Baumgart v. Keene Bldg. Products Corp.
| Decision Date | 01 November 1993 |
| Citation | 633 A.2d 1189,430 Pa.Super. 162 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,726 Mildred R. BAUMGART, Executrix of the Estate of Anthony J. Baumgart, Deceased, Appellant, v. KEENE BUILDING PRODUCTS CORPORATION, Successor-in-Interest to Baldwin-Ehret-Hill, Inc., a corporation; The Celotex Corporation, Successor-in-Interest to Philip Carey Corporation, Philip Carey Manufacturing Company, Briggs Manufacturing Company and Panacon Corporation, a corporation; H.K. Porter Company, Inc., a corporation; Owens-Corning Fiberglass Corporation, a corporation; Owens-Illinois, Inc., a corporation; Armstrong World Industries, Inc., a corporation; GAF Corporation, a corporation; Combustion Engineering, Inc., a corporation; George V. Hamilton, Inc., a corporation; Pittsburgh Corning Corporation; a corporation; Flexitallic Gasket Company, a corporation; Eagle-Picher Industries, Inc., a corporation; Pittsburgh Gage & Supply Company, a corporation; Garlock, Inc., a corporation; Anchor Packing Company, a corporation; Raymark Industries, Inc., a corporation; John Crane-Houdaille, Inc., a corporation; Allied Corporation, Successor-in-Interest to Bendix Corporation, a corporation; Wagner Division McGraw-Edison Company, a corporation, Appellees. |
| Court | Pennsylvania Superior Court |
Edwin H. Beachler, III, Pittsburgh, for appellant.
Gary F. Roberson, Pittsburgh, for Owens Corning, appellee.
Jerry H. Seidler, Pittsburgh, for Wagner Div., appellee.
Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
The issue in this appeal pertains to the application of the statute of limitations to wrongful death and survival actions filed against manufacturers and suppliers of asbestos products following the death of Anthony J. Baumgart from mesothelioma. The trial court held that the actions were time barred and entered a summary judgment in favor of the defendants. After careful review, we affirm in part and reverse in part.
Between 1950 and 1980, Baumgart was allegedly exposed to asbestos-containing products during the course of his employment by Witco Chemical Corporation as a laborer, pipe fitter, truck driver, storeroom clerk and auto mechanic. In September, 1984, he began to experience severe pain in his back and shoulder and was treated by Dr. Alfredo Garcia for an arthritic condition. In December of that year, Dr. Garcia referred Baumgart to Dr. Jay Paul, who performed a fibrooptic bronchoscopy at Butler Memorial Hospital. This procedure, performed between January 15, 1985 and January 29, 1985, enabled Dr. Paul to obtain a pleural biopsy which, upon examination, was diagnosed as mesothelioma, a form of lung cancer associated with exposure to asbestos. Both Baumgart and his wife were aware of the diagnosis of mesothelioma before the end of January, 1985; and Baumgart was questioned repeatedly by Dr. Paul about a history of exposure to asbestos. Baumgart was again hospitalized at Allegheny General Hospital between February 13, 1985, and March 9, 1985, during which time the diagnosis of mesothelioma was confirmed by Dr. T. Balinchak. Dr. Balinchak's notes reveal that he, too, knew the cause of mesothelioma to be asbestos exposure and that he questioned Baumgart about his exposure to asbestos. Baumgart, according to Dr. Balinchak's notes, denied any history of exposure to asbestos. Baumgart re-entered the hospital on March 19, 1985, where he died on March 31, 1985. The cause of death was massive pleural effusion and mesothelioma.
Within five months after Baumgart's death, his widow filed a fatal claim petition under the Workmen's Compensation Law in which she contended that death had been caused by an occupational exposure to asbestos during his employment by Witco Chemical Corporation. The present third party action, however, was not commenced until March 26, 1987, when a praecipe for writ of summons was filed. 1 In it, Baumgart's widow named as defendants numerous manufacturers and suppliers of asbestos products. The trial court, on March 2, 1992, entered summary judgment in favor of Wagner Electric Corporation and "all similarly situated defendants" on grounds that the survival and wrongful death actions were barred by the two year statute of limitations which had been enacted by the legislature at 42 Pa.C.S. § 5524(2). The plaintiff appealed.
An action to recover damages for the wrongful death of a person is separate and distinct from the action which is known as a "survival action." Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942); Holmes v. Lado, M.D., 412 Pa.Super. 218, 602 A.2d 1389, allocatur denied,530 Pa. 660, 609 A.2d 168 (1992). See: 42 Pa.C.S. §§ 8301 and 8302. If a person is injured by the act of another, a cause of action may accrue to the injured person. His or her death thereafter does not abate the cause of action. Pursuant to 42 Pa.C.S. § 8302, the cause of action survives the death of the injured person and continues in the decedent's personal representative. The damages recoverable are measured by the pecuniary loss occasioned to the injured person, and therefore to his or her estate, by the negligent act which caused death. See: Pezzulli v. D'Ambrosia, supra 344 Pa. at 647, 26 A.2d at 661.
The action for wrongful death is a separate action for the benefit of certain enumerated relatives who may have sustained pecuniary loss because of the death of a person caused by another's tort. See: 42 Pa.C.S. § 8301. 2 The "damages recoverable are measured by the pecuniary loss occasioned to [the relatives] through deprivation of the part of the earnings of the deceased which they would have received from him had he lived," plus such special damages as are allowed by statute. See: Pezzulli v. D'Ambrosia, supra at 647, 26 A.2d at 661.
The difference between the actions was discussed by the Superior Court in Holmes v. Lado, M.D., supra, as follows:
In a survival action, the personal representative of the decedent is substituted for the decedent. The recovery obtained depends on the rights of action which the decedent possessed at the time of [his or] her death and, as in a personal injury action, amounts to the damages that the decedent [himself or] herself sustained. On the other hand, in a wrongful death cause of action, recovery depends upon the rights of action that the beneficiaries, as named by statute, possess. Moreover, recovery amounts to the pecuniary loss suffered by the beneficiaries by being deprived of the part of the decedent's earnings they would have received had the decedent lived. Thus, a survival action seeks to compensate for different damages than does an action for wrongful death and as a result, is separate and distinct from a cause of action in wrongful death.
Id. at 223 n. 2, 602 A.2d at 1391 n. 2 (citations omitted). See also: Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 588, 596-597, 606 A.2d 427, 431 (1992); Frey v. Pennsylvania Electric Co., 414 Pa.Super. 535, 539-540, 607 A.2d 796, 798, allocatur denied, 532 Pa. 645, 614 A.2d 1142 (1992).
The statute of limitations governing both wrongful death and survival actions is contained in 42 Pa.C.S. § 5524(2), which provides that "[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another" must be commenced within two (2) years. In general, the statute will begin to run at the time the cause of action accrues. 42 Pa.C.S. § 5502(a). "Statutes of limitations have as their purpose the 'stimulation of the prompt pursuit of legal rights and the avoidance of the inconvenience and prejudice resulting from deciding stale cases on stale evidence.' " Ingenito v. AC & S, Inc., 430 Pa.Super. 129, 132, 633 A.2d 1172, 1175 (1993), quoting DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 501, 460 A.2d 295, 299 (1983). " " Bickford v. Joson, M.D., 368 Pa.Super. 211, 214, 533 A.2d 1029, 1030 (1987), allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988), quoting Schmucker v. Naugle, 426 Pa. 203, 204, 231 A.2d 121, 123 (1967), quoting, in turn, from United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 103, 67 L.Ed. 261, 270 (1922).
For the action known as a "survival action," the statute of limitations, as a general rule, begins to run on the date of injury. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). This general rule, as we have observed, has application to a "survival action." If a period of two years has expired following the date of injury, an action for such injury is barred and cannot be asserted by the personal representatives of the injured person following his death. Anthony v. Koppers Co., Inc., 496 Pa. 119, 124-125, 436 A.2d 181, 184-185 (1981). See also: Ingenito v. AC & S, Inc., supra,430 Pa.Super. 129, 633 A.2d 1172
]"discovery rule" is an exception to the general rule....
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