Doe v. Johns-Manville Corp.
| Decision Date | 27 January 1984 |
| Citation | 471 A.2d 1252,324 Pa.Super. 469 |
| Parties | John DOE and Mary Doe, His Wife, Appellants v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corp., Fibreboard Corporation, Owens-Corning Fiberglass Corp., Nicolet, Inc., Pittsburgh Corning Corporation, Celotex Corporation, Unarco Industries, Inc., Eagle-Pitcher Industries, Inc., Keene Corporation, Pacor, Inc., Brand Insulations, Inc., Armstrong World Industries, Inc., Amatex Corporation, H.K. Porter, Co., Inc., Southern Textile Corp., A.C. & S., Inc., GAF Corp., Owens-Illinois, Inc., Universal Insulation Company, Forty-Eight Insulation, Inc., Delaware Insulation Co., Crown, Cork & Seal Company, Inc., D.A.R. Industrial Products, Raybestos-Manhattan Inc., Appellees. |
| Court | Pennsylvania Superior Court |
Argued April 25, 1983.
Norman Perlberger, Philadelphia, for appellants.
John M. Toscano, Philadelphia, for appellees.
Before CERCONE, President Judge, and SPAETH, HESTER, CAVANAUGH WICKERSHAM, WIEAND and HOFFMAN, JJ.
This is an appeal from an order of the common pleas court which sustained preliminary objections to appellants' petition for declaratory relief. Appellants sought a determination by declaratory judgment that the statute of limitations does not begin to run in asbestos related disease cases until the injured person is actually disabled. The court, by grant of preliminary objection, refused to make such a determination and since we agree with this disposition, we affirm of the order of the trial court.
Appellants John and Mary Doe, [1] assert that the husband appellant has worked with asbestos products since 1955. [2] In 1980, appellant was advised for the first time that he had a pulmonary condition in the form of calcification of portions of lung tissue which was caused by exposure to asbestos. Appellant describes this condition further as a pleural thickening, the formation of calcified tissue on the pleura, the membranes surrounding the lungs. This condition may be objectively determined in the sense that it is visible on chest x-ray. Appellant admits, however, that the presence of this condition has not caused him any substantial discomfort, nor any significant deficit in lung function or disability. He asserts, however, that his present condition is one that is highly likely to develop into parenchymal asbestosis, which may progress to the stage where it will result in severe disability and, even, death. Further, it is claimed that his present condition heightens his chance of suffering cancer of the lung and other organs. McGee's argument here centers on the two year statute of limitations as it applies to his situation. Specifically, in his Complaint for Declaratory Relief he states:
15. Petitioners' seek a declaration from this Court to determine when their cause of action first occurs under the [applicable statute of limitations, 42 Pa.C.S.A. §§ 5502(b) and 5524].
The problem faced by appellant is that given the commencement of the limitation period in April of 1980 when he first learned of his pleural thickening, he might be forced to file his lawsuit (as has occurred) and try his claim when he had no significant medical expense and was not disabled. His dilemma, he contends, is not resolved by the fact that under Pennsylvania law he could seek compensation for possible future related diseases, since appellant feels that his continued good health through the time of trial would likely limit the chances of recovery for future diseases. The solution which McGee seeks in the present suit by way of the Declaratory Judgment Act, 42 Pa.C.S. § 7531 et seq., is a determination that his cause of action for asbestos related disease does not accrue, and, therefore, the statute of limitations does not begin to run until he becomes disabled from his disease.
The Declaratory Judgment Act, 42 Pa.C.S. § 7531, et seq., which became effective in Pennsylvania on June 27, 1978 is broad in its scope and is to be liberally construed, [3] but is not without its limitations. In its general provision it states:
Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
42 Pa.C.S. § 7532.
The relief sought here, to construe the applicable statute of limitations for personal injury actions, 42 Pa.C.S. §§ 5502 and 5524, so that the limitations period does not begin to run in an asbestos-disease situation until the injured person is actually disabled, would involve the declaration of rights, status or other legal relationship in contravention to existing law. It would, therefore, render the Declaratory Judgment Act a vehicle for changing the law, rather than interpreting it, or defining legal relations. Declaratory judgments are nothing more than judicial searchlights, switched on at the behest of a litigant to illuminate an existing legal right, status or other relation. They may not be used to search out new legal doctrines. Pennsylvania law as it applies to plaintiff's claim is clear. The seminal case was decided in 1959 when our Supreme Court in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) held:
[t]he injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable."
Ayers v. Morgan, supra, at 290, 154 A.2d at 792.
Appellant concedes that in April of 1980 he was advised that he had a pleural thickening ("damage which is physically objective") and that it could be identified by chest x-ray ("and ascertainable.") Thus, without more, any attempt to delay the operation of the statute of limitations would involve a change in the law. Moreover, since Ayers the law has become more specific as it relates to what are now referred to as creeping disease cases. In Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980) rev'd. on other grounds, 496 Pa. 119, 436 A.2d 181 (1981) our court applied the discovery rule set out in Ayers to a case involving the claim of lung cancer resulting from the inhalation of emissions from coke ovens and adopted language from Judge Takiff's common pleas court decision in Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (1980):
Ayers' progeny have struggled primarily with the question of the reasonableness of plaintiff's conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of "reasonableness" as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct. In the typical personal injury case, knowledge of the foregoing elements is gained contemporaneously with the occurrence of the liability creating events and little difficulty is presented in applying the commencement of the statute of limitations period. When time and space intervene between the several levels of knowledge, however, courts have struggled with the application of the articulated legal standard to the facts involved. An analysis of the case law compels the conclusion that when a plaintiff knows or has reason to know of his injury, its operative cause, and the causative relationship to independent occurrences, he possesses as a matter of law, the necessary information to herald a possible tort and hence commence the running of the statutory period.
Anthony v. Koppers Co., Inc., supra 284 Pa.Super. at 96-97, 425 A.2d at 436.
Here, it is clear that appellant knows of his injury, the operative cause of the injury and the causal relationship between the injury and the operative conduct. Later, in Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982) the discovery doctrine was applied to a case involving personal injuries sustained as a result of exposure to asbestos products. In Staiano, the court also rejected the argument that even if the asbestosis claim was properly dismissed under the statute of limitations, separate claims survived, (A) for the aggravating effects of inhaling asbestos dust for the two years before filing the complaint and, (B) for a different disease (as a result of the exposure) of pleural thickening. The present case does not involve a separate claim for aggravating injuries in the two year period prior to the statute, but it does ask us to declare a separate statute when there are two different disease processes as a result of asbestos exposure. However, Staiano disposed of this argument by holding:
But if we assume that the complaint should read as alleging such a claim, the claim is nevertheless barred, for a new limitation period does not start each time a new disease develops from the same tortious conduct of the defendant.
Staino v. Johns Manville, supra, at 296, 450 A.2d at 688.
Actions for declaratory judgments are proceedings to determine fixed legal...
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