Collins v. Walter C. Best, Inc.

451 A.2d 1362, 306 Pa. Super. 4, 1982 Pa. Super. LEXIS 5493
CourtSuperior Court of Pennsylvania
DecidedOctober 22, 1982
DocketNo. 740
StatusPublished

This text of 451 A.2d 1362 (Collins v. Walter C. Best, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Walter C. Best, Inc., 451 A.2d 1362, 306 Pa. Super. 4, 1982 Pa. Super. LEXIS 5493 (Pa. Ct. App. 1982).

Opinion

SPAETH, Judge:

This is an appeal from an order entering summary judgment. Plaintiff-husband suffers from silicosis. He and his wife have sued the companies that manufactured or supplied the products exposure to which caused his silicosis. The question is whether those companies may join plaintiff-husband’s employers as additional defendants. The lower court held that the Act of December 5,1974, P.L. 782, No. 263 § 6, 77 P.S. § 481, precludes joinder. We agree, and therefore affirm.

Plaintiff-husband worked in a steel foundry in Glassport, Pennsylvania, from April 1942 to July 1943, and after military service, from March 1946 until September 19, 1975, when he had to retire from work because of a disabling lung condition. Sometime later, either in October 1975, R. 13b-14b, or December 1975, R. 44b, he learned that his condition was silicosis caused by his exposure to silica and silicon dioxide in the foundry. On October 25, 1977, plaintiffs— husband and wife—filed a complaint in trespass and as-sumpsit against appellant and several other companies that had manufactured or supplied the products exposure to which caused his silicosis. Appellant filed a complaint to join appellees as additional defendants. Appellee Bucyrus-Erie Company is the current owner of the Glassport foundry, having purchased the foundry from appellee Textron, Inc., Pittron Division, in October 1974. Appellant’s complaint alleged that as plaintiff-husband’s employers, appel-lees were either solely liable, or to the extent that appellant was liable, liable for contribution or indemnity. After some intervening pleadings, appellees moved for summary judgment on the ground that the Act of December 5, 1974, P.L. [7]*7782, No. 263 § 6, 77 P.S. § 481, precluded their joinder. On June 22, 1981, the lower court granted their motions.

The Act of December 5, 1974, supra, 77 P.S. § 481, provides that an employee receiving workmen’s compensation benefits from his employer may sue a third party for causing his injury, but his employer “shall not be liable to [the] third party for damages, contributions, or indemnity .. .. ” Here, plaintiff-husband is receiving workmen’s compensation benefits from appellee Bucyrus-Erie’s carrier. Appellant acknowledges that if the Act applies, it precludes suit against appellees for damages, contribution, or indemnity, and that summary judgment in favor of appellees was therefore proper. Appellant argues, however, that the Act does not apply. The effective date of the Act was February 5, 1975, in other words, after most of plaintiff-husband’s period of employment with appellees was over. In appellant’s view, to apply the Act would be to make it retroactive in violation of the rule established in Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978).

In Bell v. Koppers, supra, the plaintiffs or their decedents were employed by the United States Steel Corporation at its Clairton Coke Works. Work there was conducted in close proximity to coke ovens designed, manufactured, or installed by Koppers Company, Allied Chemical Corporation, and Salem Corporation. The plaintiffs alleged that exposure over-an extended period to substances emitted from these ovens had caused them or their decedents to develop lung cancer. It was agreed by all parties that “the injuries occurred before February 3, 1975.” Id., 481 Pa. at 456, 392 A.2d at 1381. The plaintiffs filed suit on August 25, 1976, against the companies that had designed, manufactured, or installed the ovens. Koppers thereafter filed a third party complaint against United States Steel Corporation seeking contribution or indemnity. United States Steel filed preliminary objections contending that since it had been the plaintiffs’ or their decedents’ employer, the Act of December 5, 1974, precluded Koppers’s suit against it. The lower court sustained the objections and we affirmed per curiam, Bell v. Koppers, 253 [8]*8Pa. Superior Ct. 590, 384 A.2d 980 (1978). The Supreme Court reversed, however, holding that the Act did not apply because plaintiffs or their decedents had been injured before the effective date of the Act. Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978). The Court reasoned that the right to contribution or indemnity that existed before the Act was a substantive right, and that therefore the Act could not be applied retroactively. The Court noted that its decision had been predicted by several federal district courts. Id., 481 Pa. at 459, 392 A.2d at 1383, citing Atkins v. Blow Knox Foundry & Mill Machine, Inc., 431 F.Supp. 369 (W.D.Pa.1977); Wesolowski v. Rhoads, 416 F.Supp. 1052 (E.D.Pa.1976); Clark v. Essex Intern, Inc., 410 F.Supp. 215 (E.D.Pa.1976); Browne v. Wheel-Horse Products, Inc., 408 F.Supp. 415 (E.D.Pa.1976); Brescia v. Ireland Coffee-Tea, Inc., 412 F.Supp. 488 (E.D.Pa.1976).

We do not find either the Supreme Court’s decision in Bell v. Koppers, supra, or any of the federal district court decisions cited by the Court, on point, for none of them addressed the question before us, of when an occupational disease becomes an injury for purposes of determining the applicability of the Act. As we have noted, in Bell the parties had agreed that the injury—lung cancer—“occurred before February 3, 1975,” the effective date of the Act. Id., 481 Pa. at 456, 392 A.2d at 1381. In each of the federal district court cases the injury was caused by a discrete event occurring before February 3, 1975. Thus Bell held that the Act of December 5, 1974, must be applied prospectively, and that the Act therefore did not preclude joinder of the employer where the injury occurred before the effective date of the Act. But the problem of how to determine whether an injury has occurred before the effective date of the Act was not addressed.

Given the absence of any decision on point, the lower court drew an analogy between determining when a plaintiff was injured for the purpose of deciding whether to apply the Act of December 5, 1974, and determining when an action accrues in a creeping disease case for the purpose [9]*9of calculating the starting date of the statute of limitations. The lower court correctly stated that the statute of limitations does not start to run until a plaintiff has or reasonably should have knowledge of his injury, its operative cause, and the relationship between the injury and the operative conduct. Slip op. at 4. See Staiano v. Johns-Manville, 304 Pa. Superior Ct. 280, 450 A.2d 681 (1982); Anthony v. Koppers Company, 284 Pa. Superior Ct. 81, 425 A.2d 428 (1981); revs’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). The court then applied this standard to the facts of this case:

Plaintiff’s deposition shows quite clearly that prior to his retirement in September 1975 he had no health problems at all. “Toward the end” of his employment, the Plaintiff had trouble breathing and sleeping. It was not until September of 1975 that a Doctor told the Plaintiff he had a lung condition. No more information than this was imparted to the Plaintiff at this time.

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451 A.2d 1362, 306 Pa. Super. 4, 1982 Pa. Super. LEXIS 5493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-walter-c-best-inc-pasuperct-1982.