Deleski v. Raymark Industries, Inc. , 819 F.2d 377 ( 1987 )

OPINION OF THE COURT

JAMES HUNTER, III Circuit Judge:

In this diversity case, we are asked to determine whether or not the District Court abused its discretion in denying appellant’s motion to transfer her case from the Eastern District of Pennsylvania to the District of New Jersey pursuant to 28 U.S.C. § 1404(a) (1982) (“§ 1404(a)”).¹ We find that Judge Scirica did not abuse his discretion in denying this motion.

John Kenny ("Kenny") died on August 14, 1973. While the death certificate listed the cause of death as simply "lung cancer," the autopsy report specifically noted the presence of "{p]oorly differentiated bron-chogenic carcinoma ... [a]ssociated with asbestosis." Appendix at 80. Although Kenny's widow, Diane Deleski ("Deleski"), authorized the autopsy, she says that she did not see a copy of the report, and hence did not learn of her late husband's asbestos-related condition, until September of 1981. On July 12, 1983, less than two years after she discovered the asbestos link, Deleski brought suit on behalf of Kenny's estate under the Wrongful Death Act of New Jersey, N.J.Stat.Ann. §~ 2A:31-1--2A:31-6, and 2A:15-3 (West 1952), against various asbestos manufacturers in the Eastern District of Pennsylvania. She also claimed loss of consortium and damage to her own health as a result of her handling of her husband's asbestos-tainted clothing and her inhalation of the asbestos dust he brought into the house. On January 17, 1986, roughly three weeks prior to the February 10, 1986 trial date, defendants filed a motion for summary judgment arguing that appellant's action was barred by Pennsylvania's statute of limitations in wrongful death and survival actions.² Appellant did not respond to this motion, but on February 3, 1986, filed a § 1404(a) motion for transfer to the District of New Jersey, and a motion to defer answer to defendants' summary judgment motion. Judge Scirica denied appellant's motion to transfer and granted defendants' motion for summary judgment.

Deleski's claim, which was brought ten years after her husband's death, is clearly barred by the Pennsylvania statute of limitations. Prior to June 1978, the time limit for wrongful death actions was controlled by Pa.Stat.Ann. tit. 12, § 1603 (Purdon 1953) (repealed 1978), which required such actions to be brought "within one year after the death, and not thereafter." In 1978, the legislature passed a new statute that required actions "to recover damages for ... the death of an individual caused by the wrongful act or neglect ... of another," 42 Pa.Con.Stat. Ann. § 5524(2) (Purdon 1981), to be brought within two years. The longer limitations period is not available to Deleski, as the legislature expressly provided that "[n]o cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act." Judiciary Act of July 9, 1976, P.L. 586, No. 142, § 25(b) (1978) (reprinted following 42 Pa. Cons.Stat.Ann. § 5524 (Pur-don 1981)). Because Deleski's claim was clearly barred by the pre-1978 statute, which unambiguously requires the commencement of a wrongful death action within one year of the date of death, it may not be revived by the 1978 statute.

At first blush, it might appear that, because she did not discover the possible asbestos link to Kenny's death until 1981, Deleski is entitled to the application of the equitable "discovery rule," which tolls the running of the statute of limitations period when the injury or its cause is not immediately evident to the victim. See Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548 (3d Cir.1985). However, the Pennsylvania Supreme Court has held that the discovery rule does not toll the pre-1978 statute of limitations in wrongful death actions. See Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981) (plurality).³ Applying the rules of statutory construction, the court in Anthony v. Koppers concluded that while the loose wording of the 1978 statute can accommodate the application of the discovery rule, the plain language of the pre-1978 statute, requiring wrongful death actions to be brought within one year of the date of death, cannot.

In addition to her wrongful death claims, Deleski also brought survival claims on behalf of her late husband. The limitation on these actions is controlled by Pa.Stat.Ann. tit. 12, § 34 (Purdon 1953) (repealed 1978), which provided that

Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case [sic] where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law.

In Anthony v. Koppers, the Pennsylvania Supreme Court found that the two-year limitations period for survival actions cannot be tolled by the discovery rule. The court reasoned that the survival statute, unlike the wrongful death act, does not create a new cause of action in the decedent's representatives, but instead preserves a cause of action possessed by the decedent during his lifetime. Therefore, the court concluded that it would be logically impossible to toll the accrual of the cause of action until some time after the decedent's death (i.e., upon the survivor's discovery of the decedent's injury). By arguing that the survival action did not accrue until eight years after Kenny's death, Deleski "concede[s] that no valid cause of action existed at the time of death which could be preserved under the survival statutes." Anthony v. Koppers, 496 Pa. at 125, 436 A.2d at 185. Thus, Deleski's survival act claims are time-barred under Pennsylvania law.

Deleski also claimed injury to her' own health as a result of her husband's exposure to asbestos.⁴ Her aim was twofold. She alleged (a) that she is at "risk to contract diseases and injuries to her [own] body system," and (b) that she suffers from a variety of emotional and mental injuries arising from "the knowledge that she is likely to contract cancer because of her exposure to asbestos particles in and around the home." Under either New Jersey or Pennsylvania law, plaintiff fails to state a claim upon which relief can be granted. Under New Jersey law, neither enhanced risk of disease nor the fear and emotional distress attendant upon that risk is compensable without some present physical manifestation of illness or injury. See Herber v. Johns-Manville Corp., 785 F.2d 79, 82 (3d Cir.1986) (no recovery for an enhanced risk of future harm standing alone); id. at 84-85 (recovery for emotional harm available only where plaintiff has sustained physical impact, injury or illness). Under Pennsylvania law, Deleski cannot state a legally cognizable "claim for negligent infliction of emotional distress based on the risk to her own health ... unless and until she manifest[s] physical injury caused by exposure to asbestos dust." Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 151, 471 A.2d 493, 507 (1984); accord, Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44-45, 482 A.2d 1067, 1072 (1984). Similarly, Pennsylvania law does not provide a cause of action for intentional infliction of emotional distress for persons who, like Deleski, were allegedly "indirectly exposed to. asbestos through contact with persons who had worked with finished asbestos products." Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 86 (3d Cir.1987). Finally, Deleski's "enhanced risk" claim must fail under the law of Pennsylvania, which does not provide recovery for "the possibility of future harm caused by a tortious act." Martin v. Johns-Manville Corp., 508 Pa. 154, 165 n. 5, 494 A.2d 1088, 1094 n. 5 (1985) (citing Lorch v. Eglin, 369 Pa. 314, 320, 85 A.2d 841, 844 (1952)) (emphasis added).⁵

For these reasons, we find that the district court's granting of the defendants' motion for summary judgment was proper. The clear barring of appellant's claim by the applicable Pennsylvania statute of limitations also leads us to conclude that Judge Scirica was well within his discretion in refusing appellant's § 1404(a) transfer motion. Deleski's argument in support of her transfer motion is that transfer to the District of New Jersey would be in the "interest of justice" because her case, while barred by the statute of limitations in Pennsylvania, would not be barred by the statute of limitations in New Jersey. Dde-ski claims that she was not aware that her case would be time-barred in Pennsylvania until 1985, when this court decided Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir.1985). Assuming that this intervening judicial decision is relevant to appellant's case and would provide an appropriate basis for a § 1404(a) transfer, we nevertheless find that Judge Scirica's denial of transfer was appropriate, because appellant's claim was clearly time-barred prior to the 1985 Ross decision. Prior to the appellant's filing of her complaint in July of 1983, the following information regarding the controlling statute of limitations was available to Deleski's attorney: (1) a federal district court sitting in diversity in Pennsylvania will apply the Pennsylvania statute of limitations; (2) the 1978 wrongful death and survival action limitations statute is not applicable to claims already barred under the pre-1978 statute; and (3) the equitable discovery rule is applicable neither to pre-1978 wrongful death actions nor to survival actions. Despite this information, plaintiff chose to file her complaint in the Eastern District of Pennsylvania. It is not in the "interest of justice" to transfer this case to the District of New Jersey upon appellant's tardy discovery that her complaint is time-barred.

We need not reach the two issues to which appellant's brief is chiefly devoted. First, because we find that transfer would not be in the interest of justice, we need not determine which statute of limitations period-that of the transferor or the transferee court-should apply in a § 1404(a) transfer brought by the plaintiff. Because the case before us is easily resolved on the basis of existing law, we believe that the doctrine of judicial restraint cautions against the resolution of this complex and important procedural issue at this time. Cf. Republic Indus. v. Central Pa. Teamsters Pension Fund, 693 F.2d 290, 293 (3d Cir.1982) ("constitutional issues ... should not be decided if a controversy may be resolved on some other ground") (quoting Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1137 (3d Cir.1979) (citing Ashwander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring))). Second, we will not reevaluate our opinion in Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir.1985), because we lack the power to do so under the Internal Operating Procedures of the Third Circuit. See United Food & Commercial Workers Union, Local 23 v. NLRB, 788 F.2d 178 (3d Cir.1986) (under Internal Operating Procedure 8C, only the entire court, sitting in bane, has the power to overrule a prior panel opinion), cert. granted, - U.S. -, 107 S.Ct. 871, 93 L.Ed.2d 826 (1987).

The order of the district court will be affirmed.

1 . Section 1404(a) provides that:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

2 . It is beyond cavil that a federal district court sitting in diversity must follow the forum's choice of law rules to determine the applicable statute of limitations period. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Pennsylvania courts will ordinarily apply the Pennsylvania statute of limitations period, unless 42 Pa.C.S.A. § 5221 (Purdon 1981), Pennsylvania's "borrowing statute," is applicable. Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 290 n. 23 (3d Cir.1980) (citing Freeman v. Lawton, 353 Pa. 613, 46 A.2d 205 (1946)). The borrowing statute is only applicable where the law of the jurisdiction in which the claim arose bars the claim sooner than the law of the forum.

3 . The precedential value of this plurality opinion is discussed in McGowan v. University of Scranton, 759 F.2d 287, 293 (3d Cir.1985).

4 . Deleski also claimed loss of consortium. Because the limitations period for loss of consortium claims is coextensive with the limitations period for the underlying injury to the spouse, Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 140, 471 A.2d 493, 502 (1984), Dele-ski's loss of consortium claim is barred pursuant to the principles enunciated in pp. 379-380.

5 . We note that, although these issues were raised in Deleski's complaint, they were not discussed by the judge below and not briefed by either party on appeal. We reach them here because we believe that the viability of this portion of the plaintiff's complaint is germane, although certainly neither conclusive nor dis-positive, to the core question we review today: whether or not the transfer of this case to the District of New Jersey would be in the "interest of justice."