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FRANCIS L. MORGAN AND ELIZABETH MORGAN v. JOHNS-MANVILLE CORPORATION (06/10/86)

filed: June 10, 1986.

FRANCIS L. MORGAN AND ELIZABETH MORGAN, HIS WIFE, APPELLANTS,
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYBESTOS-MANHATTAN, INC., OWENS-CORNING FIBERGLASS CORPORATION, NICOLET, INC., GAF CORPORATION, FORTY-EIGHT INSULATIONS, INC., H.K. PORTER COMPANY, INC., SOUTHERN TEXTILE CORPORATION, PITTSBURGH CORNING CORPORATION, GARLOCK, INC., NORTH AMERICAN ASBESTOS COMPANY, ARMSTRONG WORLD INDUSTRIES, INC., AMATEX CORPORATION, DELAWARE ASBESTOS AND RUBBER COMPANY, PACOR, INC., FIBREBOARD CORPORATION, EAGLE-PICHER INDUSTRIES, INC., J.P. STEVENS & COMPANY, CELOTEX CORPORATION, UNARCO INDUSTRIES, TURNER & NEWALL, LTD., KEENE CORPORATION, AND OWENS-ILLINOIS GLASS COMPANY. FRANK ALICE AND THERESA ALICE, APPELLANTS, V. JOHNS-MANVILLE CORP., AND JOHNS-MANVILLE SALES CORP., AND RAYBESTOS-MANHATTAN, INC., AND FORTY EIGHT INSULATION INC., AND NICOLET INDUSTRIES, INC., AND PITTSBURGH CORNING CORPORATION AND CELOTEX CORPORATION AND GAF CORPORATION AND ARMSTRONG CORK COMPANY AND FIBERBOARD CORP. AND J.P. STEVENS, INC. AND H.K. PORTER CO., INC. AND SOUTHERN ASBESTOS COMPANY AND UNARCO INDUSTRIES INC. AND EAGLE-PICHER INDUSTRIES, INC., AND AMATEX CORPORATION AND PACOR, INC., AND DELAWARE ASBESTOS & RUBBER CO., AND OWENS-CORNING FIBERGLASS CORP. AND OWENS-ILLINOIS FIBERGLASS CORP. PHILIP & ROSE BAGIAN, APPELLANTS, V. JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYMARK INDUSTRIES, FORTY-EIGHT INDUSTRIES, H.K. PORTER, SOUTHERN ASBESTOS, NICOLET INDUSTRIES, PITTSBURGH CORNING CORPORATION, OWENS-CORNING CORPORATION, G.A.F. CORPORATION, ARMSTRONG WORLD INDUSTRIES, UNARCO INDUSTRIES, EAGLE-PICHER INDUSTRIES, DELAWARE ASBESTOS AND RUBBER FIBREBOARD CORPORATION, KEENE CORPORATION, TURNER & NEWALL LTD., CERTAIN-TEED U.S. RUBBER CO., INC., PACOR INDUSTRIES, CELOTEX CORPORATION, AMATEX CORPORATION, OWENS-CORNING FIBERGLAS ASBESTOS TEXTILE INSTITUTE, TERMOID COMPANY, PHILIP CAREY, GARLOCK, INDUSTRIAL PRODUCTS DIVISION, GLEN ALDEN, INC., RAPID AMERICAN, UNI-ROYAL, CAROLINA ASBESTOS CO., J. FRANKLIN BURKE GENERAL ASBESTOS CO., RUBEROID COMPANY, KEASEEY MATTISON CO., ASTEN HILL MANUFACTURING CO.



Appeal from the Order of November 15, 1984 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1074 (121) July Term 1978; Appeal from the Order of December 23, 1983 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4249 Sept. 1979 Case No. 1; Appeal from the Order of March 22, 1984 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2241 (217) October Term, 1979.

COUNSEL

Martin Greitzer, Philadelphia, for appellants.

Laurence H. Brown and Howell K. Rosenburg, Philadelphia, for appellants Bagian.

Cavanaugh, Wickersham and Hoffman, JJ. Cavanaugh, J., files a concurring and dissenting opinion.

Author: Hoffman

[ 354 Pa. Super. Page 61]

These are appeals from three orders of the lower court granting summary judgment in favor of appellees in three separate actions for personal injuries resulting from appellants' exposure to asbestos. Appellants contend that the court erred in holding that their claims are barred by the applicable two-year statute of limitations, 42 Pa.C.S.A. § 5524(2), and in thus granting summary judgment in favor of appellees. For the following reasons, we reverse the lower court's order in No. 972 PHL 84 and remand for further proceedings and affirm the orders entered in Nos. 173 PHL 84 and 1051 PHL 82.

Summary judgment "shall be rendered 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." Pa.R.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party, Helinek v. Helinek, 337 Pa. Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa. Superior Ct. 39, 48, 489 A.2d 828, 833 (1985). Moreover, summary judgment may be rendered only in cases that are free from doubt. Id., 340 Pa. Superior Ct. at 44-45, 489 A.2d at 831; Huffman v. Aetna Life and Casualty Co., 337 Pa. Superior Ct. 274, 277, 486 A.2d 1330, 1331 (1984).

In this Commonwealth, actions to recover damages for personal injuries are governed by a two-year statute of limitations. 42 Pa.C.S.A. § 5524(2). Thus, a plaintiff must commence an action within two years from the time he or she suffers an injury. For cases in which an injury is not readily detectable, our courts have developed the discovery rule to ameliorate the harsh results of the running of the statute of limitations before a plaintiff is aware of his or her injury. In Cathcart v. Keene Industrial Insulation, 324 Pa. Superior Ct. 123, 471 A.2d 493 (1984) (en banc), this

[ 354 Pa. Super. Page 62]

Court held that in "creeping disease" cases the statute of limitations begins to run 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."*fn1 Id., 324 Pa. Superior Ct. at 136-37, 471 A.2d at 500 (footnote omitted). Under this test the statute of limitations begins to run even though the plaintiff lacks actual knowledge of an injury and its cause as long as he or she should have been so aware. Id. Moreover, a plaintiff is under a duty to use all reasonable diligence to be informed of facts upon which a potential action may be based. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).

[ 354 Pa. Super. Page 63]

We note that whether a plaintiff has exercised due diligence in discovering an injury and its cause is usually a jury question. DeMartino v. Albert Einstein Medical Center, 313 Pa. Superior Ct. 492, 510, 460 A.2d 295, 299 (1983). Sometimes, however, "'a case will arise where the facts will be undisputed and will lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable as a matter of law.'" Id., 313 Pa. Superior Ct. at 510, 460 A.2d at 304, quoting Page 63} Anthony v. Koppers Co., 284 Pa. Superior Ct. 81, 110, 425 A.2d 428, 443 (1980). Thus, only in the latter instance would a grant of summary judgment be appropriate.

With these principles in mind, we now apply the Cathcart test to each of the three cases before us to determine whether summary judgment was properly granted.

Philip and Rose Bagian

Appellant in No. 972 PHL 84, Philip Bagian, was employed as a pipefitter at the Philadelphia Naval Shipyard from 1941 until 1943 and from 1947 until his retirement in 1978. In 1972, Bagian obtained a report of his annual examination from the shipyard dispensary.*fn2 Under the heading "Significant findings," the report stated, "1. CHEST X-RAY: LOCALIZED PLEURAL THICKENING IN THE RIGHT HEMITHORAX." Bagian testified at his deposition that he did not pay much attention to this report and that he thought nothing was wrong. (Deposition of Philip Bagian, January 10, 1983 at 67).

In December, 1974, Bagian completed a questionnaire entitled "Health Inventory for Asbestos Workers and Handlers" in which he stated that he experienced shortness of breath upon climbing two flights of steps. (Memorandum of Law in Support of Appellee, the Celotex Corporation's, Motion for Summary Judgment on behalf of all Appellees, exhibit "D"). The notation "Routine Annual Surveillance" and the dispensary physician's signature appear at the end of the questionnaire. The same notation is written twice more at the bottom of the questionnaire followed by the dates "2/12/76" and "1/14/77". (Id.)

Beginning in 1971, Bagian became fairly knowledgeable about the health hazards of asbestos. At his deposition, he testified that "about" 1971 his supervisors began to tell the shipyard workers to be careful with asbestos and to require

[ 354 Pa. Super. Page 64]

    the use of respirators to prevent the inhalation of asbestos fibers. Bagian was aware that asbestos exposure could lead to asbestosis, mesothelioma, and other forms of cancer. He also testified that they had "lost a few men," and that the men spoke of "breathing that damn junk all these years." (Deposition of Philip Bagian at 46-50).

In November, 1977, Bagian was examined by a private physician, Dr. Paisley, who informed him that he had asbestosis. In October, 1979, Bagian and his wife Rose filed this action against appellees asserting that his exposure to appellees' asbestos products caused him to contract certain diseases and injuries as set forth in his complaint and that his wife Rose has suffered from the loss of his society, services, and companionship. Appellees filed a motion for summary judgment contending that the Bagians' action was barred by the statute of limitations because they had discovered the injury and its cause more than two years before they commenced their lawsuit. On March 22, 1984, the lower court issued an order granting appellees' motion. The Bagians have appealed from that order.

The Bagians contend that the lower court erred in granting summary judgment because there are genuine issues of material fact concerning whether Philip Bagian knew or should have known of his injury and its cause prior to September, 1977. They argue first that Bagian did not know he was injured until he was examined by Dr. Paisley in November, 1977. Bagian stated that he received the chest x-ray report in 1972, but that he did not pay much attention to it because "it looked like nothing was wrong." (Deposition of Philip Bagian at 67). Furthermore, he argues that he had no reason to believe that pleural thickening was an injury because after he received the x-ray report nothing happened to illustrate the significance of that finding. He asserts that he continued to receive annual physical examinations and ...


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