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JOHN DOE AND MARY DOE v. JOHNS-MANVILLE CORPORATION (01/27/84)

filed: January 27, 1984.

JOHN DOE AND MARY DOE, HIS WIFE, APPELLANTS
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORP., FIBREBOARD CORPORATION, OWENS-CORNING FIBERGLASS CORP., NICOLET, INC., PITTSBURGH CORNING CORPORATION, CELOTEX CORPORATION, UNARCO INDUSTRIES, INC., EAGLE-PITCHER INDUSTRIES, INC., KEENE CORPORATION, PACOR, INC., BRAND INSULATIONS, INC., ARMSTRONG WORLD INDUSTRIES, INC., AMATEX CORPORATION, H.K. PORTER, CO., INC., SOUTHERN TEXTILE CORP., A.C. & S., INC., GAF CORP., OWENS-ILLINOIS, INC., UNIVERSAL INSULATION COMPANY, FORTY-EIGHT INSULATION, INC., DELAWARE INSULATION CO., CROWN, CORK & SEAL COMPANY, INC., D.A.R. INDUSTRIAL PRODUCTS, RAYBESTOS-MANHATTAN INC., APPELLEES



No. 2340 Philadelphia, 1982 Appeal from the Order in the Court of Common Pleas, Civil Division, Philadelphia County, No. 990 November Term., 1982 & 171 Misc. Dkt. No. 13

COUNSEL

Norman Perlberger, Philadelphia, for appellants.

John M. Toscano, Philadelphia, for appellees.

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

Author: Cavanaugh

[ 324 Pa. Super. Page 471]

This is an appeal from an order of the common pleas court which sustained preliminary objections to appellants' petition for declaratory relief. Appellants sought a determination by declaratory judgment that the statute of limitations does not begin to run in asbestos related disease cases until the injured person is actually disabled. The court, by grant of preliminary objection, refused to make such a determination and since we agree with this disposition, we affirm of the order of the trial court.

Appellants, John and Mary Doe,*fn1 assert that the husband appellant has worked with asbestos products since

[ 324 Pa. Super. Page 4721955]

.*fn2 In 1980, appellant was advised for the first time that he had a pulmonary condition in the form of calcification of portions of lung tissue which was caused by exposure to asbestos. Appellant describes this condition further as a pleural thickening, the formation of calcified tissue on the pleura, the membranes surrounding the lungs. This condition may be objectively determined in the sense that it is visible on chest x-ray. Appellant admits, however, that the presence of this condition has not caused him any substantial discomfort, nor any significant deficit in lung function or disability. He asserts, however, that his present condition is one that is highly likely to develop into parenchymal asbestosis, which may progress to the stage where it will result in severe disability and, even, death. Further, it is claimed that his present condition heightens his chance of suffering cancer of the lung and other organs. McGee's argument here centers on the two year statute of limitations as it applies to his situation. Specifically, in his Complaint for Declaratory Relief he states:

15. Petitioners' seek a declaration from this Court to determine when their cause of action first occurs under the [applicable statute of limitations, 42 Pa.C.S.A. §§ 5502(b) and 5524].

The problem faced by appellant is that given the commencement of the limitation period in April of 1980 when he first learned of his pleural thickening, he might be forced to file his lawsuit (as has occurred) and try his claim when he had no significant medical expense and was not disabled. His dilemma, he contends, is not resolved by the fact that under Pennsylvania law he could seek compensation for possible future related diseases, since appellant feels that his continued good health through the time of trial would likely limit the chances of recovery for future diseases. The solution which McGee seeks in the present suit by way of the Declaratory Judgment Act, 42 Pa.C.S. § 7531 et seq.,

[ 324 Pa. Super. Page 473]

    is a determination that his cause of action for asbestos related disease does not accrue, and, therefore, the statute of limitations does not begin to ...


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