filed: May 24, 1985.
BETTY ANN POWELL, EXECUTRIX OF THE ESTATE OF JOHN D. POWELL, DECEASED, APPELLANTS,
JOHNS-MANVILLE CORPORATION, PITTSBURGH CORNING CORPORATION, OWENS-CORNING FIBERGLAS, EAGLE PICHER INDUSTRIES, INC., FORTY-EIGHT INSULATIONS, AND KEENE CORPORATION V. OWENS-ILLINOIS, INC., UNARCO INDUSTRIES, INC. AND CELOTEX CORPORATION
Appeal from the Order in the Court Common Pleas of Allegheny County, Civil No. G.D. No. 80-16278.
William R. Caroselli, Pittsburgh, for appellants.
Charles Kirshner, Pittsburgh, for appellee.
Spaeth, President Judge, and Brosky and Olszewski, JJ.
[ 342 Pa. Super. Page 546]
This appeal is from orders granting motions for summary judgment in actions under the Wrongful Death Act, 42 Pa.C.S. § 8301, and Survival Act, id. § 8302. Appellant alleges in her complaint that her husband's death was caused by exposure to asbestos products manufactured by appellees. The trial court filed two separate opinions, one disposing of the survival action and the second disposing of the wrongful death action. The opinions rest upon the assumption that to maintain an action under either statute, the decedent had to know that exposure to asbestos was the cause of his injuries. This assumption is mistaken. We therefore reverse and remand for trial.
The decedent was employed by Pennsylvania Industrial Chemical Corporation and Hercules Corporation from 1956 until January 1978, when he was diagnosed as having cancer of the colon. On July 6, 1978, he died. At the funeral home, one of the decedent's cousins, a physician, suggested to appellant that she look into whether her husband's death had been caused by exposure to asbestos. Appellant filed her complaint on July 3, 1980.
Appellees argue, and the trial court held, that since the decedent did not know that there was a causal relationship between his cancer and his exposure to asbestos, no cause of action accrued during his lifetime, and, therefore,
[ 342 Pa. Super. Page 547]
no cause of action existed, either to survive his death, or to form the basis of a wrongful death claim. We may dispose of this argument summarily. The very same argument was made, on identical facts -- wrongful death and survival actions, when at the time of his death the decedent did not know the cause of injury -- in Redecker v. Johns-Manville Products Corp., 571 F.Supp. 1160 (W.D.Pa. 1983). The District Court rejected the argument, and refused to enter summary judgment. In doing so, it correctly applied Pennsylvania law. The defendants in the District Court relied heavily on the reasoning of the trial court in this case. However, as the District Court observed, to accept that reasoning would "preclude suit for recovery in those cases where the victim dies instantly or before regaining consciousness as a result of the tortious conduct of another." 571 F.Supp. at 1167. We have nothing to add to the District Court's demonstration that such a result would be unwarranted, and contrary to law.*fn1
We think it appropriate, however, to comment on one aspect of the decision in Redecker, and of our decision here, lest it appear that there is a conflict in the cases on when the statute of limitations commences.
[ 342 Pa. Super. Page 548]
In Redecker, the District Court predicted, on the basis of the Supreme Court's decision in Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981), that the Supreme Court would rule that the statute of limitations commences "when the victim had, or reasonably should have had, the knowledge set forth by the Superior Court in Anthony [v. Koppers Co., Inc., 284 Pa. Super. 81, 96-97], 425 A.2d  at 436 , but commences at the latest Page 548} on the death of the victim, so that all actions must be brought within two years of that date at the latest." 571 F.Supp. at 1168 (emphasis added).*fn2 We agree that this statement reflects a correct understanding of the Supreme Court's opinion in Anthony. In Pastierik v. Duquesne Light Company, 341 Pa. Super. 329, 491 A.2d 841 (1985), we held that wrongful death and survival actions may be commenced more than two years from the date of death. However, Pastierik rested upon the interpretation of a different statute of limitations than those that were controlling in Anthony. In Anthony the suits had been commenced more than two years after death. The statute of limitations applicable to wrongful death actions provided: "[T]he action shall be brought within one year after death, and not thereafter." 12 P.S. § 1603.*fn3 The statute applicable to survival actions provided:
Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law.
12 P.S. § 34.*fn4
[ 342 Pa. Super. Page 549]
the "ability to ascertain the cause of action and to institute the suit within the applicable period of limitations." Id., 503 Pa. at 86, 468 A.2d at 471-72. All the raceway had to do was look at the tunnel after the collision to see what damage had been done. The decedent suffered no collision. Instead, it is alleged -- and on motion for summary judgment the allegation must be taken as true -- that the decedent suffered from a "creeping disease," the essence of which is that "[i]t is difficult to determine at what point the exposure caused the disease, and after the disease has been contracted, to discover its cause." Anthony v. Koppers Co., Inc., 284 Pa. Super. 81, 93, 425 A.2d 428, 434 (1980), rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). So far as appears now, the decedent despite reasonable diligence did not know the cause of his injury before his death. It follows that for purposes of deciding the motions for summary judgment, the statute of limitations had not run during his lifetime, from which it further follows that his survivors and representatives were entitled to sue for his injuries and those suffered by his family until the expiration of a period of two years from "the time the cause of action accrued." 42 Pa.C.S. §§ 5524(2); see 5502(a).*fn5