Romano v. Johns-Manville Corp.
Romano v. Johns-Manville Corp.
Opinion of the Court
Affirmed.
Concurring Opinion
concurring:
I join the majority but file this Concurring Statement to make clear my view that the controlling law, in an appropriate case, remains that propounded in Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985) and Symbula v. Johns-Manville Corp., 343 Pa.Super. 541, 495 A.2d 598 (1985).
Initially, in order to enlighten the bench and bar as to the basic factual situation at issue, below is a verbatim summary as included in the unpublished majority memorandum:
These three appeals are from the orders of the trial court granting Appellees’ motions for summary judgment. In each case, an appellant brought a wrongful death and survival action for a decedent’s asbestos-related injuries and death.
*167 The related issues in these appeals are: 1) the application of the “discovery rule” to the statute of limitations for wrongful death and survival actions, codified at 42 Pa.C.S.A. § 5524(2), following repeal of the former statutes of limitations 12 P.S. § 1603 (wrongful death) and 12 P.S. § 34 (survival actions), by the Judiciary Act Repealer Act (“JARA”) of April 28, 1978, P.L. 202, § 2a (310) (wrongful death) and (807) (survival actions), effective June 27, 1978 and, 2) the correctness of Symbula v. Johns-Manville Corp., 343 Pa.Super. 541, 495 A.2d 598 (1985), and Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985).
Per Curiam Memorandum, filed March 3, 1987, p. 1.
The en banc panel went on to determine that resolution of the issues would have to wait
The argument of appellee is that death is an ascertainable event and, therefore, should not be covered by the discovery rule since there is nothing to discover. This ignores the fact that death is not a cause but a result and the cause of death and the cause of injury in given cases may be identical and equally subject to problems of ascertainment. Appellee simply harkens back to Anthony v. Koppers, 496 Pa. 119, 436 A.2d 181 (1981). In Anthony, the Supreme Court held that the wording of the statute of limitations, as it applied to wrongful death, was so specific “one year after the death, and not thereafter”, there was no room for judicial construction. This was contrasted with personal injury cases where terms such as “injury” or the “accrual of a cause of action” were subject to judicial interpretation. Id., 496 Pa. at 123-24, 436 A.2d at 184. As to survival actions, the court treated discovery of the cause of injury after death as an injury occurring after death and thereby
This Court has reviewed these cases on a case by case basis and has not extended the discovery rule beyond its reasonable application. It is more likely than not in a given
This rule evolved out of a sense of justice and fair play and is particularly applicable to a category of cases which has been beset by denial, avoidance and mistreatment of people, at the hands of industry and government which is no less callous than that which occasioned the great reforms of safety and humane working conditions throughout the first half of this century. It is also relevant to government policies of shifting diagnosis whereby persons determined to be handicapped at one time are stricken from the roles of social security disability at a later time and new classes of disease are codified due to different interpretations of disabilities and their causes.
. Pastierik was recently reversed by the Pennsylvania Supreme Court. In Pastierik v. Duquesne Light Company and Pastierik v. Johns-Manville, 514 Pa. 517, 526 A.2d 323 (1987), the Court determined the cause of action for wrongful death accrues at the time of death and not when the cause of death reasonably becomes known. Additionally, the Court held that the survival action acmes at the latest at the time of death, otherwise it accmes at the time the victim knew, or should reasonably have known, of his injury. Although Pastierik was reversed, the discussion included herein remains of importance in the discussion of the instant case and matter to be heard in the future.
. These issues have since been resolved by the Supreme Court in Pastierik, supra. See footnote 1.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.