Skip to Content Top



Pennsylvania Supreme Court Rules That Asbestos Disease Claims Can Be Maintained Against Former Employers

We are pleased to announce that the Pennsylvania Supreme Court recently issued a landmark decision in favor of our clients, the heirs and estate of John “Jack” Tooey.

From 1964 to 1982, Mr. Tooey worked as an industrial salesman for Ferro Engineering, a division of Oglebay-Norton Co. (Ferro/Oglebay). As part of his job responsibilities, Jack was exposed to asbestos from a variety of products used at the steel mills he visited in Pennsylvania, West Virginia, Ohio, Michigan and Indiana, including but not limited to asbestos-containing products manufactured by Ferro/Oglebay.

Jack was diagnosed with malignant pleural mesothelioma in December 2007 at the age of 76, and passed away less than a year later. A lawsuit was filed on behalf of Jack and his wife in March 2008 against multiple defendants, including Jack’s former employer Ferro/Oglebay.

As is the case with most other states, the law in Pennsylvania provides that claims against an employer for work-related injuries are generally limited to Workers Compensation claims. These laws, which are often referred to as “exclusive remedy” provisions, preclude a claimant from bringing a third-party lawsuit against an employer.

In Mr. Tooey’s case, Ferro/Oglebay convinced the Pennsylvania Superior Court that it was entitled to summary judgment based on Pennsylvania’s exclusive remedy law. The matter was appealed to the State’s Supreme Court where it was asserted that occupational injury claims stemming from latent diseases, such as asbestos cancer which doesn’t develop for at least 15 years after exposure, are exempt from Pennsylvania’s exclusive remedy statute as worded.

On November 22, 2013, the Pennsylvania Supreme Court issued its opinion in Tooey v. AK Steel Corp., et al. , ruling 5-1 in favor of Mr. Tooey’s family. Specifically, the Supreme Court held that the exclusivity provision of the Pennsylvania Workers Compensation Act does not apply to third-party claims for diseases which manifest more than 300 weeks following the last occupational exposure. In the opinion, the court stated, "It is inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the Act or at common law.”

The Supreme Court’s ruling allows the Tooey family’s case to now proceed against Ferro/Oglebay. The decision, which constitutes a major shift in Pennsylvania Law, will have more far-reaching effects. The case essentially paves the way for victims of latent occupational diseases, including but not limited to asbestos cancer/mesothelioma, to assert third-party claims against the former employers that put them “in harm’s way”.