Volpe v. Johns-Manville Corp.

Decision Date02 May 1980
Docket Number2052
Citation4 Phila. 290
PartiesAmedeo Volpe and Anne C. Volpe h/w v. Johns-Manville Corp. et al
CourtPennsylvania Commonwealth Court
SYLLABUS

(1) The statute of limitations for personal injury claims in Pennsylvania is two years from the time the injury was done whether the theory of liability is based upon common-law negligence, breach of warranty, strict liability in tort or fraud and conspiracy

(2) Summary judgment may be granted when the moving party demonstrates that there is no genuine issue of material fact and the record, viewed in a light most favorable to the non-moving party, reveals that the moving party is entitled to judgment as a matter of law

(3) The literal formula requiring that a suit be brought within " two years from the time the injury was done" equates " injury" with " discoverable injury", i.e., the statute of limitations does not begin running until a plaintiff would know, or through the exercise of reasonable diligence, should know of his injury

(4) Three independent phases of knowledge must be known or knowable to the 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

(5) 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 commence the running of the statute of limitations

(6) Whether a lawsuit has been timely instituted is measured not by what the plaintiff knows of his injury, but by what he might have known by the exercise of reasonable diligence

(7) A plaintiff's suit will not be foreclosed if, through fraud or concealment, the defendant has caused the plaintiff to relax his vigilance or deviate from his right of inquiry

(8) The plaintiff has the burden of proving by clear, precise and convincing evidence that the defendant, through an affirmative, independent act, has concealed facts from which the plaintiff could have learned of his cause of action

(9) Where such an issue of fact is appropriately raised, a jury question is created on the existence of fraud and concealment

(10) The general rule, known as the " locality" test, is that if a tort is committed and injury suffered on navigable waters, it is within admiralty jurisdiction; if the injury is suffered on land, even though caused by a vessel on navigable waters, the matter is beyond the reach of admiralty

(11) For admiralty jurisdiction to apply, in addition to meeting the " locality" test, there must be shown some connection " with traditional maritime activity", citing Executive Jet Aviation v. Cleveland, 409 U.S. 249 (1972)

(12) The hazards of exposure to asbestos products bear no relation to traditional maritime activity.

Greitzer and Locks, Esquires, for Plaintiff

Francis E. Marshall, Esquire, for Defendant

OPINION OPINION AND ORDER

TAKIFF, J.

Before the Court are motions for summary judgment raising the statute of limitations as an affirmative defense and bar to plaintiffs' actions. Husband-plaintiff has brought suit for personal injuries [1] resulting from his occupational exposure to asbestos dust allegedly causing " . . . diseases and injuries to his body system, lungs, respiratory system, heart and other body parts including but not limited to asbestosis, scarred lungs, emphysema, pneumoconiosis and the risk of mesothelioma and other cancers, some or all of which may be permanent." Wife-plaintiff claims that defendants' conduct has deprived her of the " society, services and companionship of her husband" for which she also seeks compensation.

For purposes of the instant motion, defendants have averred the following facts, which are supported by plaintiffs' complaint and deposition: husband-plaintiff worked as a welder in and out of No. 26 Shop at the Philadelphia Naval Shipyard from 1967 to 1974; after being informed by his family doctor that he had asbestosis, plaintiff consulted a pulmonary specialist, Dr. Harold Israel, who confirmed that diagnosis on December 7, 1973; Dr. Israel explained the disease to plaintiff, saying " it formed in your lungs like concrete and it could get worse but it could never get better especially if you are exposed to the same environment" ; in December 1973 Dr. Israel recommended that plaintiff read an article in the November 18, 1973 issue of New Yorker magazine dealing with the hazards of asbestos in the work place; plaintiff read the article (which was offered as an exhibit at the deposition and incorporated by the motion for summary judgment), underlined certain portions which referred to the use and risks of asbestos in shipyards, and learned the names of certain prime manufacturers of asbestos products.

Notwithstanding this knowledge, plaintiffs did not institute this suit until January 1977. Defendants' Answer with New Matter has raised the statute of limitations as an affirmative defense.

The statute of limitations for personal injury claims in Pennsylvania [2] is " two years from the time the injury was done." 42 Pa. C.S.A. § 5524(2), reenacting 12 P.S. § 34. This is true whether the theory of liability against defendant is based upon common-law negligence, breach of warranty, or strict liability in tort, Salvador v. Atlantic Steel Boiler Company, 256 Pa.Super 330, 389 A.2d 1148 (1978), or fraud and conspiracy.

Plaintiffs, in opposing the instant motion, have argued that the limitations period should not be deemed operative until the plaintiff has " knowledge of his right to bring a lawsuit which would compensate him for the injuries he sustained as a result of his exposure to asbestos and asbestos products." Because they knew neither the identity of many of the manufacturers and suppliers nor the availability of legal remedies other than a claim under workmen's compensation, plaintiffs urge that the commencement of the limitations period was deferred and hence their suit is timely.

In considering this motion for summary judgment, we are cognizant of the stringency of the rules governing this drastic measure.

Under Pa. R.C.P. 1035, summary judgment may be granted when the moving party demonstrates 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 judgment as a matter of law. The burden of proof that there is no genuine issue of material fact is on the movant, and all doubts are to be resolved in favor of the non-movant. Summary judgment should only be granted when the case is clear and free from doubt. Acker v. Palena, 260 Pa.Super 214, 393 A.2d 1230 (1978); Dowlin v. Coatesville School District, 22 Pa.Cmwlth. 433, 436, 350 A.2d 190 (1975). Bearing these principles in mind, and based upon our analysis of the statute of limitations as applied to the facts at hand, we are compelled to hold that, as a matter of law, the statute of limitations bars plaintiffs' suit and summary judgment for defendants must be granted.

I.
A. Commencement of the statutory period.

The literal formula requiring that a suit be brought within " two years from the time the injury was done" was construed in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) to equate " injury" to " discoverable injury." Drawing on the analysis found in cases of subsurface property damage in which the statute of limitations does not begin running until the harm is either known or knowable, the Supreme Court extended that rule to other instances of latent or non-discoverable injury. The " injury", as used in the statute, does not occur until " the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." 397 Pa. at 290, 154 A.2d at . At that point a plaintiff would know, or, through the exercise of reasonable diligence, should know of his injury.

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.

1. Knowledge of the injury. It is clear that the statute does not commence to run until a plaintiff knows or has reason to know that he was injured. The statute of limitations is not intended to apply to blameless ignorance. Urie v. Thompson, 337 U.S. 163 (1947). Thus, the reasonableness of plaintiff's conduct in failing to discover his harm was properly reserved...

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3 cases
  • Morgan v. Johns-Manville Corp., JOHNS-MANVILLE
    • United States
    • Pennsylvania Superior Court
    • June 10, 1986
    ... ... Carnahan, 446 Pa. 48, 284 A.2d 728 (1971). Accordingly, I would affirm the lower court's decision, and respectfully dissent from the majority's disposition on this matter ... --------------- ... 1 In Cathcart, an en banc panel of this Court modified the test that was announced in Volpe v. Johns-Manville Corp., 4 Phila. 290 (Ct.C.P.1977), aff'd, 323 Pa.Superior Ct. 130, 470 A.2d 164 (1983) (en banc ). Cathcart v. Keene Industrial Insulation, supra. Under the Volpe test, the statute of limitations begins to run when the plaintiff has (1) knowledge of the injury, (2) knowledge of ... ...
  • Blue (Estate of Washburn) v. Johns-Manville, Corp.
    • United States
    • Pennsylvania Commonwealth Court
    • October 12, 1983
    ... ... most favorable to the person opposing the entry of the ... summary judgment and resolving all doubts against the entry ... of judgment. Acker v. Palena, 260 Pa.Super 214, 216, ... 393 A.2d 1230, 1232 (1978) ... In ... Volpe v. Johns-Manville Corp., 4 Phila. 290, 295-296 ... (1980), adopted by the Superior Court in Staiano v ... Johns-Manville Corp., Pa.Super , 450 A.2d 681, 684 ... (1982), Judge TAKIFF set forth the time at which the ... limitations period begins to run, as follows: ... With ... ...
  • Faix v. Johns-Manville Corp.
    • United States
    • Pennsylvania Commonwealth Court
    • June 9, 1983
    ... ... 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 ... ...

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