On February 4, 2015, the Supreme Court of Pennsylvania declined to review Graver v. Foster Wheeler Corp. and endorsed the Superior Court's opinion that the 12-year statute of repose for claims against designers and constructors of improvements to real property also applies to asbestos claims (96 A.3d 383 (Pa. Super. Ct. 2014)).

Graver was a worker employed by Pennsylvania Power and Light's Holtwood Steam Plant from 1983 to 2010. In 1955, the defendant designed and installed a 134-foot tall, multiton asbestos-insulated boiler at the plant. Graver alleged that the asbestos from the boiler caused his asbestos mesothelioma, from which he ultimately died. Graver's estate and wife subsequently filed suit.

At trial, the defendant raised a statute of repose defense under Title 42, Section 5536 of the Pennsylvania Consolidated Statutes, which provides a 12-year limit for claims "against any person lawfully performing or furnishing the design, planning, supervision or observation of construction of any improvement to real property." The trial court agreed that boiler was an improvement to real property because of:

However, the jury found in favor of the plaintiff and the trial court denied the defendant's motion for judgment notwithstanding the verdict. The trial court, relying on dicta in Abrams v. Pneumo Abex Corp., stated that there was no statutory right of repose in asbestos cases (981 A.2d 198 (Pa. 2009)). The defendant then appealed to the Superior Court.

The Superior Court reversed the trial court, holding that the statute of repose did apply to bar asbestos claims arising from the design and construction of improvements to real property.

The Superior Court rebuked the trial court's and plaintiff's reliance on Abrams. In distinguishing Abrams, the court stated that that case concerned the asbestos statute of limitations for the "one" and "two disease rule" and did not apply to the statute of repose in connection with the design and construction of improvements to real property.

Both a statute of repose and a statute of limitations determine when a plaintiff must bring a claim. A statute of limitations begins to run when a cause of action accrues, such as when a plaintiff is harmed. A statute of repose begins to run when the defendant completes an action and therefore may expire before a cause of action accrues.

In addition to agreeing with the reasons espoused by the trial court, the Superior Court further elaborated that the boiler was an improvement because the:

The Superior Court also rejected the plaintiff's argument that the asbestos statute of limitations and the statute of repose are irreconcilable. The court noted that the statute of repose has a wider range of application than the asbestos statute of limitations and while the two may overlap occasionally, that will not affect a court's ability to properly enforce both as necessary.

Finally, the Superior Court pointed out that, unlike other states, the language of the statute of repose did not except asbestos-related personal injury claims. The court said it is the role of the legislature, not the judiciary, to create an exception to the statute of repose for asbestos exposure.

The Supreme Court's denial of review of Graver settles Pennsylvania law that the statute of repose may bar asbestos claims relating to improvements to real property.

Asbestos claims can be difficult and costly to defend because of mesothelioma's long latency period and difficulties locating the correct defendants, which makes this decision noteworthy for the protection of the Pennsylvania construction industry. The statute of repose will likely prevent future asbestos claims against design and construction professionals because the use of asbestos has been phased out since the 1970s after the passage of the Occupational Safety and Health Act.

Other states, such as Illinois, have statutorily excluded asbestos actions from their statute of repose. For example, see Legal Update, Illinois Statute of Repose Amended to Exclude Asbestos Actions.