Ingenito v. AC & S, INC. , 430 Pa. Super. 129 ( 1993 )

WIEAND, Judge.

Francis Ingénito was employed as a plumber/pipefitter from 1956 to 1984, during which period he was exposed from time to time to products containing asbestos.¹ In June, 1984, he was diagnosed with lung cancer. He died on October 30, 1986. On October 28, 1988, his widow, Rosemary Ingénito, filed wrongful death and survival actions against numerous manufacturers of asbestos-containing products. The trial court entered summary judgment in favor of the asbestos manufacturers because the action was barred by the two year statute of limitations appearing at 42 Pa.C.S. § 5524(2). The plaintiff appealed. We affirm.

In A. McD. v. Rosen, M.D., 423 Pa.Super. 304, 621 A.2d 128 (1993) the Superior Court said:

Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. Carns v. Yingling, M.D., 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991). A summary judgment can properly be entered in favor of a defendant where plaintiffs cause of action is barred by the statute of limitations. Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982); Washington v. Papa, 24 Chest. 334 (1976); Penn-Delco Union School District Authority v. M. & L. Construction Co., 60 [Pa.] D. & C.2d 226 (Del.Co.1972).

Id. 423 Pa.Super. at 307, 621 A.2d at 130.

The statute of limitations at 42 Pa.C.S. § 5524(2) provides that “[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another” must be commenced within two (2) years. “As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do[es] not toll the running of the statute of limitations.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983) (citations omitted) (emphasis added). See: Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964). See also: A. McD. v. Rosen, M.D., supra, 423 Pa.Super. at 307, 621 A.2d at 130. In general, the statutory period will begin to run when the cause of action accrues, i.e., the date on which the injury is sustained. Pounds v. Lehman, M.D., 384 Pa.Super. 358, 361, 558 A.2d 872, 873, allocatur denied, 523 Pa. 643, 565 A.2d 1167 (1989). An injury is done “ ‘when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.’ ” Id., quoting Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959).

The “discovery rule” is an exception to the rule which arises from the inability of an injured person, despite the exercise of due diligence, to know of the injury or its cause. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992); Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra, 503 Pa. at 85, 468 A.2d at 471. In creeping diseases cases, it has been held, the statute of limitations begins to run when the injured person “knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 136-137, 471 A.2d 493, 500 (1984) (footnote omitted). “A court presented with an assertion of applicability of the ‘discovery rule’ must, before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra, 503 Pa. at 85, 468 A.2d at 471. “‘The standard of reasonable diligence is an objective or external one that is the same for all individuals.’ ” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985), quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982). “We evaluate the plaintiffs conduct in terms of what he should have known at a particular time by following a course of reasonable diligence. If a party has the means of discovery within his power but neglects to use them, his claim will still be barred.” Burnside v. Abbott Laboratories, supra, 351 Pa.Super. at 292, 505 A.2d at 988. See: DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 508, 460 A.2d 295, 303 (1983). A plaintiff does not need to know that he has a cause of action, or that he has suffered an injury due to another party’s wrongful conduct. “ ‘[OJnce [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.’ ” Burnside v. Abbott Laboratories, supra, 351 Pa.Super. at 291, 505 A.2d at 987-988, quoting Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984) (emphasis omitted). A diligent investigation may require one to seek further medical examinations as well as competent legal representation. Souders v. Atlantic Richfield Co., 746 F.Supp. 570, 573 (E.D.Pa.1990), citing United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259, 270 (1979).

Where the issue involves a factual determination regarding what is a reasonable time for plaintiff to discover his injury and its cause, the issue is usually for the jury. Hayward v. Medical Center of Beaver County, supra, 530 Pa. at 325, 608 A.2d at 1043; A. McD. v. Rosen, M.D., supra, 423 Pa.Super. at 307, 621 A.2d at 130; MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 423, 578 A.2d 970, 974 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991); Burnside v. Abbott Laboratories, supra, 351 Pa.Super. at 292, 505 A.2d at 988. However, where the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury or its cause was unreasonable as a matter of law, summary judgment may be entered by the court. Carns v. Yingling, M.D., supra, 406 Pa.Super. at 285, 594 A.2d at 340. See also: A McD. v. Rosen, M.D., supra; MacCain v. Montgomery Hospital, supra.

On June 13, 1984, appellant’s decedent was informed that he had lung cancer. His history of industrial exposure to asbestos was known to him and to the physician who made the diagnosis. The exercise of reasonable diligence would have suggested that Ingénito inquire of his physician concerning the cause of his illness. This information was immediately knowable and available to him. It was not a diagnosis or a cause which was obscure, unascertainable or unavailable in the exercise of due diligence. The polestar of the Pennsylvania discovery rule is not a plaintiffs actual acquisition of knowledge but whether the information, through the exercise of due diligence, was knowable to the plaintiff. Owens v. Lac D’Ami-ante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa.1987), aff'd, 833 F.2d 306 (3d Cir.1987). The failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law. Id. See also: Bickford v. Joson, M.D., 368 Pa.Super. 211, 533 A.2d 1029 (1987), allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988).

Although the purpose of the “discovery rule” is to mitigate in worthy cases the harshness of an absolute and rigid period of limitations, the rule cannot be applied so loosely as to nullify the purpose for which a statute of limitations exists. Statutes of limitations have as their purpose the “stimulation of the prompt pursuit of legal rights and the avoidance of the inconvenience and prejudice resulting from deciding stale cases on stale evidence.” DeMartino v. Albert Einstein Medical Center, N.D., supra, 313 Pa.Super. at 501, 460 A.2d at 299. See also: Insurance Co. of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971). “ ‘Statutes of limitation are vital to the welfare of society and are favored in the law.... They promote repose by giving a stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence.’ ” Bickford v. Joson, supra, 368 Pa.Super. at 214, 533 A.2d at 1030, quoting Schmucker v. Naugle, 426 Pa. 203, 204, 231 A.2d 121, 123 (1967), quoting, in turn, from United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 103, 67 L.Ed. 261, 270 (1922).

Here, the undisputed facts lead unerringly to the conclusion that the decedent’s failure to discover promptly the possibility of a causal connection between his diagnosed condition and his industrial exposure to asbestos was unreasonable as a matter of law. More than two years passed after the necessary information became available to him without his asserting any cause of action therefor. When he died on October 30, 1986, an action for his injury was already barred by the statute of limitations.

Contrary to appellant’s argument, her right to commence a wrongful death action was not revived by her husband’s death.² Cowgill v. Raymark Industries, Inc., 780 F.2d 324 (3d Cir.1985); Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613 (1932). “The statutory action for wrongful death is a derivative one, having for its basis the same tortious act which would have supported the injured party’s own cause of action.” 18 Std.Pa.Practice, Actions for- Wrongful Death § 97:10. See: Howard v. Bell Telephone Co., supra. See also: Rudisill v. Cordes, 333 Pa. 544, 550, 5 A.2d 217, 219-220 (1939). As a general rule, no action for wrongful death can be maintained where the decedent, had he lived, could not himself have recovered for the injuries sustained. 18 Std.Pa.Practice, Actions for Wrongful Death § 97:10. See: Cowgill v. Raymark Industries, Inc., supra; Grbac v. Reading Fair Co., 688 F.2d 215 (3d Cir.1982); Howard v. Bell Telephone Co., supra.

For these reasons, the trial court properly determined that both the wrongful death and survival actions were barred by the statute of limitations. The judgment entered by the trial court, therefore, must be

Affirmed.

FORD ELLIOTT, J., files a Dissenting Opinion in which SOLE and KELLY, JJ., join.

1 . Ingénito also had a history of smoking four packs of cigarettes a day.

2 . Appellant concedes that she cannot maintain a survival action if the statute barred an action by her husband prior to his death.