Cochran v. GAF Corp., A-B
| Decision Date | 21 September 1995 |
| Docket Number | A-B |
| Parties | , Prod.Liab.Rep. (CCH) P 14,413 Shirley COCHRAN, Administratrix of the Estate of William A. Cochran, Deceased, and Shirley Cochran, in her own right, Appellant v. GAF CORPORATION, Raymark Industries, Inc. Celotex Corporation, Successor-In-Interest to Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Keene Building Products Corporation, Eagle-Picher Industries, Inc., Owens Corning Fiberglas Corporation, Owens-Illinois, Inc., Garlock, Inc.,est Products Company, Pittsburgh Corning Corporation, Armstrong World Industries, Inc., Nicolet Industries, Inc., Successor-In-Interest to Keasby & Mattison, H.K. Porter Company, Inc., Successor-In-Interest to Southern Textile Company, Formerly Southern Asbestos Company, Combustion Engineering, Inc., Successor-In-Interest to Dietrich Company, Fibreboard Corporation, General Refractories Company, A.P. Green Refractories Company, Carey-Canada, Inc. Successor-In-Interest To Carey Canadian Mines, Ltd., and Quebec Asbestos Corp., Anchor Packing Company, Universal Refractories, Division of Theim Corporation, A Subsidiary of Koppers, Ferro Engineering, Division of Oglebay Norton Company, Foseco, Inc., Allied Glove Corporation, BMI, Inc., Harbison-Walker Refractories, Inc., Pittsburgh Gage Company, F.B. Wright Company, George V. Hamilton, Inc., North American Refractories Company, Division of Eltra Corporation, and Kaiser Refractories, Division of Kaiser Aluminum & Chemical Corporation, Hedman Mines, Ltd., Argo Packing Company, Flexitallic Gasket Corporation, Foster Wheeler Corporation, In Its Own Right and as Successor-In-Interest to Forty-Eight Insulations, Inc., Nichias Corporation, Safety First Industries, Inc., Appellees. |
| Court | Pennsylvania Supreme Court |
Tybe A. Brett, Vickie L. Gensler, John M. Burkoff, Goldberg, Persky, Jennings & White, P.C., Pittsburgh, for appellant.
Kathy K. Condo, Reed, Smith, Shaw & McClay, Pittsburgh, for Pittsburgh Corning Corporation and Owens-Illinois, Inc.
Patrick R. Riley, Gary F. Roberson, Riley, McNulty & Hewitt, Pittsburgh, for Owens-Corning Fiberglas Corporation.
William David Geiger, Davies, McFarland & Carroll, P.C., Pittsburgh, for Safety First Industries, Inc.
Miles A. Kirshner, Rosenberg Kirshner, P.A., Todd P. Pruga, Pittsburgh, for Keene Corporation.
Alan H. Perer, Anna Maria Sosso, John C. Bogut, Jr., Swensen, Perer & Johnson, Pittsburgh, for GAF Corporation, Armstrong World Industries, Inc., A.P. Green Refractories & Flexitallic Gasket Corporation.
R. Kenneth Willman, Concetta A. Silvaggio, Ruth Antinone, John H. Kooser, Willman & Arnold, Pittsburgh, for A-Best Products Company & George V. Hamilton, Inc.
Kenneth S. Robb, for Hedman Mines, Ltd.
Robert Owsiany, Richard H. Taylor, Kirkpatrick & Lockhart, Pittsburgh, for Harbison-Walker Refractories, Inc.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
Appellant, Shirley Cochran, appeals from an order and memorandum opinion of the Superior Court affirming an order of the Court of Common Pleas of Allegheny County granting Appellees' motion for summary judgment based upon the statute of limitations.
The issue presented in this case 1 is whether the trial court properly held that Appellant's claims were barred by the statute of limitations and not within the "discovery rule" exception because of a failure to exercise due diligence in pursuing the cause of decedent's illness.
The decedent, William Cochran, worked at Jones & Laughlin Steel from 1943 to 1944 and from 1949 to 1982 as a boilerhouse attendant, steelworker and bricklayer. On June 3, 1981, Mr. Cochran was admitted to the hospital for back pain. During this hospitalization, a right upper lobe resection was performed, resulting in a diagnosis of adenocarcinoma. At that time, the decedent had been smoking one-and-a-half packs of cigarettes daily since 1947. In response to the diagnosis of cancer, Mr. Cochran stopped smoking. There was no discussion at this time that the lung cancer was caused by work-related asbestos exposure.
On March 3, 1985, Mr. Cochran was again admitted to the hospital after several chest x-rays revealed the presence of a mass in the lower lobe of his left lung. A bronchoscopy and wedge resurrection were performed, and pathology reports confirmed the presence of a malignancy. The 1985 admission records make the first reference to Mr. Cochran's exposure to asbestos.
Following this hospitalization, Mr. Cochran contacted an attorney who arranged for Dr. Howard E. Reidbord to review the tissue slides from both the 1981 and 1985 admissions. An August 7, 1985 report by Dr. Reidbord opined that both pulmonary carcinomas were related to asbestos exposure. This report revealed that slides prepared at the time of the 1981 resection contained asbestos bodies in the pathology material.
Appellant initiated the instant action by filing a complaint on September 27, 1985. The complaint alleged that Mr. Cochran was totally disabled from carcinoma of the lung and asbestosis as a result of his exposure to asbestos-containing products manufactured by the various defendants during the course of his employment. In December of 1985, Mr. Cochran died. The Appellees filed a motion for summary judgment contending that the decedent knew or should have known his lung cancer was asbestos related in June of 1981, more than two years prior to initiating his suit. Appellant maintained that the decedent never knew, or had reason to know that his lung cancer was asbestos related until the receipt of Dr. Reidbord's report on August 7, 1985, and, therefore, the suit was filed well within the two year limitations period. The trial court granted the motion for summary judgment, a panel of the Superior Court reversed the trial court, and an en banc panel of the Superior Court reinstated the order of the trial court.
Appellant asserts that the en banc panel of the Superior Court incorrectly concluded that the Appellees were entitled to summary judgment as a matter of law. Instead, she argues that the issue of whether the decedent should have known he had an asbestos related cancer in 1981 was an issue for the jury. Our standard of review in this matter is well established. A trial court's order granting summary judgment will not be reversed unless it is established that the court committed an error of law or clearly abused its discretion. Holmes v. Lankenau Hosp., 426 Pa.Super. 452, 457, 627 A.2d 763, 765 (1993), appeal denied, 538 Pa. 671, 649 A.2d 673 (1994); DeWeese v. Anchor Hocking Consumer and Indus. Products Group, 427 Pa.Super. 47, 50, 628 A.2d 421, 423 (1993). Thus, we must determine whether the trial court committed an abuse of discretion or an error of law in entering summary judgment in this case.
Where the issue involves a factual determination regarding what constitutes a reasonable time for the plaintiff to discover his injury and its cause, the issue is usually for the jury. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992); Smith v. Bell Telephone, 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). This is the general rule we set forth today. However, we also recognize the well established principle that where the facts are so clear that reasonable minds cannot differ, the commencement period may be determined as a matter of law. Hayward, 530 Pa. at 325, 608 A.2d at 1043 (quoting Sadtler v. Jackson-Cross, 402 Pa.Super 492, 501, 587 A.2d 727, 732 (1991)).
For example, in Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 468 A.2d 468 (1989), the plaintiff owned a tunnel damaged by a collision with a truck owned by the defendant on June 15 or June 18, 1978. In October, 1978, the tunnel was closed and sealed until April 1979. When the tunnel was re-opened in April of 1979, the plaintiff learned that it had collapsed. The plaintiff then sued the truck's owner, and claimed that the statute of limitations was tolled by the discovery rule. We held as a matter of law that the plaintiff failed to exercise diligence in discovering that defendant's produce truck caused damage to its tunnel within the two year limitations period. We opined:
In the present case, as a matter of law, the cause of action was discoverable by the exercise of diligence in the use of means within the reach of Raceway, and, as such, no equitable exception to the statutory limitation is warranted.... This is not the sort of blameless ignorance which compels the application of the discovery rule ...
Thus, we have not hesitated to find as a matter of law that a party has not used reasonable diligence in ascertaining the cause of an injury thus barring the party from asserting their claim under the discovery rule.
In evaluating whether the trial court committed an error of law or an abuse of discretion in the instant case, we are mindful of several well-established principles of law. We note that the discovery rule is an exception to the general rule that the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Pocono, 503 Pa. at 84, 468 A.2d at 471. Therefore, one claiming the benefit of the exception bears the burden of establishing that she falls within it. As we stated in Pocono: "Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute." Id. at 85, 468 A.2d at 471. Thus, it is the Appellant's burden to establish that she is entitled to the discovery rule exception.
In Baumgart, the Opinion in Support of Reversal sets forth the definition of what constitutes reasonable diligence:
Reasonable diligence is just that, a reasonable effort to discover the cause of an injury under...
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