J-A28022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SHERRY RILEY                            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ARMSTRONG WORLD INDUSTRIES,             :   No. 122 MDA 2018
 INC. AND BRENNTAG NORTHEAST,            :
 INC.                                    :

              Appeal from the Order Entered December 19, 2017
              In the Court of Common Pleas of Lancaster County
                     Civil Division at No(s): CI-15-06630


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 16, 2018

      Appellant, Sherry Riley, appeals from the December 19, 2017 order

sustaining the preliminary objections of Armstrong World Industries, Inc.

(“Armstrong”) and Brenntag Northeast, Inc. (“Brenntag”). We affirm.

      As this case was disposed of on preliminary objections, we set forth the

facts as pled in Appellant’s second amended complaint. From 1984 until 2000,

Jeffrey Riley (“Riley”) was an Armstrong employee. During his employment

with Armstrong, Riley was exposed to trichloroethylene and methylene

chloride, chemicals manufactured by Brenntag. On November 1, 2010, Riley

died due to multiple myeloma caused by his exposure to the toxic chemicals

at Armstrong’s facility.
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       On August 4, 2015, Appellant, on her own behalf and as administratrix

of Riley’s estate, filed the instant lawsuit. On September 1, 2015, Appellant

filed an amended complaint. On October 20, 2017, Appellant filed a second

amended complaint asserting claims for wrongful death and survival.

Armstrong and Brenntag filed preliminary objections in which they argued that

the applicable statute of limitations barred Appellant’s claims.1 On December

19, 2017, the trial court sustained Armstrong’s and Brenntag’s preliminary

objections and dismissed the case with prejudice.            This timely appeal

followed.2

       Appellant presents one issue for our review:

       [Did the trial court err in concluding that the applicable statute of
       limitations bars Appellant’s claims?]

Appellant’s Brief at 4.

       Appellant argues that the applicable statute of limitations does not bar

her claims. “Issues involving the interpretation of a statute of limitations are

questions of law for which our standard of review is de novo and our scope of

review is plenary.” Erie Ins. Exch. v. Bristol, 174 A.3d 578, 585 n.13 (Pa.



____________________________________________


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

2 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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2017) (citation omitted).    We begin with a review of wrongful death and

survival claims:

      At common law, an action for personal injury did not survive a
      person’s death. To counter this, our legislature enacted a survival
      statute providing that all causes of action or proceedings, real or
      personal, shall survive the death of a plaintiff. All actions that
      survive the decedent, however, must be brought by or against the
      personal representative of the decedent’s estate.        Likewise,
      Pennsylvania law provides that 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, neglect,
      unlawful violence[,] or negligence of another. This wrongful death
      action exists only for the benefit of a decedent’s spouse, children
      or parents. As with survival actions, an action for wrongful death
      may only be brought by the personal representative of a decedent
      for the benefit of those persons entitled by law to recover
      damages for the decedent's wrongful death.

Bouchon v. Citizen Care, Inc., 176 A.3d 244, 258 (Pa. Super. 2017), appeal

denied, 189 A.3d 993 (Pa. 2018) (cleaned up).

      “Pursuant to 42 Pa.C.S.A. § 5524, the statute of limitations for a

wrongful death and survival action is two years[.]”       Krapf v. St. Luke's

Hosp., 4 A.3d 642, 649 (Pa. Super. 2010), appeal denied, 34 A.3d 832 (Pa.

2011). The statute of limitations begins to run with respect to a survival action

“at the latest” on the date the decedent dies. Dubose v. Quinlan, 173 A.3d

634, 645 (Pa. 2017) (citation omitted).       The statute of limitations for a

wrongful death action always begins to run on the date the decedent dies.

See id. at 637. Hence, assuming arguendo that the statute of limitations for

Appellant’s survival claim began to run when Riley passed away (the latest




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date possible), the statute of limitations for both claims expired on November

1, 2012, over 33 months prior to Appellant filing the instant lawsuit.

      Appellant argues that the statute of limitations did not begin to run until

our Supreme Court’s decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa.

2013). Tooey clarified the scope of the Workers’ Compensation Act. Our

Supreme Court held that the Workers’ Compensation Act’s exclusivity

provision does not cover an occupational disease-based disability that

manifests over 300 weeks after the last occupational exposure. Id. at 859-

864. Contrary to Appellant’s arguments, Tooey did not create a new cause

of action nor did the Workers’ Compensation Act previously bar Appellant’s

claims. Instead, our Supreme Court clarified the scope of the Workers’

Compensation Act’s exclusivity provision, which had not changed. Moreover,

Tooey did not overturn prior decisions of our Supreme Court.         Instead, it

overturned prior decisions of this Court. See id. at 856.

      Appellant could have filed her lawsuit within two years of Riley’s death

and argued that the Workers’ Compensation Act’s exclusivity provision did not

bar her claims.   Many plaintiffs throughout our Commonwealth, including

Tooey, filed such suits and argued that this Court’s prior interpretation of the

Workers’ Compensation Act was incorrect. Appellant failed to do so, and our

Supreme Court’s Tooey decision did not extend the statute of limitations for

her survival and wrongful death claims. Accordingly, the trial court correctly




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sustained Armstrong’s and Brenntag’s preliminary objections and dismissed

the claims with prejudice.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2018




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