Faix v. Johns-Manville Corp.
| Decision Date | 09 June 1983 |
| Docket Number | 88(94) |
| Citation | 9 Phila. 341 |
| Parties | Helen Faix, Administratrix of the Estate of William Faix, and Helen Faix in her own right v. Johns-Manville Corporation et al |
| Court | Pennsylvania Commonwealth Court |
(1) Under Pa. R.C.P. 1035, summary judgment may be granted only when the moving party can demonstrate that there is no genuine issue as to any material fact and the record, viewed in a light most favorable to the non-moving party, reveals that the moving party is entitled to a judgment as a matter of law
(2) Summary judgment should be granted only when a case is completely free from doubt
(3) The issue for the court was whether the operative event for purposes of the two year personal injury statute of limitations was decedent's awareness of his work-related asbestosis or his awareness of his allegedly work-related cancer
(4) The two year personal injury statute of limitations period commences when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable
(5) Under the " discovery rule", the limitations period does not begin to run until the claimant knows, or through reasonable diligence should know, of his injury
(6) To commence the running of the statute, three independent phases of knowledge must be known or knowable to the plaintiff: (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
(7) Although plaintiff's decedent knew or had reason to know in 1973 that he had asbestosis arising from work-related asbestos exposure, Complaint filed in 1978 alleging death caused by mesothelioma discovered in 1977 was not time-barred as to the mesothelioma claim
(8) Case distinguished from Staiano v. Johns-Manville Corp., 304 Pa.Super 280, 450 A.2d 681 (1982): Whereas in Staiano the plaintiff suffered from a single disease, in the case at bar, plaintiff suffered two separate and distinct diseases
(9) " Second disease" rule stated to further two-fold rationale for statutes of limitation: the interests of justice requiring vindication of the plaintiff's rights and repose for the defendants.
Shein and Brookman, Esquires, for Plaintiff
Creed Black, Esquire, for Defendant Raymark Industries, Inc.
Terrence McGeever, Esquire, for Defendant Pittsburgh Corning Corporation
J. Keath Fetter, Esquire, for Defendant Celotex Corporation
Randi Werner, Esquire for Defendant GAF, Inc.
Harry Brennan, Esquire, for Defendant Keene Corporation
Daniel Gallagher, Esquire, for Defendant Eagle-Picher Industries, Inc.
Robert Hochberg, Esquire, for Defendant Fiberboard, Inc.
Judith Reap, Esquire, for Defendant Pacor, Inc.
James A. Young, Esquire and Daniel J. Zucker, Esquire, for Defendant Owens-Illinois Glass Company
Defendants move for summary judgment asserting the bar statute of limitations, 42 Pa. C.S.A. § 5524(2).
Plaintiff, Helen Faix, the widow of William Faix, sues as Administratrix of the Estate of William Faix, and individually. The Complaint was filed December 11, 1978, alleging injuries to decedent as a result of his exposure to asbestos-containing products manufactured or supplied by defendants while decedent was employed as a pipecoverer over a thirty year period. William Faix died on June 2, 1977, of mesthelioma, a form of cancer that has been linked to asbestos exposure.
Under Pa. R.C.P. 1035, summary judgment may be granted only when the moving party can demonstrate that there is no genuine issue as to any material fact, and the record, viewed in a light most favorable to the non-moving party, reveals that the moving party is entitled to a judgment as a matter of law. Community Medical Services v. Local 2665, 292 Pa.Super 238, 437 A.2d 23, 27 (1981). Summary judgment should be granted only when a case is completely free from doubt. Dipold v. Amherst Insurance Co., 290 Pa.Super 206, 434 A.2d 203 (1981).
Defendants assert that the plaintiff's decedent possessed knowledge of his injury sufficient to start the statutory clock by February, 1973. The evidence before this Court includes the transcript of proceedings in a workmen's compensation hearing in New Jersey dated February 20, 1973 (Exhibit D-4) and the compensation award (Exhibit D-6). Decedent claimed compensable injuries and was awarded disability compensation for an orthopedic injury and " residuals of asbestos" . At the hearing he testified that he " had a spot which we call asbestosis" (p. 15). It is clear from decedent's own testimony that he was aware in 1973 that he had suffered asbestosis as a result of his employment exposure.
Decedent first became aware that he suffered from cancer in May 1977.
This Court must decide whether the operative event for the purposes of the statute was decedent's awareness of his work-related asbestosis or his awareness of his allegedly work-related cancer.
The statute of limitations for personal injury claims in Pennsylvania requires that suit be brought within " two years from the time the injury was done." 42 Pa. C.S.A. § § 5524(2), reenacting 12 P.S. § 34. The limitations period commences when " the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788 (1959).
In determining the triggering event, Pennsylvania has adopted the " discovery rule" . Thus, the statute does not begin to run until the claimant knows, or through reasonable diligence should know, of his injury.
The test to determine whether plaintiff had attained " the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit" established by Honorable HARRY TAKIFF, Volpe v. Johns-Manville Corp, 4 Phila. 290, 295-296 (1980), was expressly approved by the Superior Court in Staiano v. Johns-Manville corp. et al., Pa.Super ior Ct., 450 A.2d 681 (1982).
It requires that three independent phases of knowledge must be known or knowable to plaintiff . . . (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.
It is clear that plaintiff's decedent knew or had reason to know of his asbestosis and its relationship to his work-related asbestos exposure in 1973. Thus, any claim made for asbestosis by this plaintiff is limited as a matter of law to a two year period following decedent's testimony at the New Jersey Workmen's Compensation Board hearing. This conclusion does not reach the issue of the bar of the statute of limitations to the claim for Faix' fatal cancer.
Defendants argue that Staiano is a binding precedent on this Court. There is dicta in Staiano, 450 A.2d at 688, to the effect that " a new limitation period does not start each time a new disease develops from the same tortious conduct. . . ." citing Shadle v. Pearce, 287 Pa.Super 436, 450 A.2d 683 (1981).
In Staiano plaintiff suffered a single disease. In the case at bar, decedent suffered two separate and distinct diseases. Asbestosis is not a cancerous process. Mesothelioma is a form of cancer linked to asbestos inhalation but is not derivative nor is it a progressive form of asbestosis. [1]
In Shadle the plaintiff learned in February of 1973, that his dentist's negligence might have caused bacterial endocarditis which subsequently made an aortic valve transplant necessary. Plaintiff's recovery from the transplant surgery was excellent and he decided to forgo any claim against the dentist. Three years later the plaintiff " developed an aortic aneurysm which was secondary to the valve transplant" . Id. at 437 (emphasis added). This aneurysm severely incapacitated plaintiff who then brought suit against his dentist. The action was barred by the statute of limitations under the theory that " the possible negligence of the dentist had been known . . . for more than two years" and that the " development of a new complication" (emphasis added) did not begin a new statutory period.
Neither Staiano nor Shadle involved two separate disease processes. In neither case did the Court have occasion to consider the appropriate rule for such a situation. There is no binding precedent with respect to a second disease in Pennsylvania. This Court must, therefore, examine the facts, the rationale underlying statutes of limitations, the forseeable consequences of both possibilities and the decisions of courts in other jurisdictions.
William Faix, like many employees doing the physically heavy, dirty labor involved in asbestos insulation and ripout, had a limited education. He completed the seventh grade. In 1973, neither the public at large nor most attorneys were aware of the dangers of asbestos inhalation. Certainly, the causative link between mesothelioma, then believed to be a very rare form of cancer, and asbestos inhalation was known only by experts. [2]
Although in 1973, Faix was aware that he had asbestosis and the causative link to asbestos exposure, [3] there is no reason to believe that either Faix or his attorney knew or had reason to believe that this exposure might lead to cancer. Faix' then attorney testified: (p. 31 -- Oral deposition of Ruth Rabstein...
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