No. 2400 Philadelphia 1982, Appeal from the Order of August 2, 1982 by the Court of Common Pleas, Civil Action, Law for the County of Philadelphia at No. 2874 August Term, 1979.
Robert E. Paul, Philadelphia, for appellants.
Fredric Goldfein, Philadelphia, for appellees.
Cirillo, Olszewski and Montgomery, JJ.
[ 336 Pa. Super. Page 135]
Appellants, Richard and Catherine Price, filed a complaint in trespass on August 22, 1979 against appellee, Bell Asbestos Mines Ltd., alleging personal injuries due to Mr. Price's exposure to asbestos during his employment as a weaver of dryer felts sold by Asten-Hill, Inc.. On November 13, 1979 Bell joined Amatex, Asbestos Corporation, Raybestos-Manhatten, National Gypsum, Cassiar Asbestos and Asten-Hill as additional defendants.*fn1 On August 1, 1983 the lower court granted appellees' motion for summary judgment based upon the expiration of the statute of limitations.
[ 336 Pa. Super. Page 136]
Mr. Price was employed by the Asten-Hill Company from 1947-1961 as a weaver. Part of his duties included weaving asbestos fibres into asbestos cloth. On November 12, 1964 Mr. Price filed for workman's disability compensation and was represented by Barton Post, Esquire. After hearings, the referee determined that Mr. Price had partial disability from asbestosis. On appeal to the Workmen's Compensation Appeal Board, Mr. Price argued that his disability from asbestosis was total. The appeal was dismissed by the Board. The instant complaint in trespass was filed in August, 1979. On February 19, 1982 Mr. Price died. Mrs. Price filed a suggestion of death and substitution of party. On August 2, 1983 the lower court granted appellees' motion for summary judgment and this appeal followed.
Appellant raises three issues in support of his argument that summary judgment was improperly granted by the court below. First, he argues that the lower court erred in applying the discovery rule defined in Volpe v. Johns-Manville, 323 Pa. Super. 130, 470 A.2d 164, 4 Phila. County Reporter 290 (1980), to the facts of this case. We hold that the lower court properly applied the Volpe rule as the law of Pennsylvania at the time this case was decided. Further, we hold summary judgment would have been appropriate under the discovery rule defined in Cathcart v. Johns-Manville, 324 Pa. Super. 123, 471 A.2d 493 (1984).
The short answer to appellant's argument is that the motion for summary judgment in this case was granted in August, 1983. At that time appeals were pending before this Court in Cathcart (opinion filed January 13, 1984) and in Volpe (opinion filed December 23, 1983). Therefore the lower court did not err in applying the three-step Volpe test to determine when the statute of limitations commenced to run on appellant's claim.
We reach the same result under the two-pronged test defined by Cathcart. This Court, en banc, has modified the Volpe test to hold that the statute of limitations in
[ 336 Pa. Super. Page 137]
asbestos cases begins to run when a plaintiff "knows, or reasonably should know, that he has been injured and that his injury has been caused by another party's conduct."*fn2 Cathcart, 324 Pa. Super. at 136-137, 471 A.2d at 500. Applying this test to the instant case, there is no question that Mr. Price knew of his injury in 1964, fifteen years before he filed his complaint. In his November, 1964 petition, accompanied by a sworn affidavit, under the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., Mr. Price declared that the disability for which he was seeking compensation resulted from his employment in an occupation having an asbestos hazard. Mr. Price further stated: "I have had continual physical problems since August of 1963, and it is only recently that I discovered I had asbestosis." After a hearing on Mr. Price's claim, the referee found that he had asbestosis, but that his disability was partial. Mr. Price's appeal from the referee's decision, signed with a sworn affidavit, stated: "The Referee was correct in his ...