PENNSYLVANIA RECORD

The Superior Court of Pennsylvania recently held that the statute of repose applies to

asbestos claims, reversing a trial court's decision on a claim filed for a Pennsylvania man who died of mesothelioma.

The statute of repose acts similarly to the statute of limitations by cutting off legal rights at a certain deadline, most commonly in construction liability cases. In Pennsylvania, plaintiffs have 12 years after the completion of a construction project or improvement to file for personal injury.

In Graver v. Foster Wheeler Corp., Daniel Graver had worked at a Pennsylvania Power and Light plant for more than 25 years beginning in the 1980s.  His wife, Frances, filed a suit shortly after his death from mesothelioma, naming Foster Wheeler one of the defendants. The company designed a boiler for the plant in the 1950s and the plaintiff alleged that the mesothelioma was caused by exposure to asbestos present in the boiler.

The trial court agreed that the boiler constituted an improvement to real property but declined to apply the statute of repose based on a ruling by the Pennsylvania Supreme Court in Abrams v. Pneumo Abex Corp. that “no statutory right of repose exists with respect to asbestos cases.” 

In a subsequent trial, the jury returned a verdict in favor of Graver.

The Superior Court reversed the judgment, holding that the language in Abrams did not preclude the application of the statute of repose.  According to the opinion written by Superior Court Judge Jack Panella, the Abrams case had not addressed the statute of repose at issue because the case did not concern claims related to improvements to real property.  It did not take the Supreme Court’s statement as a blanket prohibition of statutes of repose in asbestos cases, especially since such a declaration would conflict with a plain reading of the statute.

The 13-story tall boiler was completed in 1955, meaning the plaintiffs would have had to file suit by 1967 under the statute of repose, rather than in 2010 when it was initiated.

The Superior Court also rejected the plaintiff’s argument that the statute of repose conflicted with and was superseded by a later-enacted statute of limitations.  The court found that both statutes could be given effect without conflict and that it was not the function of the judiciary to create an asbestos exception to the statute of repose.