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DAVID AND THELMA CATHCART v. KEENE INDUSTRIAL INSULATION (01/13/84)

filed: January 13, 1984.

DAVID AND THELMA CATHCART, APPELLANTS,
v.
KEENE INDUSTRIAL INSULATION, AMATEX, SOUTHERN ASBESTOS, NICOLET INDUSTRIES, DELAWARE ASBESTOS AND RUBBER CO., JOHNS-MANVILLE, RAYBESTOS-MANHATTAN, PHILIP CAREY, OWENS-CORNING FIBERGLAS, PITTSBURGH CORNING, PHILADELPHIA ASBESTOS, EHRET, BALDWIN-HILL, EHRET BALDWIN-HILL, UNITED ASBESTOS AND RUBBER CO. (UNARCO), PABCO INDUSTRIAL PRODUCTS DIVISION, GAF, H.K. PORTER, J.P. STEVENS, CERTAIN-TEED PRODUCTS CORP., EAGLE-PICHER FORTY-EIGHT INSULATION, ASBESTOS TEXTILE CO., JOHN DOE. DAVID AND THELMA CATHCART, APPELLANTS, V. JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYBESTOS-MANHATTAN, FORTY-EIGHT INSULATION, NICOLET INDUSTRIES, PITTSBURGH CORNING CORPORATION, GAF, ARMSTRONG CORK CO., UNARCO INDUSTRIES, H.K. PORTER CO., SOUTHERN ASBESTOS COMPANY, EAGLE-PICHER, DELAWARE ASBESTOS & RUBBER CO., FIBREBOARD CORP., PABCO INDUSTRIAL PRODUCTS DIVISION, KEENE CORP., GLEN ALDEN, RAPID AMERICAN, TURNER & NEWALL, KEASBEY & MATTISON CO., CERTAIN-TEED PRODUCTS CORP., U.S. RUBBER CO., INC., PHILIP CAREY MANUFACTURING CO., ASBESTOS TEXTILE INSTITUTE, UNI-ROYAL INC., CAROLINA ASBESTOS CO., J. FRANKLIN BURKE CO., GENERAL ASBESTOS CO., ASBESTOS TEXTILE CO., THERMOID COMPANY, ASTENHILL MANUFACTURING CO., RUBEROID COMPANY



Appeal from the Order of the Court of Common Pleas, Civil Dision, of Philadelphia County, No. 923 February Term, 1976. Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 88 (123) September Term, 1978 (Case #8).

COUNSEL

Joseph D. Shein and Robert E. Paul, Philadelphia, for appellants.

Charles J. Kolinoski, Philadelphia, for appellees.

Cercone, President Judge, and Spaeth, Hester, Cavanaugh, Wickersham, Wieand and Hoffman, JJ. Wickersham, J., files a concurring opinion in which Spaeth and Hoffman, JJ., join.

Author: Hester

[ 324 Pa. Super. Page 129]

Appellants, David and Thelma Cathcart, brought suit on February 6, 1976, at No. 923 February Term, 1976 (hereinafter referred to as the 1976 action) against the following thirty-one defendants (listed alphabetically), by filing a Writ of Summons in Trespass: Amatex Corp.; American Textile; Asbestos Textile Corp.; Baldwin Hill; Benjamin Foster Div. of Amchem Products, Inc.; Carey; Carolina Narrow Fabric Co.; Certain-Teed Products Corp.; Delaware Asbestos and Rubber Co.; Eagle-Picher Industries, Inc.; Eastern Refractory, Inc.; Ehret; Ehret Baldwin Hill; Forty-Eight Insulation Inc.; GAF Corp.; Grant Wilson; Janos Asbestos; Johns-Manville; Keene Industrial Insulation; Nicolet Industries; Owens-Corning, Pabco Industrial Products Division; Pars Manufacturing; Philadelphia Asbestos; Pittsburgh Corning; H.K. Porter Co.; Raybestos-Manhattan; Southern Asbestos; J.P. Stevens; Taylored Industries; and United Asbestos and Rubber Co. (UNARCO). Appellants also named "John Doe" in an apparent attempt to preserve the right to later name other defendants who were unknown at the time. The action was filed against these various defendants because it was thought that they might have supplied asbestos products to appellant David Cathcart's place of employment, the Philadelphia Naval Shipyard, and thus have contributed to Mr. Cathcart's contraction of asbestosis and other related diseases. GAF, Owens-Corning, and Pars accepted service of the summons.*fn1 Appellants did not formally effect service upon the other defendants,*fn2 although UNARCO took action

[ 324 Pa. Super. Page 130]

    which indicated that it was submitting to the jurisdiction of the court, and counsel entered appearances on behalf of Amatex and Certain-Teed.*fn3

On September 5, 1978, appellants filed a complaint at a new number, No. 88 (123) September Term, 1978 (hereinafter referred to as the 1978 action) against thirty-one defendants, sixteen of which had also been named in the 1976 action: Asbestos Textile Company; Philip Carey Manufacturing Co.; Certain Teed Products Corporation; Delaware Asbestos and Rubber Co.; Eagle Picher Industries, Inc.; Forty-Eight Insulation, Inc.; GAF Corporation; Johns-Manville Corporation; Keene Corporation; Nicolet Industries, Inc.; Fibreboard Corporation, Pabco Industrial Products Division; Pittsburgh Corning Corporation; H.K. Porter Co., Inc.; Raybestos Manhattan, Inc.; Southern Asbestos Company; and UNARCO Industries, Inc. Fifteen of the defendants were named for the first time: Armstrong Cork Company; Asbestos Textile Institute, Inc.; Asten Hill Manufacturing Co.; J. Franklin Burke Co.; Carolina Asbestos Co.; General Asbestos Co.; Glen Alden, Inc.; Keasbey Mattison Co.; Johns-Manville Sales Corporation; Rapid American, Inc.; Ruberoid Company, Inc.; Thermoid Co.;

[ 324 Pa. Super. Page 131]

Turner Newall, Ltd.; Uni-Royal, Inc.; and U.S. Rubber Co. Inc. Owens-Corning and Janos, both of which had been named in the 1976 action and had accepted service of the summons, were not named in the 1978 action. Amatex, on whose behalf an appearance had been entered by counsel in the 1976 action, was similarly not named as a defendant in the 1978 action.

In January, 1978, Pars ruled the plaintiffs to file a complaint in the 1976 case, and when the plaintiffs failed to file a complaint, obtained a judgment of non pros. On September 25, 1980, defendant Raybestos filed a motion for summary judgment in the 1978 action "on behalf of all defendants except Owens Corning Fiberglass Corporation and GAF Corporation." On October 1, 1980, Pittsburgh Corning filed a motion for summary judgment in the 1978 action "in favor of all defendants, against the plaintiffs." Motions for summary judgment were also filed in the same case within the next four months by Pacor, Keene, and Eagle-Picher. All of the defendants named in the 1976 action evidently filed motions for non pros of the 1976 action in November, 1980, although there is no record on the docket of such filing. On January 2, 1981, the plaintiffs finally filed a complaint in the 1976 case. On April 30, 1981, the lower court issued an opinion and order non-prossing the 1976 case as to all named defendants except Owens-Corning, Amatex,*fn4 GAF, Certain-Teed, and UNARCO. On the same date, the lower court also issued an opinion and order in the 1978 case, granting summary judgment and dismissing Thelma Cathcart's claim for emotional distress as to all defendants, denying summary judgment as to GAF, Certain-Teed, and UNARCO on David Cathcart's claims and on Thelma Cathcart's consortium claim, and granting summary judgment in favor of the remaining twenty-eight defendants as to David Cathcart's claims and

[ 324 Pa. Super. Page 132]

Thelma Cathcart's consortium claim. The plaintiffs filed timely notices of appeal in both actions.*fn5

A court properly enters a judgment of non pros when a party to the proceedings has shown a want of due diligence by failing to proceed with reasonable promptitude, when there has been no compelling reason for the delay, and when the delay has caused some prejudice to the adverse party. Carter v. Amick, 246 Pa. Super. 530, 534, 371 A.2d 961, 963 (1977). In the case before us, in ruling on the defendants' motions for non-pros of the 1976 action, the lower court held that appellants had not abandoned their claims as to any of the defendants. The lower court also ruled that appellants had not delayed unreasonably with respect to GAF, UNARCO, Certain-Teed, Amatex, and Owens-Corning, since these five defendants had been made parties to the 1976 action, and since there had been activity by appellants (filing a complaint, albeit at a different number and adding many new parties, petitioning to consolidate the 1976 and 1978 actions, and engaging in substantial discovery) which indicated that they were pursuing the 1976 action. With respect to the remaining twenty-five defendants,*fn6 the lower court found: 1) that appellants had delayed

[ 324 Pa. Super. Page 133]

    unreasonably in prosecuting their case by not taking any action from the time that they initiated suit in February, 1976, until they attempted to serve copies of a complaint in January, 1981, a period of almost five years; 2) that appellants' delay "was the result of an effort to save costs" and was "inexcusable"; and 3) that the twenty-five defendants had been prejudiced (although the lower court was not clear as to what the prejudice actually was). Appellants do not challenge these findings.

In arriving at its conclusion that the plaintiffs had delayed unreasonably in waiting almost five years after initiating their suit until attempting to bring the twenty-five defendants within the court's jurisdiction, the court made a "preliminary determination" that twenty-five of the defendants had not waived service of process or subjected themselves to the court's jurisdiction.*fn7 It is this portion of the lower court's findings that appellants dispute. Appellants argue that the twenty-five defendants waived the right to challenge personal jurisdiction because of participation of counsel in court conferences, in the work of a defense counsel committee, and in the drafting of interrogatories which were served upon appellants, and because the defendants received and benefited from answers to interrogatories. Appellants argue that the twenty-five defendants fall into the same category as the remaining five defendants, and therefore should not have had non pros granted in their favor.

The case before us is one of many asbestos cases filed by the law firm which represents the Cathcarts. The first of these suits will be referred to herein as Dellamo. On May 19, 1976, a preliminary conference was held pursuant to

[ 324 Pa. Super. Page 134]

    notice issued under the Dellamo caption. The court noted on the record that the defense attorneys

     are here informally. Some of them have indicated they are here on behalf of a client with regard to a specific action, and with respect to any other action against that client, they may or may not be here, and this is purely, if I understand correctly, a courtesy to the Court that they are here discussing the matters in a general fashion.

Mr. Shields, Mr. Sprecher, may represent a given client in a given plaintiff's action, but given another plaintiff, the carrier may be different. The representation may be different. And, these gentlemen are not in a position to bind themselves in that fashion . . . .

The court was careful to point out that if defendants "have not been served, they are not before [the Court]." At a hearing held on September 13, 1976, on the plaintiffs' Petition for Leave to Serve Summons by Registered Mail, the lower court again pointed out:

I do not presently have before [me] any party or parties except those as to whom Complaint or writs have been issued and/or served. I have only putative defendants as to all other potential defendants as to whom writs have been issued, but have not heretofore been served upon them. Any Order that I would enter . . . would have no judicial effect upon anybody except those persons who are -- or, parties who are -- presently in a formal sense subject to the jurisdiction of the Court.

Any Order that I would enter as to those who have been named but never have submitted voluntarily to the jurisdiction of the Court or who have not appeared in some other fashion or have been properly served in accordance with the statutory proceeding are nothing more than putative defendants . . . .

The lower court thus made it perfectly clear that no defendants were waiving personal jurisdiction by appearing at the conferences.

With regard to the interrogatories, the lower court's order of July 21, 1977 stated: "Service by the Committee of

[ 324 Pa. Super. Page 135]

Counsel, or sub-committee designated thereby of such standard set of interrogatories upon the Committee of Counsel for the adversary parties shall be deemed to be service upon all counsel of record for the respective parties." (Emphasis added). The interrogatories filed under the Dellamo caption included the following language: "[P]laintiff shall answer these interrogatories notwithstanding the status of actual service on each of the named defendants and without the waiver of service by each of the same defendants."

It is well-established that a party may waive objections to personal jurisdiction by consenting to the court's authority. Radakovich v. Weisman, 241 Pa. Super. 35, 41, 359 A.2d 426, 429 (1976). For a waiver to occur, a party must take some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forego objection to the defective service. O'Barto v. Glossers Stores, Inc., 228 Pa. Super. 201, 205, 324 A.2d 474, 476 (1974). It seems clear to us that the defendants and the lower court were careful to avoid waiving the defendants' right to personal service. We agree with the lower court that the twenty-five defendants did not submit to the jurisdiction of the court in the 1976 action.

Pennsylvania's statute of limitations for personal injury cases is two years.*fn8 Evidently in an effort to ameliorate the sometimes-harsh effects of the statute, Pennsylvania courts have adopted what has come to be known as the "discovery rule."*fn9 Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has

[ 324 Pa. Super. Page 136]

    discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury. See Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). See Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959), and Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895), involving subterranean rights. See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), involving medical malpractice. The discovery rule was recently applied by a panel of our Court in Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 450 A.2d 681 (1982). In Staiano, the panel approved a variation of the discovery rule which was articulated in Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290. Under this "Volpe test," three independent phases of knowledge must be known or knowable to a plaintiff before the statute of limitations begins to run: (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. Although the Volpe test has a nice "ring" to it, it unnecessarily complicates the question of when the statute begins to run. For instance, what does "operative" in "operative cause" mean, and can it be possible for a plaintiff to know the "operative cause" of his injury yet not know the relationship between the "operative conduct" and the injury? The discovery rule has been stated in an understandable manner by our Supreme Court, and we see no reason to complicate the law by adopting a modified version of the rule for cases involving diseases contracted from exposure to hazardous substances. We find that the statute of limitations begins to run in "creeping disease" cases when the plaintiff knows, or reasonably should know: (1) that he has been injured,*fn10 and (2)

[ 324 Pa. Super. Page 137]

    that his injury has been caused by another party's conduct. Stating the test in this manner will result in conformity with various other jurisdictions which have addressed this same problem.*fn11

As noted previously, appellants filed a second suit in 1978, naming fifteen of the defendants for the first time. The lower court granted summary judgment in favor of these fifteen defendants (as well as thirteen of the sixteen that had been named in both the 1976 and 1978 actions), finding that the statute of limitations barred suit against them. Appellants argue on appeal that, "[s]ince the difficulties in identifying all the defendants are so great . . .,*fn12 [appellants] should be permitted to proceed against a defendant whenever identified." In other words, appellants argue that the statute of limitations did not commence running against defendants until they were identified as having supplied asbestos to David Cathcart's place of employment. We disagree.

In Keating v. Zemel, 281 Pa. Super. 129, 421 A.2d 1181 (1980), a medical malpractice case, a panel of our Court was faced with the issue that now confronts us. In that case, the lower court found that an amended complaint filed against the third of three defendants was filed untimely. Our Court affirmed, noting that the plaintiff, exercising reasonable diligence, would unquestionably have been able to identify the third defendant as the party who had left a tube inside the plaintiff. In Staiano, supra, an asbestos case, the appellants argued that the statute of limitations

[ 324 Pa. Super. Page 138]

    did not begin to run until they knew "the proper parties to sue" and "the identities of other potential defendants." A panel of our Court rejected this argument, stating: "Here it is enough that the appellant-husband knew that his asbestosis was caused by the inhalation of asbestos dust emanating from asbestos products on the work site. We find no reason to postpone the commencement of the statute until a plaintiff has in addition discovered who manufactured the products that he knows have injured him." Similarly, in the case before us, by using reasonable diligence, appellants could have determined the names of the parties that had provided the asbestos.

Appellants contend that Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 387 A.2d 480 (1978), supports their position. Grubb is indeed troublesome. In Grubb, the plaintiff had been rendered quadriplegic during an operation for a herniated cervical disc. She brought suit against the hospital and against her doctors, who joined the manufacturer (Stryker Corporation) of an allegedly defective bone plug cutter which had been used in the operation. The manufacturer was joined two years and thirteen days after the date of the operation, yet the court held that the manufacturer had been joined within the statutory period, stating: "We find no evidence in the record to indicate that Mrs. Grubb was in a position on December 2, 1964, while still a paralyzed patient at Albert Einstein Medical Center to determine the causal relationship between her injuries and the Stryker plug cutter." 255 Pa. Super. at 399, 387 A.2d at 489.

Staiano distinguished Grubb, stating that what tolled the statute of limitations in Grubb was that the plaintiff had not known, and could not reasonably have been expected to find out, that a defective surgical instrument of any manufacturer had caused her injury. Keating observed that Grubb "is not entirely clear." We note that Grubb was a Per Curiam Opinion, in which five of the six sitting judges concurred rather than joined. Although we do not find that

[ 324 Pa. Super. Page 139]

    require surgical removal of the eye. Mitchell similarly involved improper procedure or misdiagnosis which resulted in the plaintiff's condition becoming permanent. These cases simply do not stand for the proposition advanced by appellants. It is not, as appellants contend, that the statute of limitations did not begin to run in each case until the plaintiff knew that the injury was permanent, but rather that the actionable injury was the aggravation of an existing injury, making it permanent. In other words, there was no actionable wrong at all until the defendant made the injury more serious or permanent. Such a situation must be distinguished from one such as in the case before us, in which an injury occurs, purportedly as the result of someone's negligence, and grows increasingly worse because of the nature of the injury rather than because of someone's further action or inaction.

Appellants argue that the trial court erred in determining that the statute of limitations on Thelma Cathcart's claim for loss of consortium began to run on the same date that her husband's personal injury claim began to run. In Staiano, 304 Pa. Super. at 282, 450 A.2d at 682, a panel of this Court held that a wife's claim for loss of consortium depended on her husband's claim for purposes of the statute of limitations. The lower court in the case before us properly granted summary judgment against Mrs. Cathcart on this claim.

Appellants contend that a jury should have been permitted to determine the date that the statute of limitations began to run. Whether the statute of limitations has run on a claim is usually a question of law for the judge; however, at times, a factual determination by the jury may be required. Smith v. Bell Telephone Co., 397 Pa. at 142, 153 A.2d at 481. In the case before us, David Cathcart indicated in his deposition that he was aware, at least by the early part of 1976, that he had contracted asbestosis through exposure to asbestos at his place of employment:

"Q. Who is Dr. Marshall? Dr. Wayne Marshall?

[ 324 Pa. Super. Page 141]

A. I was sent to him from the Navy Yard.

Q. The Navy Yard sent you to him?

A. Yes.

Q. When did the Navy Yard send you to him?

A. It must have been around '73, '74.

Q. And, what did Dr. Marshall do for you?

A. Well, he examined me, breathing and everything. And, he put me in the hospital for three days. He started putting tubes, lights down my throat and everything. And he found out there was something wrong with the inside of my lung. And, I stayed there and they gave me other -- I took all kinds of x-rays and everything. I must have had about fifteen x-rays or more. I stayed there for ...


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