C.S. § 5524(8) to bar her

wrongful death claim. Specifically, she questions:

      1. Whether 42 Pa.C.S. § 5524(8) is the current law of
         Pennsylvania regarding the statute of limitations in asbestos
         cases.

      2. Whether 42 Pa.C.S. § 5524(8) overruled the prior case law
         which held that the statute of limitations in an asbestos action
         for a wrongful death claim began to run from the date of
         death if that death occurred within two years of the date of
         diagnosis.

      3. Whether 42 Pa.C.S. § 5524(8) is ambiguous, thus
         necessitating an investigation into the legislative intent to
         only change the statute of limitations for the survival claim.

      4. Whether 42 Pa.C.S. § 5524(8) permits the running of the
         statute of limitations before a right to the cause of action
         accrues.

Appellant’s brief at 5.

      Judgment on the pleadings should be granted only where, on the facts

averred, the law says with certainty that no recovery is possible.

Insurance. Federation of Pennsylvania, Inc. v. Commonwealth, 970


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J-A35041-14


A.2d 1108 (Pa. 2009).     At issue herein is a legal question.     Thus, our

standard of review is de novo and our scope of review is plenary. Craley v.

State Farm Fire and Casualty Company, 895 A.2d 530, 539 n.14 (Pa.

2006).

      Administratrix starts from the premise that there is currently no

enactment setting forth the applicable statute of limitations for asbestos

claims. She acknowledges that SB 216 of 2001 enacted such a statute at 42

Pa.C.S. § 5524(8). In 2004, the legislature enacted Act 152 (Senate Bill 92

of 2004), which deleted that provision and re-enacted a substantially similar

provision at 42 Pa.C.S. § 5524.1. However, in Commonwealth v. Neiman,

84 A.3d 603 (Pa. 2013), our Supreme Court struck down Act 152 as violative

of the Single Subject Rule of the Pennsylvania Constitution, rendering void

42 Pa.C.S. § 5524.1. In support of her position, she points to a footnote in

Daley v. A.W. Chesterton, 37 A.3d 1175, 1183 n.10 (Pa. 2012), where our

High Court stated that as a result of Neiman, “it appears there is no specific

statutory provision which addresses the statute of limitations for asbestos

claims.” She argues that the net effect of Neiman is that pre-§5524(8) law,

as enunciated in Baumgart v. Keene Building Products Corp., Inc., 633

A.2d 1189, 1191 (Pa.Super. 1993) (en banc), (affirmed by an equally

divided court at 666 A.2d 238 (Pa. 1995)), governs.

     In Baumgart, on identical facts, a wrongful death action was not

time-barred.   The decedent was diagnosed with mesothelioma in January


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J-A35041-14


1985, and died March 31, 1985. The plaintiff commenced a wrongful death

and survival action on March 26, 1987, more than two years after the date

of diagnosis but within two years of death. This Court held that the survival

action was barred by the two-year statute of limitations, but that the

wrongful death action was timely as “the rule is that an action for the

wrongful death of another person must be brought no later than two years

after the date of death.”     Baumgart, supra at 1194.          Administratrix

maintains that after Neiman, Baumgart’s statement is the applicable law,

and the wrongful death action was timely filed.

      GE counters that, when Neiman struck down Act 152, which included

§ 5524.1, it simultaneously invalidated the provision deleting § 5524(8). It

relies upon Mazurek v. Farmers’ Mutual Fire Insurance Co., 181 A. 570

(Pa. 1935), for the proposition that the voiding of the repealing statute

revives the original, repealed statute.       See also 1 Pa.C.S. § 1962

(“Whenever a statute is repealed and its provisions are at the same time

reenacted in the same or substantially the same terms by the repealing

statute, the earlier statute shall be construed as continued in active

operation.”).   Furthermore, GE dismisses the footnote in Daley as dicta

since that case did not involve the statute of limitations in an asbestos case.

According to GE, since the deleting of the § 5524(8) statute of limitations

was inoperative, it must be construed as continuing in active operation.




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J-A35041-14


      The trial court concluded, “because Neiman held that Act 152 was

unconstitutional in its entirety, no consequence of its passage may be

enforced and any purported mandate of its passage is void ab initio.      As

such, 42 Pa.C.S. §5524(8) never went out of existence, and as a matter of

law, 42 Pa.C.S. §5524(8) has remained the law since its original creation.”

Trial Court Opinion, 5/21/14, at 5. We agree. Since Act 152 is void, and

renders invalid 42 Pa.C.S. § 5524.1, Act 152’s deletion of §5524(8) is also

void. The deletion and re-enactment occurred in the same unconstitutional

statute.   Thus, 42 Pa.C.S. §5524(8) remains operative and supplies the

applicable statute of limitations in an asbestos case.

      Administratrix continues that, even if 42 Pa.C.S. §5524(8) governs,

that statute was intended to apply to only asbestos-related claims for injury

and survival actions. It provides:

      (8) An action to recover damages for injury to a person or for
      the death of a person caused by exposure to asbestos shall be
      commenced within two years from the date on which the
      person is informed by a licensed physician that the person
      has been injured by such exposure or upon the date on
      which the person knew or in the exercise of reasonable
      diligence should have known that the person had an
      injury which was caused by such exposure, whichever date
      occurs first.

42 Pa.C.S. § 5524(8) (emphasis added). She baldly asserts, without more,

that the plain language of the statute does not support its application to a

wrongful death claim, and that prior law supplies the statute of limitations

for wrongful death actions.


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J-A35041-14


      We find nothing in the statutory language to support Administratrix’s

position.   The prefatory language of another subsection of § 5524 begins:

(2) “ An action to recover damages for injuries to the person or for the death

of an individual.”     42 Pa.C.S. § 5524(2).     That subsection has been

construed as applying to both wrongful death and survival actions.       See

Moyer v. Rubright, 651 A.2d 1139 (Pa.Super. 1994) (42 Pa.C.S. § 5524(2)

provides the statute of limitations applicable to both wrongful death and

survival actions).   Similar language was employed by the legislature in 42

Pa.C.S. § 5524(8): “An action to recover damages for injury to a person or

for the death of a person.” The primary difference in the two provisions is

that § 5524(2) does not state when the statute commences to run.

Generally, 42 Pa.C.S. § 5502(a) supplies the commencement date for

limitations periods under § 5524(2), and provides that the two-year period is

computed “from the time the cause of action accrued.” The accrual date for

a survival action is the date of the tort; a wrongful death action generally

accrues when the cause of action can be maintained to a successful

conclusion, i.e., the date of death. See Matharu v. Muir, 29 A.3d 375, 383

(Pa.Super. 2011).      However, 42 Pa.C.S. § 5502(b) provides that the

§5502(a) accrual date “may be made more specifically applicable to

particular classes of matters by general rules defining the acts, omissions or

events from which the limitation shall be computed.” Section 5524(8) is the

type of rule contemplated in 42 Pa.C.S. § 5502(b) because the legislature


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J-A35041-14


has specifically defined the event from which the statute of limitations for

asbestos claims is to be computed.             The statutory language, on its face,

indicates that the legislature intended to measure the time for commencing

all asbestos-related actions, including wrongful death actions, from the date

of formal diagnosis or from the date when the affected person knew or

should have known with the exercise of reasonable diligence of the asbestos-

related injury.1

       Administratrix complains that such an interpretation may result in

wrongful death actions being time-barred before they can be instituted.2


____________________________________________


1
  We surmise that the legislature chose the date of a physician’s diagnosis in
an attempt to remove some of the uncertainty surrounding when an affected
person had sufficient knowledge to start the running of the statute of
limitations. See Trieschock v. Owens Corning Fiberglas Co., 511 A.2d
863 (Pa.Super. 1986) (acknowledging that if physicians are not reasonably
certain as to diagnosis in a creeping disease case, the plaintiff should not be
required to have greater knowledge).
2
   The legislature’s intent to treat wrongful death cases like survival actions
for purposes of the statute of limitations is further evidenced by its definition
of an asbestos claim in 15 Pa.C.S. § 1929.1, incorporated by reference in
5524.1 (now void) as including

       Any claim, wherever or whenever made, for damages, losses,
       indemnification, contribution or other relief arising out of, based
       on or in any way related to asbestos, including property damage
       caused by the installation, presence or removal of asbestos, the
       health effects of exposure to asbestos, including any claim for
       personal injury, death, mental or emotional injury, risk of
       disease or other injury or the costs of medical monitoring or
       surveillance. The term shall also include any claim made by
       or on behalf of any person exposed to asbestos or any
(Footnote Continued Next Page)


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J-A35041-14


She labels this consequence absurd, and points to this anomaly as proof the

legislature did not include wrongful death actions in § 5524(8). We do not

agree. Even the statute providing for wrongful death actions eliminates such

an action if a survival action was commenced during the decedent’s lifetime.

See 42 Pa.C.S. § 8301(a) (“General Rule. -- An action may be brought,

under procedures prescribed by general rules, to recover damages for the

death of an individual caused by the wrongful act or neglect or unlawful

violence or negligence of another if no action for damages was brought by

the injured individual during his lifetime.”).

      Furthermore, prior to the enactment of § 5524(8), this Court held that

wrongful death actions could not be maintained if the decedent, had he

lived, could not have recovered for his injuries.    See Ingenito v. AC&S,

Inc., 633     A.2d 1172         (Pa.Super. 1993) (en banc);   Moyer, supra.

Additionally, as we noted in Pisano v. Extendicare Homes, Inc., 77 A.3d

651 (Pa.Super. 2013), our decision in DiSerafino v. Bucyrus-Erie

Corporation, 470 A.2d 574 (Pa.Super. 1983), stood for the proposition that

the legislature, “through the Workers’ Compensation Act or otherwise, may

statutorily limit recoveries in wrongful death suits.” Pisano, supra at 658.

Thus, even prior to the enactment of § 5524(8), the legislature placed
                       _______________________
(Footnote Continued)

      representative, spouse, parent, child or other relative of
      any such person.

15 Pa.C.S. § 1929.1 (emphasis added).



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J-A35041-14


limitations upon the availability of a wrongful death action in certain

instances.

      Wrongful death actions did not exist at common law and are solely

creatures of statute.   Hodge v. Loveland, 690 A.2d 243, 245 (Pa.Super.

1997) (citing Frazier v. Oil Chemical Co., 179 A.2d 202 (Pa. 1962)). The

purpose of the Wrongful Death Statute is to compensate the decedent's

relatives for their loss.     Tulewicz v. Southeastern Pennsylvania

Transportation Authority, 606 A.2d 427, 431 (Pa. 1999).            Gillette v.

Wurst, 937 A.2d 430, 436 (Pa. 2007) (plurality). Although § 5524(8) may

have the effect of foreclosing some wrongful death causes of action even

before they can be maintained, that is the prerogative of the legislature. In

reading this statute “in light of reason and common sense,” we find nothing

in its application to the instant facts that “the Legislature, as a reasonably-

minded body, could never have intended.”       Cochran v. GAF Corp., 633

A.2d 1195, 1197 (Pa.Super. 1993) (quoting The Statutory Construction Act

of May 28, 1937, P. L. 1019, Article IV, § 52, 46 PS § 552).

      Next, Administratrix argues that the statute is ambiguous as applied to

a wrongful death action and that its application leads to absurd results. She

maintains that the word “person” is undefined, and when interpreted as

consistently referring to the “asbestos-harmed person,” it makes little sense.

She argues that the “person” for purposes of a wrongful death action is the

wrongful death beneficiary.    The statute starts to run when the wrongful


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death beneficiary, through the exercise of reasonable diligence, learned of

the harm from the death of the asbestos-exposed individual.         Otherwise,

according to Administratrix, the action could be barred before it accrued, an

absurd and unreasonable result.      Appellant’s brief at 15.    Administratrix

concludes, “Governing presumptions are that the General Assembly intended

the entire statute at issue to be effective and certain, and that the General

Assembly does not intend an absurd result or one that is impossible of

execution.” Board of Revision of Taxes, City of Philadelphia v. City of

Philadelphia, 1 A.3d 610, 622 (Pa. 2010).

      GE disputes any ambiguity in the use of the word “person” in the

statute, and reminds us that the “letter of [the statute] is not to be

disregarded under the pretext of pursuing its spirit.”       GE’s brief at 17

(quoting Pa.C.S. § 1921(b)).     In enacting this provision, GE contends the

legislature intended to establish a single accrual date for all asbestos claims,

including wrongful death claims.     That triggering date for the statute of

limitations is the date when the afflicted person is informed by a licensed

physician that he has been injured by exposure to asbestos.         GE readily

concedes that some wrongful death actions may be time-barred before the

decedent dies.   However, it argues that this result is consistent with the

prior rule that “no action for wrongful death can be maintained where the

decedent, had he lived, could not himself have recovered for the injuries

sustained.” Ingenito, supra at 1176.


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      When interpreting a statute, the court must begin with the plain

meaning of the language used in the statute. Ludmer v. Nernberg, 699

A.2d 764 (Pa.Super. 1997).    Unless the statute is ambiguous, we do not

engage in statutory construction or look at legislative intent.         See

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)

("Canons of construction are no more than rules of thumb that help courts

determine the meaning of legislation, and in interpreting a statute a court

should always turn first to one, cardinal canon before all others. We have

stated time and again that courts must presume that a legislature says in a

statute what it means and means in a statute what it says there.").

      We do not find the word “person” to be ambiguous.      As used in the

statute, it consistently refers to the person with asbestos-related disease.

The language of § 5524(8) clearly states, in pertinent part, that the statute

of limitations on any asbestos-related claim, including one for death, starts

to run from the date the afflicted person is diagnosed with asbestos-related

disease. It thus defines diagnosis as the event that triggers the statute of

limitations.

      Undoubtedly, with respect to asbestos-related wrongful death actions,

the passage of 42 Pa.C.S. § 5524(8) changed prior law.           Before the

enactment of § 5524(8), asbestos-related wrongful death actions were

treated no differently than any other wrongful death claims; the statute of

limitations on wrongful death claims commenced to run when the action


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accrued upon the death of the decedent. For non-asbestos-related wrongful

death claims, that remains the law.       However, in enacting 42 Pa.C.S. §

5524(8), the legislature provided that, in all actions for injury or death

related to asbestos specifically, the two-year statute of limitations would

commence to run either when the afflicted person was formally diagnosed

with asbestos-related disease, or, with reasonable diligence, should have

been diagnosed. No exception was made for wrongful death actions. Title

42 Pa.C.S. § 5524.1, now void, was a substantial re-enactment of that

provision.

      We find some merit in Administratrix’s contention that the designation

of the date of diagnosis as the commencement of the running of the statute

of limitations in a wrongful death action does not provide the clear notice

that death provided.    Additionally, some of the consequences of applying

§5524(8) to wrongful death actions may seem harsh.            Admittedly, some

asbestos-related wrongful death actions may be time-barred before they can

be instituted.   Moreover, if a decedent dies just short of two years after

diagnosis, there may be insufficient time for the appointment of a personal

representative and the commencement of an action. Nonetheless, it is the

prerogative of the legislature to set the limitations on actions.

      In sum, after Neiman, the formerly-deleted 42 Pa.C.S. § 5524(8) is

operative and provides the applicable statute of limitations for asbestos-

related claims, including wrongful death actions.          The statute is not


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J-A35041-14


ambiguous.       Thus, we need not resort to determining legislative intent

through statutory construction. The statute of limitations on Administratrix’s

wrongful death action started to run on June 17, 2011, the date when

Decedent was informed by a physician that she had mesothelioma.

Decedent had two years to commence an action for her asbestos-related

injury. Had she timely commenced such an action during her lifetime, that

action would have survived her death and been prosecuted by her personal

representative.      If the decedent had commenced an action during her

lifetime, however, no wrongful death action could have been filed upon her

death.     Where, as here, no action for asbestos-related injuries was

commenced by Decedent during her lifetime, Administratrix was free to

pursue both wrongful death and survival actions.     However, any wrongful

death action had to be commenced after Decedent’s July 9, 2012 death and

prior to June 17, 2013, two years from the date Decedent received her

diagnosis.3 Hence, the wrongful death action filed January 9, 2014 is time-

barred.

       Order affirmed.




____________________________________________


3
   Administratrix did not appeal the trial court’s holding that the survival
action, filed more than two years after the date of diagnosis, was time-
barred.



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accrued upon the death of the decedent. For non-asbestos-related wrongful

death claims, that remains the law.       However, in enacting 42 Pa.C.S. §

5524(8), the legislature provided that, in all actions for injury or death

related to asbestos specifically, the two-year statute of limitations would

commence to run either when the afflicted person was formally diagnosed

with asbestos-related disease, or, with reasonable diligence, should have

been diagnosed. No exception was made for wrongful death actions. Title

42 Pa.C.S. § 5524.1, now void, was a substantial re-enactment of that

provision.

      We find some merit in Administratrix’s contention that the designation

of the date of diagnosis as the commencement of the running of the statute

of limitations in a wrongful death action does not provide the clear notice

that death provided.    Additionally, some of the consequences of applying

§5524(8) to wrongful death actions may seem harsh.            Admittedly, some

asbestos-related wrongful death actions may be time-barred before they can

be instituted.   Moreover, if a decedent dies just short of two years after

diagnosis, there may be insufficient time for the appointment of a personal

representative and the commencement of an action. Nonetheless, it is the

prerogative of the legislature to set the limitations on actions.

      In sum, after Neiman, the formerly-deleted 42 Pa.C.S. § 5524(8) is

operative and provides the applicable statute of limitations for asbestos-

related claims, including wrongful death actions.          The statute is not


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