J. A4200505 2006 PA Super 136 EL by liuqingzhan

VIEWS: 12 PAGES: 20

									J. A42005/05
                       2006 PA Super 136
ELEANOR ABRAMS, EXECUTRIX OF :             IN THE SUPERIOR COURT OF
THE ESTATE OF KENNETH ABRAMS,       :            PENNSYLVANIA
                          Appellant :
                                    :
                v.                  :
                                    :
PNEUMO ABEX CORPORATION,            :
AMERICAN STANDARD, INC., A.W.       :
CHESTERTON, INC., BRAND             :
INSULATION, INC., BROWN BOVERI      :
CORPORATION, BURNHAM BOILER         :
CORPORATION, CERTAINTEED            :
CORPORATION, CLEAVERBROOKS          :
CO., CRANE CO., DEMMING             :
DIVISION, CRANE PACKING,            :
CROUSE-HINDS, CROWN CORK &          :
SEAL COMPANY, INC., DANA            :
CORPORATION, DRESSER                :
INDUSTRIES, INC., DURABLA           :
MANUFACTURING CO., EASTERN          :
GUNNITE CO., INC., GEORGIA          :
PACIFIC CORPORATION, GOULDS         :
PUMPS, INC., GREENE TWEED & CO., :
INC., HAJOCA PLUMBING CO.,          :
HALLIBURTON CO., HONEYWELL,         :
McARDLE-DESCO CORPORATION,          :
MELRATH GASKETS, INC.,              :
METROPOLITAN LIFE INSURANCE         :
CO., NOSROC CORPORATION, PARS       :
MANUFACTURING CO., PECORA           :
CORPORATION, PFIZER, INC.,          :
QUIGLEY CO., INC., RAILROAD         :
FRICTION PRODUCTS, THE READING      :
COMPANY, RILEY STOKER               :
CORPORATION, ROCKBESTOS             :
COMPANY, UNION CARBIDE              :
CORPORATION, WALTER B.              :
GALLAGHER CO., WEIL McLAIN CO.,     :
WESTINGHOUSE ELECTRIC               :
CORPORATION AND JOHN CRANE,         :
INC.,                               :
                          Appellees :         No. 1182 EDA 2005
J. A42005/05


            Appeal from the Order dated March 8, 2005,
       in the Court of Common Pleas of Philadelphia County,
               Civil, February Term, 2003, No. 3458

MARILYN SHAW, EXECUTRIX OF THE :          IN THE SUPERIOR COURT OF
ESTATE OF JOHN SHAW,               :            PENNSYLVANIA
                         Appellant :
                                   :
                v.                 :
                                   :
A.W. CHESTERTON, INC., BRAND       :
INSULATION, INC., CERTAINTEED      :
CORPORATION, CLEAVERBROOKS         :
CO., CRANE CO., DEMMING            :
DIVISION, CRANE PACKING, CROWN     :
CORK & SEAL COMPANY, INC., DANA    :
CORPORATION, DURABLA               :
MANUFACTURING CO., GEORGIA         :
PACIFIC CORPORATION, GOULDS        :
PUMPS, INC., GREENE TWEED & CO., :
INC., MELRATH GASKETS, INC.,       :
METROPOLITAN LIFE INSURANCE        :
CO., NOSROC CORPORATION, PARS      :
MANUFACTURING CO., PECORA          :
CORPORATION, RAPID AMERICAN        :
CORPORATION, RILEY STOKER          :
CORPORATION, UNION CARBIDE         :
CORPORATION, WALTER B.             :
GALLAGHER CO., WEIL McLAIN CO.,    :
VIACOM/WESTINGHOUSE ELECTRIC       :
CORP., ANCHOR PACKING CO.,         :
COMBUSTION ENGINEERING, INC.,      :
CROUSE-HINDS, DURAMETALLIC         :
CORP., GARLOCK, INC., GENERAL      :
ELECTRIC CO., HAJOCA PLUMBING      :
CO., INGERSOLL RAND,               :
STUDEBAKER-WORTHINGTON, INC.,      :
ZURN INDUSTRIES, JOHN CRANE,       :
INC.,                              :
                                   :
                         Appellees :           No. 1185 EDA 2005




                                  -2-
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             Appeal from the Order dated March 8, 2005,
        in the Court of Common Pleas of Philadelphia County,
                Civil, February Term, 2003, No. 3459

BEFORE:  HUDOCK, BOWES, JJ., and McEWEN, P.J.E.
     ***Petition for Reargument Filed June 23, 2006***
OPINION BY McEWEN, P.J.E.:              Filed: June 9, 2006

¶1   These consolidated asbestos litigation appeals have been taken from

the orders dismissing appellee/defendant, John Crane, Inc., from both

actions based on the statute of limitations. We reverse and remand.

¶2   The facts underlying each of the two cases are similar.     In the mid-

1980’s, both appellants, Kenneth Abrams and John Shaw, were diagnosed

with nonmalignant asbestos-related diseases.     Within two years of those

diagnoses, both Abrams and Shaw filed asbestos actions against numerous

defendants seeking damages for injuries resulting from their occupational

exposure to asbestos.1   Both Complaints included claims for increased risk

and fear of developing cancer.2    Neither Complaint named appellee, John

Crane, Inc., as a defendant. Both actions were settled out of court.


1
  Eleanor Abrams and Marilyn Shaw, the spouses of Kenneth Abrams and
John Shaw, also sought damages for loss of consortium.
2
  Abrams’ Complaint, filed in 1986, sought relief for “a reasonable and
traumatic fear of an increased risk of … cancer to plaintiff, resulting from
exposure, directly and indirectly, to the asbestos products of the
defendant[s].” Abrams Complaint, filed March 20, 1986, at ¶ 47. Similarly,
Shaw’s Complaint, filed in 1985, sought relief for “the risk of mesothelioma
and other cancers, … and severe anxiety possibly rising to a traumatic
neurosis or cancerophobia or both due to knowledge that he is likely or could
possibly contract cancer because of his exposure to asbestos at his work
place.” Shaw Complaint, filed September 25, 1985, at ¶ 28.



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¶3    In December of 2002, both Abrams and Shaw were diagnosed with

lung cancer caused by asbestos exposure. They each filed a new action in

early 2003, naming a multitude of defendants, including appellee. In each

case, appellee asserted the affirmative defense of the statute of limitations

and filed motions for summary judgment, arguing that appellants’ claims

should have been brought in the prior asbestos actions. The distinguished

Judge Norman Ackerman granted relief sought by the motions for summary

judgment by dismissing appellee as a defendant in both actions. Once the

claims against the remaining defendants were resolved by settlement, the

order of Judge Ackerman became final under Pa.R.A.P. 341.         This appeal

followed.3

¶4    The sole question on appeal challenges the trial court’s grant of

summary judgment based on the expiration of the statute of limitations.

Our review of an order granting summary judgment is well-established:

         [A] trial court’s order granting summary judgment
         will not be reversed unless it is established that the
         court committed an error of law or clearly abused
         its discretion.       Murphy v. Diogenes A.
         Saaverdra, M.D., P.C., 560 Pa. 423, 726 A.2d 92,
         94 (2000). Summary judgment may be entered
         only in those cases where the record clearly
         demonstrates that there are no genuine issues of


3
 Both Abrams and Shaw have died since commencement of these actions,
and their widows, who also sought consortium damages in the 2003 actions,
have been substituted, in their respective capacities as executrices, as
parties.




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         material fact and that the moving party is entitled
         to judgment as a matter of law. Id.

Gatling v. Eaton Corp., 807 A.2d 283, 286 (Pa.Super. 2002).

¶5   The trial court, in the present cases, concluded that appellants were

precluded from bringing claims for cancer in 2003 because they had both

sought damages for cancer-related claims in their prior actions. Accordingly,

the court found that because both appellants had the opportunity in their

prior actions to recover damages for increased risk and fear of cancer, and

both failed at that time to name appellee as a defendant, their present

actions were barred by the two-year statute of limitations.       Appellants

argue, however, that pursuant to the “two disease rule” pronounced by

Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa.Super. 1992) (en

banc), they were permitted to bring actions for lung cancer caused by

asbestos exposure within two years of their respective diagnoses. We agree

with the position advanced by appellants and conclude that appellants’

present asbestos actions were timely filed.

¶6   This Court, in the en banc decision of our distinguished former

colleague, the late Judge Wieand, in Marinari v. Asbestos Corp., Ltd.,

supra, adopted the “two disease rule” for asbestos exposure actions in

Pennsylvania, holding that:

         [a p]laintiff’s discovery of a nonmalignant, asbestos
         related     lung     pathology,   whether    or   not
         accompanied by clinical symptoms of impaired
         pulmonary function, does not trigger the statute of




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J. A42005/05


         limitations with respect to an action for a later,
         separately diagnosed, disease of lung cancer.

Id. at 1022.         The Marinari holding was a landmark decision since

Pennsylvania had, prior to that time, followed the “one disease rule,” which

had required all claims, for present or future damages relating to a plaintiff’s

occupational exposure, to have been brought within two years of the initial

asbestos-related diagnosis.4

¶7    Under Marinari, it is the diagnosis of lung cancer, even years after a

diagnosis of nonmalignant asbestos disease, that triggers the running of the

two year statute of limitations in asbestos actions.           The retroactive

application of Marinari is here at issue since appellants’ prior actions,

including “cancer-related” claims, were brought before the 1992 Marinari

decision. Although neither this Court nor the Pennsylvania Supreme Court

has   definitively    determined   whether   Marinari    should    be   applied

retroactively,5 the clear implication in the subsequent decisions of this Court

is that it should, and we here so hold.


4
  Since Marinari, we have further refined the rule by abolishing all claims
for increased risk and fear of cancer in asbestos actions when cancer is not
present. Giffear v. Johns-Manville Corp., 632 A.2d 880 (Pa.Super. 1993)
(en banc), aff’d sub nom., Simmons v. Pacor, Inc., 543 Pa. 664, 674
A.2d 232 (1996). See: Cleveland v. Johns-Manville Corp., 547 Pa. 402,
690 A.2d 1146 (1997) (refusing to invalidate a jury instruction during a
1989 trial which permitted the jury to award damages for increased risk and
fear of cancer; applying Giffear/Simmons prospectively only).
5
  It merits mention that the defendants in Marinari did not seek review of
the decision by the Pennsylvania Supreme Court.



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¶8     In Giffear v. Johns-Manville Corp., 632 A.2d 880 (Pa.Super. 1993)

(en banc), aff’d sub nom., Simmons v. Pacor, Inc., 543 Pa. 664, 674

A.2d 232 (1996), the plaintiff was diagnosed with pleural disease in 1982,

and his subsequent asbestos action asserted claims for asymptomatic pleural

thickening, as well as increased risk and fear of cancer.        Although he was

awarded $300,000 in damages by a jury, the trial court granted the

defendants judgment notwithstanding the verdict, concluding that the

plaintiff’s injuries were not compensable.           The specific issue we there

addressed was whether asymptomatic pleural thickening and increased risk

and fear of cancer, without a diagnosis of cancer, were compensable

injuries.   We concluded that they were not.          However, in discussing the

plaintiff’s increased risk and fear of cancer claim we stated:

       To allow recovery under these circumstances based on his
       fear alone would fly in the face of our recent adoption of
       the separate disease rule. Again, we remind Mr. Giffear
       that, should he develop cancer, he would then have
       a cause of action for a compensable injury and could
       bring a lawsuit at that time.

Giffear, supra, 632 A.2d at 889 (emphasis added).            While it is certainly

true that this excerpt meets the definition of dicta, it is nonetheless quite

instructive since the obvious implication is that any future action based on a

cancer diagnosis would not have been affected by the plaintiff’s previous

claim for increased risk and fear of cancer.

¶9     Similarly, in McCauley v. Owens-Corning Fiberglas Corp., 715

A.2d   1125    (Pa.Super.   1998),   this   Court,    applying   pre-Giffear   law,


                                       -7-
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considered whether a plaintiff could bring an action in 1991 for diagnosed

symptomatic asbestosis, when he had been diagnosed with asymptomatic

pleural thickening in 1985.     We concluded that the action, commenced

within two years of his symptomatic diagnosis, was timely:

         [A]sbestosis and shortness of breath, the condition
         and symptoms from which McCauley’s medical
         records indicate he suffered in 1991 and 1992,
         were most likely not asymptomatic conditions of
         asbestos exposure. Rather, they can arguably be
         considered part of a separate and distinct disease
         which triggered the statute of limitations on a
         second action.      Marinari, supra.       Because
         McCauley instituted suit within the two years of
         discovering his symptoms/condition in 1991 and
         1992, the trial court should not have granted a
         compulsory nonsuit.

Id. at 1131.

¶ 10 The same is true here. The diagnosis of lung cancer delivered to each

appellant in 2002 constituted separate and distinct diseases from their

claims for nonmalignant asbestos-related diseases and increased risk and

fear of cancer in the prior actions. In this light, it bears emphasis that what

the trial court and appellee refer to as appellants’ prior “cancer-related”

claims were not claims based on a diagnosis of lung cancer, but rather

were claims for increased risk and fear of cancer due to their occupational

exposure to asbestos.

¶ 11 Appellee contends, however, that the decision of our Supreme Court in

Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997),

requires rejection of the argument of appellants.      The Supreme Court in


                                     -8-
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Cleveland considered whether its holding in Simmons v. Pacor, Inc.,

supra, affirming Giffear, supra, should be applied retroactively to

invalidate the instruction of a trial court that permitted a plaintiff to recover

for increased risk and fear of cancer.6    In holding that the Simmons rule

would apply prospectively only, the Court opined:

         When faced with the issue of retroactivity, the
         threshold question is whether the decision
         announces a new principle of law. If it does, then
         we can choose to give the new rule prospective
         effect only. Our decision in Simmons represents a
         major landmark in asbestos litigation because this
         Court announced a new rule of law that definitely
         eliminated claims for increased risk and fear of
         cancer where cancer is not present. …

         Once the threshold is met, we then consider the
         following three factors to decide if the new rule
         should be applied retroactively or prospectively:
         (1) the purpose to be served by the new rule; (2)
         the extent of the reliance on the old rule; and (3)
         the effect on the administration of justice by the
         retroactive application of the new rule.

         The purpose of the rule announced in Simmons
         was to promote fairness in the adjudicative process
         by eliminating inequitable awards for speculative
         future damages. This is a significant purpose, and
         therefore, the first factor supports a retroactive
         application. The second and third factors, however,
         strongly favor a prospective only application of
         Simmons. There has been considerable reliance
         on the old rule. Countless trial courts charged
         juries in accordance with the law as it existed
         before Simmons. Additionally, our courts have

6
  The jury in Cleveland had awarded a general verdict in favor of the
plaintiff for $1.5 million. See: Cleveland v. Johns-Manville Corp.,
supra, 547 Pa. at 407, 690 A.2d at 1148.



                                      -9-
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            labored under a backlog of asbestos cases for many
            years. Requiring new trials in each of the cases on
            appeal handled pursuant to the pre-Simmons rule
            would    only      exacerbate    this   congestion.
            Furthermore, we are unwilling to force sick and
            aging plaintiffs, who waited many years for their
            awards, back into court to re-litigate their claims.
            Memories have faded and documents have
            undoubtedly been lost during the intervening years.

            We are cognizant of the burden on asbestos
            manufacturers who were required to pay judgments
            based on increased risk and fear of cancer. We
            believe, however, that renewed litigation would
            impose additional costs on these manufacturers and
            further impair the efficient administration of justice.
            Accordingly, we hold that Simmons is to be given
            only prospective effect.

Cleveland, supra, 547 Pa. at 413–414, 690 A.2d at 1152 (internal citations

omitted).

¶ 12 In sum, since the rule pronounced in Simmons invalidated a

previously compensable claim of increased risk and fear of cancer,

retroactive application of the ruling would have required new trials in all

asbestos actions in which a plaintiff, who had included an increased risk and

fear of cancer claim, had been awarded a general verdict.             As a result,

countless plaintiffs would have suffered the anguish of further litigation, and

defendants who had been required to pay on increased risk and fear of

cancer claims, would have incurred great expense in religating all asbestos-

related claims, even when the increased risk and fear of cancer claim may

not have contributed to the verdict in their respective cases.




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¶ 13 In contrast, retroactive application of the Marinari rule does not have

the same negative impact on the administration of justice. Rather, it simply

allows a plaintiff to bring a cause of action for cancer at the time when he

first is diagnosed with the disease.       It does not require relitigation of

previously decided claims.

¶ 14 Therefore, we conclude that since the complaints of appellants were

filed within two years of their cancer diagnoses, the litigation was

commenced in a timely fashion, and the orders of the trial court dismissing

the claims against appellee must be reversed.

¶ 15 Orders reversed. Cases remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

¶ 16 BOWES, J., FILES A DISSENTING OPINION.




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ELEANOR ABRAMS, EXECUTRIX OF :          IN THE SUPERIOR COURT OF
THE ESTATE OF KENNETH ABRAMS,       :         PENNSYLVANIA
                          Appellant :
                                    :
                v.                  :
                                    :
PNEUMO ABEX CORPORATION,            :
AMERICAN STANDARD, INC., A.W.       :
CHESTERTON, INC., BRAND             :
INSULATION, INC., BROWN BOVERI      :
CORPORATION, BURNHAM BOILER         :
CORPORATION, CERTAINTEED            :
CORPORATION, CLEAVERBROOKS          :
CO., CRANE CO., DEMMING             :
DIVISION, CRANE PACKING,            :
CROUSE-HINDS, CROWN CORK &          :
SEAL COMPANY, INC., DANA            :
CORPORATION, DRESSER                :
INDUSTRIES, INC., DURABLA           :
MANUFACTURING CO., EASTERN          :
GUNNITE CO., INC., GEORGIA          :
PACIFIC CORPORATION, GOULDS         :
PUMPS, INC., GREENE TWEED & CO., :
INC., HAJOCA PLUMBING CO.,          :
HALLIBURTON CO., HONEYWELL,         :
McARDLE-DESCO CORPORATION,          :
MELRATH GASKETS, INC.,              :
METROPOLITAN LIFE INSURANCE         :
CO., NOSROC CORPORATION, PARS       :
MANUFACTURING CO., PECORA           :
CORPORATION, PFIZER, INC.,          :
QUIGLEY CO., INC., RAILROAD         :
FRICTION PRODUCTS, THE READING      :
COMPANY, RILEY STOKER               :
CORPORATION, ROCKBESTOS             :
COMPANY, UNION CARBIDE              :
CORPORATION, WALTER B.              :
GALLAGHER CO., WEIL McLAIN CO.,     :
WESTINGHOUSE ELECTRIC               :
CORPORATION AND JOHN CRANE,         :
INC.,                               :
                          Appellees :      No. 1182 EDA 2005
J. A42005/05



            Appeal from the Order dated March 8, 2005,
       in the Court of Common Pleas of Philadelphia County,
               Civil, February Term, 2003, No. 3458

MARILYN SHAW, EXECUTRIX OF THE :           IN THE SUPERIOR COURT OF
ESTATE OF JOHN SHAW,               :             PENNSYLVANIA
                         Appellant :
                                   :
                v.                 :
                                   :
A.W. CHESTERTON, INC., BRAND       :
INSULATION, INC., CERTAINTEED      :
CORPORATION, CLEAVERBROOKS         :
CO., CRANE CO., DEMMING            :
DIVISION, CRANE PACKING,           :
CROUSE-HINDS, CROWN CORK &         :
SEAL COMPANY, INC., DANA           :
CORPORATION, DURABLA               :
MANUFACTURING CO., GEORGIA         :
PACIFIC CORPORATION, GOULDS        :
PUMPS, INC., GREENE TWEED & CO., :
INC., MELRATH GASKETS, INC.,       :
METROPOLITAN LIFE INSURANCE        :
CO., NOSROC CORPORATION, PARS      :
MANUFACTURING CO., PECORA          :
CORPORATION, RAPID AMERICAN        :
CORPORATION, RILEY STOKER          :
CORPORATION, UNION CARBIDE         :
CORPORATION, WALTER B.             :
GALLAGHER CO., WEIL McLAIN CO.,    :
VIACOM/WESTINGHOUSE ELECTRIC       :
CORP., ANCHOR PACKING CO.,         :
COMBUSTION ENGINEERING, INC.,      :
CROUSE-HINDS, DURAMETALLIC         :
CORP., GARLOCK, INC. GENERAL       :
ELECTRIC CO., HAJOCA PLUMBING      :
CO., INGERSOLL RAND,               :
STUDEBAKER-WORTHINGTON, INC.,      :
ZURN INDUSTRIES, JOHN CRANE,       :
INC.                               :
                         Appellees :           No. 1185 EDA 2005




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               Appeal from the Order dated March 8, 2005,
          in the Court of Common Pleas of Philadelphia County,
                  Civil, February Term, 2003, No. 3459

BEFORE:     HUDOCK, BOWES, JJ., and McEWEN, P.J.E.

DISSENTING OPINION BY BOWES, J.:

¶1    I respectfully disagree with the majority’s legal analysis and its

conclusion that Appellants may pursue cancer claims against John Crane

based upon the “two-disease rule” adopted in Marinari v. Asbestos Corp.,

Ltd., 612 A.2d 1021 (Pa.Super. 1992) (en banc). Thus, I dissent.

¶2    The majority acknowledges that Mr. Shaw and Mr. Abrams reached

settlements with several entities during the 1980s and that those actions

included claims for both “nonmalignant asbestos-related diseases” and

“increased risk and fear of developing cancer.” Majority opinion at 3. When

those cases were litigated, plaintiffs in asbestos actions were required to

bring a single lawsuit encompassing all claims for present damages caused

by their nonmalignant diseases and all claims for future damages premised

on an increased risk of developing a malignant illness such as cancer. See

Marinari, supra at 1023.        Under that rigid approach, the statute of

limitations for all predictable asbestos-related injuries began to run when the

plaintiff was first diagnosed with an asbestos-related disease. Id.

¶3    The Marinari decision embodied a significant change in the law.       In

Marinari, the plaintiff was informed that he had pleural thickening in 1983;

however, since he was not having difficulty breathing when the diagnosis




                                     - 14 -
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was made, he did not bring an action for pleural thickening at that time.

Thereafter, in July 1987, the plaintiff was diagnosed with lung cancer

attributable to asbestos exposure and filed a lawsuit against numerous

companies seeking damages based solely on cancer claims. The defendants

filed motions for summary judgment, arguing that the action was subject to

a two-year statute of limitations that began to run in 1983 when the plaintiff

was diagnosed with pleural thickening.         The trial court adopted the

defendants’ position and granted their motions. The plaintiff appealed.

¶4    In an en banc decision, this Court reversed the trial court’s ruling and

held that the plaintiff’s knowledge of a nonmalignant, asbestos-related lung

condition did not trigger the statute of limitations “with respect to an action

for a later, separately diagnosed, disease of lung cancer.” Id. at 1022. In

reaching this conclusion, we recognized that “exposure to asbestos may

result in a variety of benign and malignant conditions, each of which may

occur at widely divergent times.” Id. at 1024. We also observed that the

process of awarding damages for future harm caused by undiagnosed

diseases was inherently problematic because it entailed reliance on

speculative evidence and produced inequitable results in cases where the

plaintiff failed to develop a malignant illness. We therefore determined that

plaintiffs with nonmalignant asbestos-related conditions would no longer be

required to concurrently assert claims for malignant asbestos-related

diseases that had not yet developed, stating as follows:




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            The approach to asbestos litigation suggested in Manzi [v.
      H.K. Porter Co., 587 A.2d 778 (Pa.Super. 1991)], of allowing
      an action for nonmalignant asbestos disease and a separate
      action for cancer, we believe, represents the better view. In
      such actions, recovery can be had in a first action only for a
      disease which has already manifested itself from the exposure to
      asbestos and the natural, predictable progression, if any, of that
      disease. If additional injuries from a separate disease manifest
      themselves in the future, such injuries will support a second
      action.

Id. at 1023.   Our Supreme Court subsequently embraced this principle in

Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), when it

announced that plaintiffs with nonmalignant diseases caused by asbestos

exposure could no longer recover damages for increased risk of cancer

following the adoption of the two-disease rule in Marinari.

¶5   In the instant case, Mr. Shaw and Mr. Abrams were first diagnosed

with nonmalignant asbestos-related diseases during the 1980s.         At that

time, they were required under Pennsylvania law to assert all claims for

present and future damages within two years of those initial diagnoses. See

Marinari, supra; Simmons; supra.         Both men complied by instituting

timely lawsuits against several companies, seeking damages for their

nonmalignant diseases as well as increased risk of cancer. In addition, both

men settled their claims against the named defendants. Clearly, Mr. Shaw

and Mr. Abrams could have sued John Crane for increased risk of cancer in

those actions but failed to do so.   As a result, Appellants’ present claims

against John Crane are barred by the statute of limitations, which expired

many years ago, and the orders in question should be affirmed.


                                     - 16 -
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¶6    The majority attempts to avoid this result by applying the Marinari

two-disease rule retroactively based on Giffear v. Johns-Manville Corp.,

632 A.2d 880 (Pa.Super. 1993) (en banc), aff’d sub nom. Simmons v.

Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), and McCauley v. Owens-

Corning Fiberglas Corp., 715 A.2d 1125 (Pa.Super. 1998). Neither case

supports the majority’s position.   In Giffear, the plaintiff commenced an

action seeking compensation for physical injuries and increased risk of

cancer after an x-ray revealed that he had pleural thickening. The plaintiff

prevailed at trial, but the judge granted the defendants’ post-trial motions

for judgment notwithstanding the verdict.        On appeal, we considered

whether asymptomatic pleural thickening was a compensable injury and

whether the plaintiff could recover damages for increased risk of cancer

absent a diagnosis of cancer, answering both questions in the negative.

¶7    The majority suggests that Giffear is instructive because the Giffear

Court remarked that the plaintiff in that case could bring a separate action if

he was later diagnosed with cancer. In reaching this conclusion, however,

the majority overlooks the fact that the plaintiff in Giffear, unlike Mr. Shaw

and Mr. Abrams, was not compensated for cancer-based claims in a prior

asbestos action. Hence, the Giffear Court’s offhand comment regarding the

possibility of a separate cancer action in that instance did not imply that

“any future action based on a cancer diagnosis would not have been affected

by the plaintiff’s previous claim for increased risk and fear of cancer.”




                                     - 17 -
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Majority opinion at 7. Rather, the Giffear Court sought to clarify that since

it had determined that the plaintiff’s initial risk-of-cancer claim did

not allege a compensable injury under Pennsylvania law, the plaintiff

was free to institute a separate action under Marinari if he subsequently

developed cancer.    The instant case is plainly distinguishable because Mr.

Shaw    and    Mr.   Abrams   asserted   their   initial   risk-of-cancer   claims

approximately seven years before Marinari and Giffear were decided,

during a period when Pennsylvania courts did view “risk and fear of

developing cancer” as a compensable injury.

¶8     The majority’s reliance on McCauley, supra, is similarly misplaced.

The plaintiff in McCauley filed an action on May 5, 1993, alleging that he

suffered from, inter alia, symptomatic pulmonary asbestosis that was first

diagnosed on May 11, 1991. When the case proceeded to trial, the judge

entered a compulsory nonsuit in favor of the defendants based on the

statute of limitations. Specifically, the judge concluded that the action was

time-barred because it was commenced more than two years after a May 7,

1985 chest x-ray revealed that the plaintiff had asymptomatic, nonmalignant

pleural thickening. On appeal, we reversed and remanded for a new trial.

We reasoned that although the plaintiff’s failure to institute a timely action

for nonmalignant plural thickening precluded recovery on that cause of

action, the plaintiff could nonetheless seek damages for separate diseases

such as pulmonary asbestosis that were diagnosed after 1985.           Since the




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J. A42005/05


1993 lawsuit was filed within two years of the discovery of the plaintiff’s

asbestosis, we found that the trial judge erred in granting a nonsuit.

¶9    Herein, the majority posits that the case at bar is analogous to

McCauley because Appellants’ lung cancer claims against John Crane

pertain to “separate and distinct diseases” in comparison to the risk-of-

cancer claims alleged in the prior actions.     Majority opinion at 8.       This

contention is simply untenable; the risk-of-cancer claims advanced in the

previous actions were premised on the assertion that Mr. Shaw and Mr.

Abrams would contract cancer in the future as a result of occupational

exposure to asbestos.    Meanwhile, Appellants’ claims are founded on the

assertion that both men did contract cancer due to that exposure.

Therefore, the causes of action pursued by Mr. Shaw and Mr. Abrams in the

1980s pertained to the same malignant asbestos-related disease for which

Appellants now seek to recover damages.       Accordingly, the “separate and

distinct disease” concept is inapplicable here, and contrary to the majority

view, the present case bears no resemblance to McCauley.

¶ 10 Finally, I disagree with the majority’s position that allowing Appellants

to proceed in this action based on retroactive application of Marinari would

not have a “negative impact on the administration of justice.”7          Majority


7
  This Court has only applied Marinari retroactively in cases where the
appeal was pending when Marinari was decided. See, e.g., Dempsey v.
Pacor, Inc., 632 A.2d 919 (Pa.Super. 1993) (vacating damage awards in
asbestos actions for fear of contracting cancer and increased risk of cancer).



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opinion at 11. On the contrary, the majority’s decision will enable plaintiffs

who have already been compensated for increased risk and fear of cancer to

institute new actions against different defendants based on recent diagnoses

of cancer, thus forcing companies to litigate cancer claims that have already

been addressed and resolved.

¶ 11 For the foregoing reasons, I would affirm the orders granting summary

judgment in favor of John Crane based on the rationale cogently articulated

in the opinion of the Honorable Norman Ackerman.




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