2016 Award Winners Daley, Marshall and Rosenthal

Pound Institute’s 2016 Appellate Advocacy Award to Robert F. Daley, R. Scott Marshall and Brent M. Rosenthal




The Officers and Trustees of the Pound Civil Justice Institute have bestowed the Institute’s 2016 Appellate Advocacy Award on a team of attorneys: Robert F. Daley of Robert Peirce & Associates, P.C. in Pittsburgh, PA; R. Scott Marshall of Nemeroff Law Firm, P.C. in Dallas, TX;
Brent M. Rosenthal of Rosenthal Weiner LLP in Dallas, TX. They were honored for their distinguished work resulting in the Pennsylvania Supreme Court’s landmark decision in Tooey v. AK Steel Corp., 81 A.2d 851 (Pa. 2013). The award will be presented on July 23, 2016, at the Pound Fellows reception, 6:30-8:00 pm in Los Angeles, CA.

In Tooey, two former industrial workers were diagnosed with mesothelioma—a cancer caused by asbestos exposure, with a latency period of 30 to 50 years, that is nearly always terminal. Their diagnoses came well beyond the 300-week period (about 5½ years) allowed for claim filing by the Pennsylvania workers’ compensation statute. Since they were ineligible for statutory compensation benefits, their surviving spouses filed common-law wrongful death claims against their former employers. The defendants made the familiar argument that workers’ compensation is the “exclusive remedy” for workers, and that the plaintiffs thus were without a remedy for their husbands’ deaths, and moved to dismiss the common-law claims.

Daley, Marshall and Rosenthal took the plaintiffs’ cases and argued that the workers’ compensation act, by its own terms, provides that it does not apply to occupational diseases that manifest themselves more than 300 weeks after the last hazardous exposure. They contended that, under those circumstances, the exclusive remedy provision does not apply, and the plaintiffs were free to pursue their common law tort claims. To hold otherwise would deny them any chance of redress and deny them the benefit of the “quid pro quo” upon which workers’ compensation schemes have historically been justified.

The Pennsylvania Supreme Court held that, if a worker cannot claim benefits under the statute because of the long latency period of his occupational disease, the worker may pursue a common-law tort action against the employer, notwithstanding the statute’s “exclusive remedy” provision. The court recognized that it was “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 [workers’ compensation act] or at common law.” (Tooey at 863.)