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THEODORE TRIESCHOCK v. OWENS CORNING FIBERGLAS COMPANY (06/24/86)

filed: June 24, 1986.

THEODORE TRIESCHOCK, JR., AND HELEN MAE TRIESCHOCK, HIS WIFE, APPELLANTS,
v.
OWENS CORNING FIBERGLAS COMPANY, INC., LOUISIANA PACIFIC CORP., FORTY-EIGHT INSULATIONS, INC., EAGLE-PICHER INDUSTRIES, INC., OWENS-ILLINOIS, INC., GEORGE V. HAMILTON, INC., KEENE BUILDING PRODUCTS CORP., THE CELOTEX CORP., SUCCESSOR IN INTEREST TO PHILIP CAREY MANUFACTURING COMPANY, PHILIP CAREY CORPORATION, BRIGGS MANUFACTURING COMPANY AND PANACON CORP., ATLAS ASBESTOS CO., LTD., PABCO INSULATION DIVISION OF LOUISIANA-PACIFIC CORP., PITTSBURGH CORNING CORP., COMBUSTION ENGINEERING, INC., ARMSTRONG WORLD INDUSTRIES, INC., JOHNS-MANVILLE CORP. AND GARLOCK GASKET CORP. V. ANCHOR PACKING COMPANY, ARGO PACKING, INC., JOHN-CRANE HOUDAILLE, INC., FLEXITALLIC GASKET CO., INC., GAF CORPORATION, RAYMARK INDUSTRIES, INC., DURABLA MANUFACTURING COMPANY, AND TANNETICS, INC.



Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at GD No. 84-5810.

COUNSEL

William R. Caroselli, Pittsburgh, for appellants.

Kathy K. Condo-Caritis, Pittsburgh, for Pittsburgh Corning, appellee.

Brosky, Olszewski and Popovich, JJ. Popovich, J., notes his dissent.

Author: Brosky

[ 354 Pa. Super. Page 265]

This appeal is from summary judgment. In dispute here is the trial court's decision that the statute of limitations had run in this "creeping disease" case.*fn1 The disposition of this issue entails consideration of two questions novel in this jurisdiction. First, with what degree of certainty must a plaintiff be aware of a medical condition in order to start the statute of limitations period running? Second, does a tentative, preliminary diagnosis -- insufficient to start the statute running -- activate a duty to make, with due diligence, further enquiries into the cause of his condition? Our answers to these questions, as applied to the facts of this case, require the reversal of the summary judgment.

Facts

Appellant,*fn2 Theodore Trieschock, Jr., was employed as a pipefitter and service operator from 1945 to 1982. During this period he was exposed to asbestos.

In March of 1982, after reviewing employee medical screening results, a physician paid by appellant's employer contacted appellant by telephone and told him that he suspected that appellant had asbestosis and that he was scheduled to visit a pulmonary specialist. Appellant went for that examination, and on April 8, 1982 was told by the specialist that he had asbestosis. The instant action was initiated on April 6, 1984.

A two-year statute of limitations applies, 42 Pa.C.S. § 5524. Thus, if that period started to run from the contact with the first physician in March of 1982, the action is not timely. If the statute of limitations period began only with the notification by the specialist, the case was clearly initiated in time.

As a general principle, the statute of limitations begins to run in a tort case when the cause of action accrues. When

[ 354 Pa. Super. Page 266]

    the cause of action accrues is, of course, quite apparent when a collision forms the grounds for the suit. But when the injury is, as here, due to a "creeping disease," developing for years without symptoms after the exposure to the causative agents, that date is simply not ascertainable. Accordingly, this Court has fashioned a distinct rule for such cases: "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, ...


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