*1 would apply the discovery rule and accord this the full party benefit of the two year period limitations because he could not have filed suit within the statute. What a difference a week or two makes under such an I argument! simply do not believe period limitations should be based on retrospective determination party of whether a could have filed suit before expiration of the limitations period. I
Accordingly, would reverse the order of the Court of Common Pleas of Allegheny County entering summary judg- Appellant’s claim, ment on survival and would remand the case proceedings. further NIX, C.J., CAPPY, J., join and Opinion Support Reversal.
666A.2d 245 Shirley COCHRAN, Administratrix of the Estate of Cochran, Deceased, Shirley A.
William Cochran, right, Appellant in her own
v. CORPORATION, Raymark Industries, Corpo- GAF Inc. Celotex ration, Philip Carey Manufacturing Successor-In-Interest Company, Philip Carey Corporation, Briggs Manufacturing Company Corporation, Building Panacon Keene Prod- and/or Corporation, Eagle-Picher Industries, Inc., ucts Owens Corn- ing Fiberglas Corporation, Owens-Illinois, Inc., Garlock, Inc., Company, Pittsburgh Corning Corporation, A-Best Products Armstrong Industries, Inc., Industries, Inc., World Nicolet Suc- Keasby Mattison, Compa- cessor-In-Interest & H.K. Porter ny, Inc., Company, Successor-In-Interest to Southern Textile Formerly Company, Engineer- Southern Asbestos Combustion ing, Inc., Company, Successor-In-Interest to Dietrich Fibre- Corporation, Company, board General Refractories A.P. Green Company, Carey-Canada, Refractories Inc. Successor-In-Inter- Carey Quebec Mines, Ltd., Corp., est To Canadian Asbestos Packing Company, Refractories, Anchor Universal Division of Engineer- Koppers, Subsidiary Ferro Corporation, A Theim Foseco, Inc., Oglebay Company, Allied ing, Norton Division Refractories, Inc., BMI, Corporation, Harbison-Walker Glove Wright Company, George Pittsburgh Gage Company, Inc., F.B. *2 Company, Hamilton, Inc., Divi- Refractories North American V. Refractories, Corporation, Division and Kaiser sion of Eltra Mines, Corporation, Hedman Aluminum & Chemical Kaiser Corporation, Argo Packing Company, Ltd., Gasket Flexitallic Right Corporation, and as Succes- In Its Own Wheeler Foster Insulations, Inc., Corpo- Forty-Eight Nichias sor-In-Interest Industries, Inc., ration, Safety Appellees. First Pennsylvania. Supreme Court of Argued March 1995. Sept. Decided *3 Brett, Gensler, Tybe A. Burkoff, L. Vickie John M. White, P.C., Goldberg, Persky, Jennings & Pittsburgh, for appellant. Condo, Reed, Smith, K.
Kathy & McClay, Pittsburgh, Shaw Pittsburgh Owens-Illinois, for Corning Corporation Inc. McNulty Roberson, & Riley, Gary F. Riley, R. Patrick Corpora- Fiberglas Owens-Corning Hewitt, for Pittsburgh, tion. Carroll, P.C., Davies, McFarland & Geiger,
William David Industries, Inc. First Pittsburgh, Safety for Kirshner, P.A., P. Pra- Todd Kirshner, Rosenberg A. Miles Corporation. Pittsburgh, for Keene ga, Jr., Sosso, Bogut, Perer, John C. Anna Maria Alan H. GAF Johnson, Pittsburgh, Corporation, Swensen, Perer & & Industries, Inc., Green Refractories A.P. Armstrong World Corporation. Flexitallic Gasket Antinone, Ruth Willman, Silvaggio, A. Concetta
R. Kenneth Arnold, A-Best Pittsburgh, for Kooser, H. & John Willman Hamilton, Inc. V. George Company Products & Robb, Mines, Ltd. for Hedman Kenneth S. Lock- & Taylor, Kirkpatrick H. Owsiany, Richard
Robert Refractories, Inc. hart, for Harbison-Walker Pittsburgh, FLAHERTY, ZAPPALA, CAPPY, C.J., NIX, Before MONTEMURO, JJ. CASTILLE and
OPINION MONTEMURO, Justice. Cochran, from an order and Shirley appeals
Appellant, affirming an Court opinion Superior memorandum County Allegheny Pleas of of Common order of Court upon based motion for Appellees’ *4 granting of limitations. the statute court is whether trial
The
this case
presented
issue
by the
were barred
Appellant’s
claims
held
properly
“discovery rule”
limitations
not
and
-within
statute of
a failure to exercise due
exception because of
illness.
of decedent’s
cause
pursuing
Baumgart
companion
of
v.
appears in
case
issue also
1. The identical
Court,
Keene,
(1995),
on
in which the
On March Mr. Cochran again was admitted to the hospital after several x-rays chest revealed the of a presence mass in lung. the lower lobe of his left A bronchoscopy and wedge resurrection performed, pathology were reports presence confirmed the of a malignancy. The 1985 admission records make the first reference exposure to Mr. Cochran’s to asbestos.
Following this hospitalization, Mr. Cochran contacted an attorney who for Dr. arranged Howard E. to Reidbord review the tissue slides from both 1981 and 1985 An admissions. August by 1985 report Dr. Reidbord opined both pulmonary carcinomas were to exposure. related asbestos This report revealed that slides prepared the time of the 1981 resection contained asbestos bodies the pathology material.
Appellant initiated the instant by action filing complaint on September 1985. The complaint alleged that Mr. Cochran totally disabled from carcinoma of the asbestosis as a result his exposure asbestos-containing products manufactured the various during defendants his employment. course of December Mr. Cochran died. The Appellees filed a motion contending that the decedent knew or should have known his cancer was asbestos related in June more than years prior two initiating his Appellant suit. maintained knew, that the decedent never reason had to know that his lung cancer receipt was asbestos related until the of Dr.
215 therefore, 7, 1985, and, suit the report August on Reidbord’s trial period. limitations year the filed well within two was panel a summary judgment, motion for the granted court court, banc and an en reversed the trial Superior Court trial order of the reinstated the panel Superior of the Court court. Superi- panel that the en banc asserts
Appellant
were enti
Appellees
that the
incorrectly
or
concluded
Court
Instead, she
a
law.
summary judgment as matter of
tled to
have
should
of whether
decedent
argues that
issue
1981
an issue
cancer in
had an asbestos related
known he
well
in this matter is
Our standard
review
jury.
for the
summary judg
granting
A trial court’s order
established.
it
unless
is established
ment will not be reversed
its
clearly
error of
or
abused
discre
committed an
law
court
452, 457, 627
Pa.Super.
v.
426
Hosp.,
Holmes Lankenau
tion.
denied,
671,
763,
(1993),
Where the
plaintiff
reasonable time for the
garding what constitutes a
cause,
usually
for the
and its
the issue
discover his
Pa.
County, 530
Medical Center Beaver
jury. Hayward v.
1040,
325,
(1992);
v.
320,
Telephone,
Smith Bell
608 A.2d
(1959).
134, 142,
general
This is the
Pa.
153 A.2d
However,
the well
today.
recognize
we also
rule we set forth
are so clear
that where
facts
principle
established
differ,
period
the commencement
minds cannot
reasonable
530 Pa. at
Hayward,
a
law.
as matter of
may be determined
Jackson-Cross, 402
at 1043
v.
(quoting
608 A.2d
Sadtler
(1991)).
Pa.Super
587 A.2d
v. Pocono
Raceway
in Pocono International
example,
For
Produce,
(1989),
plaintiff owned
Thus, we have not hesitated to find as a of matter law that a party has not used diligence reasonable in ascertaining the injury cause of an thus barring party from asserting their claim discovery under the rule.
In evaluating whether the trial court committed an error of law an abuse of case, discretion the instant we are mindful several of well-established of principles law. We discovery note that the rule an exception general is to the rule of begins the statute to run limitations as soon as the right Pocono, to institute and maintain suit arises. 503 Pa. 84, Therefore, at at 468 A.2d one claiming benefit of the exception bears the of burden that she establishing falls within it. we prescribed As stated Pocono: “Once statutory has period expired, party is barred from bring ing it suit unless is that an exception established to the general applies rule which to running acts toll the Thus, statute.” Id. at 471. A.2d it is the Appel to lant’s burden establish that she is entitled to the discovery rule exception. Bcmmgart, Opinion Support sets Reversal forth definition what constitutes reasonable diligence: that, a reasonable effort just diligence
Reasonable the facts and circum- under discover the cause recognized we Long ago present the case. stance discover, “[tjhere cannot but diligence which are few facts and direct inquiry awaken there must be some reason successful. in which it would be in the channel diligence.” Deemer v. reasonable This is what is meant (1936) Weaver, (quoting 187 A. 324 Pa. (1923)). Miller, A. Madole v. subjec- objective, rather than diligence is an Reasonable standard, plaintiffs actions tive standard. Under this he exhibited “those must be to determine whether evaluated attention, knowledge, intelligence qualities protection for the requires of its members society which *7 Burnside own interests and the interests others.” their 264, 292, 973, Laboratories, A.2d 351 505 Pa.Super. v. Abbott Smith, 261, 271, (1985) Pa.Super. v. 307 (quoting 988 Petri (1982)). (Second) 342, Restatement 453 A.2d 347 See also objective § nature Despite Torts comment b. 283 standard, flexible, sufficiently is diligence “[i]t reasonable persons however, between difference[s] to take into account and the circum- their to meet certain situations capacity in question.” Burn- confronting them at the time stances Petri, 292, side, (quoting 505 at 988 Pa.Super. 351 at A.2d 347). Thus, this 271-72, 453 at case 307 at A.2d Pa.Super. duty is under an absolute plaintiff that a not law teaches Instead, must exercise of his illness. he discover the cause reasonable man would that a only diligence the level in a presented under the facts and circumstances employ particular case. 207, at 666 A.2d at of Reversal
Opinion Support
enlightens us on what
reason
Our
further
case-law
It is well settled that
facts of a
case.
particular
able under the
not
mistake or misunder
limitations is
tolled
the statute of
84,
Pa.
With these principles we cannot say trial court committed an error of law or an abuse of discretion in granting Appellees’ motion for summary judgment. It is clear that reasonable minds would not differ as to whether the decedent exercised reasonable discovering the cause of Here, his cancer the instant case. the decedent was first diagnosed cancer in 1981. The record indicates that ample there was support diagnosis evidence to However, asbestos-related cancer at that time. Mr. Cochran did not seek additional legal or medical help precise ascertain the cause of his cancer until March of 1985. Appellant’s explanation sole nearly for this four year lapse is the assertion that the decedent believed that his cancer was caused by smoking he, his habit and accordingly, stopped smoking. There is no medical evidence in the record to support the decedent’s mistaken belief that his cancer was caused solely by smoking. his
Appellant in essence contends that her husband mistakenly diagnosed the cause of his cancer as smoking related rather *8 related, than asbestos and did not discover the real cause until 1985 after a second hospitalization. Unfortunately, under our case law supra, cited the decedent’s mistaken belief cannot toll the statute of limitations for the four year period between 1981 and 1985. The record amply demonstrates that the asbestos related nature of the apparent cancer was in June of 1981, and that the decedent failed to seek legal additional and help medical to ascertain the actual cause of injury his until March of 1985.
Here, the decedent waited years four before diligently pursuing Therefore, the of cause his illness. agree we with the en banc panel Superior that Court reasonable minds
219 dili- of reasonable not as to decedent’s lack could differ the summary judgment. rendering this case suitable gence the of his to cause The decedent’s failure ascertain ignorance.” “somnolence,” than result rather “blameless the of 291, 154 A.2d Ayers Morgan, See v. 86, 468 A.2d at
(1959), 503 Pa. at Raceway, Pocono Intern. and an error of did not commit Accordingly, 471. trial court entering grant or an a law abuse discretion judgment. two errors. having committed Dissent accuses us First, response. we are
These warrant a brief accusations history information overlooked medical charged having The Dissent medical records. contained the decedent’s material facts that medical records create asserts that these in this case. Howev- judgment inappropriate make summary er, torturing is routine medical we believe that Dissent of materi- history attempt to create an issue information merely the Dissent history quoted al fact. The medical that he was a reveals that Mr. Cochran’s doctors noted smoker, This stop smoking. infor- and recommended that he taken history is in nature of routine medical from mation See, (“patient Record at 203 is any patient. e.g., Reproduced (“The “Indications”); patient under R.R. at 206 heavy smoker” under year, quit last week.” “Social sixty packs smoked cigarette abuse” History”); (“history heavy R.R. at 233 (“He a heavy R.R. is History”); under Medical “Past (“He smoker, at 261 history”); R.R. significant no alcohol is to per day known packs cigarettes smokes under per from 1 to fifths of ethanol week” “Social drink smoking History”). the record is the decedents’s Nowhere Quite simply, his these rou- causally cancer. related diagnosis medical entries do not constitute tine Thus, we his cancer in 1981. smoking decedent’s caused apparent that “it is that agree cannot with the Dissent concluded in 1981 appellant physician and his According- Dissent at by smoking.” cancer was caused fact-finder, are as argues acting that we ly, while the Dissent actually combing Dissent appear it would *9 in frantic a attempt genu- record a somewhat to manufacture ine issue of material fact where none exists.
Second, the accuses a creating heightened Dissent us establishing Apparently, standard for due the Dis- diligence. diligence” allowing anyone sent would be favor of a “no rule faith, mistaken, a if belief to claim the discov- good even rule benevolence of such ery exception. Despite apparent approach, supported by it is not our case-law. Our cases firmly diligence” establish that the “reasonable standard has A person claiming discovery exception some teeth. rule establishing pursued has the burden of that he the cause of his attention, injury qualities knowledge, with “those intelli- society requires which of its members for gence protection of their own interests and the interests of Laboratories, Pa.Super. others.” Burnside v. Abbott (1985) Smith, 505 A.2d Petri v. (quoting (1982). 453 A.2d As discussed Pa.Super. may require party this standard to obtain additional supra, Also, legal party may rely and medical advice. not on misunderstanding period. mistake or to toll the limitations approach dramatically expand of the Dissent would with a discovery open gates anyone rule and the flood allow lack claim good diligence faith benefit of the rule. The the Dissent would proposed by severely standard erode the limitations, of our and that finality truly statute would be error.” “grievous above,
For the reasons set forth we affirm the order of the en banc panel Superior Court.
CAPPY, J., NIX, C.J., dissenting files a opinion which joined. has
MONTEMURO, J., is sitting by designation.
CAPPY, Justice, dissenting: I respectfully question must dissent. The issue case is whether the decedent exercised due ascer- the cause of his so that his claim would fall taining rule to the statute of limita- discovery exception within *10 lower affirms of the the decision majority herein The tions.1 had not requirement diligence the due which found courts in of favor Thus, judgment summary the of grant met. been sustained, is dismissed. claim and decedent’s appellees majority with the my illustrate frustration In order to best Court’s restating this decision, by discussion begin my I Before summary judgment. of reviewing grant standard for be a clear there must can be entered summary judgment fact and no issues of material that there are showing matter of law. as a judgment entitled to party is moving 320, Pa. County, 530 Beaver v. Medical Center Hayward of (1992). moved 1040, herein appellees 1042 324, A.2d 608 had that the decedent on the basis summary judgment 1981, had yet in suit cancer June diagnosed been of these the basis 1985. On September filed until not been the com- asserted facts, dispute, appellees not in which are limitations, for the which statute of of the plete defense 5524(2). § 42 Pa.C.S. years. issue is two claim at negligence the dis- asserting that Appellant opposed was decedent in this case as the applied be covery rule should injury until legal his the existence of unable to ascertain August of 1985.2 rule discovery of the application from the
In order to benefit following two- of the requirements meet the must plaintiff test: pronged begins disease” cases “creeping limitation statute of
[T]he reasonably knows, should plaintiff run ‘when the (2) (1) that his injured he has been know conduct.’ party’s another has been caused Keene, Baumgart v. 542 the Court issue was before 1. This same 194, (1995); affirming the where a Per Curiam Order A.2d 238 666 entered, evenly Court was Superior Court was as this decision in that case. discovery rule to the facts application of the on the divided “injury” when he was an Although knew he had suffered the decedent 2. unaware that in June 1981 he was diagnosed with cancer Torts defines injury.” Second of “legal The Restatement was a cancer as "the invasion give rise to a cause of action injury which would an which, tortious legal result of a if it is the legally protected interest act, Restatement injured maintain an action in tort.” so entitles one (Second) § comment b. Torts Insulation, Pa.Super. Indus. v. Keene Cathcart denied, A.2d (1984), 527 Pa. appeal A.2d (1990)(emphasis supplied). case, by converting rule majority perverts the In this to “could “reasonably should know” precedent the condition asbestos relat- majority concludes have known.” The Juñe of apparent decedent’s cancer ed nature of two errors. majority commits that conclusion reaching First, high burden of due oppressively it places finder, second, fact a role decedent; it acts as a upon of this Court its beyond province clearly which is *11 ruling upon when highly inappropriate and appellate capacity, summary judgment.3 from a motion for appeal case, majority discovery rule to this applying In taken sample the fact that a tissue emphasis upon places great in lung. in asbestos fibers from the 1981 revealed decedent the decedent However, explain why fails to majority in that the tissue have known June of 1981 reasonably should fibers, was not when the tissue sample revealed asbestos The August until of 1985. by any expert examined medical was in sample that since the tissue merely concludes majority 1981, “could have been” ascer- the information existence majority explanation finds decedent’s tained solely related to his in 1981 that his cancer was he believed by concluding to be not credible cigarette smoking “[tjhere support medical evidence the record is no solely cancer was caused mistaken belief that his decedent’s 218). of My at review smoking.” (Majority opinion p. by his case is at odds with the conclusion the medical records order, the records chronological medical majority. history: following reveal the 3, Hospital with 1981: Decedent entered Montefiore
June 2 packs that he smoked 1 to It is noted pain. lower back of asbestosis. per day, no mention cigarettes "frantically” author of majority page 218-19 accuses this 3. The attempt genuine combing to manufacture a issue the record in an nothing contrary, there was "frantic” about material To the fact. in the medical simple obvious factual information contained review of reports comprising part this record. Adenocarci- 17, diagnosed is with June 1981: Decedent Lab lobe. No mention of asbestosis. right upper noma asbestosis. mass no mention of report lung on contains of back Upon complaining a readmission April 1982: notation that the discharged is problems decedent despite surgery, lung significant previous are not findings itas stop smoking, pro- is that he should recommendation cough. a minimal duces determination, disability it is 1982: In a
November pulmonary a smoker suffered noted that decedent was It is further right lung. carcinoma of the emphysema and occupation never in an noted that decedent has worked There is gaseous agents. him to fumes noxious exposing no mention of asbestosis. is to Montefiore Hos-
March 1985: Decedent admitted lung report This contains first pital with a left mass. A family history lung exposure notation of asbestosis. noted. cancer is also right lung A the 1981
August 1985: review of tissue fibers. reveals asbestos A
August 1985: of 1981 tissue and right review samples is completed 1985 left tissue both show opinion of asbestos fibers. The first medical presence *12 pulmonary the by positively received decedent which links exposure carcinoma to to asbestos fibers. I my of the medical in this case am
By
reading
records
the
that
record
agree
majority
“[t]he
unable
with
conclusion
that the asbestos
nature
the
amply demonstrates
related
”
in
(Majority opinion
June of 1981....
apparent
cancer was
218).
majority
finds the existence of the 1981 slide
p.
The
in
finding
diligence
that decedent acted with due
precludes a
injury.
only way majori-
the cause of his
The
the
ascertaining
own evalua-
by conducting
can reach that conclusion is
its
ty
directly
point
That
tion of the facts.
leads
the second
decision.
disagreement
majority
are material facts at issue
When there
University v. Coun-
Pennsylvania
can not be
State
granted.
(1992).
Centre,
in
Clearly,
external one that is It It is subjective community standard. standard. flexible, however, to take into account differ- sufficiently capacity ences their to meet certain situa- persons, between confronting tions and the circumstances them at the time short, required In the standard of conduct is a question. account fallibility uniform one which takes ‘into 2d, Restatement, § human Tort comment b. beings.’ that, c. what that stan- recognizes usually, Our law may by judgment, dard is be best determined the collective wisdom, jurors who have been selected at experience of random whose standard is to be community from supplied]. applied, [emphasis I agree majority with the that where reasonable minds But I summary judgment could not differ must be entered. case, majority’s with the conclusion that in this on disagree facts, fact, could not differ. these reasonable minds case, panel Superior Court which first reviewed the court, judge reversed the order of the trial with one matter dissenting; Superior when the case was reviewed banc, judges agreed summary judg- Court en six to reinstate ment, history while three dissented. The of this judges very strongly dispute case indicates there are material facts question such that reasonable minds could differ on the reasonably should have known the whether this decedent injury. cause of his
Finally, troubling majority what is most to me is *13 inextricably lay people, view leads to a conclusion that such as herein, duty are now with the of ferret- charged decedent as cancer or lung causes for such possible out all diseases ing Here, have. it is they may losing legal rights that any face concluded physician decedent and his apparent In smoking. cancer was caused lung 1981 that apparently its cause diagnosed, cancer but properly was in the law now What would change was not ascertained. appeared on its go to what layman patient beyond require cause, to illness diagnosis face to be a reasonable as for a physician be another the slide sent demand as to causation? opinion second delay, view, notwithstanding year it is for my the four “reasonably if the herein should
jury to determine decedent was known” in 1981 that the cause of his cancer have un- A whether an jury asbestos related. should determine just diagnosed has with lay person who been trained day cigarettes per one to smoking packs cancer after two known” that many years, “reasonably should have by exposure cancer was caused to asbestos. herein, I
Accordingly, agree for the reasons cannot stated I am majority. compelled the recommendation of the inappropriate and that conclude or not decedent exercised due the issue whether is a ascertaining question the cause of his wisdom, and judgment, experience” left to “collective best I jury. of a dissent. respectfully G.J.,
NIX, joins opinion. this dissenting