Ross v. Johns-Manville Corp.
| Citation | 766 F.2d 823 |
| Decision Date | 10 July 1985 |
| Docket Number | JOHNS-MANVILLE,OWENS-ILLINOIS,No. 84-1528,84-1528 |
| Parties | Prod.Liab.Rep.(CCH)P 10,592 Jean E. ROSS, Executrix of the Estate of Urban F. Ross, Deceased, and in her own right, Appellant, v.CORPORATION, Johns-Manville Sales Corporation, Raybestos-Manhattan, Inc., Unarco Industries, Inc., H.K. Porter Company, Inc., and Amatex Corporation, Appellees, v.GLASS COMPANY, Owens-Corning Fiberglas Corporation, Celotex Corporation, Eagle-Picher Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Forty-Eight Insulations, Inc., Nicolet Industries, Southern Textile Corporation, Keene Corporation, Garlock, Inc., and Pacor, Inc., Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Martin Grietzer (Argued), Marc P. Weingarten, Greitzer and Locks, Wilfred Lorry, Lorry & Hymowitz, P.C., Philadelphia, Pa., for appellant.
James F. Hammill, Peter J. Lynch, Therese M. Keeley, Nathan A. Schachtman (Argued), McCarter & English, Cherry Hill, N.J., for appellee Owens-Illinois Glass Co.
Andrew Trevelise, Michael J. Plevyak, Malcolm & Riley, P.C., West Chester, Pa., for appellee Celotex Corp.
Charles J. Kalinoski, Edward Greer, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for appellee GAF Corp.
Edward J. David, Curran, Mylotte, David & Fitzpatrick, Philadelphia, Pa., for appellee Pittsburgh Corning Corp.
Walter D. Meeley, Bennett, Bricklin, Saltzburg & Fullem, Philadelphia, Pa., for appellee Nicolet Industries, Inc.
Joseph H. Foster, Deborah A. Romanski, White and Williams, Philadelphia, Pa., for appellees H.K. Porter Co., Inc., Southern Textile Corp., Forty-Eight Insulations, Inc. Barbara Pennell, Thompson & Pennell, Philadelphia, Pa., for appellee Eagle-Picher Industries, Inc.
Arthur Makadon, William A. Slaughter, James Coleman, Oliver C. Biddle, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellee Raybestos Manhattan, Inc.
John Patrick Kelley, Krusen, Evans and Byrne, Philadelphia, Pa., for appellee Owens-Corning Fiberglas Corp.
Fredric L. Goldfein, Ominsky, Joseph & Welsh, Philadelphia, Pa., for appellee Garlock, Inc.
John F. Ledwith, Perry S. Bechtle, LaBrum & Doak, Philadelphia, Pa., for appellee Keene Corp.
G. Daniel Bruch, Jr., Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellee Pacor, Inc.
Before SEITZ, WEIS and ROSENN, Circuit Judges.
Jean E. Ross, as executrix of the estate of Urban F. Ross and in her own right, appeals from orders of the district court granting summary judgment in favor of the defendants and third-party defendants in this personal injury action. Subject matter jurisdiction is based on diversity of citizenship. 28 U.S.C. Sec. 1332 (1982). This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982).
The essential facts are not in dispute. Urban F. Ross, a life-long New Jersey resident, worked as a shipfitter for the New York Shipbuilding Company in Camden, New Jersey, from 1942 to 1944 and from 1946 to 1947. From approximately 1956 until 1963, Ross was employed as a shipfitter at the Philadelphia Naval Shipyard. In each of these positions, Ross was exposed to asbestos products.
In 1963, Ross learned that he had asbestosis. Sixteen years later, in 1979, he was diagnosed as suffering from cancer of the colon. In 1981, Ross learned that he had lung cancer. He passed away in December of 1982.
Urban Ross (hereinafter "the decedent") and his wife Jean commenced this action in the district court for the Eastern District of Pennsylvania on December 15, 1980. The complaint alleged numerous causes of action, sounding in negligence, strict liability, breach of warranty, fraud and misrepresentation, which relate to the decedent's exposure to asbestos. 1 The defendants were various manufacturers and distributors of asbestos products. Several other manufacturers and distributors were impleaded as third-party defendants. Motions for summary judgment were filed on behalf of all defendants and third-party defendants 2 on the ground that plaintiff's claims were time-barred. The district court granted defendants' motions without opinion. This appeal followed.
Since the district court did not render an opinion when it dismissed plaintiff's claims as untimely, we must review the decision of that court without any indication of either the reasoning employed or the authorities relied upon by the district court. Consequently, we begin our analysis with a brief summary of the parties' contentions.
Plaintiff contends that the district court erred in dismissing the cancer claims on timeliness grounds. She argues that the New Jersey two year statute of limitations for personal injury actions should have been applied and that under New Jersey law plaintiff's cancer claims accrued for statute of limitations purposes when the decedent first discovered that he was suffering from colon cancer. Alternatively, plaintiff maintains that even if the two year Pennsylvania statute of limitations is applied, New Jersey law should determine when the cause of action accrued. Under either of plaintiff's theories, the applicable statute of limitations commenced running in 1979. Thus, her complaint, which was filed in 1980, was timely with respect to the cancer claims.
The defendants, on the other hand, maintain that the Pennsylvania statute of limitations is controlling and that in applying this limitations period, Pennsylvania law determines when the cause of action accrues. The defendants argue that under Pennsylvania law the plaintiff has only a single, indivisible claim for all asbestos-related injuries and that the two year Pennsylvania statute of limitations began to run in 1963 when the decedent learned of his initial asbestos-related injury.
Thus, two issues are presented for our review. First, we must determine whether the New Jersey or the Pennsylvania statute of limitations should be applied in this case. Second, in applying the appropriate limitations period, we must decide whether the laws of New Jersey or of Pennsylvania should determine when plaintiff's claims accrued.
A federal court, sitting in diversity, follows the forum's choice of law rules to determine the applicable statute of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Pennsylvania courts ordinarily apply the Pennsylvania statute of limitations. 3 Freeman v. Lawton, 353 Pa. 613, 46 A.2d 205, 207 (1946). Thus, we conclude that a Pennsylvania court would apply its own limitations statute in determining the timeliness of plaintiff's claims.
Pennsylvania has a two year statute of limitations for actions "to recover damages for injuries to the person ... caused by the wrongful act or ... negligence of another." 42 Pa.Cons.Stat.Ann. Sec. 5524 (Purdon Supp.1985). This limitations period begins to run from "the time the cause of action accrued." 42 Pa.Cons.Stat.Ann. Sec. 5502(a) (Purdon 1981). A claim arising under Pennsylvania law accrues at "the occurrence of the final significant event necessary to make the claim suable." Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir.1966).
Plaintiff asserts a claim for colon cancer allegedly caused by the decedent's exposure to the defendants' asbestos products. Under New Jersey substantive law, which plaintiff contends is controlling, a claim for asbestos-related cancer is considered a separate and distinct cause of action which may exist apart from any other injury stemming from the same exposure. See Devlin v. Johns-Manville Corp., No. L-16902-81, slip op. at 13 (N.J.Super. March 8, 1985). Pennsylvania, on the other hand, does not recognize a separate cause of action for asbestos-related cancer. Rather, Pennsylvania treats "all injuries arising out of the same tortious [asbestos exposure]" as a single cause of action. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493, 507 (1984) (emphasis in original).
Thus, plaintiff bases her right to recover on a foreign cause of action that has no identical counterpart under Pennsylvania law. We must determine when that foreign claim accrued in order to apply the Pennsylvania statute of limitations. There appears to be no Pennsylvania state court decision addressing this precise question. Thus, our duty is to predict how the Pennsylvania Supreme Court would rule on this issue if the present case were before it. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981).
Because the limitations period is a creature of statute, the date of accrual for the purpose of applying the statute of limitations is a matter of statutory construction. In the absence of a definitive statement of legislative intent, we must construe the "accrual" requirement of section 5502 in a manner that is consistent with Pennsylvania's overall objectives in enacting statutes of repose.
When a Pennsylvania court is presented with a claim that is not recognized under Pennsylvania law, the date of accrual of that foreign claim may be determined in one of two ways. On the one hand, as plaintiff apparently contends, the Pennsylvania court may look to the law of the foreign state to determine when the foreign cause of action accured. Alternatively, the court may ascertain the accrual date of the foreign claim by first deciding what Pennsylvania claim is most comparable to the foreign cause of action and then determining when that comparable claim would accrue under Pennsylvania law. Utilizing the former approach, plaintiff's claims for asbestos-related cancer accrued under New Jersey law in 1979 when the decedent discovered that he had colon cancer. See Jarusewicz v. Johns-Manville Products Corp., 188 N.J.Super. 638, 458 A.2d 156, 158 (1983) (). Applying the latter approach, plaintiff's claim...
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