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FRANK HENRY v. CONTROL PRODUCTS COMPANY V. CERRO CORPORATION AND CERRO WIRE AND CABLE COMPANY (02/13/81)

filed: February 13, 1981.

FRANK HENRY, APPELLANT,
v.
CONTROL PRODUCTS COMPANY V. CERRO CORPORATION AND CERRO WIRE AND CABLE COMPANY



No. 622 April Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 78-21151

COUNSEL

Mark B. Aronson, Pittsburgh, for appellant.

George M. Evan, Pittsburgh, for Control Products, appellee.

Charles Kirshner, Pittsburgh, for Cerro, appellee.

Cavanaugh, Hoffman and Van der Voort, JJ.

Author: Cavanaugh

[ 284 Pa. Super. Page 418]

This is an appeal from an order granting a motion for summary judgment in favor of appellee, Control Products Company. The sole issue is whether the lower court was correct in holding that the suit was barred by the applicable two-year statutory time limitation. We affirm.

On October 3, 1972, appellant filed a claim against his employer for Workmen's Compensation benefits for injuries allegedly sustained as a result of working with fiberglass-insulated wire supplied to his employer by a third party. The denial of the claim was affirmed by Commonwealth Court on June 22, 1978. No further appeal was taken. On September 7, 1978, appellant commenced the instant personal injury action against his employer in the Court of Common Pleas of Allegheny County. No claim is made that the appellant did not or could not have discovered the cause of his physical condition so as to extend the time for filing suit. Indeed, the record shows that he separated from his employment on July 28, 1972, and that he filed his claim with the Bureau of Workmen's Compensation on October 3, 1972, almost six years prior to the filing of the instant action. Rather, the claim is made that the statutory time limitation was tolled during the pendency of his Workmen's Compensation proceeding.

Initially, we must determine the applicable statutory time limitation governing this action. Currently, there is a two-year

[ 284 Pa. Super. Page 419]

    time limitation on the commencement of personal injury actions. This is set forth in 42 Pa.C.S.A. § 5524(2),*fn1 which repealed 12 P.S. § 34 and became effective on June 27, 1978, more than two months prior to the institution of this suit. The legislature, in enacting 42 Pa.C.S.A. § 5524(2), provided that "no cause of action fully barred prior to the effective date of this Act shall be revived by reason of the enactment of this Act." Act of July 9, 1976, P.L. 586, No. 142, § 25(b), 42 Pa.C.S.A. § 5524; Duffy v. Commonwealth, 46 Pa. Commw. 529, 406 A.2d 1204 (1979).

In the instant case, absent an exception which would toll the running of the statute of limitations, appellant's suit was fully barred prior to June 27, 1978, the effective date of 42 Pa.C.S.A. § 5524(2). Thus, we must examine 12 P.S. § 34, the predecessor of 42 Pa.C.S.A. § 5524(2), to determine whether there were any exceptions which would toll the running of the statutory time limitation during the pendency of Workmen's Compensation proceedings.

In interpreting a statute, we must ascertain and effectuate the intention of the legislature. Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979); Duquesne Light Co. v. Borough of Monroeville, 449 Pa. 573, 298 A.2d 252 (1972); Commonwealth ex rel. Jones v. Jones, 216 Pa. Super. 1, 260 A.2d 809 (1969). To ascertain the legislature's intent in enacting 12 P.S. § 34, we must first examine the language of the statute itself. The following ...


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