II. Owens' Motion Against Plaintiff Veronica Tysenn
Owens also moves for summary judgment on Veronica Tysenn's claim that she risks severe injury from exposure to asbestos through her husband, and that she has suffered from emotional and psychological shock and distress because of her fear that she might contract an asbestos-related disease. Owens contends that New Jersey law applies to her claim, because at all times relevant to this action she resided in New Jersey, and any contact she might have had or injury she might have suffered occurred there. Plaintiffs have not responded to Owens' choice-of-law arguments, and I agree with Owens that New Jersey law should apply.
Significantly, Veronica Tysenn's claim is not for emotional distress she suffered because of seeing her husband suffer; rather, it seeks compensation for her fear of injury. Under New Jersey law, if fear of injury results in "substantial bodily injury or sickness," it is compensable. Falzone v. Busch, 45 N.J. 559, 569, 214 A.2d 12 (1965). Conversely, where it does not, it is not compensable because it is too speculative a basis for liability. Id. Because Mrs. Tysenn must produce some evidence of physical injury caused by her fear, which she has not pleaded, and has not demonstrated by affidavit or otherwise in response to Owens' motion, summary judgment in Owens' favor on this claim will be granted.
III. Owens' Motion Against Eagle-Picher Industries
Eagle-Picher Industries is an original defendant which has cross-claimed against Owens seeking contribution toward any amount which Eagle-Picher must pay to plaintiffs. The critical issue here is whether the recent amendment to § 303 of the Pennsylvania Workmen's Compensation Act, 77 Pa.Stat.Ann. § 481(b), which absolves an employer of liability to anyone on account of an occupational disease and/or injury suffered by a worker covered by the Act, is applicable in this case.
The amendment to the Compensation Act became effective on February 3, 1975. In Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978), the Pennsylvania Supreme Court held that where the alleged injuries occurred before the Act's effective date, the amendment did not apply. Although Bell was not an occupational disease case its reasoning is equally applicable in such cases and, therefore, the key date is the occurrence of the occupational disease. Here, despite the fact that Tysenn's physical exposure to asbestos occurred no later than 1958, Owens argues that it cannot be sued for contribution because Tysenn's occupational disease did not occur until it was discovered which was clearly after February 3, 1975.
Section 303 offers little guidance as to the date a party can be said to have suffered an occupational disease. Case law and other sections of the Workmen's Compensation Act, however, support Owens' position.
In Ciabattoni v. Birdsboro Steel Foundry & Machine Company, 386 Pa. 179, 125 A.2d 365 (1956), a claimant with silicosis was denied compensation under the Occupational Disease Act on the grounds that his claim was untimely under § 315 of that Act, which required all claims to be brought within one year after the disability began. The claimant filed his claim on January 4, 1954, but the referee found that his disability began on December 22, 1952. The Pennsylvania Supreme Court held that denial of benefits was improper, finding that although the claimant may have been disabled on December 22, 1952, there was no evidence in the record to support a finding that the disability suffered by the claimant at that time was due to silicosis. The Court held that a disability begins under the Occupational Disease Act when the claimant knows he is disabled by the occupational disease. Id. at 185-186, 125 A.2d 365.
The statute of limitations in the current Compensation Act requires that all compensation claims for personal injury be brought within three years. However, in occupational disease cases, injury is defined as "disability resulting from occupational disease." 77 Pa.Stat.Ann. § 602. I can discern no apparent reason why the date an occupational disease occurred should be determined any differently under § 303 of the Act.
One of the rationales underlying the rule that disability from an occupational disease does not begin until its discovery is the virtual impossibility of ascertaining exactly when a "creeping disease" has its onset. See, e.g., Ciabattoni v. Birdsboro Steel Foundry & Machine Company, supra, 386 at 182, 125 A.2d 365; Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428, 434-435 (1981); Sierzega v. United States Steel Corporation, 204 Pa.Super. 531, 205 A.2d 696, 536 (1964). Therefore, under the Act, until a claimant suffers from the disease he has no claim, although the disease could possibly have its onset years after exposure. See Sierzega v. United States Steel Corporation, supra, 204 Pa.Super. at 536, 205 A.2d 696.
Under Bell v. Koppers the key date for the applicability of § 303 is the date when the occupational disease occurred. Because of the difficulty in ascertaining that date, the date of discovery or the date that the disease should have reasonably been discovered will be the date applied to determine whether Owens is liable for contribution. This test is consistent with that set forth in Johnson v. Turner & Newall, Ltd., slip op. Nos. 78-464, 80-1093 (E.D.Pa., July 8, 1981), wherein Judge Newcomer stated that the date of injury for the purposes of § 303 is when compensable injury is suffered, i. e., when the "plaintiff has suffered some pain and suffering or loss of life's pleasures; medical expenses or lost wages or impairment of earning capacity." Cf. Ayers v. Morgan, 397 Pa. 282, 286, 154 A.2d 788 (1959) (under prior Pennsylvania statute of limitations for personal injury actions, 12 P.S. § 34 (repealed 1978) the time the injury was done was "when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable"). Because the record is clear that the earliest date on which Tysenn discovered his disease was December 1977, and § 303 of the Compensation Act became effective on February 3, 1975, under Bell v. Koppers § 303 is applicable to Eagle-Picher's claim for contribution. Accordingly, Owens' motion for summary judgment on Eagle-Picher's cross-claim will be granted.
IV. Owens' Motion Against Pacor, Inc.
Pacor, Inc. is also an original defendant which has cross-claimed against Owens for contribution. Pacor appears to concede that it is barred from seeking contribution from Owens under the Compensation Act, but contends that Owens should not be dismissed from the suit because it is an indispensable party for purposes of assessing negligence under the Comparative Negligence Act, 42 Pa.Con.Stat.Ann. § 7102.
The Comparative Negligence Act provides that in any negligence action, the plaintiff's contribution to the cause of the injuries suffered shall be compared with the "causal negligence of the defendant or defendants against whom recovery is sought." § 7102(a), (emphasis added). In my view, by inserting this language, the legislature intended to limit consideration of causative negligence to those who are parties to the action and can legally be held liable for the plaintiff's injuries. To allow consideration of the conduct of non-parties whom the plaintiff either cannot or does not seek to hold liable would introduce virtually unmanageable complexity to the determination of negligence.
Accordingly, since plaintiffs do not have a negligence claim against Owens, and Owens is therefore not a defendant against whom recovery is sought on a negligence theory, Owens' purported negligence has no relevance for purposes of assessing liability under the Comparative Negligence Act.
Owens' motion for summary judgment against Pacor, Inc. will be granted.