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LILLIAN BERARDI v. JOHNS-MANVILLE CORPORATION (10/05/84)

filed: October 5, 1984.

LILLIAN BERARDI, EXECUTRIX OF THE ESTATE OF DOMENIC BERARDI, DECEASED AND LILLIAN BERARDI, IN HER OWN RIGHT, APPELLANTS
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYBESTOS MANHATTAN, INC., FORTY EIGHT INSULATION, INC., NICOLET INDUSTRIES, INC., PITTSBURGH CORNING CORPORATION, GAF CORPORATION, ARMSTRONG CORK COMPANY, UNARCO INDUSTRIES, INC., H.K. PORTER CO., INC., SOUTHERN ASBESTOS COMPANY, EAGLE-PICHER INDUSTRIES, INC., FIBREBOARD CORPORATION, PABCO INDUSTRIAL PRODUCTS DIVISION, KEENE CORPORATION, CERTAIN-TEED PRODUCTS CORP., PACOR, INC., CELOTEX CORPORATION, AMATEX CORPORATION



No. 01009 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 88(123) Case No. 4.

COUNSEL

Robert Paul, Philadelphia, for appellants.

James L. McKenna, Philadelphia, for appellees.

Olszewski, Popovich and Cercone, JJ. Olszewski, J., filed a concurring opinion.

Author: Popovich

[ 334 Pa. Super. Page 38]

This is an appeal by Lillian Berardi, Executrix of the Estate of Domenic Berardi, Deceased, and Lillian Berardi, in her own right, appellants, from the entry of an order in the Court of Common Pleas for the County of Philadelphia, in favor of appellees, Johns-Manville Corporation, Johns-Manville Sales Corporation, Raybestos Manhattan, Inc., Forty-eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Fibreboard Corporation, Pabco Industrial Products Division, Keene Corporation, Certain-Teed Products Corp., Pacor, Inc., Celotex Corporation, and Amatex Corporation, granting their motion for summary judgment. We affirm.

Summary judgment should be entered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.Civ.P. 1035. In deciding whether this is

[ 334 Pa. Super. Page 39]

    so, a court must view the evidence in the light most favorable to the non-moving party, and enter judgment only if the case is clear and free from doubt.

Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971).

The lower court entered summary judgment, holding that Decedent clearly had knowledge of his cause of action no later than March 17, 1976, but suit was not commenced until September 5, 1978, approximately six months after the limitations clock had run.

Opinion, Takiff, J. at 5.

Appellants make several claims of error. First, they urge that the Statute of Limitations does not bar the within action.

In the instant action, suit had been instituted by the filing of a complaint on September 5, 1978. The statute of limitations which governed the action was the Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June 27, 1978, currently codified at 42 Pa.C.S.A. § 5524(2).*fn1

Domenic Berardi died on May 6, 1981. On July 9, 1981, his wife and executrix of his estate, was substituted as plaintiff. Judge Takiff sets forth the pertinent facts as follows:

Plaintiff's decedent, DOMENIC J. BERARDI, worked as a pipefitter at the Philadelphia Naval Shipyard for approximately twenty years between 1941 and 1974. He was admitted to the Hospital of the University of Pennsylvania (HUP) on May 6, 1974, with a pulmonary condition. A letter from his treating physician, Dr. Robert Mayock, a lung specialist, dated May 25, 1974, indicates

[ 334 Pa. Super. Page 40]

    that there had been a previous history of chest disorders which had been followed at the Naval Yard Clinic for the past several years. On his most recent visit decedent was told that he had calcium deposits in his lungs and a repeated series of X-rays were obtained. Decedent's major symptomatology prior to this hospitalization were fatigue and shortness of breath. When Mr. Berardi was discharged on May 10, 1974, the final diagnosis was "pleural asbestosis with obstructive lung disease and hypertensive cardiovascular disease."

On May 31, 1974, Dr. Frank Bove, decedent's family physician, filed a report in connection with Mr. Berardi's disability retirement application in which the diagnosis was, inter alia, asbestosis with pleural plaques. Decedent's signature appeared on the topmost part of this form; the bottom part was apparently filled in by his physician. On June 14, 1974, decedent himself filled out a "Notice of Injury or Occupational Disease" for the purpose of receiving Workman's Compensation benefits. He listed the date and hour of injury as prior to June 14, 1974, the cause of injury as working "with asbestos material for 20 years" and the nature of injury as "lungs." Decedent signed this form as well.

A letter of October 11, 1974, from Dr. E. Wayne Marshall to Melvin T. Johnson, M.D., the Staff Medical Officer of the U.S. Civil Service Commission, indicates that decedent saw Dr. Marshall, complaining of chest problems and hypertension. X-rays indicated pleural thickening and plaques and the diagnosis was "probable asbestosis." Marshall proclaimed Mr. Berardi totally disabled. In a second hospitalization at HUP ...


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