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REDEKER v. JOHNS-MANVILLE PRODS. CORP.

September 28, 1983

MAFALDA D. REDEKER, Administratrix of the Estate of FREDERICK J. REDEKER, Deceased, Plaintiff,
v.
JOHNS-MANVILLE PRODUCTS CORP., et al., Defendants and Third-Party Plaintiffs, v. STANDARD ASBESTOS MANUFACTURING AND INSULATING CO., et al., Third-Party Defendants; LUCILLE C. KOCH, Executrix of the Estate of DONALD E. KOCH, Deceased, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants and Third-Party Plaintiffs, v. FORTY-EIGHT INSULATIONS, INC., et al., Third-Party Defendants; DOLORES PRELICK, Administratrix of the Estate of JOSEPH A. PRELICK, Deceased, and DOLORES PRELICK, in her own right, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants and Third-Party Plaintiffs, v. TURNER-NEWALL, LTD., et al., Third-Party Defendants; ROSELLA B. SPOCHACZ, Administratrix of the Estate of HARRY J. SPOCHACZ, Deceased, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants and Third-Party Plaintiffs, v. ATLAS ASBESTOS COMPANY, LTD., et al., Third-Party Defendants; SHIRLEY C. STEWART, Administratrix of the Estate of ROBERT D. STEWART, Deceased, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants and Third-Party Plaintiffs, v. BABCOCK & WILCOX COMBUSTION ENGINEERING, INC., et al., Third-Party Defendants



The opinion of the court was delivered by: DIAMOND

 The above actions were brought by the plaintiffs under the Pennsylvania Wrongful Death and Survival Acts to recover damages following the deaths of their husbands from diseases allegedly contracted from their exposure to asbestos dust and fibers. *fn1" The earliest suit filed, Redeker v. Johns-Manville Corporation, Civil Action No. 80-931, was commenced in July, 1980, and all were brought within two years of the death of the subject decedent.

 A number of defendants have filed motions seeking summary judgment on the ground that the actions are not maintainable under either the Wrongful Death or Survival Acts. Those motions are presently before the court, and for the reasons stated below will be denied.

 Paragraphs 5 and 6 of the motion filed by the defendant Eagle-Picher Industries, Inc. in the Spochacz v. Johns-Manville Corporation, et al., case at Civil Action No. 80-1732 are prototypical and define the issue:

 
5. After extensive discovery, it appears that the decedent did not know of the cause of his cancer, and therefore the decedent had no cause of action before his death, and therefore plaintiff is not entitled to maintain a survival action on behalf of the decedent's estate.
 
6. Since the plaintiff's decedent was not aware prior to his death of cause of his cancer, there was no legal injury to the decedent prior to his death, and therefore plaintiff does not have a right under Pennsylvania law to maintain a suit under the Wrongful Death Act. (Emphasis added).

 Thus, the defendants' motions are predicated on the proposition that under the law of Pennsylvania a cause of action for personal injuries does not accrue unless and until the victim becomes aware of all of the facts constituting the essential elements of such cause of action, or, more specifically here, becomes aware of the cause of his injury or disease. The motions are being denied because we reject that as a correct statement of the law of Pennsylvania. *fn2"

 The defendants' argument is that no cause of action could have accrued during the decedents' lifetimes because each of the complaints in the cases sub judice was filed subsequent to the death of the plaintiff's decedent, and in each case while the decedent was aware of the nature of the disease which he had contracted, neither he nor the plaintiff was aware of the causal relationship between that disease and the decedent's exposure to asbestos dust and fibers until after the death of the decedent, when plaintiff first learned of it. Therefore, defendants contend, since decedent had no knowledge of the causal relationship between his disease and asbestos exposure (a necessary predicate for the alleged tortious conduct of the defendants) during his lifetime, no cause of action accrued during his lifetime and, hence, there was none to survive his death or to form the basis for a Wrongful Death Act claim.

 In support of this position, the defendants rely solely on Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981) and opinions of the Court of Common Pleas of Allegheny County in Powell v. Johns-Manville Corp., et al. (No. 1), 130 P.L.J. 429 (1982) and Powell v. Johns-Manville Corp., et al. (No. 2), 130 P.L.J. 435 (1982).

 In Anthony five plaintiffs brought suit in December, 1977, to recover damages under the Pennsylvania Wrongful Death and Survival Acts then in effect. In each instance it was alleged that the decedents had been employed as coke oven workers and that emissions from the coke ovens, which had been manufactured, sold, constructed and installed by the defendants, had caused the decedents to contract lung cancer, which resulted in their deaths. The most recent decedent's death was five years prior to the filing of the complaint, three had died within eight years and one, ten years prior to the commencement of the action.

 The defendants filed motions for summary judgment, arguing that the one year statute of limitations then applicable to the wrongful death actions, Section 2 of the Act of April 26, 1855, P.L. 309, 12 P.S. § 1603, and the two year statute then applicable to survival actions, Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34, barred appellees' suits. The Court of Common Pleas of Allegheny County denied the motions, the Superior Court affirmed, but the Supreme Court reversed. The Superior Court in affirming applied the discovery rule to wrongful death and survival actions in Pennsylvania and held that where a decedent neither knew nor reasonably should have known of the causal relationship between his lung cancer and the coke oven emissions the applicable statute of limitations did not start to run as to the claim arising out of his injury and death until that decedent's personal representative knew or reasonably should have known of the causal connection between the coke oven emissions and the decedent's lung cancer. Anthony v. Koppers, 284 Pa.Super. 81, 425 A.2d 428, 438, 442 (1981).

 The Supreme Court, in the first paragraph of its opinion reversing the Superior Court's ruling, stated: "The issue is whether appellees' wrongful death and survival actions were barred by the applicable statute of limitation. We hold that they were and reverse. . . ." Anthony, supra, 436 A.2d at 182. (Emphasis added).

 The court first set forth the statute of limitations which applied to wrongful death actions. "The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death, and not thereafter." 12 P.S. § 1603. It then held that Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), which had applied the discovery rule to the statute of limitations then applicable to personal injury actions, was inapposite to a Wrongful Death Act claim since the statute applicable in Ayers provided that actions must be commenced "within two years of the time the injury was done . . ." 12 P.S. § 34, in contrast to the statutory requirement in Anthony that a Wrongful Death Act suit must be brought within one year after death -- a definitely established event which left no room for construction. The court stated that:

 
Statutory references to the occurrence of an "injury" or the accrual of a "cause of action" are subject to judicial interpretation as to the degree of knowledge plaintiff must possess before the statute will start to run. In contrast, the requirement that a wrongful death action be brought within two (sic) years after a definitely established event -- "death" -- leaves no room for construction. 436 A.2d at 184.

 Therefore, the court concluded, when the Legislature provided that a cause of action under the Wrongful Death Act may be brought within year after the death, and not thereafter, it did not mean one ...


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