Data v. AO Smith Corporation (W.D. Pa., Feb. 11, 2021)

Our plain-English summary of Data v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, February 11, 2021).

Michael Data served in the Navy from 1969 to 1973, including on the USS Newport News, then worked at a Crane Co. foundry, Mesta Machine, and the West Pittsburgh Power Station, where Pennsylvania Power Company employed him until 2009. He was diagnosed with mesothelioma in January 2019 and died in February 2020. His wife, Darlene Data, sued about 168 companies in her own right and as executrix of his estate, and the case was removed to federal court. Two defendants moved to dismiss. Penn Power argued that Pennsylvania's Occupational Disease Act barred a tort suit by its former employee. Alfa Laval argued the court lacked personal jurisdiction. The magistrate judge recommended denying both motions. The Act did not apply because Mr. Data's exposure began after 1973, and his symptoms appeared more than 300 weeks after his last exposure, so common law claims were allowed. Alfa Laval had been registered to do business in Pennsylvania since 1954, including in 2018 when the claim arose through his symptoms, so it had consented to jurisdiction.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of Pennsylvania
• Decided: February 11, 2021
• Stage: Motion to dismiss
• State: Pennsylvania

Outcome. The magistrate judge recommended denying Pennsylvania Power Company's motion to dismiss for lack of subject matter jurisdiction and Alfa Laval's motion to dismiss for lack of personal jurisdiction, so the plaintiffs' claims against both could go forward.

What the court held. Under Pennsylvania law, a worker whose occupational disease first appears more than 300 weeks after his last exposure may bring common law claims against his employer, and a foreign corporation registered in Pennsylvania when the asbestos cause of action accrued (at injury) consents to general jurisdiction under 42 Pa.C.S. § 5301.

Issues decided: Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation, Personal Jurisdiction, Venue, Removal and Transfer.

The people and their exposure

• Michael Data: mesothelioma; died

Who	Work	Where	When	Products
Michael Data	Navy service, worked in the engine room (the Navy); military service	USS Newport News (CA-148)	1969-1973	Alfa Laval equipment (alleged)
Michael Data	worker at foundry (iron and steel)	Crane Co. foundry, New Castle, Pennsylvania	1973-1974
Michael Data	worker at Mesta Machine	Mesta Machine, New Castle, Pennsylvania	1974-1982
Michael Data	worker at power station (power plants and utilities)	West Pittsburgh Power Station, New Castle, Pennsylvania	1983-2009

The defendants

• Pennsylvania Power Company (employer)
• Alfa Laval, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Data v. AO Smith Corporation (November 9, 2021). The magistrate judge recommended granting summary judgment on product identification for most moving defendants (including M.S. Jacobs, Flowserve, Armstrong International, William Powell, Clyde Union, IUNA, Atwood, Viking, Dezurik, Alfa Laval, Gardner Denver, Hyster-Yale, BW/IP and Clark), denying it for Honeywell and Air & Liquid Systems, granting it in part and denying it in part for Dana, GE and FMC, and denying Nash's motion without prejudice because of its bankruptcy stay.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Summers v. Certainteed Corp. (Pennsylvania Supreme Court, 2010). The Pennsylvania Supreme Court reversed the Superior Court's order affirming summary judgment for Union Carbide, Certainteed and Allied Signal, disapproved Quate v. American Standard, and sent the cases back so Summers and Nybeck could proceed.
• Gorton v. Air & Liquid Systems Corp. (U.S. District Court, Middle District of Pennsylvania, 2018). The court granted dismissal for lack of personal jurisdiction for Pacific Bell, Nevada Bell and AT & T, Inc., found jurisdiction over Ford and AT & T Corp., but dismissed the claims against those two without prejudice as conclusory, allowing plaintiffs to amend.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

MICHAEL DATA, DARLENE DATA, EXECUTRIX OF THE ESTATE OF MICHAEL DATA, DECEASED,

AND DARLENE DATA IN HER OWN RIGHT; Plaintiffs,

v.

A.O. SMITH CORPORATION, A.R. WILFLEY & SONS, INC, ABB, INC., AS SUCCESSOR TO BROWN

BOVERI (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ITE IMPERIAL CO F/K/A ITE

CIRCUIT BREAKER COMPANY); ACCO MATERIAL HANDLING SOLUTION, INC., AECOM ENERGY

& CONSTRUCTION, INC., AHLSTROM PUMPS LLC, AIR & LIQUID SYSTEMS CORPORATION,

SUCCESSOR-BY-MERGER TO BUFFALO PUMPS, INC.; AJAX MAGNETHERMIC CORPORATION,

ALFA LAVAL, INC., ALLIED GLOVE CORPORATION, ARMSTRONG INTERNATIONAL, INC.,

ARMSTRONG PUMPS, INC., ATLAS INDUSTRIES, INC., ATWOOD & MORRILL CO., INC., AURORA

PUMPS, BAKER HUGHES, A GE COMPANY, LLC; BEAZER EAST, INC., IN ITS OWN RIGHT AND AS

SUCCESSOR TO KOPPERS CO., INC., AND OTHER RELATED COMPANIES, INCLUDING THIEM

CORPORATION, BEAZER USA, INC., AND BEAZER, PLC; BMI REFRACTORY SERVICES, INC.,

BORGWARNER MORSE TEC LLC, BRAND INSULATIONS, INC., BRYAN STEAM, LLC, BURNHAM

LLC, BW/IP, INC., CAMERON INTERNATIONAL CORPORATION, CAMPBELL HAUSFELD, LLC,

CARRIER CORPORATION, CARVER PUMP COMPANY, CASHCO, INC., CATERPILLAR, INC.,

CATERPILLAR GLOBAL MINING AMERICA, LLC, CBS CORPORATION, AS SUCCESSOR BY

MERGER TO CBS CORP.; CERTAINTEED CORPORATION, CLARK EQUIPMENT COMPANY, CLARK

RELIANCE CORPORATION, AND ITS DIVISION JERGUSON GAGE AND VALVE; CLEAVER-

BROOKS, CLYDE UNION, INC., INDIVIDUALLY AND AS SUCCESSOR-BY-MERGER TO UNION

PUMP COMPANY; COLUMBUS McKINNON CORP., SUCCESSOR-BY-MERGER TO LIFT TECH

INTERNATIONAL, INC., AND ITS SHAW-BOX HOIST DIVISION; CORNING INCORPORATED, ON

BEHALF OF ITS FORMER CORHART REFRACTORIES BUSINESS DIVISION; CRANE COMPANY,

INC., CROSBY VALVE, LLC, CROWN CORK & SEAL USA, INC., AS SII TO MUNDET CORK;

CUMMINS, INC., DANA COMPANIES, LLC, DANIELI CORPORATION, DAP, INC, DEZURIK, INC.,

DICK CORPORATION, DRAVO CORPORATION, EATON CORPORATION, AS SUCCESSOR-IN-

INTEREST TO CUTLER-HAMMER, INC.; EICHLEAY CORPORATION, ELECTROLUX HOME

PRODUCTS INC., ELLIOTT COMPANY, EMERSON CLIMATE TECHNOLOGIES, INC., IN ITS OWN

RIGHT AND AS SUCCESSOR-IN-INTEREST TO ALCO VALVE COMPANY; FLOWSERVE

CORPORATION, FLOWSERVE CORPORATION, FLOWSERVE US INC., SOLELY AS SUCCESSOR

TO NORDSTROM AUDCO. EDWARD VALVES INC., NORDSTROM VALVES, INC., AND ROCKWELL

MANUFACTURING COMPANY; FLOWSERVE US INC., SUCCESSOR TO VALTEK INTERNATIONAL;

FLSMIDTH DORR-OLIVER, INC., AS SUCCESSOR-IN-INTEREST TO KEELER/DORR-OLIVER

BOILER COMPANY; FLSMIDTH, INC., FMC CORPORATION, FORD MOTOR COMPANY, FOSTER

WHEELER LLC, GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY, GENUINE PARTS

COMPANY, GOULD ELECTRONICS, INC., GREENE TWEED & COMPANY, GOULDS PUMPS, LLC,

GRINNELL, LLC, GUARD LINE, INC., HONEYWELL, INC., HONEYWELL INTERNATIONAL, INC., AS

SUCCESSOR-IN-INTEREST TO THE BENDIX CORPORATION; HONEYWELL INTERNATIONAL, INC.,

IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO ALLIED CORPORATION (WILPUTTE

COKE OVEN DIVISION), AND AS SUCCESSOR-IN-INTEREST TO ALLIED CHEMICAL (WILPUTTE

COKE OVEN DIVISION), AND AS SUCCESSOR-IN-INTEREST TO WILPUTTE COKE OVEN

CORPORATION; HOWDEN NORTH AMERICA. INC., HUNTER SALES CORPORATION, HYSTER-

YALE GROUP, INC., I.U. NORTH AMERICA, INC., AS SUCCESSOR BY MERGER TO THE GARP

COMPANY, FORMERLY KNOWN AS THE GAGE COMPANY, FORMERLY KNOWN AS THE GAGE

COMPANY, FORMERLY KNOWN AS PITTSBURGH GAGE AND SUPPLY COMPANY; IMO

INDUSTRIES, INC., INDUCTOTHERM INDUSTRIES, INC., INDUSTRIAL RUBBER PRODUCTS,

INGERSOLL-RAND CORPORATION, ITT INDUSTRIES, INC., JOHNSON CONTROLS, INC., JOY

GLOBAL SURFACE MINING, INC., JOY GLOBAL UNDERGROUND MINING, LLC, KELSEY-HAYES

COMPANY, LEEDS & NORTHRUP COMPANY, LINDBERG, LINDBERG MPH, M.S. JACOBS &

ASSOCIATES, INC., MACK TRUCKS, INC., MAGNETEK, INC., M.V.S. COMPANY, MALLINCKRODT

US HOLDINGS, LLC, McCARLS, INC., McMASTER CARR SUPPLY, McNALLY INDUSTRIES, LLC, IN

ITS OWN RIGHT AND ITS NORTHERN PUMPS DIVISION, IN ITS OWN RIGHT; McNEIL (OHIO)

CORPORATION, MESTEK, INC., METPRO CORPORATION, AND ITS DEAN PUMP BRAND;

MILWAUKEE VALVE COMPANY, MINE SAFETY APPLIANCE COMPANY, MINNOTTE CONTRACTING

CORPORATION, MORGAN ENGINEERING SYSTEMS, INC., MOYNO, INC., MUELLER CO., LLC,

MUELLER STEAM SPECIALTY, MW CUSTOM PAPERS, LLC, NAGLE PUMPS, INC., NAVISTAR, INC.,

NORTEK GLOBAL HVAC. LLC, AS SUCCESSOR BY MERGER TO REZNOR, LLC; NORTH

AMERICAN MANUFACTURING CO., OSRAM SYLVANIA, INC., IN ITS OWN RIGHT AND AS

SUCCESSOR-IN-INTEREST TO GTE PRODUCTS CORPORATION, THE CLARK CONTROLLER

COMPANY AND A.O. SMITH CORPORATION; PECORA CORPORATION, PENNSYLVANIA POWER

COMPANY, PENTAIR VALVES & CONTROLS, LLC, PNEUMO ABEX, LLC, AS SUCCESSOR-IN-

INTEREST TO ABEX CORPORATION; POWER PIPING COMPANY, RCH NEW CO., II LLC, AN

ALLEGED SUCCESSOR TO H.H. ROBERTSON COMPANY; READING CRANE AND ENGINEERING

COMPANY, RESEARCH-COTTRELL, INC., REUNION INDUSTRIES, INC., RILEY POWER, INC.,

ROBBINS & MYERS, INC., ROBINSON FANS, INC., ROCKWELL AUTOMATION, INC., SUCCESSOR

BY MERGER TO ALLEN BRADLEY CO; RUST ENGINEERING & CONSTRUCTION, INC., SAINT-

GOBAIN ABRASIVES, INC., SAUER, INC., SCHNEIDER ELECTRIC USA, INC., SIEMENS INDUSTRY,

INC., IN ITS OWN RIGHT, AND AS SUCCESSOR-IN-INTEREST TO I-T-E CIRCUIT BREAKER

COMPANY; SIMAKAS COMPANY, INC., SPIRAX SARCO, INC., SPX COOLING TECHNOLOGIES,

INC., STERLING FLUID SYSTEMS (USA), LLC, SUNBEAM PRODUCTS, INC., AS SUCCESS-IN-

INTEREST TO SUNBEAM CORPORATION; SUNDYNE, LLC, SURFACE COMBUSTION, SWINDELL-

DRESSLER INTERNATIONAL COMPANY, THE GOODYEAR TIRE & RUBBER COMPANY, THE

GORMAN-RUPP COMPANY, THE NASH ENGINEERING COMPANY, THE WILLIAM POWELL

COMPANY, TRANE U.S. INC., IN ITS OWN RIGHT AND AS SUCCESSOR TO WESTINGHOUSE

AIRBRAKE AND/OR WABCO; TRUMBELL INDUSTRIES, INC., TUTHILL CORPORATION, UB WEST

VIRGINIA, INC., UNION CARBIDE CORPORATION, UNITED CONVEYOR CORPORATION, VELAN

VALVE CORPORATION, VIKING PUMP, INC., W.W. GRAINGER, INC., WARREN PUMPS, LLC,

WASHINGTON GROUP INTERNATIONAL, AND ALL ITS DOMESTIC SUBSIDIARIES INCLUDING THE

BADGER COMPANY, INC.; WATSON McDANIEL COMPANY, WATTS REGULATOR CO., WEIL-

McLAIN COMPANY, WHEELABRATOR AIR POLLUTION CONTROL, INC., WT/HRC CORPORATION,

WTI RUST HOLDINGS, INC., YORK INTERNATIONAL CORPORATION, YUBA HEAT TRANSFER LLC,

ZURN INDUSTRIES, AMERICAN CAST IRON PIPE COMPANY, INDIVIDUALLY AND AS SII TO

DARLING VALBE A & MFG, CO; INDUSTRIAL HOLDINGS CORPORATION, SURFACE

COMBUSTION, LINDBERG, DICK CORPORATION, NORTEK GLOBAL HVAC, LLC, FLSMIDTH, INC.,

MARLEY-WYLAIN COMPANY, INCORRECTLY DESIGNATED AS WEIL-McLAIN COMPANY;

SIMAKAS COMPANY, INC., TRUMBULL INDUSTRIES, INC., UB WEST VIRGINIA, INC., F/K/A/ UNION

BOILER COMPANY; MW CUSTOM PAPERS, LLC, WT/HRC CORPORATION, WHEELABRATOR AIR

POLLUTION CONTROL, INC., MVS COMPANY, SULZER PUMPS (US), INC., MESTEK, INC.,

MESTEK, INC., SULZER PUMPS (US), INC., GOULD ELECTRONICS, INC., MESTEK, INC., SULZER

PUMPS SOLUTIONS, INC., Defendants, etal.,

Case No. 2:19-CV-00879-CRE.

February 11, 2021.

United States District Court, W.D. Pennsylvania.

REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Chief Magistrate Judge.

I. RECOMMENDATION

This asbestos claim was removed to this court from the Court of Common Pleas of Allegheny County, Pennsylvania on July 22, 2019. Following an extended period to effect service on the approximately 168 Defendants named in this case, and following an amended complaint filed by Plaintiffs (ECF No. 773 which incorporates by reference the original complaint ECF No. 1-5), two Defendants seek to dismiss the claims against them. Presently pending before the court are the following: 1. A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b) (1) filed by Defendant Pennsylvania Power Company ("Penn Power") (ECF No. 801); and

2. A motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) filed by Defendant Alfa Laval, Inc. ("Alfa Laval") (ECF No. 830).

The motions are fully briefed and ripe for disposition. Penn Power Motion brief at (ECF No. 801 at p. 5); Plaintiffs' response brief at (ECF No. 890); Alfa Laval brief at (ECF No. 858); Plaintiffs' response brief at (ECF No. 891). For the reasons that follow, it is respectfully recommended that both motions be denied.

II. REPORT

a. Background

Decedent Michael Data ("Mr. Data") served in the United States Navy from June 1969 until March 1973, including aboard the USS Newport News (CA-148), and after his discharge he worked at the Crane Co. foundry in New Castle, Pennsylvania from July 1973 until August 1974, then at Mesta Machine in New Castle, Pennsylvania from October 1974 to June 1982, and then at the West Pittsburgh Power Station in New Castle, Pennsylvania from November 1983 to October 2009. (ECF No. 1-5 at ¶ 171). During a portion of time while employed as set forth, Mr. Data was exposed to asbestos dust and fibers resulting in him developing mesothelioma beginning in 2018 and was eventually diagnosed in January 2019. (Id. at ¶¶ 172-74). Mr. Data died from complications of mesothelioma on February 6, 2020. (ECF No. 773 at ¶ 4).

Plaintiff Darlene Data, as Mr. Data's wife and executrix of his estate and on her own behalf brings the present lawsuit against the defendant companies alleging that they engaged in the mining, milling, manufacturing, distributing, supplying, selling and/or using and/or recommending and/or installing and/or removing asbestos materials and other dangerous ingredients and products which caused Mr. Data to contract mesothelioma and cause his ultimate death. (ECF No. 1-5 at ¶¶ 175, 177). Plaintiff seeks damages for Mr. Data's injuries he sustained as a result of the exposure to asbestos and for his wrongful death. (Id. at ¶ 180; ECF No. 773 at ¶ 12).

Plaintiff asserts the following claims against Defendants Penn Power and Alfa Laval: (1) a strict products liability claim (Count I); (2) a negligence claim (Count II); (3) a loss of consortium claim (Count III); and (4) a wrongful death claim pursuant to 42 Pa.C.S.A. § 8302 (Count VIII).[1]

Both Defendants seek dismissal of the claims asserted against them arguing that the court does not have jurisdiction over them. Specifically, Penn Power argues that as Mr. Data's former employer that this civil tort action is improper in light of Section 301(i) of the Occupations Disease Act, 77 P.S. § 1402(i) ("ODA") which bars tort claims by former employees who develop occupational diseases and the court lacks subject matter jurisdiction over the matter. Alfa Laval argues that it is not

subject to general or specific personal jurisdiction in Pennsylvania because it did not personally direct any activity at the Commonwealth of Pennsylvania and the court therefore lacks personal jurisdiction over it.

b. Standard of Review

i. Federal Rule of Civil Procedure 12(b)(1): subject matter jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a claim can be dismissed for "lack of jurisdiction over the subject matter." "A district court has to first determine, however, whether a Rule 12(b)(1) motion presents a `facial' attack or a `factual' attack on the claim at issue, because that distinction determines how the pleading must be reviewed." Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). "A facial attack, as the adjective indicates, is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because, for example, it does not present a question of federal law, or because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present." Id. "Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint." Id. "A factual attack, on the other hand, is an argument that there is no subject matter jurisdiction because the facts of the case—and here the District Court may look beyond the pleadings to ascertain the facts—do not support the asserted jurisdiction." Id. at 358.

"In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Id. (internal citations and quotation marks omitted). "Thus, a facial attack calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party." Id. "This is in marked contrast to the standard of review applicable to a factual attack, in which a court may weigh and consider evidence outside the pleadings." Id. (internal quotation marks omitted).

ii. Federal Rule of Civil Procedure 12(b)(2): personal jurisdiction

"The Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresident defendant to a judgment of its courts." Walden v. Fiore, 571 U.S. 277, 283 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). Although due process does not require that a non-resident be physically present within the state, it does require that non-residents have "certain minimum contacts [with the state] . . . such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). A federal court sitting in diversity "may assert personal jurisdiction over a nonresident defendant to the extent allowed under the law of the forum state." Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009) (citing Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984)). "Pennsylvania authorizes the exercise of long-arm jurisdiction over non-residents `to the full extent allowed under the Constitution of the United States.'" Evanko v. WCDI, LLC, 2012 WL 393261, at [*2] (W.D. Pa. Feb. 6, 2012) (quoting 42 Pa. Cons. Stat. § 5322(b) and citing Renner v. Lanard Toys Ltd., 33 F.3d 277, 279 (3d Cir. 1990)).

Once personal jurisdiction has been challenged, "[t]he burden of demonstrating the facts that establish personal jurisdiction falls on the plaintiff." Metcalfe, 566 F.3d at 330 (citations omitted). The plaintiff must meet this burden through "affidavits or other competent evidence," id. (quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)), and must provide "`specific facts' rather than vague or conclusory assertions." Croyle v. Hutchinson, 2012 WL 2358999, at [*1] (W.D. Pa. June 20, 2012) (quoting Marten v. Godwin, 499 F.3d 290, 298 (3d Cir. 2007)). Whether the court has jurisdiction over a defendant is "inherently a matter which requires resolution of factual issues outside the pleadings." Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984). When the court does not hold an evidentiary hearing, "the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have [his] allegations taken as true and all factual disputes drawn in [his] favor." O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007) (citations omitted).

c. Discussion

Because the legal analysis of each pending motion differs, the court will separately address each motion.

i. Penn Power's motion to dismiss for lack of subject matter jurisdiction

(ECF No. 801)

Penn Power makes myriad arguments in support of dismissal, all of which have to do with the applicability of the Occupational Disease Act of 1939 ("ODA"),[2] and whether Plaintiff's claims are preempted by the Worker's Compensation Board.[3] Before addressing Penn Power's argument, historical context of the ODA and the Pennsylvania Supreme Court's decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013) is necessary.

In their original form, Pennsylvania's Worker's Compensation laws passed in 1915 required a showing of a "direct violent injury to a person's physical structure which occurred at the workplace" to qualify for compensation. Pawlosky v. W.C.A.B., 525 A.2d 1204, 1211 (Pa. 1987) (J. McDermott, concurring). It was thereafter recognized that a worker could suffer an injury in the workplace from latent and non-physical sources. Id. In response, the Pennsylvania legislature enacted the ODA in 1939 to create "a distinct and separate system of compensation for certain types of diseases contracted strictly through exposure in the course of employment." Id. at 1208.

Thereafter, in 1972, the Pennsylvania legislature "revised and redefined the Workmen's Compensation Act [("WCA")] and included in one enactment provisions for both direct and traumatic injury and occupational disease." Id. at 1211. The ODA remains unrepealed, mainly "to make clear that the 1939 statute [remains] in force with respect to occupational diseases contracted prior to the effective date of the 1972 disease provisions of the Workmen's Compensation Act." Id. at 1210.[4] The WCA applies for disability or death of an employee resulting from exposure of an occupational disease "after June 30, 1973." 77 P.S. § 411.2. An employee may bring common law claims against their employers related to occupational diseases that arise more than 300 weeks after the employee's exposure to the hazards of the disease. Tooey, 81 A.3d at 856.

Here, it is undisputed that Mr. Data's employment with Penn Power began in 1983 and his alleged exposure to asbestos occurred after that date. Accordingly, the ODA cannot apply in this case, as Mr. Data's exposure did not occur prior to the ODA effective date of 1972, but rather occurred after June 30, 1973. Pursuant to the WCA and the Pennsylvania Supreme Court's decision in Tooey, Plaintiff is permitted to seek common law remedies against Penn Power for occupational diseases, including those caused by asbestos exposure, that do not manifest until 300 weeks after the last occupational exposure. Tooey, 81 A.3d at 856. Mr. Data's employment with Penn Power ended in October 2009, and his symptoms related to asbestos exposure began in 2018, more than 300 weeks after the last possible occupational exposure.[5] Therefore, this court properly has subject matter jurisdiction to hear Plaintiff's claims, and it is respectfully recommended that Penn Power's motion to dismiss be denied.

ii. Alfa Laval's motion to dismiss for lack of personal jurisdiction (ECF No.

As part of his service in the Navy, Plaintiff alleges that Mr. Data worked with and around equipment in the engine room of the USS Newport News. While Plaintiff does not specifically plead facts related to Alfa Laval, it will be assumed that Alfa Laval is being sued as a manufacturer of equipment in the engine room of that ship. (ECF No. 858 at 2). Alfa Laval argues that this court lacks personal jurisdiction over it, because it is a New Jersey corporation with its principal place of business in Virginia and it has not purposefully directed any activities at the Commonwealth of Pennsylvania. Plaintiff responds that Alfa Laval is registered to do business in Pennsylvania and has been so since 1954 and therefore has consented to the jurisdiction of this Court. As to whether Alfa Laval consented to Pennsylvania's jurisdiction, Alfa Laval argues that it was not registered to do business in Pennsylvania during the late-1940s, when the USS Newport News was constructed and it supplied equipment for installation on this ship, and that these activities pre-date the enactment of Pennsylvania's long-arm statute in 1973 which first created consent to general jurisdiction by registering as a foreign corporation. Additionally, Alfa Laval argues that the consent-by-registration section of Pennsylvania's long arm statute is unconstitutional under the United States Supreme Court's decision in Daimler AG v. Bauman, 571 U.S. 117 (2014). Because the burden of demonstrating facts establishing personal jurisdiction falls on Plaintiff, and because Plaintiff solely alleges that personal jurisdiction is established by consent under Pennsylvania's long-arm statute, only that argument in support of personal jurisdiction will be addressed. See Metcalfe, 566 F.3d at 330.

1. Constitutionality of 42 Pa.C.S.A. § 5301(a)(2)(i) ("Section 5301") Consent-

by-Registration Statute

Pennsylvania law enacted in 1978 provides that registering as a foreign corporation in Pennsylvania confers general jurisdiction of the Pennsylvania courts over that corporation. 42 Pa.C.S.A. § 5301(a)(2)(i).[6] Alfa Laval argues that one other court addressing an asbestos case found that the statute is unconstitutional. (ECF No. 858 at 6) (citing Sullivan v. A. W. Chesterton, Inc., 384 F. Supp. 3d 532, 541 (E.D. Pa. 2019)). While Alfa Laval is correct that one district court[7] found Pennsylvania's consent-by-registration statute unconstitutional, it has ignored the majority of other courts which found the opposite. Fulano v. Fanjul Corp., 236 A.3d 1, 18 (Pa. Super. 2020) (recognizing Pennsylvania's consent-by-registration statute remains a valid form of establishing personal jurisdiction after Daimler); Webb-Benjamin, LLC v. Int'l Rug Grp., LLC, 192 A.3d 1133, 1138 (Pa. Super. 2018) (same); Kraus v. Alcatel-Lucent, 441 F. Supp. 3d 68, 74 (E.D. Pa. 2020) (same); Replica Auto Body Panels and Auto Sales Inc. v. inTech Trailers Inc., 454 F. Supp. 3d 458, 464 (M.D. Pa. 2020) (same); Sciortino v. Jarden, Inc., 395 F. Supp. 3d 429, 436 (E.D. Pa. 2019) (same); Bors v. Johnson & Johnson, 208 F. Supp. 3d 648, 655 (E.D. Pa. 2015) (same); Tupitza v. Texas Roadhouse Mgmt. Corp., No. 1:20-CV-2, 2020 WL 7586889, at [*1] (W.D. Pa. Dec. 17, 2020) (same); Diab v. British Airways, No. 20-3744, 2020 WL 6870607, at [*5] (E.D. Pa. Nov. 23, 2020) (same); Winters v. Akzo Nobel Surface Chemistry, LLC, No. 19-5398, 2020 WL 2474428, at [*4] (E.D. Pa. May 13, 2020) (same); Smith v. NMC Wollard, Inc., No. 19-5101, 2020 WL 1975074, at [*4] (E.D. Pa. Apr. 24, 2020) (same); Gorton v. Air & Liquid Sys. Corp., 303 F.Supp.3d 278, 299 (M.D. Pa. 2018) (same); Plumbers' Local Union No. 690 Health Plan v. Apotex Corp., Civ. A. No. 16-665, 2017 WL 3129147, at [*11] (E.D. Pa. Jul. 24, 2017) (same).

This court agrees with the majority. The Court of Appeals for the Third Circuit in Bane v. Netlink, Inc., 925 F.2d 637, 640 (3d Cir. 1991) upheld the constitutionality of Pennsylvania's consent-by-registration statute. While that case predated the United States Supreme Court's decision in Daimler, Daimler did not address "the interplay between consent to jurisdiction and the due process limits of general jurisdiction[,]" Kraus, 441 F.Supp.3d at 75 (citations omitted), and to the extent that Daimler mentioned consent-to-jurisdiction, "it did so to distinguish it from jurisdiction based on a defendant's contacts with the form." Winters, 2020 WL 2474428, at [*4] (citations omitted). Accordingly, Bane remains valid precedent and unless and until there is a change in applicable law from the Third Circuit or the Supreme Court, the district court is bound by these rulings. Casey v. Planned Parenthood, 14 F.3d 848, 856 (3d Cir. 1994).

2. Temporal Requirement or Limit of Section 5301's Consent-by-Registration

Statute

Next, Alfa Laval argues that it was not registered to do business in Pennsylvania and the consent-by-registration statute was not enacted when it supplied equipment for installation allegedly containing asbestos during the construction of the USS Newport News so Pennsylvania courts do not have personal jurisdiction over it. Plaintiff responds that Section 5301 does not preclude claims against foreign corporations arising from events occurring prior to registration and because Alfa Laval has been registered to do business in Pennsylvania since 1954, including during the time that Mr. Data was exposed to its products, that Pennsylvania has personal jurisdiction by consent.

The Pennsylvania Superior Court in Webb-Benjamin, LLC v. Int'l Rug Grp., LLC, 192 A.3d 1133, 1137 (Pa. Super. 2018) held that the plain language of Section 5301 does not contain a temporal requirement that events giving rise to the suit occur after registration. It explained:

The plain language of 42 Pa.C.S.A. § 5301 does not expressly limit jurisdiction to only those events that occur during a foreign association's registration in Pennsylvania. Although section 5301(b) contains a temporal provision allowing for jurisdiction over a foreign association that has withdrawn its registration in Pennsylvania, see 42 Pa.C.S.A. § 5301(b), section 5301(a) does not preclude jurisdiction for acts committed prior to registration. Lacking any ambiguity in the text, we cannot disregard its express language. See Allstate Life Insurance Co. [v. Commonwealth], 52 A.3d [1077] at 1080-81 [(Pa. 2012)]. Thus, general

personal jurisdiction under 42 Pa.C.S.A. § 5301(a)(3) does not preclude claims against foreign associations registered in Pennsylvania arising from events that occurred prior to registration.

Id. at 1137. Following this decision, several district courts have addressed the so-called "temporal requirement" of Section 5301. The specific question at issue here is what the operative time is for determining whether consent-by-registration jurisdiction applies: at the time Plaintiff's cause of action accrued, when Plaintiff was exposed to the allegedly asbestos containing products, or when Alfa Laval provided the products or installation that allegedly contained asbestos. While there is support for each, the undersigned concludes that Pennsylvania law and attendant case law supports a finding that Section 5301 applies where the corporation is registered during the time the cause of action accrues.

In Kraus, the court, relying on Webb-Benjamin's holding that claims arising from events that occurred prior to registration are not precluded under Section 5301, found "[t]he operative date for determining whether consent jurisdiction applies is when the lawsuit is filed. We ask if jurisdiction exists over the defendant at that time. Thus, consent jurisdiction exists over a defendant for causes of action that arose prior to its registration as a foreign company so long as the corporation is registered at the time that the lawsuit is filed." 441 F.Supp.3d at 75. Kraus thus supports a finding that consent-by-registration jurisdiction applies where a corporation is registered in Pennsylvania at the time the cause of action accrues, and for causes of action that accrue prior to registration as long as the corporation is registered at the time the lawsuit is filed.

Similarly, in Sciortino, the court relied on the holding in Webb-Benjamin and rejected a defendant's argument that the court lacked personal jurisdiction because it was not registered at the time it sold its allegedly defective product. 395 F. Supp. 3d at 439. The court found that it was not important that the product was purchased prior to the defendant registering as a business in Pennsylvania, because it was "presently registered to do business in Pennsylvania" and was thus subject to the court's jurisdiction. Id. Therefore, Sciortino supports a finding that the operative date for consent-by-registration jurisdiction is at the time of injury and not dependent upon the sale of the allegedly defective product.

Notwithstanding these cases, in Gorton, a case decided prior to Webb-Benjamin, the court addressed the consent-to-jurisdiction temporal requirement issue in an asbestos case. It focused mainly on when the corporation's act or omission exposing the plaintiff to asbestos occurred, and whether it occurred prior to the enactment of Section 5301 in 1978. If so, it found that the court would not have general jurisdiction over that defendant based solely on consent-by-registration because the statute was not in existence when the corporation's act or omission that exposed the plaintiff occurred. Gorton, 303 F.Supp.3d at 297. The court went on to find that because one of the companies was registered as a foreign corporation in Pennsylvania at the time the Plaintiff was allegedly exposed to the company's asbestos-containing products in 1982 after the statute was enacted, that the court had personal jurisdiction over it under Section 5301. Id. at 300. Therefore, the court focused on the plaintiff's exposure as opposed to when the cause of action arose as the determinative date for comparing the corporation's registration in Pennsylvania.

A recent case in the Western District of Pennsylvania specifically addressed whether the Defendant at issue here, Alfa Laval, was subjected to general jurisdiction in Pennsylvania under Section 5301 for registering as a foreign agent, even though its alleged conduct giving rise to the claims occurred before the enactment of the statute. Gay v. A.O. Smith Corporation, 2:19-cv-1311-WSS, Dkt No. 459 at 10 (W.D.Pa. Jan. 29, 2020). In Gay, the plaintiff sued Alfa Laval for supplying allegedly asbestos-containing products which were installed in Navy ships. Id. at 1-3. The plaintiff was exposed to those products between 1946 and 1958. Id. at 2. Relying on Gorton, the court found that because Section 5301 was not in existence at the time that the plaintiff was allegedly exposed to asbestos by Alfa Laval, that Section 5301 was "ineffective to confer general personal jurisdiction upon [Alfa Laval] where the actionable conduct predated the 1978 enactment of that statute." Id. at 10.

Turning to the instant case, the court need not determine whether Alfa Laval committed acts that predated the enactment of Section 5301 under Gorton and Gay, or engaged in pre-registration conduct under Webb-Benjamin, because the operative analysis here is whether the corporation was registered in Pennsylvania at the time the cause of action arose, and not the date that Alfa Laval provided products for installation on the ship or when Plaintiff was exposed. Bane, 925 F.2d at 640 (corporation subject to Section 5301 where it was registered to do business in Pennsylvania at the time the "cause of action arose.") (emphasis added). See e.g., Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 52 (2d Cir.1991) ("[P]ersonal jurisdiction depends on the defendant's contacts with the forum state at the time the lawsuit was filed." (citation omitted)); Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581, 587 (E.D. Pa. 2015).

Under Pennsylvania law, an action to recover damages caused by asbestos exposure arises when 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." 42 Pa.C.S. § 5524(8). Additionally, under Pennsylvania law, asbestos exposure alone does not give rise to a cause of action; the plaintiff must suffer from a compensable injury i.e., the development of symptoms and physiological impairment. Summers v. Certainteed Corp., 997 A.2d 1152, 1162-63 (Pa. 2010). Neither court in Gorton nor Gay addressed Pennsylvania law related to when an asbestos cause of action arises nor cited to any law supporting a finding that a cause of action for an asbestos claim arises at the time of exposure as opposed to injury.[8] Pursuant to Bane's edict that the operative date of registration is dependent upon the date the cause of action arises and Pennsylvania law stating that the accrual of an asbestos cause of action commences at the time of injury, it follows that the operative date for determining consent-by-registration jurisdiction in an asbestos action is the date of injury and not exposure or when the products were supplied for installation. See e.g., Kraus, 441 F.Supp.3d at 75; Sciortino, 395 F. Supp. 3d at 439. Here, Mr. Data developed symptoms and physical impairment related to his alleged asbestos exposure in 2018. It is undisputed that Alfa Laval was registered as a foreign corporation in Pennsylvania since 1954 and in 2018 and is therefore subject to this court's jurisdiction under Section 5301's consent-by-registration statute. Accordingly, it is respectfully recommended that Alfa Laval's motion to dismiss for lack of personal jurisdiction be denied.

d. Conclusion

Based on the foregoing, it is respectfully recommended that Penn Power's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and Alfa Laval's motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) be denied.

Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until February 25, 2021 to file objections to this report and recommendation. Unless otherwise ordered by the District Judge, responses to objections are due fourteen days after the service of the objections, or by March 11, 2021. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).

[1] While Plaintiff does not enumerate this claim in her amended complaint, for ease of reference, the court will consider her wrongful death claim as "Count VIII."

[2] Act of June 21, 1939, P.L. 566, No. 284 (as amended 77 P.S. §§ 1201-1603).

[3] Penn Power's arguments are as follows: (1) Plaintiff has a cognizable claim under the ODA; (2) Plaintiff is required to exhaust her administrative claims under the ODA before proceeding with her common law tort claim; (3) Plaintiff has not exhausted her ODA claim and therefore the case must be dismissed or alternatively stayed pending the exhaustion of these administrative remedies; (4) the court should abstain from hearing Plaintiff's claims in deference to the Worker's Compensation Board, who is statutorily vested with the exclusive subject matter jurisdiction to adjudicate the ODA claims; and (5) Plaintiff's claims asserted pursuant to Tooey are barred by the ODA. (ECF No. 801 at 7-19).

[4] Penn Power did not cite to this case and did not attempt to distinguish or explain why the ODA applies to exposure related claims after 1972 in light of the Pennsylvania Supreme Court's comments on this issue.

[5] 300 weeks is approximately 5 years and 8 months. Given that Plaintiff ended his employment with Penn Power in October 2009, 300 weeks from that date is approximately July 2015. Plaintiff's symptoms began in 2018, putting him well beyond the 300-week threshold as set forth in Tooey to bring claims related to his alleged asbestos exposure.

[6] Section 5301 provides in pertinent part:

(a) General rule. The existence of any of the following relationship between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative: * * *

(2) Corporations. —

(i) Incorporation under or qualification as a foreign corporation under the laws of this Commonwealth. 42 Pa.C.S.A. § 5301(a)(2)(i).

[7] And one district court: Reynolds v. Turning Point Holding Co., LLC, No. 2:19-CV-01935-JDW, 2020 WL 953279, at [*5] (E.D. Pa. Feb. 26, 2020), and two Pennsylvania Common Pleas courts: See Pennington v. U.S. Steel Corp., No. XXXXXXXXX, 2019 WL 4131843, at [*2]-3 (Pa. Com. Pl. June 27, 2019); Mallory v. Norfolk S. Ry. Co., No. 1961, 2018 WL 3025283 (Pa. Com. Pl. May 30, 2018). See also Spear v. Marriott Hotel Servs., Inc., No. CV 15-6447, 2016 WL 194071, at [*2] (E.D. Pa. Jan. 15, 2016) (alluding that registration to do business in Pennsylvania was not enough for general jurisdiction, but did not consider Section 5301 in that analysis). [8] In Gorton, the "exposure" timeframe seemingly came into play as an argument made by one of the defendant corporations arguing against a finding of personal jurisdiction. Gorton, 303 F. Supp. 3d at 300. Gay solely relied on the finding in Gorton when it adopted the date of exposure as the operative timeframe. Gay, 2:19-cv-1311-WSS, Dkt No. 459 at 9-10.

Sources

• The opinion on Google Scholar
• Pennsylvania asbestos laws
• Pennsylvania asbestos exposure sites