decided: May 27, 1987.
HELEN F. PASTIERIK, EXECUTRIX OF THE ESTATE OF PAUL P. PASTIERIK, DECEASED, APPELLEE,
DUQUESNE LIGHT COMPANY, A CORPORATION, APPELLANT. HELEN F. PASTIERIK, EXECUTRIX OF THE ESTATE OF PAUL P. PASTIERIK, DECEASED, APPELLEE, V. JOHNS-MANVILLE CORPORATION, A CORPORATION, KEENE CORPORATION SUCCESSOR-IN-INTEREST TO BALDWIN-EHRET-HILL, INC., A CORPORATION, OWENS-CORNING FIBERGLAS, A CORPORATION, OWENS-ILLINOIS, INC., A CORPORATION, THE CELOTEX CORPORATION, SUCCESSOR-IN-INTEREST TO PHILIP CAREY MANUFACTURING CORPORATION, PHILIP CAREY MANUFACTURING COMPANY, BRIGGS MANUFACTURING COMPANY AND PANACON CORPORATION, A CORPORATION, EAGLE-PICHER INDUSTRIES, INC., A CORPORATION, RAYBESTOS MANHATTAN, INC., A CORPORATION, ARMSTRONG CORK COMPANY, A CORPORATION, FORTY-EIGHT INSULATIONS, A CORPORATION, AMERICAN INDUSTRIAL CONTRACTING, INC., A CORPORATION, INDUSTRIAL FURNACE SUPPLIES, INC., A CORPORATION, GEORGE V. HAMILTON, INC., A CORPORATION, AC & S, INC., A CORPORATION, AND ATLAS ASBESTOS COMPANY, A CORPORATION. APPEAL OF OWENS-CORNING FIBERGLAS CORPORATION, ON ITS BEHALF AND ON BEHALF OF KEENE CORPORATION, SUCCESSOR-IN-INTEREST TO BALDWIN-EHRET-HILL, INC., OWENS-ILLINOIS, INC., THE CELOTEX CORPORATION, SUCCESSOR-IN-INTEREST TO PHILIP CAREY MANUFACTURING CORPORATION, PHILIP CAREY MANUFACTURING COMPANY, BRIGGS MANUFACTURING COMPANY AND PANACON CORPORATION, EAGLE-PICHER INDUSTRIES, INC., RAYBESTOS-MANHATTAN, INC., ARMSTRONG CORK COMPANY, AMERICAN INDUSTRIAL CONTRACTING, INC., INDUSTRIAL FURNACE SUPPLIES, INC., GEORGE V. HAMILTON, INC., AC & S, INC., AND ATLAS ASBESTOS COMPANY
No. 14 W.D. Appeal Docket, 1986, Appeal from the Order of Superior Court entered March 8, 1985 at No. 153 Pittsburgh 1982, vacating the judgment and remanding with instructions to reinstate the complaint in accordance with the Order dated January 5, 1982 of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD81-22055,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
This is a consolidated appeal from a per curiam opinion and order of the Superior Court, 341 Pa. Super. 329, 491 A.2d 841, which reinstated wrongful death and survival actions filed by the appellee, Helen F. Pastierik. The actions had earlier been dismissed by the Court of Common Pleas of Allegheny County on grounds they were barred by the applicable statute of limitations.
Appellee's husband died on April 4, 1978, and, more than three years later, in August of 1981, appellee filed a complaint alleging that the death was attributable to carcinoma of the lung caused by exposure to asbestos in the course of employment with appellant Duquesne Light. In October of 1981, appellee filed an additional complaint alleging that the asbestos in question had been manufactured, sold, and supplied by the appellant asbestos companies. In both of these actions, appellee asserted that she reasonably did not know until March of 1981 that exposure to asbestos products caused her husband's death, and, thus, that the actions should be regarded as having been timely filed under the applicable two-year statute of limitations. The Court of Common Pleas dismissed the actions as being time-barred, however, reasoning that the two-year period commenced to run on the date of death, rather than on the date when appellee determined the cause of that death. On appeal, the Superior Court reinstated the complaints, holding that the so-called "discovery rule" tolled the statute of limitations until such time as appellee knew or reasonably should have known the cause of her husband's death.
The sole issue raised in the present appeals is whether the wrongful death and survival actions were timely filed. Based upon our decision in Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981) (plurality opinion, authored by Mr. Justice Wilkinson and joined in by Messrs. Justice Roberts and Flaherty, with Messrs. Justice Larsen and Kauffman concurring in the result), it is clear that the actions were not filed within the allowable time period. In Anthony, a majority of this Court (five Justices) agreed that the period for bringing wrongful death and survival actions was not to be extended by the discovery rule to permit the bringing of actions beyond the period specified in the statute of limitations. In doing so, a distinction was drawn between application of the discovery rule in actions brought to recover damages for "injuries" sustained versus application of the rule in actions alleging wrongfully caused deaths. As stated in Anthony,
Statutory references to the occurrence of an "injury" or the accrual of a "cause of action" are subject to judicial interpretation as to the degree of knowledge a plaintiff must possess before the statute will start to run. In contrast, the requirement that a wrongful death action be brought within [a specified number of years] after a definitely established event, -- "death" -- leaves no room for construction.
496 Pa. at 124, 436 A.2d at 184 (emphasis added).
Although the statute of limitations governing wrongful death claims in the present action is not identical to that under which Anthony was decided, no significant distinctions are to be perceived between the statutes that would affect the analysis, and, thus, the Anthony decision remains controlling. The applicable statute in Anthony provided that the wrongful death action "shall be brought within one year after the death, and not thereafter," 12 P.S. § 1603, while the statute applicable to the present case provides, "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," 42 Pa.C.S.A. § 5524(2). Thus, both statutes required the bringing of wrongful death actions within a specified period after a victim's death, and neither incorporated any language indicating that the time of discovering the cause of death was of significance to the running of the statutory period. It is argued that a distinction between the statutes is to be found in the fact that the former statute provided for bringing an action within the specified period "and not thereafter," while the current statute omitted the "and not thereafter" phraseology. Examination of our decision in Anthony, however, reveals that no emphasis was placed upon the "and not thereafter" language in the statute. Rather, as discussed supra, the determinative factor was that, for purposes of statutes requiring the filing of an action within a specified period after "death," the term "death" must be taken as referring to a "definitely established event" that "leaves no room for construction." Upon this basis, application of the discovery rule to wrongful death actions was unequivocally rejected in Anthony.
We fail to discern anything in the current statutory scheme which would alter our rejection of the discovery rule in such cases, notwithstanding appellee's argument that the two-year statute of limitations is modified by a provision now applicable, 42 Pa.C.S.A. § 5502(a), which provides as follows: "General rule. -- The time within which a matter must be commenced . . . shall be computed . . . from the time the cause of action accrued . . . ." Appellee contends that the cause of action for wrongful death accrues, not at the time of death, but rather at the time when the cause of death reasonably becomes known. Such a concept of accrual, however, would greatly expand, theoretically to infinity, the time period during which wrongful death actions could be brought, extending the discovery rule in its application far beyond that to which has heretofore been recognized. We do not believe that such was the intent of the legislature in enacting 42 Pa.C.S.A. § 5502(a), for while the concept of accrual may have usefulness in delaying the point at
which the statute of limitations begins to run with respect to injuries, e.g., Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), because injuries are of a nature that they may be inflicted without immediate symptoms or immediately determinable causes, causes of action for death must be regarded ...
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