Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4052 (131) Case No. 69 Jan. T. 1979
Martin Greitzer, Philadelphia, for appellants.
Daniel J. Ryan, Jr., Philadelphia, for appellees.
Tamilia, Lipez and Shiomos, JJ.*fn*
[ 343 Pa. Super. Page 542]
This is an appeal from the entry of an Order of summary judgment in the Court of Common Pleas of Philadelphia County. We affirm the Order of summary judgment in favor of appellees regarding the wrongful death action. Because we conclude that the lower court erred in dismissing appellants' survival action as time-barred, we vacate the Order of summary judgment regarding the survivial action and remand with instructions to reinstate the complaint.
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 so, a court must view the evidence in the light most
[ 343 Pa. Super. Page 543]
favorable to the non-moving party, and enter judgment only if the case is clear and free from doubt.
Berardi v. Johns-Manville, Corp., 334 Pa. Super. 36, 38-39, 482 A.2d 1067, 1068-69 (1984), quoting Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978).
Appellant's husband died on September 27, 1976. Appellant commenced a wrongful death*fn1 and survival action*fn2 on January 24, 1979, alleging decedent's death from injuries caused by exposure to asbestos and asbestos products manufactured, sold, and supplied by appellees during the course of his employment at the Philadelphia Naval Shipyard and elsewhere. The lower court held that the wrongful death action was time-barred under 12 P.S. § 1603, the one year statute of limitations applicable to wrongful death actions,*fn3 and that the survival action was time-barred under 12 P.S. § 34, the two year statute of limitations.*fn4 The court further held that the "discovery rule" was not applicable to toll the limitations periods, citing Anthony v. Koppers, 284 Pa. Super. 81, 425 A.2d 428 (1980), reversed 496 Pa. 119, 436 A.2d 181 (1981), and thus, appellant could not seek to toll the statutes of limitations based on her inability to discover the cause of decedent's death.
[ 343 Pa. Super. Page 544]
Recently in Pastierik v. Duquesne Light Co., 341 Pa. Super. 329, 331-332, 491 A.2d 841, ...