J-A28023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN MOELLER                            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ARMSTRONG WORLD INDUSTRIES,             :   No. 361 MDA 2018
 INC.                                    :

               Appeal from the Order Entered January 26, 2018
              In the Court of Common Pleas of Lancaster County
                     Civil Division at No(s): CI-15-08405


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

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

      Appellant, John Moeller, appeals from the January 26, 2018 order

sustaining the preliminary objections of Armstrong World Industries, Inc.

(“Armstrong”). We affirm.

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

facts as pled in Appellant’s second amended complaint. For approximately 27

years, Michael Moeller (“Moeller”) was an Armstrong employee. During his

employment with Armstrong, Moeller was exposed to trichloroethylene and

methylene chloride. On February 23, 2010, Moeller died due to blood cancer

caused by his exposure to the toxic chemicals at Armstrong’s facility.

      On September 30, 2015, Appellant, as administrator of Moeller’s estate

and on his own behalf, filed the instant lawsuit.     On October 26, 2017,

Appellant filed an amended complaint asserting claims for wrongful death and
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survival. Armstrong filed preliminary objections in which it argued that the

applicable statute of limitations barred Appellant’s claims.1 On January 26,

2018, the trial court sustained Armstrong’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

his 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.

2017) (citation omitted). We conclude that Appellant’s argument is without

merit. 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
____________________________________________


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 preliminary objections. Hence, the trial court could
rule on the statute of limitations preliminary objection. 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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J-A28023-18


      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 Moeller passed away (the latest

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

23, 2012, over 43 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

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J-A28023-18


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 his lawsuit within two years of Moeller’s death

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

bar his 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

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

sustained Armstrong’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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