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DANIEL G. LUCERA v. JOHNS-MANVILLE CORPORATION (07/02/86)

filed: July 2, 1986.

DANIEL G. LUCERA, AND ANNA B. LUCERA, HIS WIFE, APPELLANTS,
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORP., RAYBESTOS-MANHATTAN, INC., OWENS-CORNING FIBERGLAS CO., FORTY-EIGHT INSULATIONS, INC., NICOLET, INC., PITTSBURGH CORNING CO., GAF CORPORATION, CELOTEX CORPORATION, ARMSTRONG CORK CO., UNARCO, INC., H.K. PORTER CO., SOUTHERN ASBESTOS CO., J.P. STEVENS, INC., EAGLE-PICHER INDUSTRIES, AMATEX CORP., DELAWARE ASBESTOS AND RUBBER CO., PACOR, INC., FIBREBOARD CORP., KEENE CORP., GARLOCK, INC., TURNER-NEWALL, LTD., APPELLEES



Appeal From Order Entered July 17, 1984 Court of Common Pleas, Civil Division Philadelphia County No. 683 February Term, 1976, Asbestos Case #21

COUNSEL

Martin Greitzer, Philadelphia, for appellants.

Margaret M. Chaplinsky, Philadelphia, for appellees.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Cavanaugh

[ 354 Pa. Super. Page 523]

This is an appeal from an order entered on July 16, 1984 by the Honorable Levan Gordon of the Philadelphia Court of Common Pleas. This action was commenced by summons in February, 1976 (although the complaint was not filed until 1979). Appellee GAF's motion for summary judgment was dismissed by the Honorable Harry A. Takiff because the motion had not been filed in accordance with the filing deadlines set by the court at status conference. A non-jury trial was then held with the issue of whether the action had been filed within the two year statute of limitations considered first. The lower court dismissed the action because it was untimely. Appellants appealed the non-jury trial verdict and requested a jury trial. (This was permissible because at that time, a special non-jury trial program was in effect which permitted an automatic de novo appeal to a jury trial.) While awaiting a listing for a jury trial, GAF filed another motion for summary judgment based on the statute of limitations. After a hearing, Judge Gordon entered an order granting the motion for summary judgment on behalf of GAF and all other defendants. This appeal followed. Only GAF remains a viable appellee in this action.

Daniel Lucera was employed from 1944 to 1972 as a pipecoverer and insulator at various places, including the Philadelphia Naval Shipyard and the New York Shipbuilding and Drydock Company. Throughout his employment, appellant worked aboard U.S. naval ships both in drydock and on the navigable waters of the United States. Appellant claims that he was first diagnosed as having asbestosis in 1972 but that he did not know his injury was caused by the conduct of another until 1975 or 1976. According to appellant, GAF was and/or is a manufacturer and supplier of asbestos products to the Philadelphia Naval Shipyard and the New York Shipbuilding and Drydock Company.

[ 354 Pa. Super. Page 524]

I.

Appellant first argues that the two year statute of limitations does not apply to the instant action because his claim falls within admiralty jurisdiction and therefore the doctrine of laches applies. We disagree.

The question before us is whether admiralty jurisdiction lies for the claim of a civilian employee who contracts asbestosis in the course of his job at the naval shipyard.

The United States Supreme Court has developed a test to determine whether a tort claim falls within admiralty jurisdiction. A tort action is within admiralty jurisdiction if (1) the injury has a maritime locality and (2) the injury has a significant relationship to traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). The decision in Executive Jet "seemed to establish that some definite maritime flavor was henceforward to be a prerequisite for all admiralty tort jurisdiction." G. Gilmore, C.L. Black, The Law of Admiralty, 31, n. 98d (1975).

Pennsylvania has applied the Executive Jet test to asbestosis cases, most notably in Volpe v. Johns-Manville Corp., 323 Pa. Super. 130, 470 A.2d 164 (1983). In Volpe, appellant, a civilian employee at the Philadelphia Naval Shipyard, claimed he developed asbestosis as a result of his job as a welder at the shipyard. Mr. Volpe had worked on ships both in drydock and on the navigable waters of the United States. He claimed that while at the shipyard the conduct of appellees, who were in the business of mining, manufacturing, selling or distributing asbestos and asbestos products, caused his asbestosis. Appellees moved for summary judgment on the ground that Volpe's claim was barred by the statute of limitations. Judge Takiff held that admiralty jurisdiction did not apply to Volpe's action, and so the statute of limitations, not laches, governed the length of time available for Volpe to commence his action. Summary judgment was entered. An appeal followed, wherein this court affirmed, holding that Mr. Volpe's claim was barred by the statute of limitations. In so holding, the court

[ 354 Pa. Super. Page 525]

    espoused a well-reasoned discussion of the appellant's claim that admiralty jurisdiction, (and thus, laches) applied to his tort action.

Utilizing the Executive Jet test, supra, we noted that because Mr. Volpe spent seventy percent of his time on ships in navigable waters at the Navy Yard, his injury had a maritime locality, thus satisfying the first prong of the Executive Jet test.

We held, however, that Mr. Volpe's injury did not satisfy the second prong of the test -- that the injury have a significant relationship to traditional maritime activity. In so holding, our analysis centered around two general considerations: 1) whether the job performed by the injured party was a distinctively maritime role, and 2) whether the perils of the job were created by any hazard of the sea.

As to whether the job performed by the injured person was a distinctively maritime role, we wrote in Volpe: "Welding, even welding necessary to the function of a ship, is not a distinctively maritime role." Volpe v. Johns-Manville Corp., supra, at 137, 470 A.2d at 168. Moreover, Volpe worked on vessels in a shipyard, not on ships in active service. The work he performed involved major repairs which required special skills and equipment. This evidenced that Mr. Volpe was not performing a traditional seaman's role when he contracted asbestosis. Id., 323 Pa. Superior Ct. at 138, 470 A.2d at 169.

As to whether the perils of the job were created by any hazard of the sea, we wrote that "the injury he suffered was the same as he would have suffered had he worked on boilers in a factory on dry land." Id. Therefore, Volpe's peril was not created by any hazard of the sea. In short, Volpe's injury lacked that "definitive maritime flavor" which Executive Jet requires.

Subsequent Pennsylvania decisions have followed Volpe's analysis. In Gravinese v. Johns-Manville Corp., 324 Pa. Super. 432, 471 A.2d 1233 (1984), appellant's decedent was a pipe coverer and insulator on ships both in drydock and on

[ 354 Pa. Super. Page 526]

    navigable waters of the United States. The court in Gravinese again held that appellant's claim did not pass the second prong of the Executive Jet test -- that the injury must have a significant relationship to traditional maritime activity. We wrote that the work in which appellant's decedent was engaged "was not the same as that which was traditionally performed by members of a ship's crew. The dangers he faced as a shipyard worker were not the traditional concerns of admiralty." Id., 324 Pa. Superior Ct. at 437, 471 A.2d at 1236.

In Cianfrani v. Johns-Manville Corp., 334 Pa. Super. 1, 482 A.2d 1049 (1984), appellant was a navy yard pipefitter who contracted asbestosis. On the basis of Volpe, supra, we declined to apply admiralty jurisdiction (and laches), stating: "In the instant case, appellants have advanced no arguments to distinguish Mr. Cianfrani, as a navy yard pipefitter, from a navy yard welder. Neither worker faced a peril created by any hazard of the sea." Cianfrani v. Johns-Manville Corp., supra, 334 Pa. Super. at 5, 482 A.2d at 1051. See also Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 482 A.2d 1067 (1984) where we also held that a pipefitter's asbestosis claim did not lie in admiralty jurisdiction. See also Symbula v. Johns-Manville Corp., 343 Pa. Super. 541, 495 A.2d 598 (1985).

Despite our attempts to define the "significant relationship to traditional maritime activity" by reference to the two aforementioned categories, it is really the second (the "peril" aspect) which is the sine qua non of the second prong of the Executive Jet test. The Volpe court opined that a claim by a ship's cook would fall within admiralty jurisdiction not because cooking is a distinctively ...


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