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AMEDEO VOLPE AND ANNE C. VOLPE v. JOHNS-MANVILLE CORPORATION (12/23/83)

filed: December 23, 1983.

AMEDEO VOLPE AND ANNE C. VOLPE, H/W, APPELLANTS,
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYBESTOS-MANHATTAN INC., OWENS-CORNING FIBERGLASS CORP., FORTY-EIGHT INSULATION, INC., NICOLET INDUSTRIES, INC., PITTSBURGH CORNING CORPORATION, GAF CORPORATION, CELOTEX CORPORATION, ARMSTRONG CORK COMPANY, UNARCO INDUSTRIES, H.K. PORTER CO., INC., SOUTHERN ASBESTOS COMPANY, J.P. STEVENS INC., EAGLE-PICHER INDUSTRIES, INC., AMATEX CORPORATION, DELAWARE ASBESTOS AND RUBBER COMPANY, PACOR, INC., FIBREBOARD CORPORATION, KEENE CORPORATION, CARLOCK, INC.



No. 1219 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Civil Division of Philadelphia County at No. 2052 (89) Case No. 17 January Term, 1977.

COUNSEL

Martin Greitzer, Philadelphia, for appellants.

Lowell A. Reed, Jr., Philadelphia, for appellees.

Cercone, President Judge and Spaeth, Hester, Cavanaugh, Wickersham, Wieand and Hoffman, JJ.

Author: Wickersham

[ 323 Pa. Super. Page 132]

In this case we are asked to decide whether admiralty law, rather than the Pennsylvania statute of limitations, is applicable to Amedeo Volpe's claims that his asbestosis is due to defendants' conduct. This litigation began in 1977, when Amedeo Volpe, formerly a civilian employee at the Philadelphia Naval Shipyard, filed a complaint in trespass and assumpsit against Johns-Manville Corporation and numerous other defendants (hereinafter known as Defendants). Mr. Volpe's complaint alleged that the Defendants were all engaged in the business of mining, manufacturing, selling, or distributing asbestos and asbestos products and that he came into contact with Defendants' asbestos products during his employment at the Navy Yard. The complaint further alleged that Mr. Volpe came into contact with asbestos as he worked on ships both in dry dock and on the navigable waters of the United States.

After Defendants filed preliminary objections to Volpe's complaint, the complaint was amended. In response, the Defendants filed an answer and new matter. The Defendants admitted that asbestos products were placed in the stream of commerce but denied the other allegations of the

[ 323 Pa. Super. Page 133]

    complaint. As new matter, the Defendants asserted that Volpe's claims were barred by the statute of limitations, laches, and failure to give notice on the warranty claims.

The Defendants then moved for summary judgment on the ground that Volpe's claim is barred by the statute of limitations. Oral argument was conducted before the Honorable Harry A. Takiff of the Philadelphia County Court of Common Pleas. After consideration, Judge Takiff ruled that admiralty law did not control the case and that the two year Pennsylvania statute of limitations for torts barred Volpe's suit. This appeal timely followed.

The pleadings and depositions established the following facts. Amedo Volpe was employed at the Philadelphia Naval Shipyard from 1967 to 1974. In October of 1973 Mr. Volpe was given his yearly physical examination. The physical included x-ray examinations of Mr. Volpe's lungs; it was these routine x-rays that led a physician at the Navy Yard to diagnose asbestosis. Mr. Volpe testified that he first heard he had asbestosis from the Navy Yard doctor in November 1973. Eventually, Mr. Volpe was referred to Dr. Harold Israel, a lung specialist.

It was Dr. Israel who first explained to Mr. Volpe what asbestosis is. As Mr. Volpe related during a deposition, Dr. Israel told him that asbestosis caused a concrete-like formation in the lungs and that while his condition would not improve, further exposure to asbestos could worsen the disease. Mr. Volpe then decided to avoid exposure to asbestos at work; in December of 1973, Mr. and Mrs. Volpe obtained and read an article in the New Yorker magazine which described the danger posed by asbestos in the workplace. Mr. Volpe retired from the Navy Yard in early 1974 because of his health problems (arteriosclerosis and asbestosis). This suit followed.

Questions of admiralty law are, of course, most frequently decided by the federal courts. Mr. Volpe relies heavily on a decision from the Court of Appeals for the Fourth Circuit, White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71

[ 323 Pa. Super. Page 134]

L.Ed.2d 319 (1982). In White, five shipyard workers received jury verdicts against various manufacturers of asbestos products; the district court granted judgment n.o.v. in favor of the defendants and declined to exercise admiralty jurisdiction because the alleged injuries suffered bore no reasonable relationship to traditional maritime activity. The circuit court stated that the issue ...


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