Doe v. Johns-Manville Corp.

15 Pa. D. & C.3d 135, 1980 Pa. Dist. & Cnty. Dec. LEXIS 330
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJuly 2, 1980
Docketno. 79-10947-14-6
StatusPublished

This text of 15 Pa. D. & C.3d 135 (Doe v. Johns-Manville Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Johns-Manville Corp., 15 Pa. D. & C.3d 135, 1980 Pa. Dist. & Cnty. Dec. LEXIS 330 (Pa. Super. Ct. 1980).

Opinion

BIESTER, J.,

— Petitioners have brought this action for declaratory judgment seeking to determine when the statute of limitations forecloses an action based upon the allegedly wrongful and protracted acts of respondents in permitting the industrial climate in which petitioner John Doe has worked to be such as to foster his contraction of asbestosis. This matter is presently before the court for disposition of respondents’ preliminary objections to the petition of John Doe and Mary Doe pursuant to Bucks County Local Rule *266.

Since respondents have, inter aha, demurred to the petition, we must accept as true all well pleaded factual allegations in the petition: Philadelphia v. Penn Plastering Corp., 434 Pa. 122, 253 A. 2d 247 (1969); Arel Realty Corp. v. Myers Bros. Parking Corp., 237 Pa. Superior Ct. 87, 346 A. 2d 796 (1975).

[137]*137Taking these well pleaded allegations as true, we assume the following facts.

Petitioner John Doe (petitioners have filed under pseudonyms to protect their anonymity, which subject is treated below) is and has been employed in the asbestos industry for over 25 years and as a result of that employment has been exposed to respondents’ products for several years. In May of 1979, he learned that he had contracted asbestosis as a result.of his continuous exposure to respondents’ products. He has also been advised that the disease is not presently disabling but it may or may not become disabling in the indefinite future.

Petitioners ask the court to determine when the statute of limitations runs against their right to bring suit. Their dilemma lies in the fact that while John Doe may suffer some disability from this disease in the future, he does not suffer from any disability now; nor is it foreseeable that he is likely to suffer from any disability within two years of his discovery of the disease. Therefore he is confronted with the choice of bringing his action now, in which event he may not be able to show any significant damages nor be able to produce testimony to the effect that it is likely that he will suffer certain foreseeable damages, or, in the alternative, waiting until such time as true disability occurs and then suffer the discovery upon bringing the action at such later date that the statute of limitations ran out on his rights in May or June of 1981.

Doe’s dilemma allegedly flows from certain ambiguities inherent in the statute of limitations, 42 Pa.C.S.A. §5524. He petitions the court to determine that the statute of limitations applicable to his case does not begin to run until he is in effect unable to work. Respondents oppose petitioners’ construe[138]*138tion of the statute of limitations and urge the court to determine that Doe must bring his action within two years of May 1979, the date he discovered he had contracted asbestosis.

Respondents severally raise four common preliminary objections to the petition posing the following issues:

1. Does there exist a real or justiciable controversy? .

2. Does the court have the capacity to grant the relief sought under the law of Pennsylvania?

3. Does the action fail to conform to law and rules of procedure in that petitioners are not fully identified and designated by name?

4. Have petitioners failed to join all necessary parties?

We shall consider these issues in the order we have identified them.

I. CONTROVERSY

Doe’s petition is predicated upon 42 Pa.C.S.A. §7533 which provides in pertinent part that “[a]ny person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder.”

The statute concerned is 42 Pa.C.S.A. §5524 which provides in pertinent part that “[t]he following actions and proceedings must be commenced within two years. . . . (2) An action to recover damages for injuries to the person. . . caused by the wrongful act ... or negligence of another.”

Respondents argue that because Doe is not yet and may never be disabled there is no present con[139]*139troversy concerning §5524 and that the court is being asked to rule on a hypothétical or speculative question and therefore the petitioners are not entitled to seek declaratory judgment.

We believe that respondents’ argument misses the whole point of declaratory judgment actions and demonstrates an extraordinary inability to appreciate the dilemma immediately confronting petitioners. Clearly, petitioners’ “rights, status or other relations are affected” by the statute of limitations. Furthermore, petitioners’ claim as to when the statute of limitations begins to run against a potential cause of action is directly antagonistic to the position of respondents. Petitioners aver that it runs from the time of Doe’s inability to work. Respondents aver that it runs from the time of discovery. Respondents seem to believe that petitioners should be forced to guess at which point the statute begins to run, and petitioners believe that they are entitled to know when it begins to run and to know now, before it is too late, through the process of litigation in this declaratory judgment action in which each side can effectively present its respective point of view. Petitioners may be correct or incorrect in their assertion as to when the statute begins to run and the court makes no judgment at this very early stage of the proceedings on that ultimate question.

Respondents argue that the petition concerns a future event which may never occur and therefore declaratory judgment is not available. They correctly state the abstract proposition that declaratory judgment will not lie if it concerns a future event that may never occur: Philadelphia v. Philadelphia Transportation Co., 404 Pa. 282, 171 A. 2d 768 (1961); Kahn v. William Goldman Theatres, 341 Pa. 32, 17 A. 2d 340 (1941); Singer v. [140]*140Sheppard, 33 Pa. Commonwealth Ct. 276, 381 A. 2d 1007 (1978). However, their application of that principle to this case overlooks a present event that has certainly occurred, namely, Doe’s presently diagnosed asbestosis. It also overlooks the essential implication of their own position on when the statute begins to run, i.e., it is running now. There may be a clock already ticking against Doe’s rights and if it is, it is certain to run out in May of 1981.

Respondents’ objection would be more appropriate if Doe were merely in danger of contracting asbestosis, which is not the case.

For example, in Kahn, the court declined to rüle on the validity of respondent’s first refusal option on the petitioner’s land because there was no indication respondent would try to enforce the option. A similar result obtained in City of Philadelphia, wherein the petitioners held a similar'option. The exercise of the option or enforcement of the option were the events that might never occur. Finally, in Singer the court refused to declare the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. §1009.101 et seq., unconstitutional in several hypothetical situations.

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Bluebook (online)
15 Pa. D. & C.3d 135, 1980 Pa. Dist. & Cnty. Dec. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-johns-manville-corp-pactcomplbucks-1980.