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STELLA E. GRAVINESE v. JOHNS-MANVILLE CORPORATION (01/20/84)

filed: January 20, 1984.

STELLA E. GRAVINESE, ADMINISTRATRIX OF THE ESTATE OF VICTOR GRAVINESE, DECEASED AND STELLA E. GRAVINESE IN HER OWN RIGHT, APPELLANT,
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, INC., H.K. PORTER CO., INC., SOUTHERN ASBESTOS COMPANY, EAGLE-PICHER INDUSTRIES, INC., AMATEX CORPORATION, DELAWARE ASBESTOS AND RUBBER COMPANY, PACOR, INC., FIBREBOARD CORPORATION, KEENE CORPORATION, GARLOCK, INC., J.P. STEVENS, INC., TURNER-NEWALL, LTD.



No. 2504 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4052 (131) Case No. 67 January Term, 1979.

COUNSEL

Neil R. Peterson, Philadelphia, for appellant.

Andrew F. Susko, Philadelphia, for appellees.

Cercone, President Judge, and Spaeth, Hester, Cavanaugh, Wickersham, Wieand and Hoffman, JJ. Spaeth, J., concurs in the result.

Author: Wieand

[ 324 Pa. Super. Page 435]

May wrongful death and survival actions be commenced more than seven years after death if the plaintiff, who is the decedent's widow and personal representative, is able to show that the actions were commenced within one year after she became aware that her husband's death had been caused by prolonged exposure to asbestos? The trial court held that the actions were barred by applicable statutes of limitations and entered summary judgments in favor of all named defendants.*fn1 We affirm.

Victor Gravinese died on September 8, 1971. In January, 1977, letters of administration were issued to his widow, Stella Gravinese, in New Jersey. She filed a complaint in

[ 324 Pa. Super. Page 436]

    the Court of Common Pleas of Philadelphia County on January 24, 1979. An amended complaint was filed on July 30, 1979 and contained wrongful death and survival actions grounded in negligence, strict liability in tort and breach of warranty. This amended complaint contained averments that the decedent had been a pipe insulator employed during the 1950's and 1960's aboard United States Navy ships, both in dry dock at the Philadelphia Navy Yard and elsewhere and on navigable waters of the United States. His death, plaintiff asserted, had been caused by cancer which, in turn, had been produced by continuous exposure to asbestos dust and fibers.

Prior to June 27, 1978, when the Judicial Code became effective, Section 2 of the Act of April 26, 1855, P.L. 309, 12 P.S. § 1603, provided that an action for wrongful death "shall be brought within one year after the death, and not thereafter."*fn2 A two year statute of limitations applicable to survival actions sounding in tort was contained in Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34.*fn3 Breach of warranty actions are governed by a four year statute of limitations. Uniform Commercial Code, Act of 1959, October 2, P.L. 1023, § 2, 12A P.S. § 2-725, repealed and reenacted, Act of 1979, November 1, P.L. 255, § 8, codified at 13 Pa.C.S. § 2725. See: Williams v. West Penn Power Co., 502 Pa. 557, 570, 467 A.2d 811, 818 (1983). Unless equitable considerations compel a different result, these statutes of limitations were applicable to the present actions and barred the commencement of a wrongful death action after September 7, 1972 and the survival action in trespass after September 7, 1973. The survival action for

[ 324 Pa. Super. Page 437]

    breach of warranty would have been barred, at the latest, on September 7, 1975.*fn4

Appellant suggests that admiralty law and the doctrine of laches must be applied to determine her right to maintain the present actions. Therefore, she argues, her actions are not subject to the limitations established by the Pennsylvania statutes. In Volpe v. Johns-Manville Corp., 323 Pa. Super. 130, 470 A.2d 164 (1983), this Court stated that one who had been employed as a welder at the Philadelphia Navy Yard, where he had come into contact with asbestos products while working on ships in dry dock and on navigable waters of the United States, was not engaged in a distinctly maritime role. Absent a maritime nexus, we held, a cause of action for injury sustained by exposure to asbestos is not controlled by principles of laches under maritime law. Such an action, rather, is subject to the time constraints contained in the Pennsylvania statutes of limitations. The decision in Volpe is determinative of the instant appeal. Appellant's decedent, a pipe coverer and insulator on ships both in dry dock and in navigable waters of the United States, was not engaged in activity that bore a significant relationship to traditional maritime activity. His work was not the same as that which was traditionally performed by members of a ship's crew. The dangers which he faced as a shipyard worker were not the traditional concerns of admiralty. Volpe v. Johns-Manville Corp., supra, 323 Pa. ...


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