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filed: November 7, 1980.


No. 759 April Term 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division at No. GD 77-29285.


Avrum Levicoff, Pittsburgh, for Koppers, appellant.

John W. Jordan, IV, Pittsburgh, for Allied, appellant.

Herbert B. Conner, Pittsburgh, for Salem, appellant.

Blair S. McMillin, Pittsburgh, for Bethlehem, appellee.

Scott L. Melton, Conway, for Anthony, et al., appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 284 Pa. Super. Page 85]

This is an appeal from an order denying motions for summary judgment. The appeal raises an important question concerning the statutes of limitation applicable to actions in survival and for wrongful death.

Each appellee is administrator of the estate of her deceased husband. In October 1977 appellees brought actions in survival and for wrongful death against appellants, claiming that emissions from coke ovens erected by appellants had caused the decedents to contract cancer of the lungs, which ultimately resulted in their deaths. In August 1978 appellants joined Bethlehem Steel Corporation, the decedents' employer, as an additional defendant.*fn1 During discovery, appellees stated that all the decedents had died more than two years before the actions were brought.*fn2 Thereupon each appellant filed a motion for summary judgment, arguing that the one year statute of limitation applicable to actions for wrongful death (the Act of 1855) and the two year statute of limitation applicable to actions in survival (the Act of 1895) barred appellees' suits. The lower court denied the motions and certified the question for interlocutory

[ 284 Pa. Super. Page 86]

    appeal to this court. On August 10, 1979, we granted permission to appeal.*fn3

Appellants argue that the last day on which the statutory periods could have started to run was the day of the decedents' deaths; on this view, each of the actions is barred, and summary judgment should have been entered. Appellees argue, and the lower court adopted the view, that the statutory periods did not start to run until they, as the decedents' representatives, knew or reasonably should have known of the causal connection between the emissions from the coke ovens and the decedents' cancers, and that as to that date, there is a genuine issue of material fact sufficient to prevent the entry of summary judgment in appellants' favor. In other words, appellees argue that what has been termed "the discovery rule" applies, despite the fact that all the decedents died several years before the actions were brought.


In Fries v. Boisselet, 9 Serg. & R. 128, 130 (1822), Chief Justice TILGHMAN commented that "[i]t would be a laborious and unprofitable task to examine all the cases which have been decided on the statute of limitations." We agree, and therefore shall not attempt the task. Instead, we shall discuss only an illustrative few of the many cases that have interpreted the statutes of limitation, in particular, those that have developed and applied the discovery rule.

It has often been stated that the plaintiff's knowledge of his injury is immaterial and that the statute of limitations

[ 284 Pa. Super. Page 87]

    starts to run from the time the tortious act is committed even though the plaintiff neither knows nor has reason to know of his injury. Restatement (Second) of Torts ยง 899, comment e. See Bernath v. LeFever, 325 Pa. 43, 189 A. 342 (1937); Noonan v. Pardee, 200 Pa. 474, 50 A. 255 (1901); Moore v. Juvenal, 92 Pa. 484 (1880). Application of this rule often led to a result that was harsh in that the plaintiff was blamelessly ignorant of his injury. See Bernath v. LeFever, surpa; Noonan v. Pardee, supra. The result was justified on the ground that statutes of limitation were creations of the legislature, which had written them in terms of "injury" and "rights of action" and not in terms of discovery or notice, "so that a judicial construction limiting [a statute], to notice of a right of action would be sheer legislation." Fleming v. Culbert, 46 Pa. 498, 501 (1864) (original emphasis). Moreover, the concept of notice was considered to be so flexible and difficult to prove that it was apprehended that "a jury would fix it one way in th[is] case and another way in the next, and thus a stable rule of statute law would fluctuate with the changes and chances of the jury-box." Fleming v. Culbert, supra.

It appears that the First Pennsylvania case accepting the view that ignorance of an injury may delay the start of the statute of limitations was Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895). In Lewey the defendant had mined under the plaintiff's land in 1884, but the plaintiff did not discover that any coal had been taken until 1891. He brought suit in 1892 and the issue on appeal was whether the lower court had been correct in holding that the six year statute of limitation had started to run upon the removal of the coal in 1884 and therefore had run by 1890, a year before the plaintiff knew of his injury. In reversing, Justice WILLIAMS said:

It seems to be the general doctrine in courts of law that the plaintiff is bound to know of an invasion of the surface of his close. The fact that his land is a forest and that the defendant goes into its interior to trespass by the cutting of timber, does not relieve against its operation.

[ 284 Pa. Super. Page 88]

What is plainly visible he must see at his peril, unless by actual fraud his attention is diverted and his vigilance put to sleep. But ought this rule to extend to a subterranean trespass? The surface is visible and accessible. The owner may know of its condition without trespassing on others and for that reason he is bound to know. The interior of the earth is invisible and inaccessible to the owner of the surface unless he is engaged in mining operations upon his own land; and then he can reach no part of his own coal stratum except that which he is actually removing. If an adjoining landowner reaches the plaintiff's coal through subterranean ways that reach the surface on his own land and are under his actual control, the vigilance the law requires of the plaintiff upon the surface is powerless to detect the invasion by his neighbor of the coal one hundred feet under the surface.

166 Pa. at 544-45, 31 A. at 262.

He continued:

The law does not require impossibilities. It recognizes natural conditions, and the immutability of natural laws. The owner of the surface cannot see, and because he cannot see the law does not require him to take notice of what goes on in the subterranean estates below him with which he has no communication through openings within his inclosures or under his control.

Id., 166 Pa. at 545, 31 A. at 263.

Finally, he concluded:

The owner of land may be present by himself or his servants on the surface of his possessions no matter how extensive they may be. He is for this reason held to be constructively present wherever his title extends. He cannot be present in the interior of the earth. No amount of vigilance will enable him to detect the approach of a trespasser who may be working his way through the coal seams underlying adjoining lands. His senses cannot inform him of the encroachment by such trespasser upon the coal that is hidden in the rocks under his feet. He cannot reasonably be held to be constructively present where his

[ 284 Pa. Super. Page 89]

    presence is in the nature of things impossible. He must learn of such a trespass by other means than such as are within his own control, and until these come within his reach he is necessarily ignorant of his loss. He cannot reasonably by required to act until knowledge that action is needed is possible to him. We are disposed to hold therefore that the statute runs against an injury committed in or to a lower stratum from the time of actual discovery, or the time when discovery was reasonably possible.

Id., 166 Pa. at 547, 31 A. at 263 (emphasis added).

The rule announced in Lewey -- that the statute runs from the time of actual discovery, or the time when discovery was reasonably possible" -- has been termed the discovery rule, and since Lewey has been applied to other cases involving hidden subterranean injuries. See Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); Gotshall v. Langdon, 16 Pa. Super. 158 (1901). And see Petrelli v. West Virginia -- Pittsburgh Coal Co., 86 W.Va. 607, 104 S.E. 103 (1920). But see Noonan v. Pardee, supra. It is important to note the fact that in Lewey, and for that matter in later underground injury cases such as Smith v. Bell Telephone Co., supra, application of the discovery rule is not based upon any specific wording in the particular statute of limitation in question. Instead, application of the rule has been based upon the recognition that if a party, despite the exercise of diligence, cannot ascertain his injury, the statute of limitations should not run against his claim. In short, the discovery rule is a judicial creation, fashioned to solve a specific problem, namely, whether the law should preclude recovery for an injury that not even a diligent party may reasonably be expected to discover.

Perhaps recognizing that an injury hidden in the bowels of the earth is no more difficult to discover than one hidden in the bowels of a patient, see Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965), the Supreme Court has applied the discovery rule to medical malpractice cases. While the possibility of this application was discussed as

[ 284 Pa. Super. Page 90]

    early as the decision in Byers v. Bacon, 250 Pa. 564, 95 A. 711 (1915),*fn4 the first actual application apparently occurred in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). In Ayers

[ 284 Pa. Super. Page 91]

    the defendant had performed an operation on the plaintiff in 1948 but had failed to remove one of the surgical sponges. Although the plaintiff suffered pain for several years following the operation, he did not discover that the sponge had not been removed until 1957. The plaintiff brought suit soon after his discovery. However, the lower court ruled that the two year statute of limitations contained in the Act of 1895 had run. The Supreme Court reversed, holding that the discovery rule applied. In so holding the Court discussed Lewey and the problem of an injury difficult to discover, and stated:

Did the laws of nature prevent Ayres [sic] from ascertaining what was causing the pain in his abdomen? Certainly he could not open his abdomen like a door and look in; certainly he would need to have medical advice and counsel; certainly he would have to be dependent upon those who with appropriate instruments and devices could pierce the wall of flesh which hid from his own eyes the cause of his wretchedness.

Id., 397 Pa. at 289, 154 A.2d at 792.

The Court did not only rely on the fact that the injury was difficult to discover, however, but further discussed the specific language of the Act of 1895, concluding:

Both the defendant and the lower court have apparently misevaluated the specific wording of the Act of June 24, 1895. It seems they regard the crucial words as reading: "Every suit . . . must be brought within two years from the time the act was committed." The statute, however, says that the suit must be "brought within two years from the time when the injury was done." The injury is done when ...

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