Ciccarelli v. Carey Canadian Mines, Ltd.

Decision Date12 March 1985
Docket NumberNo. 82-1357,82-1357
Citation757 F.2d 548
PartiesSalvatore CICCARELLI et al. v. CAREY CANADIAN MINES, LTD., Johns-Manville Corp., Johns-Manville Products Corp., Johns-Manville Sales Corp., Canadian Johns-Manville Co., Ltd., Canadian Johns-Manville Mining Co., Ltd., Canadian Johns-Manville Asbestos, Ltd., Bell Asbestos Mines, Ltd., Lake Asbestos of Quebec, Ltd., Asbestos Corp. of America, Asbestos Corp., Ltd., Turner Newell, Ltd., Celotex Corp., Glen Alden, Inc., Rapid American, Inc., North American Asbestos Company, Philip Carely Manufacturing Company, Inc. and GAF Corporation v. CAPE ASBESTOS. Appeal of Norma TARBUTTON, Administratrix of the Estate of John D. Tarbutton, and Norma Tarbutton, on her own behalf and Delores Chale. Administratrix of the Estate of Sullivan Chale, and Delores Chale, on her own behalf and Essie M. Davis, Administratrix of the Estate of Wilmer H. Davis, and Essie M. Davis, on her own behalf and Dorothy Coonan, Administratrix of the Estate of William J. Coonan and Dorothy Coonan on her own behalf and Marjorie R. Newman, Administratrix of the Estate of Charles P. Newman and Marjorie R. Newman on her own behalf and Mary Howard, Administratrix of the Estate of Leonard Howard, and Mary Howard on her own behalf and Antonette Lannutti, Administratrix of the Estate of Peter Lannutti, and Antonette Lannutti on her own behalf and Margaret Luciano, Administratrix of the Estate of Leonard Luciano and Margaret Luciano on her own behalf and Josephine White, Administratrix of the Estate of William Howard White, and Josephine White on her own behalf.
CourtU.S. Court of Appeals — Third Circuit

Neil R. Peterson, Washington, D.C. (argued), Greitzer & Locks, Philadelphia, Pa., Shor, Levin & Weiss, Wyncote, Pa., for appellant.

Joel D. Gusky, G. Wayne Renneisen, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for Carey Canadian Mines, Ltd.

Francis Marshall, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for Johns-Manville Corp.

Frederic L. Goldfein (argued), Ominsky, Joseph & Welsh, P.C., Philadelphia, Pa., for Asbestos Corp., Ltd.

Edmund K. John, Malcolm & Riley, West Chester, Pa., for Celotex/Philip Carey Corp.

John Leonard, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for North American Asbestos Corp.

Robert M. Britton, Post & Schell, Philadelphia, Pa., for Bell Asbestos Mines., Ltd.

Timothy B. Barnard, Beagan, Gannon & Barnard, Media, Pa., for Rapid American/Glen Alden.

Virginia Gibson Mason, Drinker, Biddle & Reath, Philadelphia, Pa., for Cassiar (Brinco).

Before ADAMS, GIBBONS and WEIS, Circuit Judges.


ADAMS, Circuit Judge.

This appeal involves the interpretation and application of state statutes of limitation in wrongful death and survival actions. Although the district court erred in holding that as a matter of law defendants in such actions may never be estopped from pleading the statute of limitations, our review of the record discloses insufficient evidence to ground an estoppel argument. Accordingly we will affirm.


Appellants are part of a group of 31 plaintiffs who originally filed an action in May, 1979, in a Pennsylvania state court. 1 The case was removed to the District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. Sec. 1441 (1982). Plaintiffs' decedents were former employees of Philip Carey Manufacturing Co., at its plant in Plymouth Meeting, Pennsylvania. They sought damages for the allegedly asbestos-related diseases and deaths of their decedents. Named as defendants were several manufacturers, sellers, suppliers, and distributors of asbestos and asbestos products, including appellee Carey Canadian Mines [Carey].

In November, 1981, on behalf of itself and all other defendants, Carey moved for summary judgment against nine of the plaintiffs--those whose decedents died more than two years before the date of the filing of the original action. Carey contended that the causes of action of these nine plaintiffs were barred by the Pennsylvania statutes of limitation applicable in wrongful death and survival actions. On May 20, 1982, the district court granted the motion, and plaintiffs filed timely appeals. 2


Federal courts sitting in diversity cases must apply the substantive law of the states in which they sit, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and statutes of limitations are considered substantive. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3d Cir.1976). There is a threshold question in the present case, however, as to which Pennsylvania statute of limitations is applicable. The district court believed that the current limitation period for both wrongful death and survival actions, codified at 42 Pa.Cons.Stat.Ann. Sec. 5524(2), supplied the relevant limits. That section, effective June 27, 1978, 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." Plaintiffs argue that Sec. 5524 is applicable because it had taken effect prior to the filing of their action in May, 1979. They further contend that the "discovery rule" has tolled the statute so as to permit their action.

A careful reading of the current law suggests, however, that we must look to the statutes in effect for wrongful death and survival actions prior to the enactment of Sec. 5524. Before June, 1978, the time limit for wrongful death actions in Pennsylvania was governed by Pa.Stat.Ann. tit. 12, Sec. 1603 (repealed 1978), which provided that an action "shall be brought within one year after the death, and not thereafter." Survival actions were then governed by Pa.Stat.Ann. tit. 12, Sec. 34 (repealed 1978), which mandated that the actions must be "brought within 2 years from the time when the injury was done and not afterwards." These now-superseded acts apply to the present case because the new consolidated statute expressly provides that no cause of action fully barred prior to the effective date of the new statute "shall be revived by reason of the enactment" of the new act. If the plaintiffs' actions were barred by the two previous statutes of limitations, therefore, they may not rely on Sec. 5524 to revive their actions. See Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233, 1236 n. 4 (1984) (Sec. 5524 has no applicability to action brought after its effective date if the action was barred by the prior statute).


It is undisputed that the plaintiffs filed their suit more than two years after the deaths of each of their decedents. It thus would appear that the actions are barred, as they were instituted beyond the one-year wrongful death and the two-year survival limitations periods, unless the running of the statutes of limitation may be suspended by an application of the "discovery rule" or a similar equitable tolling doctrine. The discovery rule is a judicially created device often applied to toll the running of a statute of limitations when the injury or its cause is not immediately evident to a victim. In the asbestos litigation context, the discovery rule would suspend the statutory period until the plaintiff knows, or reasonably should know: (1) that he or she has been injured; and (2) that the injury has been caused by another party's conduct. See Cathcart v. Keene Industrial Insulation, 471 A.2d 493, 500 (Pa.Super.1984).

Plaintiffs maintain that they did not discover and, indeed, could not have reasonably discovered the cause of the injuries alleged until a point in time more than two years after their decedents' deaths but within two years of the commencement of their suit. Were the discovery rule to apply to the two state statutes in question, plaintiffs' actions might not be barred.

Any reliance on the discovery rule, however, is precluded by the decision of the Supreme Court of Pennsylvania in Anthony v. Koppers, 496 Pa. 119, 436 A.2d 181 (1981) (plurality of three Justices, with two Justices concurring in the result), 3 and that opinion's progeny. Anthony held that the discovery rule did not extend the statutory periods prescribed by Pa.Stat.Ann. tit. 12 Secs. 34, 1603 (repealed 1978). 4 Regarding a wrongful death action, the Pennsylvania Supreme Court declared that the "statute here [Sec. 1603] is quite specific that the one year runs from the date of death" and that this "did not mean 'one year from the date of discovery of the cause of death.' " 496 Pa. at 123-24, 436 A.2d at 183-84.

The Pennsylvania Supreme Court noted that the discovery rule, which has a significant history in Pennsylvania, applies only when the language of the statute permits, i.e., when the statute employs language such as the "occurrence of an 'injury' or the accrual of a 'cause of action.' " Id. at 124, 436 A.2d at 184. Such language is ordinarily susceptible to judicial construction. The old wrongful death statute, however, left "no room for construction," for it ran from a "definitely established event, 'death.' " Id.

The survival action statute of limitations at issue here and in Anthony, Pa.Stat.Ann. tit. 12, Sec. 34 (repealed 1978), runs from the date of "injury," not from the date of death. Anthony therefore did not hold that the discovery rule had no applicability to any survival action. Rather, Anthony appears to have applied the discovery rule, although in a formalistic manner leading to a somewhat perverse result. The court reasoned that since for statute of limitations purposes, the injury does not occur until the injured party has learned of the cause of the injury and since the cause was not discovered until after decedents' deaths, the "decedents were not 'injured' until some time after...

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