Appeal From Orders Entered October 21, 1987 and January 7, 1988 in Court of Common Pleas, Civil Division, Philadelphia County, No. 2982, December Term, 1983
James R. Kahn, Philadelphia, for appellants.
Thomas C. Gallegher, Philadelphia, for Raymark, appellees.
Daniel S. Altschuler, Philadelphia, for Brand Insulations, appellee.
Cavanaugh, Brosky and Montemuro, JJ.
[ 380 Pa. Super. Page 184]
The issue in this case is whether an employee knew, or should have known that he had an injury and that the injury was caused by another party's conduct, when he filed an "Employee's Claim Petition" under oath or affirmation alleging that he had asbestosis. The petition was filed by his lawyer with the Workmen's Compensation Board of New Jersey and stated that from May, 1980 through November 7, 1980 the appellant, Philip J. Ackler, was employed by Brand Industries and worked at the Atlantic Refinery in Philadelphia. The petition further alleged that he was suffering with asbestosis and had scarring of the lungs and that this was caused by the petitioner (appellant) removing and repairing insulation material. His occupation was set forth as an "insulation asbestos worker." The petition set forth the name of his physician.
[ 380 Pa. Super. Page 185]
The petition was sworn to by Mr. Ackler on August 19, 1981 and filed with the Workmen's Compensation Board on August 21, 1981. The complaint in the court below was filed on December 21, 1983. The defendants below, which are the appellees herein, filed motions for summary judgment which were granted as to all defendants except those currently engaged in Chapter 11 bankruptcy proceedings.
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admission on file, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982); Gabovitz v. State Auto Insurance Association, 362 Pa. Super. 17, 523 A.2d 403 (1987); Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988); French v. United Parcel Service, 377 Pa. Super. 366, 547 A.2d 411 (1988); Hower v. Whitmak Associates, 371 Pa. Super. 443, 538 A.2d 524 (1988); Pa.R.C.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa. Super. 329, 421 A.2d 747 (1980); Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). In addition, we must examine the record in the light most favorable to the non-moving party and accept as true all well pleaded facts in the non-moving party's pleadings, and give the non-mover the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa. Super. 543, 524 A.2d 1372 (1987); Metal Bank of America, Inc. v. Insurance Company of North America, Inc., 360 Pa. Super. 350, 520 A.2d 493 (1987).
A trial court's grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa. Super. 318, 528 A.2d 177 (1987). We discern neither an error
[ 380 Pa. Super. Page 186]
of law nor abuse of discretion, and accordingly we affirm the summary judgments entered by the court below.
In the instant case, the appellant, Philip J. Ackler, signed and took an affidavit to a petition on August 19, 1981 alleging in detail the nature of his illness as asbestosis, which resulted in scarring of his lungs, the dates on which his injury occurred, the location, the nature of his occupation, and what he was doing that caused his asbestosis. The petition was filed with the Workmen's Compensation Board in New Jersey and as a result of filing the petition, the appellant's claim was heard before a referee in the summer of 1983, and he was awarded $2,500.00 against his employer, Brand Insulation.
The court below entered summary judgment on the grounds that the present action was not brought within the two-year period as required by the statute of limitations. The two-year statute of limitations in claims for asbestosis, a creeping disease, commences running 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." Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 136-137, 471 A.2d 493, 500 (1984). The appellant's action in the Court of Common Pleas was not commenced until December 21, 1983. If Mr. Ackler knew, ...