unwilling to conclude that the Anthony court intended on the basis of such meager and ambiguous rationale to overrule, sub silentio, decades of Pennsylvania authority and traditional tort law or to make such a far-reaching decision denying access to the courts by the estates of innocent tort victims.
There is a more fundamental reason why Anthony should not be the basis for granting summary judgment here. The opinion in Anthony was written by Justice Wilkinson. Then Justice, now Chief Justice, Roberts and Justice Flaherty joined in the opinion, and Justices Larsen and Kauffman concurred only in the result. Justice Nix did not participate in the decision, and Chief Justice O'Brien dissented. It appears, therefore, that only three of the seven justices of the Pennsylvania Supreme Court joined in the opinion.
"Under Pennsylvania law, an opinion joined by fewer than a majority of the justices on the Commonwealth's Supreme Court is not binding or controlling precedent . . . an opinion of 'less than a majority of the [Pennsylvania Supreme] Court . . . must be treated only as an expression of the views of a minority of the court.'" Vargus v. Pitman Mfg. Co., 675 F.2d 73 at 74 (3d Cir. 1982). Further, "a concurrence in the result only cannot confer precedential value to an opinion." Vargus, supra, p. 75.
Since Anthony does not have the effect of changing the long-established rules of law in these matters applicable in the Commonwealth of Pennsylvania, those rules still apply. See, Vargus, supra, p. 75. As we pointed out earlier, it is, and has been, the law of Pennsylvania that a cause of action accrues when there is the concurrence of (a) a breach of duty, (b) harm proximately resulting from that breach of duty, and (c) damages flowing therefrom.
It also is, and has been, the law of Pennsylvania that with regard to personal injury actions the statute of limitations -- as distinguished from the accrual of a cause of action -- commences to run when the injured party knew or reasonably should have known (a) of the nature of his injury or disease, (b) the cause of that injury or disease, and (c) the legal relationship between the cause of that disease and wrongful act of the defendant. Anthony, supra, 425 A.2d at 436.
To the extent that the question is open under Pennsylvania law, we must predict how the Pennsylvania Supreme Court ultimately will rule on the question of how long a personal representative has under the applicable statute of limitations, 42 Pa.C.S.A. §§ 5524(2), 5502(a), to institute suit to recover damages as to one who died without discovering the cause of his injury, see McKenna v. Ortho Pharmaceutical Corp. 622 F.2d 657 (3d Cir. 1980).
We believe, based on the foregoing, that the Pennsylvania Supreme Court will read the statute in the light of the existing, and now well-established, law of Pennsylvania relative to the application of the discovery rule to personal injury actions and conclude that the statute commences to run when the victim had, or reasonably should have had, the knowledge set forth by the Superior Court in Anthony, 425 A.2d at 436, but commences at the latest on the death of the victim, so that all actions must be brought within two years of that date at the latest.
We believe that this ruling is entirely consistent with the ruling of the Pennsylvania Supreme Court in Anthony that the discovery rule will not be extended to the personal representative of one whose death resulted from the tortious conduct of another, and yet is in harmony with that body of Pennsylvania law relative to the application of the discovery rule in personal injury actions which has been in place for decades.
In the instant cases, the plaintiffs have alleged and the defendants, at least for purposes of their motions for summary judgment, have not challenged, that the decedent (a) suffered from a disease, (b) which was caused by the inhalation or ingestion of asbestos dust and fibers, and (c) that the exposure of the decedent was due to actionable conduct of the defendants, and (d) that damages flowed as a proximate result of the foregoing. Plaintiffs also alleged and defendants, again for purposes of these motions, do not dispute, that while the decedent was aware during his lifetime that he had the ailment, he was not aware of its cause and the causal relationship was not ascertained by the plaintiffs until after the decedent's death. Further, all of the instant suits were filed within two years of the death of the decedent.
From those undisputed facts and solely for purposes of the motions before us, we conclude that under the applicable Pennsylvania law a cause of action against the defendants had accrued to decedents during their lifetimes. We further conclude the statute of limitations had not run during the decedent's lifetime, because while the decedent knew he had an injury he did not know, and, so far as the record before us on the motions for summary judgment is concerned, could not have known, of the cause thereof. Therefore, the statute of limitations had not run at the time of the decedent's death. Accordingly, there remained at least two years left of the statute at the time that the decedent died. Since the instant suits were brought within two years of the date of death, it follows that the two year period of the applicable statute of limitations had not run, and the defendants' motions for summary judgment should be denied. Cf. Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 387 A.2d 480 (1978); Keating v. Zemel, 281 Pa. Super. 129, 421 A.2d 1181 (1980); Carney v. Barnett, 278 F. Supp. 572 (E.D.Pa. 1967).
An appropriate order will follow.