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Daley v. A.W. Chesterton

April 15, 2009

HERBERT L. DALEY AND EVELYN DALEY, H/W, APPELLANTS
v.
A.W. CHESTERTON, INC. AND U.S. SUPPLY COMPANY AND DURO-DYNE CORPORATION, APPELLEES



Appeal from the Order dated September 12, 2006 In the Court of Common Pleas of Philadelphia County Civil, October Term, 2005, No. 2640.

The opinion of the court was delivered by: Gantman, J.

Petition for Reargument Filed April 29, 2009; Petition for Reargument Denied June 19, 2009

BEFORE: MUSMANNO, GANTMAN, AND PANELLA, JJ.

OPINION

¶ 1 Herbert L. Daley and Evelyn Daley, h/w, (collectively "Appellant") ask us to determine whether the trial court erred when it granted summary judgment in favor of Appellees, A.W. Chesterton Inc., U.S. Supply Company, and Duro-Dyne Corporation, and dismissed Appellant's complaint with prejudice, based on the court's interpretation of Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021, 1028 (Pa.Super. 1992) (en banc). We hold the trial court misapplied the law in granting summary judgment in favor of Appellees based on the court's unduly restrictive interpretation of the separate disease rule in Marinari. Accordingly, we vacate the order granting summary judgment in favor of Appellees and remand the case to the trial court for further proceedings.

¶ 2 The trial court opinion sets forth the relevant facts and procedural history of the case as follows:

In October 1990, [Appellant] filed an asbestos action in the Delaware County Court of Common Pleas seeking compensatory damages for pulmonary asbestosis and lung cancer. [According to the 1990 Complaint, Appellant was diagnosed with asbestosis in 1989 and squamous-cell carcinoma of the right lung in 1990]. Said action resulted in an out of court settlement between the parties in 1994. [Appellees] were not named in that action.

Thereafter, on October 24, 2005, [Appellant] commenced the within [a]sbestos [m]ass [t]ort action against numerous defendants alleging that in August 2005, [Appellant] contracted malignant mesothelioma*fn1 as a result of his occupational exposure to asbestos products, including products distributed by [Appellees].

On July 19, 2006, [Appellees] moved for summary judgment, asserting that [Appellant's] statute of limitations began to run at the time [Appellant] was first diagnosed with lung cancer [in 1990]. [Appellees] argued that because [Appellant] had the opportunity to recover damages for the cancer claims in his first asbestos action and because he failed to bring any claims against [Appellees] in that action, his current claims are barred by the expiration of the two-year statute of limitations pursuant to [42] Pa.C.S. § 5524(2).

In response, [Appellant] argued that the action was timely filed because mesothelioma was a disease separate and distinct from lung cancer and therefore under [Marinari, supra], the statute of limitations did not begin to run until [Appellant] was diagnosed with mesothelioma in August 2005.

On September 11, 2006, after consideration of [Appellees'] motion and [Appellant's] response thereto, this court granted summary judgment in [Appellees'] favor and dismissed with prejudice all claims against [Appellees].

On October 2, 2006 [Appellant] timely filed this appeal. On October 31, 2006, in response to this [c]court's order, [Appellant] filed their Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

(Trial Court Opinion, filed January 8, 2007, at 1-2).

¶ 3 Appellant raises the following issues for our review:

WHETHER [APPELLEES'] MOTION FOR SUMMARY JUDGMENT BASED ON THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN DENIED WHERE [APPELLANT'S] PRESENT CLAIM FOR MESOTHELIOMA IS FOR A DISEASE SEPARATE AND DISTINCT FROM HIS PRIOR CLAIM FOR LUNG CANCER?

WHETHER [APPELLEES'] MOTION FOR SUMMARY JUDGMENT BASED ON THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN DENIED WHERE [APPELLANT'S] SECOND ASBESTOS ACTION IS NOT BARRED BY HIS PREVIOUS ASBESTOS ACTION EVEN THOUGH IT WAS FILED BEFORE THE ADOPTION OF THE SEPARATE DISEASE [RULE IN THIS] JURISDICTION?

(Appellant's Brief at 5).

¶ 4 Appellant first argues his current action was timely filed on October 24, 2005, because it was commenced within two (2) years after Appellant was first diagnosed with malignant mesothelioma in August 2005. Appellant avers his prior diagnosis of squamous cell carcinoma did not commence the statute of limitations for malignant mesothelioma, because mesothelioma is a separate and distinct malignancy of a different nature and not the natural, predictable progression of his prior lung cancer, for which he had been compensated in 1994. Appellant asserts this Court must allow his present action to go forward, based on current law.

¶ 5 Appellant observes that his 1990 suit was filed before Marinari was decided and did not settle until after Marinari's adoption of the separate disease rule, which allows separate causes of action for separate asbestos- related diseases. Under the separate disease rule, Appellant could not recover damages for fear and increased risk of asbestos-related diseases which he might contract in the future. Appellant contends there is no issue of double recovery if his current case proceeds, because the 1994 settlement of the prior case did not include damages for mesothelioma. Appellant concludes this Court must reverse the summary judgment entered in favor of Appellees. For the following reasons, we agree that summary judgment was inappropriately entered at this stage of Appellant's case.

¶ 6 Initially, we observe:

Our scope of review of an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine where there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the ...


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