Marinari v. Asbestos Corp., Ltd.

• Decision Date: 20 July 1992
• Citation: 612 A.2d 1021,417 Pa.Super. 440
• Parties: , 61 USLW 2144 Anthony MARINARI, Helen Marinari, his wife, Appellants, v. ASBESTOS CORPORATION, LTD. and GAF Corporation, a Delaware Corp. and Carey Canada, Inc. and the Celotex Corporation, Successor in Interest to Panacon Corporation and Philip Carey Manufacturing Company, Inc. and Raymark Industries, Inc. formerly Raybestos Manhattan and Eagle-Picher Industries, Inc. and Keene Corporation and Owens Corning Fiberglas Corporation and Armstrong World Industries, Inc. and Owens Illinois Glass Co. and Pittsburgh Corning Corp. and Charter Consolidated P.L.C. and Garlock and Melrath Gasket Company, Inc., wholly-owned subsidiary of Melrath Gasket Holding Company, Inc. a/k/a TNT Liquidating Co. and Melrath Gasket Holding Company, Inc. a/k/a TNT Liquidating Co. and Durabla and Anchor Packing Joseph Howell.
• Court: Pennsylvania Superior Court

Page 1021

612 A.2d 1021

417 Pa.Super. 440, 61 USLW 2144

Anthony MARINARI, Helen Marinari, his wife, Appellants, v. ASBESTOS CORPORATION, LTD. and GAF Corporation, a Delaware

Corp. and Carey Canada, Inc. and the Celotex Corporation,

Successor in Interest to Panacon Corporation and Philip

Carey Manufacturing Company, Inc. and Raymark Industries,

Inc. formerly Raybestos Manhattan and Eagle-Picher

Industries, Inc. and Keene Corporation and Owens Corning

Fiberglas Corporation and Armstrong World Industries, Inc.

and Owens Illinois Glass Co. and Pittsburgh Corning Corp.

and Charter Consolidated P.L.C. and Garlock and Melrath

Gasket Company, Inc., wholly-owned subsidiary of Melrath

Gasket Holding Company, Inc. a/k/a TNT Liquidating Co. and

Melrath Gasket Holding Company, Inc. a/k/a TNT Liquidating

Co. and Durabla and Anchor Packing Joseph Howell.

Superior Court of Pennsylvania.

Argued May 1, 1992.

Filed July 20, 1992.

Edward Rubin, Lansdale, for appellants.

Fredric L. Goldfein, Philadelphia, for Asbestos Corp., appellee.

Joseph W. McGuire, Philadelphia, for Owens Corning, appellee.

James F. Hammill, Cherry Hill, N.J. and Philadelphia, for Keene Corp. and Owens-Illinois, Inc.

Kevin C. Tierney, Evamarie Konow, Philadelphia, for Melrath Gasket Co., Inc. and Melrath Gasket Holding Co., Inc.

Daniel G. Childs, Philadelphia, for Joseph Howell, amicus curiae.

Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.

WIEAND, Judge:

The general issue in this asbestos exposure action is whether Pennsylvania, in the context of asbestos actions, shall be a one-disease or two-disease state. More specifically, the issue is whether the two year statute of limitations, 42 Pa.C.S. § 5524(2), bars an action for lung cancer where the action was filed within two years of the cancer diagnosis but four years after asymptomatic pleural thickening had been discovered on x-ray. After lengthy, careful consideration and research, we conclude that Pennsylvania must join a majority of jurisdictions which have adopted a "separate disease" rule in asbestos exposure actions. Plaintiff's discovery of a nonmalignant, asbestos related lung pathology, whether or not accompanied by clinical symptoms of impaired pulmonary function, does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer.

Anthony Marinari worked as a laborer at the Philip Carey Manufacturing Company in 1928 and 1929 and at Alan Wood Steel from 1937 to 1972. He was allegedly exposed to asbestos dust at both workplaces. In 1983, a routine chest x-ray prior to hip replacement surgery revealed that Marinari had pleural thickening (diaphragmatic plaque-like pleural calcification). Marinari, however, was asymptomatic, i.e., he was not experiencing any discernible impairment of his lung function, and he elected not to pursue at that time an action to recover damages for the pleural thickening.

In July, 1987, Marinari was diagnosed as having lung cancer. In November of that year, he and his wife filed the present action for damages attributable to the cancer. In this action, the Marinaris did not seek to recover for the husband's pleural thickening or any non-malignant condition attributable to asbestos exposure. Marinari died on December 31, 1987, and the action has since been pursued by Helen Marinari, the executrix of her deceased husband's estate.

On May 23, 1990, the trial court, in response to defendants' motions for summary judgment, held that the claim was barred by the two year statute of limitations, 42 Pa.C.S. § 5524(2), and granted summary judgment in favor of all defendants. Plaintiff appealed.

"A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law." Persik v. Nationwide Mutual Insurance Co., 382 Pa.Super. 29, 30-31, 554 A.2d 930, 931 (1989), citing French v. United Parcel Service, 377 Pa.Super. 366, 370, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Instantly, the material facts are not in dispute. The only issue is whether, as a matter of law, the claim for lung cancer filed in 1987 had accrued in 1983 when pleural thickening was initially diagnosed and, therefore, was barred by the two year statute of limitations.

The trial court, in an opinion by the Honorable Albert R. Subers, expressed agreement with plaintiff's contention that nonmalignant asbestos disease and cancer are separate diseases for which separate actions should be permitted. The court concluded, however, that it was constrained by the decision in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc) to hold that plaintiff's suit was time barred.

In Cathcart v. Keene Industrial Insulation, supra, the Superior Court affirmed summary judgment in favor of defendants because the action for pulmonary asbestosis had been filed more than two years after diagnosis of the disease. The Court specifically rejected plaintiffs' contention that pleural thickening, allegedly diagnosed one year after the asbestosis, gave rise to a separate cause of action. While the Court acknowledged that differences exist between pleural thickening and asbestosis, it nevertheless held that a second injury or separate complication arising from an original tortious act did not give rise to a separate cause of action. The Cathcart Court relied on the reasoning in Shadle v. Pearce, 287 Pa.Super. 436, 430 A.2d 683 (1981), and stated as follows:

In Shadle, a dentist's failure to properly treat an abscessed tooth evidently caused the plaintiff to develop a heart condition known as bacterial endocarditis. When a valve transplant operation resulted in the plaintiff's apparent complete recovery, he decided not to sue the dentist. More than two years after the plaintiff learned that the dentist's negligence had caused his initial problem, the plaintiff developed an aortic aneurysm, which was evidently secondary to the valve transplant, and which rendered him totally incapacitated. In holding the claim for the second injury barred by the statute of limitations, the panel stated: "If we were to hold otherwise under the facts presented here, we would create a concept in the law which would permit an injured plaintiff to have a new limitations period commence for the initiation of an action for personal injuries as of the date when each complication or change in condition arose, despite the fact that no 'new' negligence has occurred which is attributable to the defendant. Such a concept would be contrary to the legislative intent inherent in the creation of periods of limitations in our law." 287 Pa.Super. at 441, 430 A.2d at 685-86.

Cathcart v. Keene Industrial Insulation, supra at 148-149, 471 A.2d at 506. See also: Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 296, 450 A.2d 681, 688 (1982) (dictum that pleural thickening and asbestosis are not separate diseases subject to different limitations periods). Under the rule applied in Cathcart, Marinari's cause of action for all present and future damages caused by asbestos exposure accrued at the time, in 1983, when pleural thickening was initially discovered. This rule, which has generally proven fair and workable in the context of actions for personal injury, has given rise to an unworkable process and a potential for unfair results in the context of asbestos litigation. ¹

The rigid, single cause of action approach applied by the trial court in the instant case has been seriously eroded by the recent decision of the Superior Court in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 587 A.2d 778 (1991). There, the Court held that it had been proper for a trial court to instruct a jury that if it should determine that plaintiff's "pleural thickening or pleural plaques are not compensable ..., then if [plaintiff] gets cancer in the future, he can come back."

The approach to asbestos litigation suggested in Manzi, of allowing an action for nonmalignant asbestos disease and a separate action for cancer, we believe, represents the better view. In such actions, recovery can be had in a first action only for a disease which has already manifested itself from the exposure to asbestos and the natural, predictable progression, if any, of that disease. If additional injuries from a separate disease manifest themselves in the future, such injuries will support a second action.

This approach has been adopted by a majority of the jurisdictions which have confronted the special problems created by asbestos litigation. See: Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir.1986) (applying Louisiana law); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982); Fearson v. Johns-Manville Sales Corp., 525 F.Supp. 671 (D.D.C.1981); Miller v. Armstrong World Industries, Inc., 817 P.2d 111 (Colo.1991); Sheppard v. A.C. & S. Co., 498 A.2d 1126 (Del.Super.1985), aff'd sub nom., Keene Corp. v. Sheppard, 503 A.2d 192 (Del.1986); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla.Dist.Ct.App.1985), review denied, 492 So.2d 1331 (Fla.1986); VaSalle v. Celotex Corp., 161 Ill.App.3d 808, 113 Ill.Dec. 699, 515 N.E.2d 684 (1987); Smith v. Bethlehem Steel Corp., 303 Md. 213, 492 A.2d 1286 (1985); Pierce v. Johns- Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983); Devlin v. Johns-Manville Sales Corp., 202 N.J.Super. 556, 495 A.2d 495 (Law.Div.1985); Fusaro v. Porter-Hayden Co., 145 Misc.2d 911, 548 N.Y.S.2d 856 (N.Y.Sup.Ct.1989); Potts v. Celotex Corp. 796 S.W.2d 678 (Tenn.1990). See also: Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977) (under New Jersey law plaintiff may assert separate actions for thrombophlebitis and cancer allegedly caused...