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CARMAN STAIANO AND RITA STAIANO v. JOHNS MANVILLE CORP. (09/03/82)

filed: September 3, 1982.

CARMAN STAIANO AND RITA STAIANO, HIS WIFE, APPELLANTS,
v.
JOHNS MANVILLE CORP., AND JOHNS MANVILLE SALES CORP. AND RAYBESTO MANHATTEN, INC. AND OWENS-CORNING FIBERGLAS CORP. AND FORTY-EIGHT INSULATION, INC., AND NICOLET INDUSTRIES, INC., AND PITTSBURGH CORNING CORPORATION AND CELOTEX CORP., AND ARMSTRONG CORK COMPANY AND UNARCO INDUSTRIES, INC., AND H. K. PORTER CO., INC. AND SOUTHERN ASBESTOS COMPANY AND J. P. STEVENS, INC., AND EAGLE-PICHER INDUSTRIES, INC., AND AMATEX CORP., AND DELAWARE ASBESTOS AND RUBBER COMPANY AND, FIBREBOARD CORPORATION AND PACOR, INC. AND KEENE CORPORATION



No. 1466 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action - Law, of Philadelphia County at No. 2052 (89) January Term 1977 (Case No. 24 Asbestos Case)

COUNSEL

Robert Paul, Philadelphia, for appellants.

Barbara Markham and Jo Marjorie Fineman, Philadelphia, for appellees.

Spaeth, Beck and Lipez, JJ.

Author: Spaeth

[ 304 Pa. Super. Page 283]

This is an appeal from an order entering summary judgment. The question is whether the lower court erred in finding appellants' claims barred by the statute of limitations. We have concluded that the court did not err, and therefore affirm.

Appellants' action is in trespass and assumpsit and is in four counts: negligence, breach of warranty, strict liability, fraud and conspiracy. Appellant-husband asks damages for personal injuries sustained as a result of occupational exposure to asbestos dust emanating from products manufactured by appellees, and appellant-wife asks damages for loss of consortium. The lower court held, and it is settled, that the two year statute of limitations for "injuries to the

[ 304 Pa. Super. Page 284]

    person," 42 Pa.C.S. § 5524(2), applies to each of the four counts. See, Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A.2d 379 (1946); Shadle v. Pearce, 287 Pa. Superior Ct. 436, 430 A.2d 683 (1981); Salvador v. Atlantic Steel Boiler Co., 256 Pa. Superior Ct. 330, 389 A.2d 1148 (1978). It is also settled that appellant-wife's consortium claim depends on her husband's claim. Pa.R.Civ.P. 2228(a); Hopkins v. Blanco, 224 Pa. Superior Ct. 116, 302 A.2d 855 (1973), aff'd Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1973). What is not settled is when the two year statute of limitations started to run. Once that is decided, we must determine whether the record sufficiently demonstrates that appellants filed their action after the statute had run.

I

Although written in absolute terms -- "the following actions and proceedings must be commenced within two years" -- the period of the statute of limitations does not start to run until the tortious injury is discovered or reasonably discoverable by the plaintiff. See, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895). This rule has been applied to cases involving subterranean rights, see e.g., Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); Lewey v. Fricke Coke Co., supra, as well as internal bodily injuries, see e.g., Ayers v. Morgan, supra, Acker v. Palena, 260 Pa. Superior Ct. 214, 393 A.2d 1230 (1978); Grubb v. Albert Einstein Medical Center, 255 Pa. Superior Ct. 381, 387 A.2d 480 (1978); Barshady v. Schlosser, 226 Pa. Superior Ct. 260, 313 A.2d 296 (1973) (opinion in support of reversal).

In Anthony v. Koppers Co., 284 Pa. Superior Ct. 81, 425 A.2d 428 (1980), revers'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), we reviewed the application of the statute of limitations to cases in which the plaintiff has contracted a disease from a continuous exposure to a hazardous substance. We found that other jurisdictions have taken one of three approaches to these "creeping disease" cases:

[ 304 Pa. Super. Page 285]

A few jurisdictions have held that in a creeping disease case the statute starts to run with the plaintiff's "first breath" of the hazardous substance, even though he does not discover his disease or its cause until many years later. See Schmidt v. Merchant's Dispatch Trans. Co., 270 N.Y. 287, 200 N.E. 824 (1936); Cartledge v. Jopling, [1962] 1 Q.B. 189 (C.A.), aff'd, [1963] Appeal Cases 758 (H.L.). The first breath rule, however, has led to such harsh results that it has been widely repudiated. See Birnbaum, First Breath's Last Gasp: The Discovery Rule in Products Liability Cases, 13 Forum 279 (1977) (criticizing Schmidt); Kelley, The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience, 24 Wayne L.Rev. 1641 (1978) (British reaction to first breath rule announced in Cartledge). Other jurisdictions have viewed subjecting the plaintiff to exposure as a continuing tort and have adopted what may be called the "last breath" rule, under which the statute of limitations starts to run at the last exposure, but neither has this rule proved satisfactory. See Garrett v. Raytheon Co., Ala., 368 So.2d 516 (1979) (statute of limitation barred suit for injuries from exposure to radiation where last exposure occurred in 1957, even though symptoms were not manifest until 1975). And see Note, 31 Ala.L.Rev. 509 (1980) (criticizing Garrett). Accordingly, a majority of the jurisdictions that have considered the issue, including the Supreme Court of the United States, have held that the discovery rule applies to creeping disease cases. See Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir. 1975); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973); R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir. 1963); Brush Beryllium Co. v. Meckley, 284 F.2d 797 (6th Cir. 1960); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809 (2d Cir. 1960); Strickland v. Johns-Manville International Corp., 461 F.Supp. 215 (S.D.Texas 1978); Velasquez v. Fibreboard Paper Products Corp., 97 Cal.App.3d 881, 159 Cal.Rptr. 113 (App.1979); Nolan v. Johns-Manville Asbestos & Magnesium,

[ 304 Pa. Super. Page 28674]

Ill.App.3d 778, 30 Ill.Dec. 307, 392 N.E.2d 1352 (1979); Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 (1969); Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky.1979). Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978). And see Birnbaum, The Statute of Limitations in Environmental Suits: The Discovery Rule Approach, Trial Volume 16, No. 4, at 34 (April 1980); Comment, Asbestos Litigation: The Dust Has Yet To Settle, 7 Fordham Urban L.J. 55, 77-83 (1980).

Id., 284 Pa. Superior Ct. at 93, 425 A.2d at 434-35.

We further noted, id., 284 Pa. Superior Ct. at 94, 425 A.2d at 435, that while our Supreme Court had indicated that it might apply a "last breath" analysis, see Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936), it had in fact subsequently applied the discovery rule. See Caibattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 125 A.2d 365 (1956).

Having determined that the "discovery rule" is applicable to creeping disease cases, we quoted with approval Judge TAKIFF's statement as to the level of knowledge a plaintiff must have before the statute of limitations starts to run. Id., 284 Pa. Superior Ct. at 96, 425 A.2d at 436. Judge TAKIFF's statement was:

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

[ 304 Pa. Super. Page 287]

    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, ...


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