Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 83-13269.
Richard C. Polley, Pittsburgh, for appellant.
Michelle H. Lally, Pittsburgh, for Pfahler, appellee.
Wieand, Montemuro and Popovich, JJ.
[ 371 Pa. Super. Page 37]
The issue in this appeal from an order denying a motion for summary judgment concerns the application of the three
[ 371 Pa. Super. Page 38]
year statute of limitations contained in the Federal Employer's Liability Act (FELA).
Beginning in 1976 and continuing until January, 1978, Frank E. Pfahler was employed as a mechanic, painter, and material chaser by Consolidated Rail Corp. (Conrail) at shops in Holidaysburg and Altoona. His position was that generally referred to in the trade as a burner. In this capacity, Pfahler was required to use a torch to remove old parts from railroad cars and replace them with new parts. As a result, Pfahler was required daily to inhale welding fumes and dust.
On August 15, 1983, Pfahler commenced an action against Conrail pursuant to the Federal Employer's Liability Act (FELA).*fn1 He alleged that as a result of his employment he had been disabled by pulmonary emphysema and chronic bronchitis. Conrail filed an answer containing new matter in which it alleged, inter alia, that Pfahler's action was barred by FELA's three year statute of limitations, as contained in 45 U.S.C.A. § 56. After discovery proceedings, including plaintiff's deposition testimony, Conrail moved for the entry of summary judgment. This motion was denied.*fn2 The order was subsequently amended to certify that the issue was one about which there was substantial difference of opinion and that an immediate appeal would materially advance ultimate disposition of the case. This Court, on petition, agreed to allow an immediate appeal from the trial court's interlocutory order.
In Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 476 A.2d 928 (1984), we reviewed the standard applicable to motions for summary judgment and said:
A motion for summary judgment may properly be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ...