Appeal From Order January 18, 1983, Court of Common Pleas, Civil Division, Philadelphia County, NO. 88 (123), Case #37 September Term, 1978
Joseph D. Shein, Philadelphia, for appellant.
I. Steven Levy, Philadelphia, for appellees.
Cavanaugh, Wickersham and Hoffman, JJ.
[ 352 Pa. Super. Page 328]
In this case, Davis King and his wife, Queen King, filed a Complaint in assumpsit and trespass in September, 1978, alleging injuries to the husband-plaintiff as a result of exposure to products manufactured by the defendants below while he was employed at the Philadelphia Navy Yard. Mr. King worked at the Navy Yard from 1946 to 1976.*fn1 The defendants, who are the appellees herein, filed motions for summary judgment based on the theory that the action was barred by the statute of limitations. The court below granted the motion and summary judgment was entered as to all defendants. An appeal was taken to this court by the plaintiffs below.
Pa.R.C.P. 1035(b) provides that summary judgment may be entered: "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In considering a motion for summary judgment the court must view the evidence in the light most 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, 482 A.2d 1067 (1984); Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978).
Applying these rules, we must determine if the court below erred in deciding as a matter of law that the appellants' claim was barred by the statute of limitations. The applicable statute of limitations in effect at the time that the cause of action arose was set forth in the Act of June 24, 1895, P.L. 236 § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June
[ 352 Pa. Super. Page 32927]
, 1978, currently codified at 42 Pa.C.S.A. § 5524(2), which provides that "The following actions and proceedings must be commenced within two years: (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another."
The appellant alleges in his complaint that he suffered from asbestosis as a result of contact with materials manufactured by the various defendants. The disease of asbestosis has been referred to as a "creeping disease". See Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 450 A.2d 681 (1982). Our court sitting en banc in Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493 (1984) established the rule for determining when the statute of limitations commences running in such cases and stated at 324 Pa. Super. 136-7, 471 A.2d 500:
We find that the statute of limitations begins to run in "creeping disease" cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct.
Cathcart modified the more complex test set forth in Volpe v. Johns-Manville Corp., 323 Pa. Super. 130, 470 A.2d 164 (1983) which required that before the statute of limitations commenced running that there must be (1) knowledge of the injury; (2) knowledge of the operative cause of the injury and (3) knowledge of the causal relationship between the injury and the operative conduct. While in Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 482 A.2d 1067 (1984) a majority of the panel affirmed the Volpe tri-partite test, we agree with Judge Beck's statement in Wheeler v. Johns-Manville Corp., 342 Pa. Super. 473, 477, 493 A.2d 120, 122 (1985):
We believe that Cathcart should be followed because it is the most recent holding of the court en banc and Berardi, as a panel decision, cannot overrule the court en banc.
[ 352 Pa. Super. Page 330]
Judge Olszewski in his concurring opinion in Berardi, supra, stated that he would apply the less complicated two part test of Cathcart, supra. The recent cases of Price v. Johns-Manville, 336 Pa. Super. 133, 485 A.2d 466 (1984) and Pastierik v. Duquesne Light Co., 341 Pa. Super. 329, 491 A.2d 841 (1985) followed the rule in the Cathcart case. See also, McGowan v. University of Scranton, 759 F.2d 287 (CA 3, 1985) Kelly v. Johns-Manville Corp., 590 F.Supp. 1089 (E.D.Pa.1984).
The appellant raises two issues on appeal, contending that the court below erred (1) in determining as a matter of law that the appellant knew he was injured and that the injury was tortiously caused by the defendants, and (2) in holding that signing a workman's compensation claim conclusively commenced the running of the statute of limitations.*fn2 With respect to the first issue the appellant argues that under Cathcart v. Johns-Manville, supra, a complaint must be filed "within two years of the date on which plaintiff knows he has been injured and that the injury is the result of someone's wrongful conduct." (Emphasis added). (Appellant's brief page 8.) This does not represent a correct reading of Cathcart. ...