EQUITABLE TOLLING IN WRONGFUL DEATH ACTIONS OR PROCEEDINGS

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THE FOLLOWING LEGAL STUDY ARTICLE  POSTING IS INTENDED TO SUPPORT AWARENESS AND UNDERSTANDING. IT IS ONLY A PRELIMINARY LEVEL LEGAL STUDY ARTICLE AND IT IS NOT LEGAL ADVICE.   IF THE READER SEEKS LEGAL ADVICE CONCERNING HIS OR HER PARTICULAR SITUATION, HE OR SHE SHOULD SEEK OUT AN ATTORNEY IN A LAWYER CLIENT RELATIONSHIP.

 

Pennsylvania’s Two-Year Statute of Limitations For Wrongful Death Actions or Proceedings In Occupational Health and Safety Contexts Should Only Begin To Toll From The Date On Which The Claimant Is Informed By Notice Of A Relevant OSHA Health And Safety Violation That There Is Some Evidence That The Employee Was Injured By Exposure To Such Hazardous Health And Safety Workplace Condition Or Upon The Date On Which The Person Knew Or By The Exercise Of Reasonable Diligence Should Have Known That The Person Had An Injury That Was Caused By Exposure To Such Hazardous Health Or Safety Workplace Condition, Whichever Date Occurs First. 

 

Under Pennsylvania’s Judicial Code,  an action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another must be commenced within two years from the time that the cause of action accrued . See 42 Pa. C.S.A. § 5502 (a) ; § 5524 (2) .  However, nothing in Pennsylvania’s Judicial Code is to modify equitable principles similar to waiver, laches, estoppel and similar principals applicable in equitable matters. See 42 Pa. C.S.A. § 5501 (c)

Generally speaking, applying equitable tolling pauses the running of, or “tolls,” a statute of limitations.  See the Pa. Supreme Court case of Nicole B. v. Sch. Dist. of Phila. 237 A.3d 986 (Pa. 2020) citing Dubose v. Quinlan, 173 A.3d 634, 644 (Pa. 2017).  It permits administrative agencies and courts to postpone application of statutory limitations for a period of time in certain appropriate circumstances. “ Id “ .  Broadly stated, “the doctrine of equitable tolling extends a statute of limitations when a party, through no fault of its own, is unable to assert its right in a timely manner.”   “Id “ , citing Daimler Chrysler Corp.v. Commonwealth, 885 A.2d 117, 119 n.5 (Pa. Cmwlth. 2005).

The doctrine of equitable tolling typically applies where a plaintiff was unaware of or unable to timely discover his tortious injury, or the cause therefore, through no fault of his own. See  Nicole B, supra .   Equitable tolling is permitted under the discovery rule only when, despite the exercise of due diligence, the injured party is unable to know of the injury or its cause.”,  “Id” , citing  Quest Diagnostics Venture, LLC v. Commonwealth of Pennsylvania, 119 A.3d 406, 413 n.6 (Pa Cmwlth. 2018).

Equitable tolling permitted under the discovery rule is especially important in the occupational health context because employer health and safety hazards may take a long time to recognize. For example, a considerable amount of time may pass before a worker learns about chronic exposure to toxic chemicals, and thus it may be years after first being exposed that they learn of the hazardous condition and violations in their workplace.   The statute of limitations should begin to toll when the employee knew or should have known of the existence of the hazardous health or safety condition, such as upon notice of a relevant OSHA employer violation . This would give workers and their representatives long enough to learn of an employer’s violation, consult with an attorney, and decide whether they wish to file a notice of intent to sue and pursue a lawsuit against their employer.  See OSHA’s Next 50 Years: Legislating a Private Right of Action to Empower Workers by Michael C. Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy  https://progressivereform.org/our-work/workers-rights/osha50pra

Recognizing that asbestos related health and safety hazards may take a long time to recognize, the text of the Pennsylania Judicial Code governing the commencement of actions and proceedings to recover damages for the death of a person caused by exposure to asbestos incorporates the principle of equitable tolling.  It indicates that such actions or proceedings need only 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. See 42 Pa. C.S.A. § 5524 (7)

In Pennsylvania, OSHA standards are relevant evidence of the employer’s standard of care and their violation by an employer defendant are thus some evidence of negligence by that defendant . See OSHA’s Next 50 Years , supra , citing  Wood v. Smith, 495 A.2d 601, 603 (Pa. Super. Ct. 1985).

The Pennsylvania General Assembly has instructed that statutes “shall be liberally construed to effect their objects and to promote justice”,  See Nicole B, supra, citing 1 Pa.C.S. § 1928(c).  Indeed, it is hornbook law that limitations periods are “customarily subject to ‘equitable tolling,”’ “Id”., citing  Irwin v. Department of Veteran Affairs, 498 U.S. 89, 95 (1990),  unless doing so would be “inconsistent with the text of the relevant statute,” “Id.”, citing United States v. Beggerly, 524 U.S. 38, 48 (1998).

It is thus reasonable to conclude,  consistent with a liberal construction of the text of  42 Pa. C.S.A. § 5524 (2) ,  in tandem with the consideration of promoting fairness , equity and justice , that Pennsylvania’s two-year statute of limitations for wrongful death actions or proceedings in occupational health and safety contexts should only begin to toll from the date on which the claimant is informed by notice of a relevant OSHA health and safety violation that there is some evidence that the employee was injured by exposure to such hazardous health and safety workplace condition or upon the date on which the person knew or by the exercise of reasonable diligence should have known that the person had an injury that was caused by exposure to such hazardous health or safety workplace condition, whichever date occurs first.