J-S79016-17

                                   2018 PA Super 96

    MARGARET JARRETT, EXECUTRIX OF             :   IN THE SUPERIOR COURT OF
    THE ESTATE OF PHILIP JARRETT,              :        PENNSYLVANIA
    DECEASED AND WIDOW IN HER                  :
    OWN RIGHT                                  :
                                               :
                Appellant                      :
                                               :
                                               :
                      v.                       :   No. 1229 EDA 2017
                                               :
                                               :
    CONSOLIDATED RAIL CORPORATION              :

                 Appeal from the Order Entered March 17, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): February Term, 2015 No. 1295


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

OPINION BY LAZARUS, J.:                                   FILED APRIL 24, 2018

        Margaret Jarrett (“Jarrett”), as Executrix of the Estate of Philip Jarrett,

Deceased (“Decedent”), and in her own right, appeals from the order entered

in the Court of Common Pleas of Philadelphia County, entering summary

judgment in favor of Appellee Consolidated Rail Corporation (“Conrail”). Upon

careful review, we affirm.

        This matter arises from asbestos-related injuries sustained by Decedent

in the course of his employment with Conrail and its predecessors-in-interest.

In 1997, Decedent filed suit in the Philadelphia Court of Common Pleas under

the Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51, et seq.,1 against
____________________________________________


1 FELA is a federal statute that provides the framework for handling claims of
injury by federal railroad workers. Grisser v. National Railroad Passenger
Corp., 761 A.2d 606, 608 (Pa. Super. 2000). Federal and state courts possess
J-S79016-17



Conrail and other defendants, after he developed non-malignant asbestosis.

The case was settled in 2004 and Decedent executed a release which provided,

in relevant part, as follows:

       PHILLIP E. JARRETT, . . . on behalf of myself, my heirs, personal
       representatives and assigns, does hereby RELEASE AND FOREVER
       DISCHARGE . . . [Conrail] . . . of and from all liability for all claims
       or actions for all known and unknown, manifested and
       unmanifested,      suspected    and    unanticipated       pulmonary-
       respiratory diseases, and/or injuries including but not limited to
       medical and hospital expenses, pain and suffering loss of income,
       increased risk of cancer, fear of cancer, and any and all forms of
       cancer, including mesothelioma and silicosis, arising in any
       manner whatsoever, either directly or indirectly, in whole or in
       part, out of exposure to any and all toxic substances, including
       asbestos, silica, sand, diesel fumes, welding fumes, chemicals,
       solvents, toxic and other pathogenic particulate matters, coal
       dust, and all other dusts, fibers, fumes, vapors, mists, liquids,
       solids, or gases, during RELEASOR’S employment with RELEASEE.
       The parties agree that a portion of the consideration paid for this
       RELEASE is for the risk, fear, and/or possible future manifestation
       of the injuries or diseases described in this paragraph.

                                           ...

       In entering into the RELEASE, RELEASOR declares that I have
       relied wholly upon my own judgment; that I am competent to
       understand and enter into this RELEASE; that I am not under any
       restraint or duress; that no representations about the nature and
       extent of my present or future condition, disabilities or damages
       made by any physician, attorney or agent of those hereby
       released, nor any representations regarding the nature and extent
       of legal liability of those hereby released, have induced me to
       make this settlement; that in determining the amount of
       settlement there has been taken into consideration not only my
       ascertained condition, disabilities and damages, but also that my
       present condition is permanent and may be progressive and
       recovery therefrom uncertain and indefinite, so that consequences
____________________________________________


concurrent jurisdiction over FELA claims; when tried in a state court, federal
substantive law is applied. Id. at 609.

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J-S79016-17


       may not now be fully known and could be more numerous and
       serious than now believed and that consequences not now
       anticipated may result.

                                           ...

       RELEASOR hereby declares that he has executed this RELEASE on
       the advice and approval of his counsel; that he knows and
       understands the contents hereof and signs the same as his own
       free act with full knowledge that the effect hereof shall be such so
       as to extinguish and he hereby declares extinguished, now and
       forever, any and all claims described in this RELEASE.

                                           ...

                                      CERTIFICATE

       I hereby certify that on the day and year above specified, I
       explained the foregoing RELEASE to PHILLIP E. JARRETT, that
       I explained to him the legal consequences of the execution and
       delivery of said RELEASE and that he executed the same
       voluntarily and appeared to have full knowledge thereof[.]

                                          Attorney for RELEASOR
                                          /s/

Release Agreement, 1/6/04 (emphasis added).

       Subsequently, in October 2014, Decedent was diagnosed with lung

cancer. The Jarretts commenced another FELA action in the Philadelphia Court

of Common Pleas on February 9, 2015, alleging that Decedent’s workplace

exposure to asbestos caused his cancer.2 On January 10, 2017, Conrail filed

a motion for summary judgment, arguing that the release Decedent signed in

2004 precluded recovery in the instant matter, as it had released Conrail from

future liability related to any workplace-related pulmonary-respiratory


____________________________________________


2During the course of the litigation, Decedent died and Jarrett, in her capacity
as Executrix, was substituted as plaintiff.

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diseases and/or injuries, including cancer, contracted after the execution of

the release. In response, Jarrett argued that the issue of whether a release

for a non-malignancy claim bars recovery for future malignancy claims is a

question for a jury to decide.   On March 17, 2017, the trial court granted

summary judgment in favor of Conrail; Jarrett’s motion for reconsideration

was denied on March 29, 2017.

      Jarrett filed a timely notice of appeal on April 5, 2017, followed by a

court-ordered statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Jarrett raises the following questions for our review:

      1. Did the [trial] court commit an error of law when it held that a
         release of a non-malignancy claim against a railroad under
         [section] 5 of FELA could include a future claim for malignancy
         that had not yet manifested itself?

      2. Did the [trial] court err by granting summary judgment to
         [Conrail] on the basis of the release alone?

Brief of Appellant, at 4.

      Entry of summary judgment is governed by Rule 1035.2 of the Rules of

Civil Procedure, which provides as follows:

      After the relevant pleadings are closed, but within such time as
      not to unreasonably delay trial, any party may move for summary
      judgment in whole or in part as a matter of law

         (1) whenever there is no genuine issue of any material fact
         as to a necessary element of the cause of action or defense
         which could be established by additional discovery or expert
         report, or

         (2) if, after the completion of discovery relevant to the
         motion, including the production of expert reports, an
         adverse party who will bear the burden of proof at trial has
         failed to produce evidence of facts essential to the cause of

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J-S79016-17


        action or defense which in a jury trial would require the
        issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

     Our standard of review of an appeal from an order granting
     summary judgment is well settled: Summary judgment may be
     granted only in the clearest of cases where the record shows that
     there are no genuine issues of material fact and also demonstrates
     that the moving party is entitled to judgment as a matter of law.
     Whether there is a genuine issue of material fact is a question of
     law, and therefore our standard of review is de novo and our scope
     of review is plenary. When reviewing a grant of summary
     judgment, we must examine the record in a light most favorable
     to the non-moving party.

Newell v. Montana West, Inc., 154 A.3d 819, 821–22 (Pa. Super. 2017)

(citations and internal quotation marks omitted).

     Jarrett first argues that the trial court erred in holding that the scope of

the 2004 release, executed in settlement of a non-malignancy claim under

FELA, encompassed a subsequent claim for a malignancy that had not yet

manifested itself at the time the release was signed. Jarrett asserts that, in

enacting FELA, it was the intent of Congress to protect workers and prevent

overreaching by an employer. In keeping with that policy, Congress enacted

section 5 of FELA, which provides as follows:

     Any contract, rule, regulation, or device whatsoever, the purpose
     or intent of which shall be to enable any common carrier to exempt
     itself from any liability created by this Act, shall to that extent be
     void[.]

45 U.S.C. § 55. Section 5 was passed “specifically to remedy the problem of

railroads insisting on employment contracts with their employees discharging




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J-S79016-17



the company from liability for personal injuries.” Conway v. Delaware and

Hudson Ry. Co., 909 A.2d 6, 7 n.2 (Pa. Super. 2006).

      Jarrett argues that section 5 “foreclose[s] the possibility of settlement

contracts of adhesion for injured railroad workers’ FELA claims.”        Brief of

Appellant, at 9. Because the protection of workers was Congress’ paramount

intent in enacting FELA, Jarrett asserts that a narrow interpretation of section

5 would best achieve that result. To that end, Jarrett urges us to follow the

bright-line rule set forth in the decision of the Sixth Circuit Court of Appeals

in Babbit v. Norfolk W. Ry., 104 F.3d 89 (6th Cir. 1997), rather than the

rule followed by the trial court, announced by the Third Circuit in Wicker v.

Conrail, 142 F.3d 690 (3rd Cir. 1998).

      In Babbit, the Sixth Circuit held that, to be valid, a FELA release “must

reflect a bargained-for settlement of a known claim for a specific injury, as

contrasted with an attempt to extinguish potential future claims the employee

might have arising from injuries known or unknown to him.” Babbit, 104

F.3d at 93 (emphasis added). In contrast, in Wicker, the Third Circuit held

that a FELA release “does not violate § 5 provided it is executed for valid

consideration as part of a settlement, and the scope of the release is limited

to those risks which are known to the parties at the time the release is signed.”

Wicker, 142 F.3d at 701 (emphasis added). Jarrett argues that the adoption

of the Babbit bright-line rule, in which only known claims could be released

under FELA, would result in greater protection of the worker, uniformity of




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J-S79016-17



settlements, the maintenance of safer workplaces, and the conservation of

judicial resources.

      In response, Conrail argues that this Court has already adopted the rule

in Wicker in its decision in Conway, supra. As such, Conrail asserts, our

inquiry should end there.    Moreover, Conrail argues, where federal courts

diverge on an issue, a state court should follow the federal court in its own

region. Brief of Appellee, at 17, citing Werner v. Plater-Zyberk, 799 A.2d

776, 782 (Pa. Super. 2002) (“When the Third Circuit has spoken on a federal

issue, the ultimate answer to which has not yet been provided by the United

States Supreme Court, it is appropriate for this Court to follow Third Circuit

precedent in preference to that of other jurisdictions.”).    Finally, Conrail

argues that Wicker “is decidedly the better approach,” in that it respects the

expressed will of all parties in reaching a final resolution of all claims and

encourages settlements. Brief of Appellee, at 17.

      We conclude that the trial court properly applied the rule set forth in

Wicker, as it has been deemed “controlling” by a prior panel of this Court.

See Conway, supra.         “It is well-settled that until the Supreme Court

overrules a decision of this Court, our decision is the law of this

Commonwealth.”        Commonwealth v. Martin, 727 A.2d 1136, 1141 (Pa.

Super. 1999), citing Commonwealth v. Leib, 588 A.2d 922, 932 (Pa. Super.

1991). Moreover, no compelling circumstances exist to overrule Conway and

adopt the rule in Babbit. The Wicker court engaged in a comprehensive

review of the cases that have applied section 5 and arrived at a cogent and

                                    -7-
J-S79016-17



well-reasoned test for determining the validity of a FELA waiver under section

5. First, the court found that a valid release “must at least have been executed

as part of a negotiation settling a dispute between the employee and the

employer.” Wicker, 142 F.3d at 700. In this way, an employer is foreclosed

from evading FELA liability as a condition of employment or separation. Next,

the court noted that an “evaluation of the parties’ intent at the time the

agreement was made is an essential element of this inquiry.” Id. In rejecting

the bright-line rule established under Babbit, the court acknowledged the

realities surrounding claims compromises.

      [I]t is entirely conceivable that both employee and employer could
      fully comprehend future risks and potential liabilities and, for
      different reasons, want an immediate and permanent settlement.
      The employer may desire to quantify and limit its future liabilities
      and the employee may desire an immediate settlement rather
      than waiting to see if injuries develop in the future. To put it
      another way, the parties may want to settle controversies about
      potential liability and damages related to known risks even if there
      is no present manifestation of injury.

Id. at 700-01.

      The court arrived at the conclusion that “a release that spells out the

quantity, location and duration of potential risks to which the employee has

been exposed – for example toxic exposure – allowing the employee to make

a reasoned decision whether to release the employer from liability for future

injuries of specifically known risks does not violate § 5 of FELA.” Id. at 701.

However, the court cautioned against the enforcement of overly-broad or

generic releases, noting that “where a release merely details a laundry list of


                                     -8-
J-S79016-17



diseases or hazards, the employee may attack that release as boiler plate, not

reflecting his or her intent.” Id. In sum, the approach adopted by the Wicker

court is highly fact-intensive and places the intent of the parties in the

forefront of any inquiry. It also provides a realistic view of compromises and

releases, while staying true to the prohibition on blanket relinquishments of

rights contemplated by Congress in enacting FELA. Accordingly, Jarrett’s first

claim is meritless.3

       Having concluded that the trial court properly framed its inquiry in terms

of the Wicker test, we must now address Jarrett’s claim that the trial court

improperly granted summary judgment on the basis of the release alone.

Jarrett cites Conway for “the proposition in Wicker that the inquiry is fact-

intensive and that the facts thus will need to be resolved by the fact-finder.”

Brief of Appellant, at 24. Accordingly, Jarrett argues that her claim should

have gone before a jury for a determination as to whether lung cancer was a

“known risk” and/or whether the release was unenforceable as a general

boilerplate release.

       Conrail counters that a party seeking to refute a FELA release bears the

burden of establishing its invalidity. Faced with that burden, Conrail claims,
____________________________________________


3 To the extent Jarrett claims the release is void under Norfolk & Western
Railway v. Ayers, 538 U.S. 135 (2003), she is entitled to no relief, as Ayers
is entirely inapposite. In Ayers, the Supreme Court considered whether a
worker’s recovery for his asbestosis-related “pain and suffering” included
damages for fear of developing cancer, and concluded that it could. In dicta,
the Court noted that an asbestosis claimant may bring a second action if
cancer develops. However, the Court did not discuss section 5 and the matter
had nothing to do with the validity of FELA releases.

                                           -9-
J-S79016-17



Jarrett nonetheless did nothing to refute the presumption of validity created

by language in the release barring claims for future cancer due to workplace

exposure to asbestos. Conrail argues that Jarrett failed to “create a record to

refute the fact that [Decedent] knew of the risk that he could develop cancer

when he signed the [r]elease on the advice of counsel.” Brief of Appellee, at

22.   For that reason, Conrail argues that Jarrett’s reliance on Conway is

inapposite because, unlike here, the plaintiff in Conway presented sufficient

evidence at the summary judgment phase to create a genuine issue of

material fact. We agree.

      On its face, the clear and unambiguous language of the release signed

by the Decedent precludes subsequent recovery for “any and all forms of

cancer . . . arising in any manner whatsoever . . . out of exposure to . . .

asbestos . . . during [Decedent’s] employment with [Conrail].”          Release

Agreement, 1/6/04, at 1. As Conrail correctly notes, the party attacking the

validity of a FELA release bears the burden of proof as to its invalidity. Callen

v. Pennsylvania R. Co., 332 U.S. 625, 630 (1948) (“[T]he releases of

railroad employees stand on the same basis as the releases of others. One

who attacks a settlement must bear the burden of showing that the contract

he has made is tainted with invalidity[.]”). In her answer to Conrail’s motion

for summary judgment, Jarrett fails to raise any issue of material fact that

would require the issue of the release’s validity to be submitted to a jury.

Rather, her answer merely presents, in condensed form, the same legal

arguments advanced on appeal.          “[A] non-moving party must adduce

                                     - 10 -
J-S79016-17



sufficient evidence on an issue essential to his case and on which he bears the

burden of proof such that a jury could return a verdict in his favor. Failure to

adduce this evidence establishes that there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law.” Ertel

v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996).             See Pa.R.C.P.

1035.2(2) (summary judgment appropriate where adverse party bearing

burden of proof at trial fails to produce evidence of facts essential to cause of

action which in jury trial would require issues be submitted to jury). The mere

propounding of legal theories, without any supporting evidence that would

raise a question of fact, does not sustain that burden.

      Here, Jarrett presented no evidence that the Decedent was unaware

that cancer was a risk of asbestos exposure at the time he executed the

release.   Indeed, as the trial court noted, Jarrett “cannot possibly claim

[Decedent] did not know that cancer was a risk of asbestos exposure, and it

would be implausible to conclude [Decedent] did not know of his exposure to

asbestos when he settled his prior asbestos-related case.” Trial Court Opinion,

6/29/17, at 13. As such, no genuine issue of material fact existed such that

a jury could return a verdict in Jarrett’s favor. Ertel, supra. Accordingly, the

trial court properly granted summary judgment in favor of Conrail.

      Order affirmed.




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J-S79016-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/18




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