Duane Morris LLP: Pa. Superior Court Confirms Statutory Right of Repose for Improvements to Real Estate in Asbestos Cases

Duane Morris LLP: Pa. Superior Court Confirms Statutory Right of Repose for Improvements to Real Estate in Asbestos Cases

The Pennsylvania Superior Court reversed a jury verdict in favor of plaintiffs in an asbestos mesothelioma case, finding that the 12-year statute of repose bars all claims related to improvements constructed on real estate brought beyond the statutory period pursuant to 42 Pa. Cons. Stat. Ann. § 5536(a)-(b) [enhanced opinion available to lexis.com subscribers].

In Graver v. Foster Wheeler Corp.,[1] the plaintiffs argued, inter alia, that the statute of repose did not apply to asbestos cases because Foster Wheeler was a manufacturer and supplier of metal products and asbestos insulation and not a designer of improvements to real property, and because of "strong dicta" in Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009), generally stating that "no statutory right of repose exists with respect to asbestos cases." Abrams, 981 A.2d at 212 [enhanced opinion]. The relevant statute of repose generally bars claims filed 12 years after the completion of an improvement to real property. See 42 PA. CONS. STAT. ANN. § 5536(a). The trial court found that Foster Wheeler was involved in the overall design and construction of the boiler in question, that Foster Wheeler completed the boiler in 1955, and that the boiler, 11 to 13 stories tall and weighing "many, many tons," was clearly a permanent improvement to the real estate contemplated by the statute. Plaintiffs would have had to file suit by 1967 under the statute of repose, rather than in 2010 when it was initiated.

The Court also found that Abrams' dicta did not apply to the issue on appeal in Graver because Abrams did not involve the statute of repose, but rather the limitations period under the new "two disease" rule which provided for separate causes of action for malignant asbestos-related diseases and non-malignant asbestos-related diseases pursuant to the two-year statute of limitations. See 42 Pa. Cons. Stat. Ann. § 5524(8).[2]

Finally, Plaintiffs argued that the two statutes are in conflict and the most recently enacted statute should apply. The Court disagreed, finding:

"The asbestos statute of limitations applies only to those cases arising from alleged exposure to asbestos. On the other hand, the relevant statute of repose has a greater reach and involves all claims against those persons involved in the design, planning, supervision, or construction of any improvement to real property. For the most part, the statutes will operate independently of one another. On occasion though, they will overlap in asbestos exposure claims caused by improvements to real property. However, this overlap will not prevent courts from giving effect to both statutes." (Emphasis added).

The Court in Graver commented that it is not the function of the judiciary to construct an asbestos-related exception to the statute of repose in construction cases, but the responsibility of the General Assembly. Although Graver was not a construction case, the decision may be of particular interest to those companies that designed and constructed facilities, and equipment made appurtenant to real estate, and are sued decades later for alleged toxic exposure.

For Further Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Dawnn E. Briddell, any member of the Products Liability and Toxic Torts Practice Group or the attorney in the firm with whom you are regularly in contact.


  1. 2014 Pa. Super 132 (June 26, 2014).
  2. Now, 42 Pa. Cons. Stat. Ann. § 5524.1.

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