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CATHERINE HEINSDORF v. JOHNS-MANVILLE CORPORATION (05/07/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 7, 1986.

CATHERINE HEINSDORF, ADMINISTRATRIX OF THE ESTATE OF MICHAEL HEINSDORF AND CATHERINE HEINSDORF IN HER OWN RIGHT, APPELLANT,
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYMARK INDUSTRIES, INC., FORTY-EIGHT INSULATION, NICOLET INDUSTRIES, PITTSBURGH CORNING CORPORATION, GAF CORPORATION, ARMSTRONG CORK COMPANY, UNARCO INDUSTRIES, H.K. PORTER CO., EAGLE-PICHER INDUSTRIES, INC., SOUTHERN ASBESTOS COMPANY, DELAWARE ASBESTOS AND RUBBER CO., FIBREBOARD CORPORATION, PABCO INDUSTRIAL PRODUCTS DIVISION, KEENE CORPORATION, GLEN ALDEN, RAPID AMERICAN, TURNER NEWALL LTD., KEASBEY MATISON COMPANY, CERTAIN-TEED PRODUCTS CORP., U.S. RUBBER COMPANY, PACOR, CELOTEX CORPORATION, PHILIP CAREY MANUFACTURING CO., AMATEX CORPORATION, OWENS-CORNING FIBERGLAS, ASBESTOS TEXTILE INSTITUTE, UNI-ROYAL, CAROLINA ASBESTOS, J. FRANKLIN BURKE, GENERAL ASBESTOS, ASBESTOS TEXTILE COMPANY, THERMOID COMPANY, ASTEN-HILL MANUFACTURING CO., RUBEROID COMPANY, APPELLEES

Appeal From Order November 1, 1982, Court of Common Pleas, Civil Division, Philadelphia County No. 88 (123) Case #97 September, 1978

COUNSEL

Joseph D. Shein, Philadelphia, for appellant.

Steven Revy, Philadelphia, for appellees.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Cavanaugh

[ 352 Pa. Super. Page 430]

In this case the plaintiffs below, Catherine Heinsdorf, Administratrix of the Estate of Michael Heinsdorf and Catherine Heinsdorf in her own right, the appellants herein, filed a wrongful death and survival action based on the "deceased's husband's exposure to defendants' asbestos products." On July 16, 1981, the appellants filed a motion to amend the complaint to aver a "newly diagnosed injury to wife-plaintiff" alleging that "Catherine Heinsdorf was diagnosed as having an asbestos-caused disease, pleural thickening on 6-7-79 by Dr. Irving B. Wexlar." On November 1, 1982 the court below, by Takiff, J., denied the petition to amend on the basis of the statute of limitations bar, as the petition to amend was filed more than two years after Catherine Heinsdorf's diagnosis and the acquisition by her of the knowledge of the disease.*fn1

On appeal, the appellants contend for the first time that

[ 352 Pa. Super. Page 431]

" The lower Court's ruling was grounded upon an averment in plaintiff's petition to amend which is Page 431} clearly erroneous. Plaintiff was not diagnosed as having asbestos related pleural thickening on June 7, 1979. In fact, the June 7, 1979 x-ray report of Dr. Wexlar unequivocally stated that there was "no evidence of pleural thickening" found on plaintiff's x-rays. (R. 6). (Emphasis added.)*fn2

The issue of errors in the petition to amend the complaint has been waived on appeal under Pa.R.A.P. 302(a) which provides: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."*fn3 As noted in Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 293, 450 A.2d 681, 687 (1982):

The rule that an issue not argued below may not be argued on appeal is designed to promote the orderly and efficient use of judicial resources. If the lower court is given an opportunity to address an issue, it "is more likely to reach a satisfactory result, thus obviating the

[ 352 Pa. Super. Page 432]

    need for appellate review . . . ." Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 259, 322 A.2d 114, 117 (1974).

See also Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa. Super. 492, 442 A.2d 1158 (1982).

The appellants' new counsel alleges in referring to Dr. Wexlar's report at page 11 of appellants' brief:

Unfortunately, this report was apparently misinterpreted by wife-plaintiff and the law firm that had represented her at that time. This is evidenced by the fact that in July 1981, plaintiff's lawyers filed a petition to amend the complaint in this matter averring erroneously that plaintiff had been diagnosed as having asbestos related pleural thickening by Dr. Wexlar on June 7, 1979. (Emphasis added.)

The appropriate time and place to raise any alleged errors in the petition to amend was in the court below prior to taking an appeal to this court and having failed to do so the issue is waived on appeal.

Order affirmed.


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