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Ross v. Johns-Manville Corp.

decided: July 10, 1985.

JEAN E. ROSS, EXECUTRIX OF THE ESTATE OF URBAN F. ROSS, DECEASED, AND IN HER OWN RIGHT, APPELLANT
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYBESTOS-MANHATTAN, INC., UNARCO INDUSTRIES, INC., H.K. PORTER COMPANY, INC., AND AMATEX CORPORATION, APPELLEES V. OWENS-ILLINOIS GLASS COMPANY, OWENS-CORNING FIBERGLAS CORPORATION, CELOTEX CORPORATION, EAGLE-PICHER INDUSTRIES, INC., PITTSBURGH CORNING CORPORATION, GAF CORPORATION, FORTY-EIGHT INSULATIONS, INC., NICOLET INDUSTRIES, SOUTHERN TEXTILE CORPORATION, KEENE CORPORATION, GARLOCK, INC., AND PACOR, INC., APPELLEES



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 80-4819).

Seitz, Circuit Judge.

Author: Seitz

SEITZ, Circuit Judge.

Jean E. Ross, as executrix of the estate of Urban F. Ross and in her own right, appeals from orders of the district court granting summary judgment in favor of the defendants and third-party defendants in this personal injury action. Subject matter jurisdiction is based on diversity of citizenship. 28 U.S. C. § 1332 (1982). This court has jurisdiction pursuant to 28 U.S.C. § 1291 (1982).

I.

The essential facts are not in dispute. Urban F. Ross, a life-long New Jersey resident, worked as a shipfitter for the New York Shipbuilding Company in Camden, New Jersey, from 1942 to 1944 and from 1946 to 1947. From approximately 1956 until 1963, Ross was employed as a shipfitter at the Philadelphia Naval Shipyard. In each of these positions, Ross was exposed to asbestos products.

In 1963, Ross learned that he had asbestosis. Sixteen years later, in 1979, he was diagnosed as suffering from cancer of the colon. In 1981, Ross learned that he had lung cancer. He passed away in December of 1982.

Urban Ross (hereinafter "the decedent") and his wife Jean commenced this action in the district court for the Eastern District of Pennsylvania on December 15, 1980. The complaint alleged numerous causes of action, sounding in negligence, strict liability, breach of warranty, fraud and misrepresentation, which relate to the decedent's exposure to asbestos.*fn1 The defendants were various manufacturers and distributors of asbestos products. Several other manufacturers and distributors were impleaded as third-party defendants. Motions for summary judgment were filed on behalf of all defendants and third-party defendants*fn2 on the ground that plaintiff's claims were time-barred. The district court granted defendants' motions without opinion. This appeal followed.

II.

Since the district court did not render an opinion when it dismissed plaintiff's claims as untimely, we must review the decision of that court without any indication of either the reasoning employed or the authorities relied upon by the district court. Consequently, we begin our analysis with a brief summary of the parties' contentions.

Plaintiff contends that the district court erred in dismissing the cancer claims on timeliness grounds. She argues that the New Jersey two year statute of limitations for personal injury actions should have been applied and that under New Jersey law plaintiff's cancer claims accrued for statute of limitations purposes when the decedent first discovered that he was suffering from colon cancer. Alternatively, plaintiff maintains that even if the two year Pennsylvania statute of limitations is applied, New Jersey law should determine when the cause of action accrued. Under either of plaintiff's theories, the applicable statute of limitations commenced running in 1979. Thus, her complaint, which was filed in 1980, was timely with respect to the cancer claims.

The defendants, on the other hand, maintain that the Pennsylvania statute of limitations is controlling and that in applying this limitations period, Pennsylvania law determines when the cause of action accrues. The defendants argue that under Pennsylvania law the plaintiff has only a single, indivisible claim for all asbestos-related injuries and that the two year Pennsylvania statute of limitations began to run in 1963 when the decedent learned of his initial asbestos-related injury.

Thus, two issues are presented for our review. First, we must determine whether the New Jersey or the Pennsylvania statute of limitations should be applied in this case. Second, in applying the appropriate limitations period, we must decide whether the laws of New Jersey ...


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