Ackler v. Raymark Industries, Inc.

• Decision Date: 09 December 1988
• Citation: 380 Pa.Super. 183,551 A.2d 291
• Parties: Philip J. ACKLER and Mary Ackler, h/w, Appellants, v. RAYMARK INDUSTRIES, INC., Owens-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Nicolet, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., GAF Corporation, Fibreboard Corporation, Southern Textile Corp., H.K. Porter Co., Inc., Forty- Eight Insulation, Inc., Pacor, Inc., Brand Insulations, Inc., Universal Insulation Company, Delaware Insulation Company, and A.C. & S., Inc., Appellees.
• Court: Pennsylvania Superior Court

Page 291

551 A.2d 291

380 Pa.Super. 183

Philip J. ACKLER and Mary Ackler, h/w, Appellants, v. RAYMARK INDUSTRIES, INC., Owens-Corning Fiberglas Corp. Celotex Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Nicolet, Inc., Pittsburgh Corning Corporation Armstrong World Industries, Inc., GAF Corporation Fibreboard Corporation, Southern Textile Corp., H.K. Porter Co., Inc., Forty- Eight Insulation, Inc., Pacor, Inc., Brand Insulations, Inc., Universal Insulation Company, Delaware Insulation Company, and A.C. & S., Inc., Appellees.

Superior Court of Pennsylvania.

Argued Aug. 31, 1988.

Filed Dec. 9, 1988.

James R. Kahn, Philadelphia, for appellants.

Thomas C. Gallegher, Philadelphia, for Raymark, appellees.

Daniel S. Altschuler, Philadelphia, for Brand Insulations, appellee.

Before CAVANAUGH, BROSKY and MONTEMURO, JJ.

CAVANAUGH, Judge:

The issue in this case is whether an employee knew, or should have known that he had an injury and that the injury was caused by another party's conduct, when he filed an "Employee's Claim Petition" under oath or affirmation alleging that he had asbestosis. The petition was filed by his lawyer with the Workmen's Compensation Board of New Jersey and stated that from May, 1980 through November 7, 1980 the appellant, Philip J. Ackler, was employed by Brand Industries and worked at the Atlantic Refinery in Philadelphia. The petition further alleged that he was suffering with asbestosis and had scarring of the lungs and that this was caused by the petitioner (appellant) removing and repairing insulation material. His occupation was set forth as an "insulation asbestos worker." The petition set forth the name of his physician.

The petition was sworn to by Mr. Ackler on August 19, 1981 and filed with the Workmen's Compensation Board on August 21, 1981. The complaint in the court below was filed on December 21, 1983. The defendants below, which are the appellees herein, filed motions for summary judgment which were granted as to all defendants except those currently engaged in Chapter 11 bankruptcy proceedings.

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admission on file, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Gabovitz v. State Auto Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987); Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988); French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988); Hower v. Whitmak Associates, 371 Pa.Super. 443, 538 A.2d 524 (1988); Pa.R.C.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980); Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In addition, we must examine the record in the light most favorable to the non-moving party and accept as true all well pleaded facts in the non-moving party's pleadings, and give the non-mover the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987); Metal Bank of America, Inc. v. Insurance Company of North America, Inc., 360 Pa.Super. 350, 520 A.2d 493 (1987).

A trial court's grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 528 A.2d 177 (1987). We discern neither an error of law nor abuse of discretion, and accordingly we affirm the summary judgments entered by the court below.

In the instant case, the appellant, Philip J. Ackler, signed and took an affidavit to a petition on August 19, 1981 alleging in detail the nature of his illness as asbestosis, which resulted in scarring of his lungs, the dates on which his injury occurred, the location, the nature of his occupation, and what he was doing that caused his asbestosis. The petition was filed with the Workmen's Compensation Board in New Jersey and as a result of filing the petition, the appellant's claim was heard before a referee in the summer of 1983, and he was awarded $2,500.00 against his employer, Brand Insulation.

The court below entered summary judgment on the grounds that the present action was not brought within the two-year period as required by the statute of limitations. The two-year statute of limitations in claims for asbestosis, a creeping disease, commences running when "the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct." Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 136-137, 471 A.2d 493, 500 (1984). The appellant's action in the Court of Common Pleas was not commenced until December 21, 1983. If Mr. Ackler knew, or should have known, on August 19, 1981 that he suffered from asbestosis, then his claim is barred by the statute of limitations, as the court below determined.

Several cases in this Court have considered the significance of filing a claim for workmen's compensation in determining when the plaintiff knew or should have known that he had asbestosis. In Price v. Johns-Manville, 336 Pa.Super. 133, 485 A.2d 466 (1984) a plaintiff filed a workmen's compensation claim in which he alleged that he had asbestosis and that it was caused by his work with asbestos at the work site. More than two years after the filing of the workmen's compensation claim, he commenced an action in the Court of Common Pleas in trespass, alleging personal injuries due to his exposure to asbestos. The court examined all of the evidence on file, including the workmen's compensation form, and concluded that there was no genuine issue of fact, notwithstanding that the appellant's counsel expressed his belief that the plaintiff did not understand the cause of his injury and no doctor had determined that the plaintiff had asbestosis when he filed his workmen's compensation claim in 1964.

In Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 507 A.2d 1253 (1986) the plaintiff signed a claim for workmen's compensation on July 14, 1976 and did not file his complaint in trespass and assumpsit until September, 1978. The court below granted summary judgment in favor of the defendants and we affirmed. The plaintiff's physician filled out his form and the plaintiff read the form and signed it. We held that the statute of limitations commenced running no later than July 14, 1976, the date on which the workmen's compensation claim form was signed, stating at 352 Pa.Super. 333, 507 A.2d 1257:

To extend the commencement of the statute of limitations to a date later than signing his claim for compensation would be unrealistic in the extreme. The purpose of a statute of limitations is to expedite litigation and discourage delay and the presentation of stale claims which may result in considerable prejudice to the defendant. Harmer v. Hulsey, 321 Pa.Super. 11, 467 A.2d 867 (1983). In the circumstances of this case, the signing of the workmen's compensation claim focused on a date by which all of the elements of requisite knowledge came together so that the court could justifiably determine that the appellant had two years from that date in which to file his complaint.

The execution of the claim form on July 14, 1976, coupled with the appellant's testimony on deposition conclusively established that by July 14, 1976, the appellant knew or should have known that he was injured and that the injury had been caused by someone else's conduct. As suit was commenced more than two years after July 14, 1976, it was barred by the statute of limitations. There are other factors in a creeping disease case which may establish the requisite knowledge called for in Cathcart to commence the running of the statute of limitations other than the filing of a workmen's compensation claim, but where an injured person signs such a claim and acknowledges that he has asbestosis and that it was caused by working around asbestos, then he conclusively demonstrates that he has the requisite knowledge. A contrary conclusion would make the statute of limitations meaningless in a creeping disease situation. (Emphasis added.)

The appellant contends that there is an issue of fact in this case as he testified on deposition that he did not know he was suffering from an asbestos injury until after December 22, 1981, when he was examined by a Dr. Theodos. Since his complaint was filed on December 21, 1983, he argues, it was not barred by the two-year statute of limitations. The flaw in this argument is that it is not credible that the appellant did not know or have reason to know that he suffered from the creeping disease of asbestosis on August 19, 1981 when he signed a detailed petition in which he swore or affirmed that he had asbestosis and scarring of his lungs. Moreover, it is not necessary that the exact nature of his injury be known so long as it objectively appears that he is reasonably charged with the knowledge that he has an injury caused by another. In Lucera v. Johns-Manville Corp., 354 Pa.Super. 520, 512 A.2d 661 (1986) the court below entered summary judgment in favor of the defendants in an asbestos case even though the plaintiff's affidavit raised issues of fact as to when he discovered that his asbestosis was caused by the conduct of another party. We stated at 354 Pa.Super. 532, 512 A.2d 667 (1986):

Concerning this affidavit, the lower court wrote: "The affidavit ... strains the chords of credibility, as it appears to totally contradict his testimony at the non-jury trial." The lower court did not abuse its discretion in granting a motion for summary judgment even though it...