Chandler v. Johns-Manville Corp., JOHNS-MANVILLE

• Decision Date: 22 April 1986
• Docket Number: JOHNS-MANVILLE
• Parties: , Prod.Liab.Rep. (CCH) P 10,986 Dorothy L. CHANDLER, Admx. Estate of Davis King, Dec'd and Queen King, Widow in Her own Right v.CORPORATION, Johns-Manville Sales Corporation, Raymark Industries, Inc., Forty-Eight Insulation, Nicolet Industries, Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, H.K. Porter Co., Eagle-Picher Industries, Inc., Southern Asbestos Company, Delaware Asbestos and Rubber Co., Fibreboard Corporation, Pabco, Keene Corporation, Glen Alden, Rapid American, Turner Newall Ltd., Keaseey Matison Company, Certain-Teed Products Corp., U.S. Rubber Company, Pacor, Celotex Corporation, Philip Carey Manufacturing Co., Amatex Corporation, Owens-Corning Fiberglas, Asbestos Textile Institute, Uni-Royal, Carolina Asbestos, General Asbestos, Asbestos Textile Company, Thermoid Company, Asten-Hill Manufacturing Co., Rubberoid Company, Appellees. Appeal of Dorothy L. CHANDLER, Admx. of the Estate of Davis King, Dec'd., Appellant.
• Court: Pennsylvania Superior Court

Page 1253

507 A.2d 1253

352 Pa.Super. 326, Prod.Liab.Rep. (CCH) P 10,986

Dorothy L. CHANDLER, Admx. Estate of Davis King, Dec'd and Queen King, Widow in Her own Right v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raymark Industries, Inc., Forty-Eight Insulation, Nicolet Industries, Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, H.K. Porter Co., Eagle-Picher Industries, Inc. Southern Asbestos Company, Delaware Asbestos and Rubber Co. Fibreboard Corporation, Pabco, Keene Corporation, Glen Alden, Rapid American, Turner Newall Ltd., Keaseey Matison Company, Certain-Teed Products Corp., U.S. Rubber Company Pacor, Celotex Corporation, Philip Carey Manufacturing Co. Amatex Corporation, Owens-Corning Fiberglas, Asbestos Textile Institute, Uni-Royal, Carolina Asbestos, General Asbestos, Asbestos Textile Company, Thermoid Company, Asten-Hill Manufacturing Co., Rubberoid Company, Appellees. Appeal of Dorothy L. CHANDLER, Admx. of the Estate of Davis King, Dec'd., Appellant.

Superior Court of Pennsylvania.

Argued Dec. 17, 1985.

Filed April 22, 1986.

Joseph D. Shein, Philadelphia, for appellant.

I. Steven Levy, Philadelphia, for appellees.

Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.

CAVANAUGH, Judge:

In this case, Davis King and his wife, Queen King, filed a Complaint in assumpsit and trespass in September, 1978, alleging injuries to the husband-plaintiff as a result of exposure to products manufactured by the defendants below while he was employed at the Philadelphia Navy Yard. Mr. King worked at the Navy Yard from 1946 to 1976. ¹ The defendants, who are the appellees herein, filed motions for summary judgment based on the theory that the action was barred by the statute of limitations. The court below granted the motion and summary judgment was entered as to all defendants. An appeal was taken to this court by the plaintiffs below.

Pa.R.C.P. 1035(b) provides that summary judgment may be entered: "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In considering a motion for summary judgment the court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt. Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978).

Applying these rules, we must determine if the court below erred in deciding as a matter of law that the appellants' claim was barred by the statute of limitations. The applicable statute of limitations in effect at the time that the cause of action arose was set forth in the Act of June 24 1895, P.L. 236 § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June 27, 1978, currently codified at 42 Pa.C.S.A. § 5524(2), which provides that "The following actions and proceedings must be commenced within two years: (2) An 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."

The appellant alleges in his complaint that he suffered from asbestosis as a result of contact with materials manufactured by the various defendants. The disease of asbestosis has been referred to as a "creeping disease". See Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982). Our court sitting en banc in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) established the rule for determining when the statute of limitations commences running in such cases and stated at 324 Pa.Super. 136-7, 471 A.2d 500:

We find that the statute of limitations begins to run in "creeping disease" cases when the plaintiff knows, or reasonably should know: (1) that he has been injured10, and (2) that his injury has been caused by another party's conduct.

Cathcart modified the more complex test set forth in Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983) which required that before the statute of limitations commenced running that there must be (1) knowledge of the injury; (2) knowledge of the operative cause of the injury and (3) knowledge of the causal relationship between the injury and the operative conduct. While in Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984) a majority of the panel affirmed the Volpe tri-partite test, we agree with Judge Beck's statement in Wheeler v. Johns-Manville Corp., 342 Pa.Super. 473, 477, 493 A.2d 120, 122 (1985):

We believe that Cathcart should be followed because it is the most recent holding of the court en banc and Berardi, as a panel decision, cannot overrule the court en banc.

Judge Olszewski in his concurring opinion in Berardi, supra, stated that he would apply the less complicated two part test of Cathcart, supra. The recent cases of Price v. Johns-Manville, 336 Pa.Super. 133, 485 A.2d 466 (1984) and Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985) followed the rule in the Cathcart case. See also, McGowan v. University of Scranton, 759 F.2d 287 (CA 3, 1985) Kelly v. Johns-Manville Corp., 590 F.Supp. 1089 (E.D.Pa.1984).

The appellant raises two issues on appeal, contending that the court below erred (1) in determining as a matter of law that the appellant knew he was injured and that the injury was tortiously caused by the defendants, and (2) in holding that signing a workman's compensation claim conclusively commenced the running of the statute of limitations. ² With respect to the first issue the appellant argues that under Cathcart v. Johns-Manville, supra, a complaint must be filed "within two years of the date on which plaintiff knows he has been injured and that the injury is the result of someone's wrongful conduct." (Emphasis added). (Appellant's brief page 8.) This does not represent a correct reading of Cathcart. We interpreted the rule of Cathcart in Price v. Johns-Manville Corp., 336 Pa.Super. 133, 138-139, 485 A.2d 466, 468, 469, wherein this court speaking through Olszewski, J. stated:

The test defined in Cathcart requires only that a plaintiff reasonably should know "that his injury has been caused by another party's conduct."

* * *

The discovery rule as defined by Cathcart must stand. Cathcart imposes a duty of diligent inquiry on the plaintiff since it states that the statute begins to run when the plaintiff reasonably should know that his injury was caused by another party's conduct. The Cathcart Court en banc did not insert the adjective "wrongful" before "conduct" in its formulation of the discovery test. Tolling the statute of limitations until a plaintiff ascertained that his or her injury was the result of someone's tortious conduct would create an impossible standard of proof and defeat the very purpose of the statute. See Gravinese v. Johns-Manville, 324 Pa.Super. 432, 436, 471 A.2d 1233, 1237 (1984) (Emphasis added.)

The court below was not required to find that the appellant knew or should have known that his injuries were due to the wrongful conduct of the appellees as long as he knew, or should have known that he had been injured and that his injury was caused by someone else's conduct.

Concerning the second issue raised, the court below concluded that there was no genuine issue as to the fact that the appellant knew or should have known that he had asbestiosis more than two years before the filing of the complaint in September, 1978. The deposition of Mr. King submitted under Pa.R.C.P. 1035(a) in connection with the motion for summary judgment included the following testimony by the deponent:

Q. Mr. King, I would like to show you a record that came with the records we received, it's Federal Employees Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation. I would like you to look at this.

Q. Have you looked it over?

A. Yes.

Q. Did you ever see that form before?

A. Yes, that's the one I got at the hospital.

Q. And is that your signature on the form?

A. Yes.

Q. Did you fill this form out?

A. No, the doctor probably filled it out. I only signed it.

Q. Whose handwriting is this in block 14 up at the top, is that your handwriting?

A. Yeah.

Q. The doctor filled that out?

A. Yes.

Q. Do you recall him doing it?

A. Yeah, I was sitting right there when he was doing it.

Q. This is when he told you that you had a lung problem related to your asbestos exposure?

A. Yeah.

Q. Did he then give it to you to sign?

A. Yeah.

Q. Did you read it before you signed it?

A. Yes.

Q. Did you understand what it said?

A. Yeah.

The federal claim for workmen's compensation referred to above was signed and apparently filed by Mr. King on July 14, 1976. On the workmen's compensation claim form Mr. King stated that he worked at the Naval Base in Philadelphia, Pennsylvania. In the space marked "cause of injury" he answered "working around asbestos for the past 30 years." In the block printed "Nature of Illness" he answered "asbestosis". On the form Mr. King also stated that he was injured at the Philadelphia Navy Yard. He also stated that he "was told by chest specialists ... today that I had asbestos in my lungs."

The court concluded from the above that the statute of limitations commenced running no later than the date of July 14, 1976, the date on which the workmen's compensation claim form was signed. On that date the appellant knew that he had asbestosis which was caused by his working around asbestos at the Navy Yard for some 30 years. His doctors had told him that his asbestosis or lung problem was related to the asbestos exposure. To extend the commencement of the statute of limitations to a date later than signing his claim for compensation would...