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KICHLINE v. CONRAIL

October 16, 1985

DALE R. KICHLINE
v.
CONSOLIDATED RAIL CORPORATION



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, S.J.

 This case is a personal injury action brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (FELA). Plaintiff is a former employee of the Consolidated Rail Corporation (Conrail) who alleges that his chronic obstructive pulmonary disease was caused and/or aggravated by his exposure to diesel fumes and other pollutants to which he was exposed in the course of his employment. Defendant Conrail moved for summary judgment on August 15, 1985, contending that the suit, filed on August 5, 1983, is barred by the FELA statute of limitations. *fn1" Plaintiff responded by mail on August 29, 1985. The response was received by the Court on September 3, 1985. Under Local R. Civ. P. 20(c), plaintiff's brief in opposition should have been served by August 28, 1985. Upon application by the defendant the motion was treated as uncontested and judgment entered for the defendant because the plaintiff's response had neither been filed with the Court nor received by the defendant by August 30, 1985. Plaintiff, contending that the untimeliness of his brief was due to mistake, inadvertance or excusable neglect, has now filed a motion to vacate the judgment pursuant to Fed. R. Civ. P. 60(b).

 Because we conclude that the circumstances surrounding plaintiff's failure to timely respond to the summary judgment motion suggest that it would be unjust to deprive him of a determination of the issue on the merits, we will vacate our previous order granting a default judgment for the defendant and proceed to consider, on the merits, Conrail's motions for summary judgment and plaintiff's response thereto. *fn2"

  To determine when a cause of action accrues under FELA, we look first to two Supreme Court cases. In Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949) the Court held that in FELA cases a cause of action does not accrue until the plaintiff has reason to know he has been injured. Subsequently, that rule, sometimes called the discovery rule, was also applied to cases arising under the Federal Tort Claims Act, and in that context several circuits had extended the rule to delay the accrual of a potential cause of action until a plaintiff had the opportunity to discover not only the injury, but also its implications, i.e., that it gave rise to a cause of action. See, Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026 (5th Cir. 1984) and cases cited therein. Thereafter, the Supreme Court more specifically defined the parameters of the rule previously announced in Urie. In United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979), the Court held that a cause of action accrues when the injured party knows of his injury and its cause, not when he first realized that the acts leading to his injury give rise to legally cognizable rights. Thus, in Kubrick, a patient who had been apprised of the possible cause of his hearing loss three years before filing suit suffered dismissal under the FTCA. This result was reached even though he filed within one year after being told that a post-surgical course of treatment at a VA hospital was definitely responsible for his injury and constituted medical malpractice.

 Similarly, the Third Circuit Court of Appeals, applying Kubrick, recently disallowed a claim under the FTCA because the plaintiffs knew of their injury and its cause more than two years prior to bringing an action. Zeleznik v. United States, 770 F.2d 20 (3d Cir. 1985). In Zeleznik, the claim was time-barred even though filed promptly after the plaintiffs learned that the man who murdered their son was an illegal alien who had tried to surrender to the Immigration and Naturalization Service before the murder. The court held that under Kubrick the knowledge of the murder was enough to put plaintiffs on notice of the possible invasion of their legal rights and further that, "The fact that a reasonably diligent investigation would not have discovered the defendant's involvement is no longer relevant for the purposes of accrual of the statute of limitations". Id. at 24. Accord, Davis v. United States, 642 F.2d 328 (9th Cir. 1981).

 Plaintiff contends, however, that an occupational disease case under FELA should be treated differently. A cause of action in such a case, he argues, does not accrue until the last tortious act occurs. In this case, plaintiff was employed by Conrail until 1982 and was continuously exposed to the pollutants that allegedly injured him until his final working day. Having brought suit in 1983, his cause of action would be timely regardless of when he may have become aware of his injury and its cause if the legal question as to when a cause of action accrues is to be decided in terms of plaintiff's last working day rather than by reference to the so-called discovery rule set forth in Urie and refined in Kubrick.3

 The concept that accrual in an occupational disease case should be delayed until the allegedly tortious conduct ceases is based upon the rationale that when the injury alleged results from the cumulative effects of numerous negligent acts, the tortfeasor should not be permitted to acquire a right to continue in his tortious course of conduct. Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818 (D.C. Cir. 1984); Emmons v. Southern Pacific Transportation Company, 701 F.2d 1112 (5th Cir. 1983); Gross v. United States, 676 F.2d 295 (8th Cir. 1982); Fletcher v. Union Pacific Railroad Company, 621 F.2d 902 (8th Cir. 1980). Language used in the cited cases leads plaintiff to contend that, as a general principle, the Urie and Kubrick cases do not apply in a continuous injury case, particularly one arising out of an occupational disease.

 However, the decisions cited do not support so broad a generalization nor do they compel this Court to adopt such an approach despite the reliance of several courts upon Fowkes v. Pennsylvania Railroad Company, 264 F.2d 397 (3d Cir. 1959) as the source of their accrual rule for continuous injury cases. Fowkes was an FELA case, pre-dating Kubrick, in which the plaintiff's arthritic condition was found to have been caused by his use of a heavy air hammer during twenty-eight years of his employment with the Pennsylvania Railroad. The Court of Appeals noted that the Urie discovery rule delayed the accrual of the claim until the plaintiff knew or should have known of his condition. His exposure to the air hammer ended in September, 1952, when his request for a transfer to other duties was granted and suit was filed in August, 1955. The issue to be decided was whether the plaintiff knew or should have known of his injury more than two years before his transfer because it was then that he first experienced pain in his shoulder. In upholding the jury's determination that the claim was timely, the court, in dicta, discussed approvingly what it termed the Pennsylvania application of the statute of limitations in continuous injury cases:

 
'If the relation is continuous, as in that of master and servant, and the default is likewise continuous until the cumulative effect produces disability in the form of occupational disease, total or partial, the master's failure to perform his duty, as we said above, is regarded as a single wrong continuing so long as the employment continues. Such wrong must therefore be redressed by action brought within . . . [the statutory period] from the time when the employment terminates'. Quoting from Plazak v. Allegheny Steel Co., 324 Pa. 422, 430, 188 A. 130, 133-134. (1936). *fn4"

 To the extent that the federal courts retain the purported Fowkes standard, there is persuasive authority for its application here. A close reading of the cited cases, however, demonstrates that the broad proposition asserted by plaintiff was not, in fact, the basis for the decisions in those cases.

 In Fowkes, for example, the question of when the plaintiff knew or should have known of his injury was submitted to the jury and it was their determination that he was unaware of the critical facts of injury and causation until after the tortious conduct ended that really controlled the outcome of the accrual issue. Significantly, in Page v. United States and Fletcher v. Union Pacific Railroad, the causes of action for the plaintiffs' original injuries were held to be time-barred under Urie because the plaintiffs were aware of their respective injuries long before filing suit. Because they were continually subjected to other tortious conduct, however, they were allowed to maintain actions for later injuries or the aggravation thereof.

 Similarly, in Fletcher, the plaintiff was allowed to maintain his claim that the railroad negligently kept him in a position that aggravated his work-related back injury although the claim for the injury itself was barred. There the facts revealed that the railroad knew of the injury at least since 1966 when the plaintiff's back pain was first diagnosed as a disc problem by an orthopedic surgeon with the railroad's health service. Moreover, in 1973, another health service doctor specifically recommended that the plaintiff be given lighter duties because of his disc problem. Nevertheless, the railroad continued to assign plaintiff to heavy labor between bouts of illness during which he could not work at all. Plaintiff brought one action in 1977 seeking compensation for both the original injury and the railroad's negligent work assignments. Because the court concluded that the plaintiff was also on notice at least since 1966 that his continuing back ...


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