author: WIEAND, Judge. FORD ELLIOTT, Judge,

text:
    633 A.2d 1172
    Rosemary INGENITO, Administratrix of the Estate of Francis Ingenito, and in her own right, Appellant, v. AC & S, INC., Amchem Products, Inc., Anchor Packing Company, Armstrong World Industries, Inc., Asbestos Products Mfg. Corporation, Dana Corporation, Fibreboard Corporation, Foster-Wheeler Corporation, GAF Corporation, Garlock Incorporated, Georgia-Pacific Corporation, H & A Construction, Inc., J W Roberts Construction, Inc., John Crane Houdaille, Inc. a/k/a Crane Packing Company, Keene Corporation, Owens-Corning Fiberglass, Owens Illinois, Inc., Pfizer, Inc., Pittsburgh Corning Corporation, Rock Wool Manufacturing Co., Smith & Kanzler, Southern Textile Corporation, Spraycraft Corp., T & N PLC, U.S. Mineral Products, United States Gypsum Company, W R Grace Company, Appellees.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Nov. 1, 1993.

      Jeffrey G. Moyer, Philadelphia, for appellant.
    James F. Hammill, Philadelphia, for appellees Keene Corp. and Owner Illinois.
    Robert B. Lawler, Philadelphia, for appellees Armstrong, Dana, GAF, Pfizer, T & N PLC and United States Gypsum.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   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. 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. 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.

FORD ELLIOTT, Judge,

dissenting:

I most respectfully dissent. I cannot do so on the basis of the majority’s completely accurate statement of the law, but rather, solely on the basis of their application of the law to the facts of this case and those of the related appeals. While I often defer to the judgment of my learned and respected colleagues, today I must hold firm to my disagreement because I believe that this is a judgment which we are not entitled to make.

THE DISCOVERY RULE

As noted by the majority, the genesis of the discovery rule lies in the supreme court’s decision in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). For my purposes, a close review of that case is more instructive. Ayers involved a medical malpractice action brought by a patient nine years after his surgery. Chester Ayers underwent surgery in 1948 to repair a marginal jejunal ulcer. Upon his release from the hospital, Mr. Ayers experienced pains in his abdomen which continued for the next nine years. In 1957, Mr. Ayers returned to the hospital for a series of tests to determine the cause of his abdominal pain. The culprit turned out to be a metallic gauze surgical sponge which Mr. Ayers’ surgeon failed to remove some nine years earlier. Consequently, Mr. Ayers sued his surgeon. The surgeon, Dr. Philip Morgan, raised the statute of limitations as an affirmative defense. On the basis of the statute of limitations defense, judgment was entered in favor of Dr. Morgan.

On appeal, the supreme court examined whether the statute should run against a plaintiff who is unaware he has been harmed by the conduct of another. The court recognized that this type of case presented an unusual set of circumstances:

It must be borne in mind that this is not a case where the act of negligence was known to the plaintiff but the extent of the damages which ensued therefrom was not ascertained until after the expiration of the statute of limitations. On the contrary, this is a case where the plaintiff did not know of the act (which eventuated in injury to him) at the time that act occurred.

Ayers at 290, 154 A.2d at 792 (emphasis in original).

To ameliorate the harsh results which would result from a straightforward application of the statute of limitations in such cases, the court recognized the need to toll the commencement of the limitations period. As Justice Musmanno so eloquently stated:

Laches becomes a barrier to the institution of lawsuits because the injured person has slept on his rights, but if somnolence has not corroded away his claim to recovery, the law welcomes his action to regain what has ’wrongfully been taken away from him. And in such a situation one may not be charged with dreaming away his right to recover if even the most watchful vigilance could not apprise him of the damage being done him.

Id. at 291, 154 A,2d at 793.

Thus, in Ayers, the supreme court laid the groundwork for what today has become known as the discovery rule. The rule recognizes that one cannot be held to have slept on one’s rights, if one did not know, nor had reason to know that those rights had been violated. What is key to the application of the discovery rule is not the occurrence of the injury but rather the knowledge of it. Clearly, in Ayers, the plaintiff had been suffering the physical harm related to the surgical malpractice for some nine years. However, it was not until he discovered that the pain and discomfort was caused by the actions of another that he had requisite knowledge that this harm reflected an actionable injury.

As we know, this equitable exception was defined more specifically in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), in its creation of the two-prong test for creeping disease cases. Again, it was not the occurrence of the injury itself which triggered the statute, but rather knowledge of the injury. In Cathcart, this court held:

[t]hat the statute of limitations begins to run in ‘creeping disease’ cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.

Id. at 136-137, 471 A.2d at 500 (emphasis added).

Under the mandate of the two-pronged Cathcart test, the statute of limitations does not begin to run until a plaintiff has requisite knowledge of an injury and its cause or reasonably should have such knowledge. The discovery rule is often applied in two different fashions. In some cases, equity demands that it be utilized to toll the period of time in which an individual is reasonably unaware that an actionable injury has been sustained. In other cases, the rule is utilized to set a date certain for determining when, in fact, a cause of action accrues. Pounds v. Lehman, 384 Pa.Super. 358, 558 A.2d 872 (1989). These formulations take into consideration that, in some cases, requisite knowledge of the harm and injury occur simultaneously and that in others such knowledge can occur at distinctly different points in time.

The court in Cathcart did not define the term “injury” in its opinion. This absence was not an oversight. The court in Cathcart had no reason to define the term because the discovery of the physical harm to the plaintiff and its cause occurred simultaneously. In 1975, Mr. Cathcart was informed by his doctor that he had asbestosis — an injury-related disease. Unfortunately, he then delayed filing suit for several years while attempting to discover whom to sue. The court stated:

We agree with the court in Huber v. McElwee-Courbis Const., 392 F.Supp. 1379, 1383 (E.D.Pa.1974) that the burden is on the injured party, once he discovers the cause of his injuries, whether it be a specific event such as an unsuccessful operation or a hazardous condition such as asbestos in a person’s place of employment, to determine within the statutory period (unless there is fraud or concealment) the party or parties whose negligence or breach of duty was responsible for the event or the condition. We find in the case before us that an allegation of mere difficulty in identifying defendants was not sufficient to toll the running of the statute of limitations as to those defendants in the 1978 case that had not been named in the 1976 action.

Cathcart, 324 Pa.Super. at 139, 471 A.2d at 501 (emphasis added). What is significant in Cathcart was that the plaintiff knew he had asbestosis and that this commenced the running of the statute.

What distinguishes the instant case and its companion appeals from Cathcart is that appellant did not learn that he had asbestosis until a point in time after he suffered the harm of which he complains, cancer. Unlike in Cathcart, the definition •of “injury” for purposes of the running of the statute of limitations is now ripe for discussion.

A recent en banc decision of this court confronted the very problem of distinguishing between harm and injury. In Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), although not a statute of limitations case, the court needed to distinguish between injury and harm for purposes of determining whether damages are recoverable for asymptomatic pleural thickening. The focus in Giffear was naturally on the word “harm,” as it is a harm which gives rise to damages. In defining the two terms, Judge Cirillo, writing for the en banc court, looked to the Restatement (Second) of Torts. See Giffear, 429 Pa.Super. at 331-332,' n. 6, 632 A.2d at 884, n. 6. Section 7 of the Restatement defines “injury” as “the invasion of any legally protected interest,” while “harm” is defined in the same section as “the existence of loss or detriment in fact of any kind to a person resulting from any cause.” (Emphasis added.) Hence, the court held that Mr. Giffear, even if he knew that he had been exposed to asbestos, an injury causing agent, could not pursue a claim for damages until he exhibited some physical manifestation of harm.

Instantly, we are dealing with the opposite scenario. Mr. Ingénito exhibited the physical manifestation of harm at the point he was diagnosed with cancer. However, what the record does not clearly establish is that at the time of the diagnosis of cancer, he knew, or had reason to know, that he was injured in the legal sense. In other words, that his cancer represented “an invasion by another of a legally protected interest which, if the result of a tortious act, entitled one so injured to maintain an action in tort.”

In cases involving the normal operation of the statute of limitations, harm and injury occur simultaneously and are readily ascertainable. A person knows of his injury at the point the harm is sustained. The discovery rule allows for those circumstances where knowledge of harm and knowledge of injury may not always occur simultaneously. For discovery rule proposes, the limitations period will begin to run only when a person knows or has reason to know that a legally protected interest has been invaded. Clearly, under these “legal” definitions, lung cancer is a harm; but until such time as the cause of the disease is known, one does not have knowledge of an injury. The causes of cancer can range from the genetic or organic to those causes such as smoking or exposure to asbestos or some other carcinogen. A genetic or organic defect generally will not involve the invasion of any legally protected interest. Thus, no injury is implicated. Cancer caused by exposure to asbestos, on the other hand, may involve the tortious invasion of a legally protected interest. Thus, an injury has been suffered.

Hence, the diagnosis of cancer without more, at most, alerts a person that a harm has been suffered. Instantly, on the scant facts before this court I cannot impute to Mr. Ingénito knowledge of an injury as of the date he learned he had cancer. But the inquiry under Cathcart does not stop here. Rather, the discovery rule imposes vigilance on those seeking to enforce their rights. This vigilance is defined as the duty of due diligence.

DUE DILIGENCE

As the majority sets out, due diligence is an essential component of the discovery rule. The absence of such a duty would mean that a potential plaintiff could wait indefinitely before acting, subverting the policies underlying statutes of limitations and causing great prejudice to a defendant. Trieschock v. Owens Coming Fiberglas Co., 354 Pa.Super. 263, 511 A.2d 863 (1986). The duty of due diligence defines the time period in which a plaintiff will be charged with knowledge of an injury and its cause whether or not he has actual knowledge. Trieschock, supra; Pounds, supra; and Burnside, supra.

The general purpose of the discovery rule, in our opinion, is to exclude the period of time to which the injured party is reasonably unaware of the fact that an actionable injury has been sustained so that people in that .class have essentially the same rights as those who suffer an immediately ascertainable injury.

Pounds, 384 Pa.Super. at 363-364, 558 A.2d at 874 (emphasis added). Hence, an assessment of diligent conduct must begin with a determination of the reasonableness of a plaintiffs asserted lack of knowledge.

Again, as set out by the majority, what constitutes reasonable diligence has been addressed by this court. And although the majority quotes some of the eloquent expression of President Judge Rowley as contained in Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982), I feel compelled to set forth his full statement on the question of reasonableness because I believe it lies at the heart of the instant case.

What is or is not ‘reasonable’ under the circumstances in this case requires an evaluation of appellant’s actions to determine whether she exhibited ‘those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others’. Restatement, Torts 2d, § 283, comment: b. The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. It is a community standard. It is sufficiently flexible, however, to take into account differences between persons, their capacity to meet certain situations and the circumstances confronting them at the time in question. In short, the standard of conduct required is a uniform one which takes ‘into account the fallibility of human beings. Restatement, Torts 2d, § 283, comment: b. and c. Our law recognizes that, usually, what that standard is may be best determined by the collective judgment, wisdom, and experience of jurors who have been selected at random from the community whose standard is to be applied.

Petri at 271-272, 453 A.2d at 347 (emphasis added). See also Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985), quoted in part; and DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 460 A.2d 295 (1983), quoted in part.

Absent active concealment, I can think of very few times when the knowledge of one’s injury and its cause would not be available and ascertainable with some investigation and diligence. But this is not the test. “ ‘In defining reasonable diligence, the courts have stated ‘[t]here are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.’ ” A. McD. v. Rosen, 423 Pa.Super. 304, 309, 621 A.2d 128, 131 (1993), quoting Baity v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), affirmed, 950 F.2d 721 (3rd Cir. 1991). The test focuses on the objective reasonableness of the injured party’s conduct in ascertaining the necessary information. This is generally a question of fact. Absent some specific indication on the record that a plaintiff knew, the question of “should have known” is for the jury.

Instantly, the real issue presented by this case and those of the companion appeals is whose judgment should prevail on the issue of appellant’s diligence, ours or the “collective judgment, wisdom, and experience” of jurors.

THE JURY QUESTION

As recognized by the majority, “[i]n many cases, perhaps in most, the issue of what a plaintiff reasonably should have discovered is not a question that may be resolved as a matter of law at the summary judgment stage but instead is a question for the jury.” Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 110, 425 A.2d 428, 443 (1981), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1982). It is clear from reviewing numerous discovery rule cases that generally the issue of due diligence is a factual issue for resolution by a jury; it is only the exceptional case which can be decided at the summary judgment stage. In these exceptional cases there is plainly evidence of record that plaintiffs have failed to exercise due diligence, “a smoking gun,” so to speak. For example, in Holmes v. Lado, 412 Pa.Super. 218, 602 A.2d 1389 (1992), allocatur denied, 530 Pa. 660, 609 A.2d 168 (1992), plaintiffs survivors brought suit November 15, 1988 for failure to diagnose decedent’s breast cancer. However, appellant’s deposition testimony revealed that the decedent had been aware of the cancer since September 1985 following a biopsy. In Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991), plaintiff brought suit November 4, 1988 for failure to diagnose abscessed pelvic fistula. However, plaintiff had been aware of the condition and its cause since August 1986, when a definitive diagnosis was made and it was decided that corrective surgery was necessary. In MacCain v. Montgomery Hospi tal, 396 Pa.Super. 415, 578 A.2d 970 (1990), plaintiff brought suit November 21, 1986 for failure to diagnose her breast cancer. However, in her deposition, plaintiff stated that when she consulted a new physician in October 1984, this doctor informed her that her cancer was visible in the mammograms performed by appellee. The cancer was confirmed during a mastectomy on October 5, 1984. In Ackler v. Raymark Industries, Inc., 380 Pa.Super. 183, 551 A.2d 291 (1988), plaintiff brought suit December 21, 1983 for work-related asbestosis. However, plaintiff had filed a workmen’s compensation petition August 21, 1981 alleging work-related asbestosis. In Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 507 A.2d 1253 (1986), plaintiff brought suit in September 1978 for work-related asbestosis. However, in deposition testimony plaintiff admitted that he had filed a workmen’s compensation claim for asbestosis on July 14, 1976. In Lucera v. Johns-Manville Corp., 354 Pa.Super. 520, 512 A.2d 661 (1986), plaintiff brought suit in 1976 claiming he did not learn that his asbestosis had been caused by the conduct of another until 1975. However, from trial testimony quoted by the court, it is clear that in 1972 plaintiff had filed a disability claim for work-related asbestosis. In Cathcart, supra, plaintiff brought suit in September 1978 for work-related asbestosis. However, plaintiff admitted in his deposition that he had learned he had work-related asbestosis in 1975. Further, plaintiff had filed suit in February 1976 on the same grounds. The former suit, initiated by Writ of Summons, was dismissed for failure to file a complaint.

On the other hand, in those cases where no “smoking gun” can be found, the exercise of due diligence is not so obvious and must be left to the jury. For example, in Stauffer v. Ebersole, 385 Pa.Super. 306, 560 A.2d 816 (1989), plaintiff brought suit in April 1984 for numbness and eventual loss of use of left hand and arm arising out of excessive radiation treatments performed in 1977 and 1978. However, the statute did not begin to run until May 1982 when another doctor alerted plaintiff that the harm was caused by scar tissue formed following excessive irradiation. Hitherto, an originally treating physician had told appellant that the problem might be attributable to scar tissue, but did not correlate the scar tissue to the radiation treatments. In Morgan v. Johns-Manville Corp., 354 Pa.Super. 58, 511 A.2d 184 (1986), plaintiff brought suit in October 1979 for asbestosis diagnosed in November 1977. Plaintiff was aware from a 1972 medical exam that he had been diagnosed as having “pleural thickening,” and was also aware in 1972 that his workplace exposure to asbestos could cause asbestosis and cancer. However, the statute did not begin to run until his 1977 asbestosis diagnosis, because “pleural thickening” did not sufficiently alert plaintiff that he had been injured. In Trieschock v. Owens Corning Fiberglas Co., 354 Pa.Super. 263, 511 A.2d 863 (1986), plaintiff brought suit April 6, 1984 for asbestosis resulting from workplace exposure. Plaintiff had been told by a physician in March 1982 that he suspected asbestosis. However, the statute did not begin to run until April 8, 1982 when the treating physician confirmed the diagnosis, because mere suspicion was insufficient to trigger the statute. In Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985), plaintiff brought suit January 19, 1982 for various harms arising from her mother’s use of the drug diethylstilbestrol (DES) while pregnant with plaintiff in 1953. Plaintiff began to experience various uterine problems in 1974 and was diagnosed in August 1979 with cervical stenosis. At that time plaintiffs mother also informed plaintiff of mother’s DES usage. However, the treating physician in 1979 assured plaintiff that her problems were not DES related. It was not until a February 1980 television program on DES that plaintiffs concerns were reawakened. The court ruled that whether plaintiff acted with due diligence was a question of fact for the jury and reversed summary judgment. In Acker v. Patena, 260 Pa.Super. 214, 393 A.2d 1230 (1978), plaintiff brought suit July 30, 1975 for harm arising out of eye surgery performed November 17, 1972. However, the statute did not begin to run until August 9, 1973 when plaintiff consulted another doctor who informed her that she would lose the eye. Hitherto, the original physician had been assuring plaintiff that her eye was healing normally. What these cases clearly set forth in cases of suspicion or need to investigate further is that summary judgment was improper as a matter of law on the question of whether due diligence was exercised.

Recently, in applying the discovery rule, the Pennsylvania Supreme Court had an opportunity to address, in a medical malpractice case, the propriety of an order granting summary judgment on the grounds that the action was time-barred. See Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). William Hayward was admitted to the hospital in November of 1980, complaining of chest and back pain. X-rays revealed the presence of a mass in Mr. Hayward’s right lung. Pathological studies of lung tissue removed during exploratory surgery led doctors to diagnose the mass as a probable carcinoma. This diagnosis led doctors to remove the affected portion of Mr. Hayward’s lung. Final pathological studies, however, revealed that the mass was not a malignant tumor, but rather a blood clot. Mr. Hayward was informed of this misdiagnosis. Over the next several years, he experienced progressive shortness of breath. Finally, in 1983, some three years following his surgery, Mr. Hayward consulted a new physician in connection with a workmen’s compensation claim. At that time, he was told that the 1980 surgery, during which his lung was removed, was unnecessary and was a substantial factor in causing his disability. In 1985 Mr. Hayward filed suit against the doctors who had performed the 1980 surgery.

The trial court granted summary judgment to the doctor and this court affirmed. The supreme court reversed and remanded the case for trial. The court first set out the standard to be applied for summary judgment in discovery rule cases:

Whether the statute has run on a claim is usually a question of law for the trial judge, but where the issue involves a factual determination, the determination is for the jury. Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law.

Hayward at 325, 608 A.2d at 1043 (emphasis added).

The court’s analysis continued by listing the various factors relied upon by each party either in support of, or in opposition to, the motion for summary judgment. The opinion then concludes with an assessment of the manner in which the jury question was presented:

A jury could very well find that appellant reasonably should have investigated the need for the surgery at the time that he was informed of the misdiagnosis, and thereby, have discovered the alleged malpractice. A jury, however, could just as well find that appellant acted reasonably in not investigating further and in being satisfied by appellee Cuddy’s assurances that the surgery was indeed necessary. Because reasonable minds could differ as to when appellant’s injury was reasonably ascertainable, a jury question is presented, and therefore, summary judgment is not appropriate.

Hayward at'326, 608 A.2d at 1043 (emphasis added).

The duty of due diligence includes within its meaning the duty to investigate one’s suspicions. In Mr. Hayward’s case, knowledge of his injury was available and ascertainable at the time of his misdiagnosis. However, as observed by the court, the reasonableness of an injured party’s actions in investigating or failing to investigate, except in the most unusual of cases, are questions for the jury based on the facts of the individual case. In accord, Trieschock, supra (tentative diagnosis of asbestosis not enough to start running of statute; however, it was sufficient to activate a duty to investigate). Stauffer v. Ebersole, supra, (physician’s statement that plaintiffs problems “probably” caused by scar tissue from surgery was insufficient to trigger statute on malpractice claim; however, it was sufficient to activate duty to investigate). Burnside v. Abbott, supra (the reasonableness of a plaintiffs diligence in relying on a doctor’s opinion and instead not further investigating the causal link between her condition and DES when she was aware of a possible connection was a question for the jury).

I note that this was not the first time our supreme court has set out the jury question. In 1959, the same year that the Ayers case was decided, that court had another occasion to discuss this statute of limitations issue. In Smith v. Bell Telephone, 397 Pa. 134, 153 A.2d 477 (1959), Mr. Smith sued the telephone company to recover damages for sewage which seeped into his basement caused by the company’s negligent construction of an underground conduit some nine years earlier in 1948. Mr. Smith had been experiencing the problem since he purchased his home in 1951 and had made various efforts over the years to discover the cause. In 1956, Mr. Smith and a friend tunneled the sidewalk and found the conduit. He filed suit in 1957. On the question of whether Mr. Smith’s action was time-barred, the court stated as follows:

As for the statute of limitations, there seems to be no dispute here that the statute runs, on causes arising from sub-surface injury, from the time of discovery of the cause of the harm or the time when the cause of the harm reasonably should have been discovered, whichever is earlier. The same principle has been adverted to in a cause arising from the alleged malpractice of a surgeon in failing to provide for the removal, at the proper time, of a rubber tube left in the patient’s wound, which was invisible from the outside. Since plaintiff started suit about a year after he discovered the cause of the harm we are concerned only with when he reasonably should have discovered it. The court below found that a reasonable time within which the cause should have been discovered would have been about one month from the time he discovered the seeping sewage in March 1951. It would appear that had plaintiff in 1951 made the same intensive effort he did in 1956, or had he had a plumber do it for him, he may have uncovered the cause. But he explained he did not have much money and the cost of doing this was not the subject of a definite estimate. This does not pose a question for the court but for the jury____ It may be that plaintiff will not be found to be entitled to damages for the entire five years he searched and bailed, but it is for the jury, not the trial judge or this Court, to decide the reasonableness of plaintiffs’ conduct.

MR. INGENITO’S CLAIM

The majority, having first recognized appellees’ substantial burden on summary judgment and additionally, the requirement that we review the record in the light most favorable to appellant, determines that the facts lead unerringly to the conclusion that Mr. Ingénito should have known that his cancer was caused by his exposure to asbestos when he was diagnosed with cancer in June of 1984.

My review of the record reveals that the various summary judgment motions rested solely upon two answers given by appellant in response to appellees’ Master Interrogatories. The two interrogatories and answers thereto are as follows:

12. What are the injuries for which you are claiming compensation in this lawsuit?
RESPONSE: Lung Cancer, Pleural Asbestosis and Death.
13. What is the name and address of the doctor who diagnosed these injuries, and what was the date of diagnosis?
RESPONSE: Carl A. Staub, M.D.
185 S. MacDade Boulevard,
Glenolden, PA 19036 June 13, 1984.

(Plaintiffs Responses to Defendants’ Master Interrogatories.)

Appellees alleged in their summary judgment motions that, read together, the answers to these two interrogatories indicate that appellant was aware decedent was suffering from an asbestos-related injury (i.e., asbestosis) on June 13, 1984. Thus, a lawsuit filed on October 28, 1988, was necessarily untimely. Appellant responded by alleging that her responses to the two interrogatories were not meant to be read together. According to appellant, she answered interrogatory # 12 by listing those injuries for which she was seeking compensation in the lawsuit. Since the asbestosis connection had been made after decedent’s death, appellant included that in her answer. However, in answering interrogatory # 13, appellant only meant to indicate that the lung cancer had been diagnosed on June 13, 1984. This explanation makes some sense given that the third claimed injury listed in response to interrogatory # 12, death, could not have been diagnosed on June 13, 1984. In fact, realizing the misinterpretation of her responses, appellant filed supplemental answers to the interrogatories to remove pleural asbestosis from her answer to # 12.

Thus, all that remains in the record of this case are counter-allegations as to when appellant learned her husband’s condition was related to asbestos. More precisely, the opposing positions focus upon when Mr. Ingénito should have known that his condition was asbestos related. Reading the record in a light most favorable to appellant, as the nonmoving party, I do not find that the facts lead unerringly to the conclusion that the time it took appellant to discover the injury and its cause was unreasonable.

The majority makes much of the fact that decedent’s industrial exposure to asbestos was known to him and his physician at the time decedent was diagnosed with lung cancer. From that fact the majority infers that decedent should have known his lung cancer was asbestos related. Evaluating the evidence at the time of Mr. Ingenito’s exposure, the sole reference to his exposure to asbestos is contained in the doctor’s chart notes. Théy read as follows: “In the course of his work as a plumber over the years he has been exposed to asbestos.” However, equally apparent from a review of the chart notes is the notation, “He also smoked 4 packs of cigarettes per day up until recently.” I can find nothing to indicate that Mr. Ingénito was informed of the doctor’s notes or that the doctor, himself, determined that Mr. Ingénito suffered from asbestosis. Unlike the “smoking gun” cases set out earlier, there is nothing in the present record that would indicate Mr. Ingénito knew that he had asbestosis or that there was a link between his cancer and work history.

While I find little concrete evidence that decedent had actual knowledge in 1984 that he had asbestosis, an injury, I would agree with the majority that the diagnosis of cancer triggered a duty on the part of Mr. Ingénito to investigate. The issue of Mr. Ingenito’s smoking is relevant to his exercise of this duty. In fact, his failure to investigate the asbestos connection might have been reasonable if he thought that his cancer was caused by his history of heavy smoking. Isn’t this precisely the jury question contemplated by Hayward?' Echoing the language of Hayward, a jury could very well find that Mr. Ingénito reasonably should have investigated the asbestos link at the time he was diagnosed with cancer and therefore his recovery is barred. A jury, however, could just as well find that appellant’s failure to investigate the asbestos link to his cancer was reasonable in light of his lack of information generally or his history of heavy smoking.

Based on the paucity of the record in this case relative to decedent’s knowledge or lack of diligence regarding the cause of his illness, I would find that reasonable minds could differ as to whether decedent exercised due diligence in ascertaining that he was injured and the cause.

CONCLUSION

I would be less than candid and perhaps even unfair to the learned and respected trial judges whose decisions we review, if I did not show recognition of the tremendous burdens that the plethora of asbestos cases places on the trial courts. Especially in Philadelphia and Allegheny counties, the courts are inundated by these cases. Additionally, it is very difficult not to want to employ some small bit of hindsight to the area of asbestos litigation.

In fact, Judge Moss has stated in her opinion that she can take judicial notice that by 1984, it was common knowledge that asbestos could cause lung cancer. I respectfully suggest that this is what the majority is doing as well. “Syllogistically” speaking, the way this judicial notice is applied is as follows: Plaintiff is diagnosed with cancer, plaintiff has worked with asbestos, asbestos causes cancer, therefore plaintiff should have known his asbestos exposure caused his cancer. My concern with this judicial notice approach is that it imputes to a plaintiff knowledge per se without any consideration of the facts and circumstances surrounding a plaintiffs actions. By stating this, I am not applying a subjective standard. Rather, I am recognizing that the application of the objective standard must take the plaintiff as we find him and decide objectively whether he has behaved reasonably. To echo Petri, the test is whether plaintiff exhibited those qualities of attention, knowledge, and judgment which society requires of its members for the protection of their own interests taking into account difference between persons, their capacity to meet certain situations, and the circumstances confronting them at the time in question. Generally, such circumstances might involve what information a plaintiff may or may not have been given by a doctor, the plaintiffs type and place of employment, the length of exposure, or that cancer can have several other causes. All of these factors can mitigate a plaintiffs duty of diligence on the question of what should have been known. I can find no sense in the majority’s opinion that the reasonableness of decedent’s actions were assessed accordingly. Moreover, on the facts of this case this assessment seems to me better left to a jury.

Perhaps the greatest irony, of the application of the discovery rule which the majority espouses, is that if today Ayers v. Morgan, supra, was one of the cases under consideration by this panel, we would surely find Mr. Ayers’ claim time barred. The fact that Mr. Ayers had surgery followed by nine years of abdominal discomfort before returning to the hospital for additional surgery would lead unerringly to the conclusion that the time it took for Mr. Ayers to discover his injury and its cause was unreasonable as a matter of law. The cause of his pain was knowable and ascertainable if he had only inquired sooner. Obviously, I would register my dissent to this conclusion. Furthermore, I would advocate vacating the summary judgment and remanding the assessment of Mr. Ayers knowledge and diligence to the “collective judgment, wisdom, and experience” of jurors.

Accordingly, I would vacate and remand Mr. Ingenito’s • case.

DEL SOLE and KELLY, JJ., join in this Dissenting Opinion.

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

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

      . See also Love, et al. v. Raymark Industries, Inc., et al., 430 Pa.Super. 155, 633 A.2d 1185 (1993); Cochran v. GAF Corporation, et al., 430 Pa.Super. 175, 633 A.2d 1195 (1993); Baumgart v. Keene Building Products Corporation, et al., 430 Pa.Super. 162, 633 A.2d 1189 (1993).

      . Cathcart states as follows:
      It should be noted that we are not attempting at this time to define ‘injury.’ The importance of the definition should be readily apparent. A narrow definition will greatly enlarge the rights of plaintiffs, as the statute of limitations will begin to run at a later time. Adoption of a loose definition of ‘injury’ will mean that the statute of limitations could begin running with the discovery of a trivial harm, with the likely consequence that inconsequential lawsuits will be filed in order to avoid statute of limitations problems.

        Cathcart, 324 Pa.Super. at 137, n. 10, 471 A.2d at 500, n. 10.

      . Judge Cirillo authored the decision. Judge Wieand filed a concurring opinion. Judge Del Sole filed a concurring opinion which was joined by this writer.

      . The court further addressed this distinction as follows:
      ‘Injury’ denotes an invasion of a legally protected interest which, if it is the legal result of a tortious act, entitles one so injured to maintain an action in tort. Id., comment a. ‘Harm’ is carefully distinguished from ‘injury.’

        'Harm' implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object, or thing. Physical changes or alterations may be either beneficial, detrimental, or of no consequence to a person. In so far as physical changes have a detrimental effect on a person, that person suffers harm.
      Restatement (Second) of Torts, § 7, comment b.

      . This formulation is not unlike what the supreme court recognized in Ayers. Clearly, Mr. Ayers had suffered the physical manifestation of harm for a long period of time. But it was not until the sponge was found in his abdomen that he had knowledge of his injury.

      . It has been argued that the Hayward analysis cannot apply in a creeping disease case because Hayward is actually a concealment case. I find any such distinction to be illusory. Concealment can take many forms from actual fraud on the part of a wrongdoer to misinformation or misdiagnosis. Concealment can also occur through the body actually “hiding” the injury. Absent concealment rising to the level of fraud, the fact of concealment or misinformation goes only to the issue of due diligence and reasonableness of the injured party's conduct and not the application of the rule generally.

      . Justice Larsen authored the decision. Chief Justice Nix concurred in the result. Justice McDermott filed a concurring opinion which agreed that the case was not appropriate for summary judgment. Justice Zappala filed a dissenting opinion.

      . Appellees seek to rely on appellant's answer to Interrogatory # 8 which lists the work history of appellant for purposes of the lawsuit.

      . Recall in Trieschock, whose facts would more readily lend the case to resolution by summary judgment than the present case, where Mr. Trieschock was given a tentative diagnosis of asbestosis more than two years prior to bringing suit, this court reversed the grant of summary judgment concluding:
      A plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition. If those physicians are not reasonably certain as to his diagnosis, then he certainly cannot be bound to have the knowledge necessary to start the statute of limitations running.

        Trieschock, 354 Pa.Super. at 268, 511 A.2d at 866. Presently, the record reveals not even a tentative diagnosis of asbestosis. There is nothing in the record to indicate that Mr. Ingénito was apprised of any possible connection between his work and his lung cancer. However, the majority has decided in this case that Mr. Ingénito should have greater knowledge of the cause of his cancer than his physicians who, as evidenced by the record, never made a diagnosis of asbestosis during his lifetime.

      . Could we not also, therefore, take judicial notice that in 1984, it was common knowledge that cigarette smoking caused lung cancer.


source: Caselaw Access Project

author: WIEAND, Judge: FORD ELLIOTT, Judge,

license: Public Domain

text:
    633 A.2d 1185
    Charles T. LOVE and Suzanne F. Love, Executors of the Estate of Charles A. Love, Deceased, and Leona K. Love, in her own right, Appellants, v. RAYMARK INDUSTRIES, INC., Babcock & Wilcox Company, H.K. Porter Company, Inc., Individually and as successor-in-interest to Southern Textile Company, formerly Southern Asbestos Company, Nicolet Industries, Inc., H.R. Curry Company, Inc., The Gage Company, Colonial Supply Company, Globe Electric Company, Inc., and Durabla Manufacturing Company v. GOODYEAR TIRE & RUBBER COMPANY and Goodyear Canada, Inc.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Nov. 1, 1993.

      Antonio D. Pyle, Pittsburgh, for appellants.
    Kathryn Johnston, Beaver, for Colonial Supply, appellee.
    Frederick N. Egler, Jr., Pittsburgh, for Globe Elec., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

In this action to recover damages for lung cancer allegedly caused by occupational exposure to asbestos products, the trial court entered summary judgment in favor of the defendant manufacturers because the action was barred by the two year statute of limitations enacted by the legislature at 42 Pa.C.S. § 5524(2). After careful review, we affirm.

Charles A. Love was employed from 1942 to 1982 by National Valve & Manufacturing Company as a laborer, welder, sandblaster and shotblaster. Over the years of his employment, Love was exposed to various products containing asbestos. Early in 1982, the plant physician, having examined Love, told him he had a “dirty lung” and recommended that he surrender his position as a shotblaster. Love did not immediately ask the physician about the cause of his lung condition, but he conceded in subsequent depositions that he had believed it to be work related. Love returned to his former job as a laborer until he retired in July, 1982. He then consulted his family physician, who referred him to Dr. John Mitchell. On September 1, 1982, Dr. Mitchell made a diagnosis of lung cancer, and surgery was performed shortly thereafter. At this time, Love suspected that the cancer was related to his occupational exposure to asbestos.

Following surgery, Love consulted a lawyer, who arranged for him to be examined by Dr. Murray Sachs in January, 1983. On March 9, 1983, Dr. Sachs submitted a written report in which he concluded that there was a causal connection between the lung cancer and Love’s prior exposure to asbestos. On March 1, 1985, Love and his wife commenced an action for damages against numerous manufacturers of asbestos products allegedly used during the course of his employment. Love died on July 9, 1987, after which the executors of his estate were substituted as party plaintiffs. On September 11, 1991, the trial court entered summary judgment in favor of Globe Electric Company, Inc., The Gage Company, and Colonial Supply Company, the defendants then remaining in the action.

This Court has recently reviewed the applicable law in Ingenito v. A C & S, Inc., et al., 430 Pa.Super. 129, 633 A.2d 1172 (1993) (J. E02002/93; filed Nov./l/1993). There, we held that an action by the personal representatives of a decedent was barred because the decedent had failed to file an action within two years after a diagnosis of lung cancer and where the cause of the cancer had been immediately knowable to him in the exercise of reasonable diligence. “Reasonable diligence,” we said, is an objective or external standard which is the same for all individuals. Id. at 131, 633 A.2d at 1174. See: 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). “ Tf a party has the means of discovery within his power but neglects to use them, his claim will still be barred.’ ” Ingenito v. A C & S, Inc., et al., supra 430 Pa.Super. at 131, 633 A.2d at 1174, quoting Burnside v. Abbott Laboratories, supra 351 Pa. at 292, 505 A.2d at 988.

Love knew that he had a “dirty lung” in early 1982 and suspected that it was work related. On September 1,1982, his physician told him he had lung cancer. Love suspected that it was related to his occupational exposure to asbestos. Under these circumstances, even if the physicians did not inform Love of the cause of his lung condition, it was unreasonable as a matter of law for Love not to make inquiry. The diagnosis had been made and Love had suspected the cause. The causal connection between lung cancer and occupational exposure to asbestos was neither obscure nor unascertainable. For Love to fail to make inquiry of his physicians regarding the cause of his lung cancer under the circumstances was unreasonable as a matter of law.

After surgery in September, 1982, Love also believed he might have a cause of action for his disease, for he consulted a lawyer. The lawyer arranged for an examination by another physician in January, 1983. Although we do not know what was told the patient during this examination, it is readily apparent that the existence of a cause of action could have been ascertained by simple inquiry. By this time, Love had been diagnosed with cancer, had been operated upon for cancer, had suspected that his disease was attributable to occupational exposure to asbestos, had consulted a lawyer about a legal remedy and had been sent for yet another medical examination. If, as appellants allege, Love did not have actual knowledge of the causal connection between his lung cancer and his exposure to asbestos, it is clear that, as a matter of law, he failed “to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery [was] based and to institute suit within the prescribed statutory period.” Pocono Internation al Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).

Judgment affirmed.

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

FORD ELLIOTT, Judge,

dissenting:

My review of the record clearly reflects that the point at which decedent knew he was injured and what caused his injury was March 9, 1983. It was at that point that he was informed that his cancer was asbestos related. Accordingly, I must dissent from the decision of the majority affirming the grant of summary judgment.

The reasons for my dissent, generally, have been thoroughly discussed in my dissenting Opinion in Ingenito v. A C & S, Inc., et al., 430 Pa.Super. 129, 633 A.2d 1172 (1993). That same reasoning applies with equal force presently. Therefore, I will only undertake a review of relevant facts in this case which I believe demonstrate that summary judgment was improperly granted by the trial court on the record before it.

There is an issue of fact as to whether decedent exercised due diligence in ascertaining if he was injured and what caused his injury. Initially, the majority notes that decedent was told by a plant physician in early 1982 that he had a “dirty lung.” Decedent stated in his deposition that when the plant physician told him he had the “dirty lung,” decedent figured it might have something to do with his work as a sandblaster. However, decedent also noted that the plant physician never indicated to him what caused the “dirty lung” and did not advise decedent to seek any medical treatment for the condition. In fact, decedent was sent back to work in the plant, as a laborer.

In September of 1982, decedent was diagnosed with lung cancer and underwent surgery to remove part of his lung. Decedent stated in his deposition that it was only after he got out of the hospital that he became suspicious that his cancer might have been work related. Within three months following the surgery, decedent contacted an attorney. That attorney immediately had decedent examined by another physician who was able to link decedent’s lung cancer with occupational exposure to asbestos in a report dated March 9, 1983. Thus from the time appellant was first diagnosed with lung cancer, it took him less than seven months to investigate his illness and determine that he had been injured and what caused the injury. I submit that a jury could find such á time frame reasonable and consistent with the exercise of due diligence.

The majority appears troubled that decedent did not immediately inquire of his surgeon, in September 1982, as to the cause of his cancer. Perhaps a jury would also find that troubling. Or perhaps a jury would conclude that other more pressing concerns confronted decedent at that moment such as whether he was going to live; whether he was going to have to undergo radiation treatments or chemotherapy; how his family was going to react to the news that he had cancer, and so on. Perhaps it was not until after decedent survived the surgery and had time to recover that causation became an issue of concern in his mind. Whatever the case, it is important to recall that, absent actual knowledge on decedent’s part that he suffered an injury, the standard of reasonable diligence “is sufficiently flexible ... to take into account difference[s] between persons, their capacity to meet certain situations and the circumstances confronting them at the time in question.” Petri v. Smith, 307 Pa.Super. 261, 271-72, 453 A.2d 342, 347 (1982) (emphasis added).

The majority’s analysis affords decedent absolutely no time to exercise due diligence. Because decedent suspected his cancer might be work-related, the majority starts the statute running as of the date decedent was diagnosed with cancer. However, under what I believe to be a proper Cathcart analysis, the diagnosis of lung cancer coupled with decedent’s suspicions should trigger not the statute of limitations, but the duty to exercise due diligence. Whether that duty was properly exercised must remain a jury question in close factual cases such as this.

The majority concludes that, as a matter of law, decedent failed to use all reasonable diligence to be properly informed of the facts and circumstances upon which a right of recovery may have existed. I say that if consulting an attorney within three months of lung cancer surgery and then discovering that it was work related three months after that is a failure to exercise due diligence, as a matter of law, then there would be few, if any, cases which could survive the summary judgment stage.

The very purpose of the discovery rule is to toll the running of the limitations period until a plaintiff knows or has reason to know he is injured and the injury has been caused by the act of another. Presently, in perhaps the clearest example of how the rule should operate, decedent, after being diagnosed with cancer, sought out legal advice to investigate whether his harm was an injury. Once decedent ascertained that his cancer was also “an invasion of a legally protected interest, an injury, caused by the actions of another, then the limitations period commences to run. Decedent must be given the benefit of the full limitations period from the date when he gains the requisite knowledge under Cathcart. In this case, since decedent learned that his cancer was, in fact, asbestosis within seven months of the cancer diagnosis, the majority would have the statute run from the date of the cancer diagnosis. This, I believe, is an erroneous application of the Cathcart formulation. Because the record in this case does not clearly establish that decedent knew or should have known that he was injured as of the date of his lung cancer diagnosis, it is best left for a jury to determine whether he acted with due diligence in discovering the injury within months thereafter. If decedent is found to have acted diligently, then the statute would not begin to run until the date decedent’s cancer was connected with asbestos exposure. From that date, decedent was entitled to a full two years to file his lawsuit and his action is not time barred.

DEL SOLE and KELLY, JJ., join in this Dissenting Opinion.

      . Love also had a history of smoking. Between 1942 and 1950, he smoked approximately one and one-half packs of cigarettes per day; and from 1950 until the taking of his depositions on October 28, 1985, he smoked a pipe daily.


author:
WIEAND, Judge:
      FORD ELLIOTT, Judge,

text:
    633 A.2d 1189
    Mildred R. BAUMGART, Executrix of the Estate of Anthony J. Baumgart, Deceased, Appellant, v. KEENE BUILDING PRODUCTS CORPORATION, Successor-in-Interest to Baldwin-Ehret-Hill, Inc., a corporation; The Celotex Corporation, Successor-in-Interest to Philip Carey Corporation, Philip Carey Manufacturing Company, Briggs Manufacturing Company and Panacon Corporation, a corporation; H.K. Porter Company, Inc., a corporation; Owens-Corning Fiberglass Corporation, a corporation; Owens-Illinois, Inc., a corporation; Armstrong World Industries, Inc., a corporation; GAF Corporation, a corporation; Combustion Engineering, Inc., a corporation; George V. Hamilton, Inc., a corporation; Pittsburgh Corning Corporation; a corporation; Flexitallic Gasket Company, a corporation; Eagle-Picher Industries, Inc., a corporation; Pittsburgh Gage & Supply Company, a corporation; Garlock, Inc., a corporation; Anchor Packing Company, a corporation; Raymark Industries, Inc., a corporation; John Crane-Houdaille, Inc., a corporation; Allied Corporation, Successor-in-Interest to Bendix Corporation, a corporation; Wagner Division McGraw-Edison Company, a corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Nov. 1, 1993.

      Edwin H. Beachler, III, Pittsburgh, for appellant.
    Gary F. Roberson, Pittsburgh, for Owens Corning, appellee.
    Jerry H. Seidler, Pittsburgh, for Wagner Div., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

The issue in this appeal pertains to the application of the statute of limitations to wrongful death and survival actions filed against manufacturers and suppliers of asbestos products following the death of Anthony J. Baumgart from mesothelioma. The trial court held that the actions were time barred and entered a summary judgment in favor of the defendants. After careful review, we affirm in part and reverse in part.

Between 1950 and 1980, Baumgart was allegedly exposed to asbestos-containing products during the course of his employment by Witco Chemical Corporation as a laborer, pipe fitter, truck driver, storeroom clerk and auto mechanic. In September, 1984, he began to experience severe pain in his back and shoulder and was treated by Dr. Alfredo Garcia for an arthritic condition. In December of that year, Dr. Garcia referred Baumgart to Dr. Jay Paul, who performed a fibrooptic bronchoscopy at Butler Memorial Hospital. This procedure, performed between January 15, 1985 and January 29, 1985, enabled Dr. Paul to obtain a pleural biopsy which, upon examination, was diagnosed as mesothelioma, a form of lung cancer associated with exposure to asbestos. Both Baumgart and his wife were aware of the diagnosis of mesothelioma before the end of January, 1985; and Baumgart was questioned repeatedly by Dr. Paul about a history of exposure to asbestos. Baumgart was again hospitalized at Allegheny General Hospital between February 13, 1985, and March 9, 1985, during which time the diagnosis of mesothelioma was confirmed by Dr. T. Balinchak. Dr. Balinchak’s notes reveal that he, too, knew the cause of mesothelioma to be asbestos exposure and that he questioned Baumgart about his exposure to asbestos. Baumgart, according to Dr. Balinchak’s notes, denied any history of exposure to asbestos. Baumgart reentered the hospital on March 19, 1985, where he died on March 31, 1985. The cause of death was massive pleural effusion and mesothelioma.

Within five months after Baumgart’s death, his widow filed a fatal claim petition under the Workmen’s Compensation Law in which she contended that death had been caused by an occupational exposure to asbestos during his employment by Witco Chemical Corporation. The present third party action, however, was not commenced until March 26, 1987, when a praecipe for writ of summons was filed. In it, Baumgart’s widow named as defendants numerous manufacturers and suppliers of asbestos products. The trial court, on March 2, 1992, entered summary judgment in favor of Wagner Electric Corporation and “all similarly situated defendants” on grounds that the survival and wrongful death actions were barred by the two year statute of limitations which had been enacted by the legislature at 42 Pa.C.S. § 5524(2). The plaintiff appealed.

An action to recover damages for the wrongful death of a person is separate and distinct from the action which is known as a “survival action.” Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942); Holmes v. Lado, M.D., 412 Pa.Super. 218, 602 A.2d 1389, allocatur denied, 530 Pa. 660, 609 A.2d 168 (1992). See: 42 Pa.C.S. §§ 8301 and 8302. If a person is injured by the act of another, a cause of action may accrue to the injured person. His or her death thereafter does not abate the cause of action. Pursuant to 42 Pa.C.S. § 8302, the cause of action survives the death of the injured person and continues in the decedent’s personal representative. The damages recoverable are measured by the pecuniary loss occasioned to the injured person, and therefore to his or her estate, by the negligent act which caused death. See: Pezzulli v. D'Ambrosia, supra 344 Pa. at 647, 26 A.2d at 661.

The action for wrongful death is a separate action for the benefit of certain enumerated relatives who may have sustained pecuniary loss because of the death of a person caused by another’s tort. See: 42 Pa.C.S. § 8301. The “damages recoverable are measured by the pecuniary loss occasioned to [the relatives] through deprivation of the part of the earnings of the deceased which they would have received from him had he lived,” plus such special damages as are allowed by statute. See: Pezzulli v. D'Ambrosia, supra at 647, 26 A.2d at 661.

The difference between the actions was discussed by the Superior Court in Holmes v. Lado, M.D., supra, as follows:

In a survival action, the personal representative of the decedent is substituted for the decedent. The recovery obtained depends on the rights of action which the decedent possessed at the time of [his or] her death and, as in a personal injury action, amounts to the damages that the decedent [himself or] herself sustained. On the other hand, in a wrongful death cause of action, recovery depends upon the rights of action that the beneficiaries, as named by statute, possess. Moreover, recovery amounts to the pecuniary loss suffered by the beneficiaries by being deprived of the part of the decedent’s earnings they would have received had the decedent lived. Thus, a survival action seeks to compensate for different damages than does an action for wrongful death and as a result, is separate and distinct from a cause of action in wrongful death.

Id., 412 Pa.Super. at 223 n. 2, 602 A.2d at 1391 n. 2 (citations omitted). See also: Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 588, 596-597, 606 A.2d 427, 431 (1992); Frey v. Pennsylvania Electric Co., 414 Pa.Super. 535, 539-540, 607 A.2d 796, 798, allocatur denied, 532 Pa. 645, 614 A.2d 1142 (1992).

The statute of limitations governing both wrongful death and survival actions is contained in 42 Pa.C.S. § 5524(2), which 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. In general, the statute will begin to run at the time the cause of action accrues. 42 Pa.C.S. § 5502(a). “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.’ ” Ingenito v. AC & S, Inc., 430 Pa.Super. 129, 132, 633 A.2d 1172, 1175 (1993), quoting DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 501, 460 A.2d 295, 299 (1983). “ ‘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, M.D., 368 Pa.Super. 211, 214, 533 A.2d 1029, 1030 (1987), allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988), 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).

For the action known as a “survival action,” the statute of limitations, as a general rule, begins to run on the date of injury. “[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 [does] not toll the running of the statute of limitations.... Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). This genera] rule, as we have observed, has application to a “survival action.” If a period of two years has expired following the date of injury, an action for such injury is barred and cannot be asserted by the personal representatives of the injured person following his death. Anthony v. Koppers Co., Inc., 496 Pa. 119, 124-125, 436 A.2d 181, 184-185 (1981). See also: Ingenito v. AC & S, Inc., supra, 430 Pa.Super. 129, 633 A.2d 1172.

The “discovery rule” is an exception to the general rule. It “arises from the inability of the injured [person], despite the exercise of due diligence, to know of the injury or its cause.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra 503 Pa. at 85, 468 A.2d at 471 (emphasis in original omitted). “The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury. 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.” Id. In Ingenito v. AC & S, Inc., supra 430 Pa.Super. at 131-132, 633 A.2d at 1174-75, this Court discussed “reasonable diligence” as follows:

“ ‘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).

When the “discovery rule” is applicable to a survival action, the rule

causes the statute of limitations to commence to run on the date when the victim ascertained, or in the exercise of due diligence should have ascertained, the fact of a cause of action. In no case, however, can that date be later than the date of death; hence, the statute runs, at the latest, from death.

Pastierik v. Duquesne Light Co., 514 Pa. 517, 524, 526 A.2d 323, 327 (1987). See also: Anthony v. Koppers Co., Inc., supra 496 Pa. at 124-125, 436 A.2d at 184.

Here, the decedent knew that he had been diagnosed with mesothelioma before the end of January, 1985. Mesothelioma is a rare form of cancer which is almost invariably caused by exposure to asbestos. See: O’Brien v. National Gypsum Co., 944 F.2d 69, 71 (2nd Cir.1991); Hoffman v. Allied Corp., 912 F.2d 1379, 1381 (11th Cir.1990). The probable cause of Baumgart’s condition was known to his physicians and available to Baumgart as early as January or February, 1985. Indeed, Baumgart’s treating physicians repeatedly asked him during this period about his exposure to asbestos. His cause of action for mesothelioma, which survived his death and accrued to his estate in the form of a survival action, was not filed until March 26, 1987. By then, however, the action was barred by the two year statute of limitations enacted by the legislature at 42 Pa.C.S. § 5524(2). See: Ingenito v. AC & S, Inc., supra; Love v. Raymark Industries, Inc., 430 Pa.Super. 155, 633 A.2d 1185 (1993).

Baumgart’s lack of knowledge that he had been exposed to asbestos, if such was the case, was insufficient to toll the statute of limitations. Lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations. Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra 503 Pa. at 84, 468 A.2d at 471. That Baumgart knew of his injury is clear. The cause thereof was not obscure. It was either known to him or readily ascertainable. “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.” Ingénito v. AC & S, Inc., supra 430 Pa.Super. at 132, 633 A.2d at 1175, citing Owens v. Lac D’Amiante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa. 1987), affd, 833 F.2d 306 (3d Cir.1987). The failure to make inquiry when the information is available is a failure to exercise reasonable diligence as a matter of law. Ingénito v. AC & S, Inc., supra; Love v. Raymark Industries, Inc., supra. Baumgart possessed the salient facts and was able, in the exercise of due diligence, to determine the existence of a cause of action more than two years before the survival action was commenced. Indeed, the same salient facts enabled his widow to file a workmen’s compensation claim for death caused by occupational exposure to asbestos within five months after his death.

The trial court did not err when it entered summary judgment in favor of the defendants in the survival action, and that judgment must be affirmed.

The statute of limitations is applied differently to wrongful death actions. It begins to run when a pecuniary loss is sustained by the beneficiaries of the person whose death has been caused by the tort of another. This, invariably, is the date of death. Therefore, the rule is that an action for the wrongful death of another person must be brought no later than two years after the date of death. Pastierik v. Duquesne Light Co., supra; Symbula v. Johns-Manville Corp., 514 Pa. 527, 526 A.2d 328 (1987). The “discovery rule” can have no application to extend the time for filing a wrongful death action beyond the statutory period allowed therefor. Symbula v. Johns-Manville Corp., supra; Anthony v. Koppers Co., Inc., supra. See also: 18 Std.Pa.Practice, Actions for Wrongful Death § 97:18.

In the instant action, Baumgart died from lung cancer on March 31, 1985, and an action for his wrongful death was commenced on March 26, 1987. This was within two years of Baumgart’s death. Under these circumstances, the trial court erred when it entered summary judgment in favor of the defendant-manufacturers of asbestos.

' Affirmed in part, reversed in part, and remanded for further proceedings in the wrongful death action. Jurisdiction is not retained meanwhile.

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

FORD ELLIOTT, Judge,

dissenting:

My review of the record leads me to conclude that there are genuine issues of material fact as to whether decedent exercised due diligence. Unlike my review of other recent asbestos cases, my concern is not over due diligence in ascertaining an injury, but rather in ascertaining the cause of that injury. The Cathcart test has two distinct parts:

[t]he statute of limitations begins to run in ‘creeping disease’ cases when the plaintiff 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, 471 A.2d 493 (1984) (emphasis added). “Reasonably should know” is measured by the due diligence standard. Due diligence, thus, applies equally to both parts of the test, and both parts of the test must be satisfied before the statute begins to run.

Thus, while I agree with the majority that the diagnosis of mesothelioma may, as a matter of law, indicate knowledge of an injury as early as the end of January 1985, under the facts of this case, this does not satisfy the second prong of Cathcart: knowledge the injury was caused by another’s conduct.

In the record, decedent consistently denied ever having been exposed to asbestos. Decedent’s wife testified in her deposition that decedent never told her that he worked with asbestos products. Decedent’s treating physician, Dr. Garcia, testified in his affidavit that “while Mr. Anthony Baumgart was under my care, I never secured from him a history of having had exposure to asbestos.” (Affidavit of Dr. Alfredo J. Garcia, 2/18/92.) In a letter to appellant’s counsel dated March 26, 1988, Dr. Garcia -wrote, “at your request I have reviewed my records and I do not recall discussing] with him (decedent) or his wife the relationship between mesothelioma and asbestos.” Records from the treating physicians at Allegheny General Hospital also indicate a uniform denial of ever having been exposed to asbestos. Dr. Paul, the physician who diagnosed decedent’s mesothelioma, stated in his affidavit:

Mr. Baumgart (decedent) never gave me a history of exposure to asbestos even though I asked him on several occasions if he had exposure to asbestos. He stated that he had not been exposed to asbestos. I did not at any time during his lifetime tell him that his mesothelioma was caused by asbestos exposure.

(Affidavit of Dr. Jay Paul, 2/26/92.)

The one constant throughout the entire record is that decedent denied any exposure to asbestos. Considering the record in a light most favorable to appellant, as we are required to do, we must then conclude that decedent believed he was never exposed to asbestos. Such facts certainly impact on the due diligence question with respect to the second prong of the Cathcart test. Assuming the majority is correct that decedent had knowledge of his injury on January 29, 1985, that mesothelioma is an injury related cancer, from that date until the date of his death appellant only lived 60 days. Twenty-two of those days were spent in the hospital, and the remainder of the time was spent in the dying process. Perhaps a jury would not find it unreasonable for decedent to have failed to investigate and determine the cause of his mesothelioma during that sixty-day period. Especially when the record indicates that no doctor ever informed decedent that mesothelioma was caused by asbestos exposure and appellant denied ever having been exposed to asbestos.

DEL SOLE and KELLY, JJ., join in this Dissenting Opinion.

      . A complaint was filed on April 2, 1987.

      . An action for wrongful death may be brought only "if no action for damages was brought by the injured individual during his lifetime.” 42 Pa.C.S. § 8301(a). An action brought during the lifetime of the injured person survives the death of the injured person and may be pursued after death by his or her executor or administrator. 42 Pa.C.S. § 8302.

      . When Baumgart died on March 31, 1985, it is clear that an action for mesothelioma was not already barr,ed by the statute of limitations. Compare: Ingenito v. AC & S, Inc., supra and Love v. Raymark Industries, Inc., supra.