Abrams v. Pneumo Abex Corp.

judicial process Pumps, Inc., and then take Goulds Greene Tweed & Inc., Co., Hajoca Plumbing Co., case to exceedingly arbitration would be Halli Co., Honeywell, unfair Hyldahl. Appellants Because the burton McArdle-Des judicial process Corporation, Gaskets, relief co Melrath Inc. Metropolitan Co., because the could have com- Life Nos Insurance pelled any damages Corporation, Manufacturing arbitration for roc related Pars Co., alleged misappropriation Pfizer, Inc., to the Corporation, of confi- Pecora by Hyldahl filing Quigley Co., Inc., dential information after Railroad Friction complaint, Products, initial Reading Company, its we find that Ri right ley waived Corporation, to arbitration. GE See Stoker Rockbestos Inv., Company, Lancaster v. Corporation, LLC American Express Union Carbide Servs., Inc., Co., Tax Bus. Gallagher A.2d Walter B. Weil McLain Goral, (Pa.Super.2007); Co., Westinghouse A.2d Corpora Electric Keystone Group, 934. Tech. Inc., 824 A.2d Crane, Appellees. tion and John Cf. (finding at 1227 no waiver where the dock- Marilyn Shaw, Executrix Estate et plaintiffs filing showed of the com- Shaw, Appellant of John plaint, the proof sheriffs of service v. filing preliminary objections defendant’s before compel motion to arbitra- Inc., Chesterton, A.W. Brand Insulation tion). Inc., Corporation, Certainteed Cleav erbrooks, Co., Co., Demming Crane waiver, 21 As we have found we need Division, Packing, Crane Crown Cork the Appellants’ discuss ar- remaining Company, Corpo and Seal Inc. Dana gument. ration, Co., Manufacturing Durabla ¶ 22 reasons, For the foregoing af-we Georgia Corporation, Pacific Goulds firm the trial court’s order. Pumps, Inc., Co., Greene Tweed & ¶ 23 Order AFFIRMED. Gaskets, Inc., Metropoli Inc. Melrath Co., Corpo

tan Life Insurance Nosroc ration, Manufacturing Co., Pars Pe Corporation, Rapid cora American Riley Corporation, Corpora Stoker tion, Corporation, Union Carbide ABRAMS, Eleanor Executrix of the Gallagher Co., Walter B. Weil Abrams, Estate of Kenneth Co., Viacom/Westinghouse McLain Appellant Co., Corp., Packing Electric Anchor Engineering, Combustion Inc. Crouse-Hinds, Durametallic CORPORATION, ABEX PNEUMO Co., Garlock, Inc. Electric General Standard, Inc., American A.W. Ches Hajoca Co., Rand, Plumbing Ingersoll terton, Inc., Insulation, Inc., Brand Inc., Studebaker-Worthington, Zurn Corporation, Brown Boveri Burnham Industries, Inc., Crane, Appel John Corporation, Boiler Certainteed Cor lees. poration, Co., Cleaverbrooks Crane Co., Demming Division, Crane Pack Pennsylvania. Superior Court of ing, Crouse-Hinds, Crown Cork & Argued Oct. Company, Inc., Corpora Seal Dana Filed Dec. tion, Industries, Inc., Dresser Durabla Co., Manufacturing Eastern Gunnite

Co., Inc., Georgia Corporation, Pacific couples successfully

that both sued numer- companies ous mid-1980s, in- that those lawsuits cluded claims for increased risk and fear of cancer, developing and that Crane should in been named as defendant those 1992, plaintiffs actions because bring were all claims for exist- ing nonmalignant and predicta- conditions diseases, cancer, malignant e.g., ble within Cooperstein, Steven J. Philadelphia, of initial an of appellants. asbestos-related disease. The trial court Michael A. Pollard and William Russell granted agreed and Crane’s motions Adams, Philadelphia, for appellee. summary judgment.2 ELLIOTT, P.J., BEFORE: FORD 9, 2006, a panel On June STEVENS, MUSMANNO, ORIE published this Court an in opinion which MELVIN, LALLY-GREEN, KLEIN, majority reversed and remanded for BENDER, PANELLA, and BOWES JJ. further proceedings. John Crane filed a timely application reargument, for en banc BOWES, BY OPINION J.: 15, granted August which was on and Abrams, 1 Eleanor executrix the June withdrawn. opinion was Abrams, Marilyn estate of Kenneth and now We conclude the trial court’s Shaw, executrix of the estate of John ruling was correct and affirm the therefore Shaw, appeal grant summary from the grant summary judgment in favor judgment Crane, in favor of John Inc. John Crane. (“John “Crane”) per- Crane” or in these Pennsylvania provides law that sum- injury sonal actions.1 We affirm. may only mary judgment granted be in

¶ 2 The clearly Shaws and the Abramses insti- those record cases which the 25, 2003, February tuted these on genuine lawsuits shows that no material issues of alleging that Mr. Mr. fact moving party Shaw and Abrams exist and that the is (“the decedents”) diagnosed were judgment with entitled to as matter law. moving December 2002 and that party has the burden their stemmed from occupational proving genuine that no issues of mate- exposure asbestos-containing products determining rial fact exist. In whether made grant summary judgment, John Crane and various other the trial 11, 2005, companies. light On February court must record John view the for summary judg- non-moving party Crane filed motion most favorable to the par- ment in all as arguing both cases and must resolve doubts to the genuine ties’ claims were barred of a of material statute existence issue Thus, Specifically, against moving party. limitations. Crane asserted fact Mr. and question 1. Shaw Mr. Abrams died after these 2. The orders in became final and filed, 4, 2005, appealable April actions were their widows were on when the trial capacity declaring substituted as in their as court both entered order actions respect remaining late executrices husbands’ estates. settled with to all defen- 341(b)(1). Appellants’ See at 5. brief dants. See Pa.R.A.P. ¶ 47, the Shaws filed Similarly, at summary when Id. judgment proper numerous allegations September the uncontroverted suit Shaw was companies to inter- after Mr. pleadings, depositions, answers record, and “chronic restrictive asbestosis rogatories, admissions of January on pulmonary lung that no disease” submitted affidavits demonstrate 9/25/85, exists, at Complaint, genuine fact 1985. Shaw issue material existing damages for to The Shaws moving party is entitled sum, mesothelioma injuries, risk of judgment as a matter of law. cancer, and “traumatic forms of only when the facts are so clear and other ¶28. differ, cancerophobia.”3 Id. may minds cannot neurosis or reasonable that both actions were summary Appellants concede properly trial court enter at 5. Appellants’ in 1993. See brief judgment. settled ¶5 litigated, those were Rudy Company, v. A-Best 870 When cases Products 380, Pennsylvania provided that (Pa.Super.2005) (quoting law A.2d 383 Inc., Services, single lawsuit Gutteridge bring v. A.P. were Green 643, (Pa.Super.2002)). encompassing present all for dam- 804 A.2d 651 As claims ruling by nonmalignant dis- ages our examination the trial court’s caused law, all future question scope involves a our eases and claims for develop- an risk of plenary. Register premised review is Roth on increased Cash Inc., Systems, malignant such as cancer. Company, ing Inc. v. Micro 868 illness (Pa.Super.2005). Corpo- 1222 will not v. Johns-Manville A.2d We See Giovanetti ration, 431, summary 539 A.2d grant judgment Pa.Super. un- 871 reverse 372 (1988). rigid approach, court less trial committed error Under Rudy, predictable law its limitations for all supra. or abused discretion. statute of injuries began to run ¶ bar, 4 In case con- at the record diagnosed was first with plaintiff when the firms the Abramses and Shaws As time an asbestos-related disease. Id. approximately instituted asbestos actions however, litigants and courts progressed, twenty years ago. Mrs. Mr. and Abrams practice enabling criticize the began to 1986 brought against suit March several damages for illnesses plaintiffs to recover corporate after Mr. Abrams defendants Thus, yet diagnosed. had not been alia, with, diagnosed was inter “asbestos- law in a new rule of this Court announced 12, on 1984. lung April related diseases” Ltd., v. Asbestos Marinari ¶ 3/20/86, Complaint, Abrams at 6. In that (en (1992) 612 A.2d case, sought damages for all Abramses banc). existing injuries future caused as- Marinari, in- plaintiff was by the defendants’ 6 In particles bestos emitted thickening in pleural including fear of an formed that he products, “traumatic not a lawsuit as ... but he did institute [developing] cancer.” increased risk i.e., dissent, nosed,” Complaint, Abrams Judge cancer. his Stevens concedes Moreover, 3/20/86, previously risk the Shaws sued for increased at maintains that the Abramses of cancer but acknowledged that appeal, Appellants have cancer, which sued for fear of prior included claims for actions both of is a different cause of action. record Appellants’ See risk of cancer. increased lawsuit, prior this In their belies assertion. ("The merely claims were brief at 18 "injuries brought the Abramses claims due to occu- risk and fear of cancer increased respiratory system ... and [Mr. Abrams’s] asbestos....”). exposure pational diag- yet been other diseases which he was not experiencing breathing prob- already disease which has manifested Then, July 1987, lems. was exposure itself from the asbestos diagnosed cancer attributable to natural, predictable if progression, exposure asbestos and commenced an ac- any, of If inju- disease. additional tion companies seeking several a separate ries from disease manifest damages solely for inju- his cancer-related future, themselves such ries. defendants filed motions for support will a second action. summary judgment, arguing that the law- Id. 1023. Our Supreme Court subse subject suit was two-year to a statute of quently principle embraced this Sim began limitations that to run in 1988 when Pacor, Inc., mons Pa. 674 A.2d was with pleural (1996), when it plain announced that thickening. granted The trial court nonmalignant tiffs with diseases caused motions, defendants’ plaintiff ap- and the exposure longer asbestos could no recover pealed. damages for increased risk of cancer fol decision, In7 an en banc Court this lowing adoption of the so-called “two- reversed ruling the trial court’s and held disease rule” in Marinari. plaintiff’s knowledge that the of a nonmal- ignant, lung did condition ¶ case, 8 In the instant the trial trigger not the statute of “with limitations court Appellants’ present concluded that respect later, to an action for a separately claims were barred the statute limi diagnosed, disease of lung cancer.” Id. at they tations because had recovered dam reaching conclusion, 1022. In this we rec- for ages injuries cancer-related in their ognized “exposure that may to asbestos lawsuits, prior which during were filed the in variety result a of benign and malignant period plaintiffs when had to sue for all conditions, may each which occur at malignant foreseeable diseases within two widely divergent times.” Id. at 1024. We years diagnosis of the of any asbestos- process also observed that awarding the injury. Appellants related maintain that damages for future harm caused un- the trial ruling improper court’s was for diagnosed diseases was inherently proble- First, they argue several reasons. matic because it entailed specu- reliance on background factual of this is vir case produced lative evidence and inequitable tually identical to the facts in underlying in plaintiff results cases where the failed to Marinari, thus, that case is control develop a malignant illness. We therefore ling and finding necessitates a determined that with nonmalig- timely lawsuits were filed within nant asbestos-related conditions no discovery of the dece longer be required concurrently assert Second, lung Appellants dents’ cancer. as claims for malignant asbestos-related dis- sert two cases decided after Marinari yet developed, stating eases had indicate that plaintiffs who recovered as follows: damages for risk increased and fear of approach litigation asbestos in previous may lawsuits institute Co., suggested in Manzi H.K. [v. Porter subsequent upon action based actual an (1991)], 587 A.2d 778 diagnosis Finally, of cancer. Appellants allowing an action for nonmalignant contend that should be allowed to separate asbestos disease and a action cancer, believe, litigate the decedents’ represents for cancer claims we actions, recovery better view. such because individuals who settled claims for can be in a first had action for a increased risk and fear can- (Pa.Su Corp., 715 A.2d 1125 adequately Fiberglas cer Marinari were not plaintiff who has indicate that injuries. per.1998), for their compensated for increased already damages recovered argument that this Appellants’ initial may fear institute risk and factually indistinguishable from case is contracting that after subsequent lawsuit Marinari is baseless. Unlike Mr. Shaw disease. Abrams, and Mr. who recovered com plaintiff Giffear, supra, 11 In injuries previous for law- cancer-related seeking compensation action proceeded to file additional menced an suits and then risk of actions, and increased physical filed a for plaintiff Marinari he x-ray an revealed that cancer after single seeking damages lawsuit asbes- plaintiff prevailed opt- thickening. pleural tos-related cancer four after he trial, defen judge granted forego nonmalignant, ed to an action for but Indeed, not post-trial judgment motions for pleural thickening. dants’ asymptomatic withstanding appeal, verdict. On we was whether that issue Mañnari asymptomatic pleural plaintiff’s bring action for considered whether failure injury thickening precluded thickening compensable was a pleural in 1983 a sub- “distinct, dam sequent for a could recover cause action whether risk of cancer absent ages such as cancer. Mañ- increased disease” cancer, answering ques Conversely, issue both supra at nañ negative. party herein is whether a who was com- tions pensated for risk and increased fear suggest Gijfear in a developing asbestos-related cancer Gijfear re- instructive because Court many prior action can sue a new defendant in that could marked that the case years a upon later based recent separate action if he was later bring a Hence, are readi- cancer. cases In arguing with cancer. this diagnosed ly distinguishable. however, Appellants ignore the fact point, Mr. Gijfear, unlike asserting post-Mañnañ plaintiff 10 that that Abrams, compen- warrants and Mr. was not case law reversal the orders Shaw claims in a question, significant a sated for cancer-based Appellants devote Hence, Gijfear portion argument that asbestos lawsuit. their brief to regarding the appli this not offhand comment case does involve retroactive Court’s a cancer action Appellants’ possibility separate brief cation Mañnañ. See as imply, Appellants not agree Appellants at on that instance did 10-16. We a bringing nonmalig- suggest, this This that “the point. applied Court has of in- assertion nancy that included retroactively damage to vacate action Mañnañ claims does risk and fear cancer for increased risk and fear of can creased awards bringing a subse- plaintiff not bar a appeals pending cer in that were when See, under the dis- separate cancer claim e.g., Dempsey quent Mañnañ was decided. at 17. Rath- Pacor, Inc., 404, brief Pa.Super. Appellants’ 429 632 A.2d ease rule.” v. clarify (1993). Thus, er, to that Gijfear Court Appel we now address plain- that this since it had determined primary lants’ contention Court’s claim did not risk-of-cancer tiff’s initial decisions in v. Johns-Manville Giffear injury 327, allege compensable under A.2d 880 Pennsylvania law, (en free (1993) banc), plaintiff was Simmons sub nom. aff'd Mañ- Pacor, Inc., 664, under to institute action 543 Pa. 674 A.2d 232 v. developed cancer. if (1996), Owens-Corning subsequently nañ he McCauley The instant case is plainly distinguishable occupational exposure to asbestos. Mean- while, because Mr. and Mr. Shaw Abrams assert- Appellants’ present claims are ed ap- their initial risk-of-cancer claims i.e., assertion, founded on the identical proximately seven before Marinan both men did contract due to decided, Gijfear period were during a Therefore, exposure. the causes of Pennsylvania when courts did view “risk pursued by, action Mr. and Mr. Shaw and fear cancer” as com- pertained Abrams in the 1980s the same pensable injury. malignant disease for which now seek to recover 13 Appellants’ McCauley, reliance on damages. Accordingly, supra, similarly misplaced. case plain- tiff in no McCauley McCauley. bears May filed an action on resemblance from, alleging that he suffered inter Finally, Appellants they assert that alia, symptomatic pulmonary asbestosis permitted should be to assert cancer was first on May claims John they Crane because trial, When proceeded the case compensation did receive sufficient judge a compulsory entered nonsuit fa- Specif- their risk-of-cancer claims in 1993. vor of the defendants on based the statute ically, Appellants they insinuate set- Specifically, limitations. con- judge their prior tled cancer claims for inade- cluded that the action was time-barred be- quate “[pjlaintiffs amounts because who cause it was commenced more than two nonmalignant claimed a [prior disease 7,May x-ray after 1985 chest Marinari] were aware that revealed that the asymptom- challenges face serious whether over atic, nonmalignant pleural thickening. On compensable.” were Appellants’ appeal, reversed we and remanded for a brief 22. We find this argument unper- new although trial. We reasoned that suasive. Appellants and their late hus- timely failure to institute a ac- opportunity bands had an to sue John nonmalignant plural tion for thickening Crane increased risk fear of precluded recovery action, on that cause of during so, the 1980s but to do failed de- could nonetheless seek dam- ages separate spite they the fact that both knew couples diseases such pulmo- as nary pres- asbestosis that after were assert all were claims 1985. Since the 1993 lawsuit filed was ent future harm two within of within of the of discovery the initial diagnosis the of an asbestos-related plaintiffs asbestosis, we found that the injury. As the appli- statute limitations trial judge granting erred in a nonsuit. previous expired cable the long lawsuits ago, John reasonably Crane believed that

¶ Herein, Appellants 14 suggest that the claims, it not would have to defend these instant is analogous McCauley ease be- repose and the company entitled due against cause their cancer claims to the fact it was not named as a John are completely Crane from different defendant in actions. See Lesoon the alleged risk-of-cancer claims in the Metropolitan v. Company, Insurance prior actions. See Appellants’ brief Life (statutes (Pa.Super.2006) A.2d untenable; 898 620 This simply contention is designed pres- limitations are to effectuate pre- risk-of-cancer claims in advanced evidence, potential right vious were ervation of premised actions on the asser- repose, tion that Mr. Mr. Shaw and would defendants to and administrative Abrams in efficiency). contract cancer the future as a result

395 ¶ current, record, over, quarrel I no with the 16 Based on our review the approach set forth Marin “enlightened” no genuine which confirms that issues Ltd., 417 Asbestos fact establishes ari material exist and (en banc). (1992) 440, 612 A.2d 1021 judgment as a John Crane is entitled to law, hereby affirm. matter of we ¶3 Nevertheless, the record reflects ¶ Judgments particular affirmed. in these plaintiffs knew, importantly, were and more cases ¶ MELVIN, LALLY- 18 ORIE pr e-Marinañ state bound GREEN, BENDER, join KLEIN and JJ. era, plaintiffs e-Marinañ pr In the law. Majority Opinion. suit, appli- required to file within were limitations, all po- cable statute ¶ LALLY-GREEN, files J. being upon defendants di- tential asbestos KLEIN, Concurring Statement in which J. disease, agnosed an asbestos-related with joins. yet developed if had not cancer. even ¶ STEVENS, Dissenting J. files position, dissenting appealing, while ELLIOTT, Opinion in which FORD P.J. important goals undermine the PANELLA, and MUSMANNO and JJ. finality judicial system, in our repose and join. regard to the defen- Thus, join I dants these cases. ¶ MUSMANNO, Dissenting J. files Majority’s opinion. P.J., ELLIOTT, Opinion in which FORD PANELLA, join. and STEVENS and JJ. BY DISSENTING OPINION CONCURRING STATEMENT BY STEVENS, J.: LALLY-GREEN, J.: join Judge 1 I Musmanno’s Dissent join Majority’s opinion. in the separately but to am- entirety, in its write po- diagnosis” 2 I “actual dam- appreciate plify understand colleagues our are and distinct from “fear ages sition of esteemed They astutely damages “can- of cancer” dissent. observe that increased risk cer-diagnosis” damages flowing nonmalignant from asbestos-relat- are distinct Supreme damages. “fear of future cancer” More- States ed disease.4 United contemplates respective complaints In their claim an element of civil filed 1980s, both the Abrams and the Shaws from a cancer claim. that differs alleged husband/plaintiff was caused to Consequently, I cannot conclude alia, contract, yet inter other diseases actually claim was Abrams’ diagnosed, yet the full extent of which are not necessarily in their 1986 raised decided or complaint, Only known. er, the Shaws’ howev- present bar action. action so as to their addition, went further to claim "In there is Determining prior that the Abrams’ action cancers, a risk of mesothelioma and other damages sought the neither nor recovered permanent may or all which be some of action, present I would find in their eventually specific fatal....” It was this McCauley present under v. action viable claim, alone, of that raised the increased risk Owens-Corning Fiberglas Corp., 715 A.2d complaint. the The cancer claim in Shaws’ (Pa.Super.1998), where we declined 1125 contrast, complaint, in delin- Abrams never impose on a Marinari-era a limitations bar an of cancer claim. eated increased risk been that could have action for asbestosis Rather, spe- only the “cancer-related” claim single- brought years during the earlier six cifically complaint delineated the Abrams’ plaintiff the first discov action era when rule "fear risk of was a claim for of increased actionable, lesser, as a but husband/plaintiff expe- ered nonetheless was cancer” that then explained infra, disease. riencing. a fear of cancer bestos-related As 396 very

Court this made distinction future as a damage re- cancer recoverable dis- cent decision our instructive5 to case. damages attending any crete from might that Ayers arise the future. See ¶ 2 In Ry. Ayers, & Western Norfolk 153, 156, at (citing 123 1210 S.Ct. the 538 U.S. 123 S.Ct. 155 L.Ed.2d inequitable by excluding result obtained (2003), the Supreme United States present recovery experienced for the fear Court that Employers’ held the Federal gets an never asbestosis sufferer who (FELA), Liability Act incorporating the cancer; evidence, light “In an this as- “separate rule,” common law disease al- good bestosis sufferer would have cause lowed employees suffering railroad apprehension for about increased his vul- nonmalignant work-related asbestosis —a nerability another from his expo- illness holding, 4 cancer. In so the Court sure, ‘agonizing, disease inflicts un- “separate examined the disease rule” and death.”) remitting pain,’ only by relieved reasoned: no There is inevitable conflict between ¶ Ayers is thus insofar instructive as it “separate and recovery disease rule” conceptual Majority’s shows the flaw in the of cancer fear damages asbestosis approach lumping all so-called “cancer- simply The claimants. rule allows re- together purpose based” claims for the covery successive diseases for holding recovery of “fear of necessarily exclude double damages pre- increased risk of cancer” recovery the same element dam- for present recovery cludes of “actual cancer” ages. fact, damages. In do not Ayers, 12, 123 538 U.S. 153 n. equate. S.Ct. 1210 The Abrams’ fear claim did added). (emphasis The thus recog recovery expects Court not seek for the one fear nized fear present to experience asbestosis heralds a after terminal cancer is diag- McCauley, plaintiff In received a action for and distinct disease asbestos-related, asymptomatic of asbestosis when he his claim within filed pleural thickening. injury Because such an years diagnosis. two 1991 asbestosis time, plaintiff Thus, was actionable at the was foregone the fact governing single-action under encompassing action a future asbestosis claim present rule to file cause of for all action during single-action era did rule not bar and future asbestos-related claims within two years proceeding him six later from on a discovery. plaintiff, of his present timely during asbestosis action filed however, period allowed the limitations rule era. two-disease suit, filing ostensibly waiving run without all here same result should attain for the single-action asbestos claims under the rule. Having only a fear Abrams. delineated after this Court instituted two- complaint, they cancer claim in their 1986 Marinan, disease rule filed future, (in- recovery on a forewent complaint seeking damages pulmonary cancer) as- single- creased risk claim under bestosis, however, which had been less than McCauley, action Under rule. argued earlier. Defendants forego a future cancer Abrams' election plaintiff's was because claim barred his two single-action during the rule era claim should year period present all limitations timely cancer claim filed bar their disease, including future asbestos-related fu- during the two-disease rule era. asbestosis, upon ture commenced his 1985 Though by discovery asymptomatic we are bound United States Su- pleural thickening of preme matters of and run Court decisions that address had thus law, present disagreed. the involves no fed- Applying

This Court the federal case two dis- rule, only by ease held eral We are thus here we had indeed waived issue. bound asymptomatic pleural thickening prior Pennsylvania Supreme his cause of decisions 1987, preserved action as of but his this Court cause Court and of en banc. ¶2 Rather, 1992, Pennsylvania fol- it Since has nosed in the future. regard to rule lowed the two-disease with recovery already experienced for the fear diseases. See Marinari asbestos-related having presage from a disease known 440, Corp., v. Asbestos recovery for actual Subsequent cancer.6 banc). Marinari, (1992) (en In A.2d 1021 run damages cancer would therefore not “discovery plaintiff's that a this Court held separate of rule’s prohibi- afoul disease lung nonmalignant, a asbestos related of recovery tion “double for the same the statute trigger ... does not pathology Nor, mat- damages.” element of for that for respect to an action of limitations ter, for would Abrams —or the Shaws later, diagnosed, disease of separately a recovery a windfall of matter —receive Id. at 1022. lung cancer.” suffered, damages actually princi- never rule, old pal inequity single-action case, Appel- In instant while the their claims in the Appellants press for fear of can- previously lants recovered for name decedents. cer, Appellants nor Crane con- neither tend that or Abrams suffered from Shaw ¶4 years ago, pro- Fifteen this Court cancer to their lung fair of latent asbes- fessed that resolution in De- respective diagnoses of that disease tos disease claims us to eschew Clearly, cancer is a lung cember 2002. rigid concepts” “blind in fa- adherence to distinct disease from the as- separate and taking “enlightened approach” vor of Ap- conditions for which the bestos-related enabling plaintiffs timely to assert claims Further, recovered. pellants previously they for separate, distinct diseases as recovery for of cancer” is damages “fear arise. See Marinari Asbestos damages equivalent recovery af- 417 Pa.Super. 612 A.2d 1027-28 of cancer is diagnosis ter a the disease (1992). necessary The change was seen as lung dispute made. There can be no protect developed those who the most cancer and distinct disease is severe caused asbestos. To- asbestos-related medical condi- day, deny we an asbestos who Appellants previously tions for which the seeks, time, damages first on addition, damages. the rec- recovered timely inju- claim the ultimate asbestos Appellants did not sue ord is clear cancer, ry, terminal limit him instead previous actions. Crane to the lesser distinct he re- ¶ 4 record that Shaw and shows living ceived earlier for seventeen lung diagnosed with cancer Abrams were possibly with the fear that his disease They in 2002. filed the actions in- precisely heralded cancer. This two-year statute well within the policy equitable result our new was intend- Therefore, I conclude limitations. Accordingly, join I ed avoid. claims, have valid Appellants Dissent. precluded by the statute of are not which have not re- limitations. BY OPINION DISSENTING Crane, anything from covered MUSMANNO, J.: Shaw’s and within two each sued diagnoses. lung Accord- Abrams’s respectfully dissent. fear jurisprudence adopted pol- analysis here. The has 6. That our experienced while and the fear icy requiring future cancer claimants to defer "fear now having elements of are two distinct after of increased risk of cancer claims” until damages. receiving affect a cancer does not ingly, should be entitled to

a trial before fact-finder. M.

Theresa and Arthur BROOKS Brooks,

K. Sr. COMPANY,

B Beverly & R TOURING

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Appeal Touring B Company of: & R Beverly Frey.

Superior Pennsylvania. Court of

Argued Oct.

Filed Dec.

Case Details

Case Name: Abrams v. Pneumo Abex Corp.

Court Name: Superior Court of Pennsylvania

Date Published: Dec 17, 2007

Citation: 939 A.2d 388

Court Abbreviation: Pa. Super. Ct.