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POWELL v. GAF CORP.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 6, 1986

LEWIS and REGINA POWELL, Plaintiffs
v.
GAF CORP., et al., Defendants

The opinion of the court was delivered by: NEALON

WILLIAM J. NEALON, Chief Judge

 Plaintiffs commenced this diversity action against several defendants on January 25, 1985, alleging that Plaintiff, Lewis Powell ("Powell"), contracted asbestosis as a proximate result of exposure to defendants' asbestos products. Defendant Keene Corporation ("Keene") filed a Motion for Partial Summary Judgment and a supporting brief on June 27, 1985. Keene supplemented its motion by letter dated October 17, 1985. Plaintiffs opposed the motion on November 4, 1985. *fn1" Reply time having lapsed, the matter is now ripe for disposition. For the reasons set forth below, Keene's Motion for Partial Summary Judgment will be granted.

  DISCUSSION

 In its motion, Keene requests that plaintiffs' claims against defendants arising from exposure to asbestos products during Powell's employment in New York be dismissed. See Document 34 of the Record at 4. Thus, only plaintiffs' claims resulting from exposure to asbestos in New York are at issue for purposes of the present motion. Plaintiffs' response fails to distinguish those claims based on asbestos exposure in New York from those claims based on asbestos exposure in Pennsylvania.

 A party moving for Summary Judgment has the burden of proving that there exists no genuine issue of material fact. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 (3d Cir. 1974). In this case, the undisputed facts indicate that Powell worked on four (4) job sites in New York State. See Plaintiffs' Brief in Response to Defendant Keene Corporation's Motion for Partial Summary Judgment at Document 48 of the Record. The last "New York exposure" occurred in 1966. Id. Accordingly, Keene maintains that plaintiffs' claims arising from exposure to asbestos in New York are barred by New York's three (3) year Statute of Limitations.

 A federal court, sitting in diversity cases, follows the forum's choice of law rules to determine the applicable statute of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945). Pennsylvania courts ordinarily apply the Pennsylvania Statute of Limitations, but the Pennsylvania Borrowing Statute provides an exception to this general rule. See Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18 (3d Cir. 1966), cert. denied, 387 U.S. 930, 18 L. Ed. 2d 992, 87 S. Ct. 2053 (1967).

 The Pennsylvania Borrowing Statute, 42 Pa. Cons. Stat. Ann. ยง 5521(b) (Purdon 1981), provides:

 

The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.

 In order to apply the Borrowing Statute, the court must determine whether plaintiffs' claims based on exposure to asbestos in New York State accrued outside this Commonwealth. See Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir. 1985).

 Plaintiffs aver that "in determining when a cause of action accrues for application of the borrowing statute, Pennsylvania courts are to apply Pennsylvania decisional law." See Document 48 of the Record at 4, citing Prince v. Trustees of the University of Pennsylvania, 282 F. Supp. 832 (E.D. Pa. 1968). In determining where the cause of action arose, it is recognized that "the cause of action arises where as well as when the final significant event that is essential to a suable claim occurs." Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., supra, at 20. The question then becomes where did the final significant event that is essential to the claim arising out of plaintiff's New York employment occur?

 Plaintiffs argue that under Pennsylvania law the cause of action accrued in Pennsylvania and, therefore, the Borrowing Statute does not apply. Keene maintains that plaintiffs' cause of action for injuries resulting from asbestos exposure in New York accrued in New York thereby invoking the Borrowing Statute.

 In Brase v. Owens-Illinois Glass Co., No. 1715 (553) slip op. (Philadelphia County; May Term, 1981, September 23, 1985), the court addressed the precise issue before this court and stated, "any ' claim ' attributable to that exposure was one which accrued in that state and the period of limitation applicable to it must be determined either by the laws of that state or by the laws of this Commonwealth where the cause of action is now being asserted." Id. at 5. Therefore, any claim based on Powell's exposure to asbestos in New York must be said to have accrued in New York for purposes of the Borrowing Statute. See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir. 1980), cert. denied, 449 U.S. 976, 66 L. Ed. 2d 237, 101 S. Ct. 387 (1980); Avins v. Moll, 610 F. Supp. 308 (E.D. Pa. 1984). Pursuant to the Borrowing Statute, a negligent act occurring in another state accrues in that state despite discovery of the injury in Pennsylvania. A different result would negate the Borrowing Statute's purpose of reducing the number of "foreign" claims asserted in Pennsylvania.

 The Borrowing Statute requires application of New York's or Pennsylvania's Statute of Limitations depending on whichever first bars the claim. Pennsylvania utilizes the "discovery rule" in applying its statute of limitations. On the other hand, New York's Statute prescribes a less enlightened rule which, nevertheless, is binding on this court and provides that the statute of limitations commences to run from the date of last exposure. Steinhardt v. Johns-Manville Corp., 54 N.Y. 2d 1008, 430 N.E. 2d 1297, 446 N.Y.S.2d 244 (1981). In this case, plaintiffs contend that Powell's injury was not discovered until sometime in 1984. Powell's last exposure to asbestos in New York occurred in 1966. The complaint was filed on January 25, 1985, so that the claims are time barred only if New York's three (3) year statute of limitations is applied. Applying New York's Limitation Rule, the court, with some reluctance, must conclude that any claims based solely on exposure to asbestos in New York are time barred. *fn2" See Brase v. Owens-Illinois Glass Co., supra. Accordingly, any claims based only on Powell's exposure to asbestos within New York will be dismissed.

 An appropriate Order will enter.

 ORDER

 In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT Defendant Keene Corporation's Motion for Partial Summary Judgment is granted and plaintiffs' claims arising from Plaintiff, Lewis Powell's, exposure to asbestos products in New York State are dismissed.


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