Berardi v. Johns-Manville Corp.

482 A.2d 1067, 334 Pa. Super. 36, 1984 Pa. Super. LEXIS 6260
CourtSupreme Court of Pennsylvania
DecidedOctober 5, 1984
Docket01009
StatusPublished
Cited by63 cases

This text of 482 A.2d 1067 (Berardi v. Johns-Manville Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berardi v. Johns-Manville Corp., 482 A.2d 1067, 334 Pa. Super. 36, 1984 Pa. Super. LEXIS 6260 (Pa. 1984).

Opinions

POPOVICH, Judge:

This is an appeal by Lillian Berardi, Executrix of the Estate of Domenic Berardi, Deceased, and Lillian Berardi, in her own right, appellants, from the entry of an order in the Court of Common Pleas for the County of Philadelphia, in favor of appellees, Johns-Manville Corporation, JohnsManville Sales Corporation, Raybestos Manhattan, Inc., Forty-eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Fibreboard Corporation, Pabco Industrial Products Division, Keene Corporation, Certain-Teed Products Corp., Pacor, Inc., Celotex Corporation, and Amatex Corporation, granting their motion for summary judgment. We affirm.

Summary judgment should be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035. In deciding whether this is [39]*39so, a court must view the evidence in the light most favorable to the non-moving party, and enter judgment only if the case is clear and free from doubt.

Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971).

The lower court entered summary judgment, holding that Decedent clearly had knowledge of his cause of action no later than March 17, 1976, but suit was not commenced until September 5, 1978, approximately six months after the limitations clock had run.

Opinion, Takiff, J. at 5.

Appellants make several claims of error. First, they urge that the Statute of Limitations does not bar the within action.

In the instant action, suit had been instituted by the filing of a complaint on September 5, 1978. The statute of limitations which governed the action was the Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June 27, 1978, currently codified at 42 Pa.C.S.A. § 5524(2).1

Domenic Berardi died on May 6, 1981. On July 9, 1981, his wife and executrix of his estate, was substituted as plaintiff. Judge Takiff sets forth the pertinent facts as follows:

Plaintiffs decedent, DOMENIC J. BERARDI, worked as a pipefitter at the Philadelphia Naval Shipyard for approximately twenty years between 1941 and 1974. He was admitted to the Hospital of the University of Pennsylvania (HUP) on May 6, 1974, with a pulmonary condition. A letter from his treating physician, Dr. Robert Mayock, a lung specialist, dated May 25, 1974, indicates [40]*40that there had been a previous history of chest disorders which had been followed at the Naval Yard Clinic for the past several years. On his most recent visit decedent was told that he had calcium deposits in his lungs and a repeated series of X-rays were obtained. Decedent’s major symptomatology prior to this hospitalization were fatigue and shortness of breath. When Mr. Berardi was discharged on May 10, 1974, the final diagnosis was “pleural asbestosis with obstructive lung disease and hypertensive cardiovascular disease.”
On May 31, 1974, Dr. Frank Bove, decedent’s family physician, filed a report in connection with Mr. Berardi’s disability retirement application in which the diagnosis was, inter alia, asbestosis with pleural plaques. Decedent’s signature appeared on the topmost part of this form; the bottom part was apparently filled in by his physician. On June 14, 1974, decedent himself filled out a “Notice of Injury or Occupational Disease” for the purpose of receiving Workman’s Compensation.benefits. He listed the date and hour of injury as prior to June 14, 1974, the cause of injury as working “with asbestos material for 20 years” and the nature of injury as “lungs.” Decedent signed this form as well.
A letter of October 11, 1974, from Dr. E. Wayne Marshall to Melvin T. Johnson, M.D., the Staff Medical Officer of the U.S. Civil Service Commission, indicates that decedent saw Dr. Marshall, complaining of chest problems and hypertension. X-rays indicated pleural thickening and plaques and the diagnosis was “probable asbestosis.” Marshall proclaimed Mr. Berardi totally disabled. In a second hospitalization at HUP from October 30 to November 2, 1974, there was a final diagnosis of asbestosis and obstructive lung disease.
At his deposition, Mr. Berardi testified that he became familiar with problems related to asbestos exposure, including asbestosis, no later than 1975 by reading newspaper and magazine articles and government literature ... On March 17, 1976, decedent wrote a letter to the U.S. [41]*41Department of Labor to indicate that he had been exposed to asbestos in the Naval Yard and that this exposure was undermining his health. Describing the link between his asbestos exposure and resulting physical disability, Mr. Berardi wrote:
“Considerable sawings of the insulation materials was constantly taking place with a constantant floation (sic) of asbestos particles which were the basic ingredients of these insulation materials.
Although we took all advantages of the existing safety precautions against breathing in of these materials, it was relatively impossible to eliminate what we have come to know as a serious hazard of asbestos. I might point out that little seemed to be known about the hazard at that time, and that I was personally unaware that I was falling victim to this disease.
I feel I can support the latter statement by the fact that I was experiencing difficulty in breathing and this was manifested by shortness of breath and pains in my chest, then probably aggravating an existing condition of hypertension.”
A Complaint was filed in this action on September 5, 1978.

Appellants herein claim that appellees failed to sustain their burden of showing that appellants possessed the requisite knowledge more than two years before commencement of the within action. They further assert for the first time that the lower court considered forms and letters which were not properly a part of the record to be considered on summary judgment. These exhibits referred to above were (1) letters and reports from physicians; (2) two workmen’s compensation forms; and (3) a “Federal employees’ notice of injury or occupational disease” form. An additional exhibit, referred to earlier, was a letter written by Berardi himself, which appellants claim does not show that Berardi knew “at that time that he had the specific disease of asbestosis.” (Appellants’ Brief at 12)

[42]*42In Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290, appealed Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983), the level of knowledge necessary before the statute of limitations begins to run was settled and elucidated as follows:

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Bluebook (online)
482 A.2d 1067, 334 Pa. Super. 36, 1984 Pa. Super. LEXIS 6260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berardi-v-johns-manville-corp-pa-1984.