Opposition Brief — Shriver v. GAF Corp.

Supreme Sourt, US

=) FILED

No. 91-1500 BAR 3 i S92

OFFICE OF THE OubAe

In The

Supreme Court of the United States

October Term, 1991

¢

GLENN M. SHRIVER,

Petitioner,

VS.

GAF CORPORATION,

Respondent.

¢

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

¢

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

S

Rosert H. Maus

(Counsel of Record)

Rosert B. Bopzin

MicHaAeL A. BROWN

Mesirov GELMAN JAaArrF!

CRAMER & JAMIESON

1735 Market Street

Philadelphia, PA 19103

(215) 994-1000

Attorneys for Respondent

GAF Corporation

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

e a

J

QUESTIONS PRESENTED

1. Whether this Court should issue a writ of cer-

tiorari to the United States Court of Appeals for the Third

Circuit where there are no federal questions and no con-

flicting appellate decisions implicated in the district

court’s determination that an action brought more than

six years following an injury is barred by the statute of

limitations.

2. Whether this Court should issue a writ of cer-

tiorari to the United States Court of Appeals for the Third

Circuit where the Court below held that Petitioner’s

action, commenced more than six years following an

injury, is time barred regardless of whether the Pennsyl-

vania two-year or Maryland three-year statute of limita-

tions was applicable.

il

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below are the peti-

tioner, Glenn M. Shriver, and the respondent, GAF Cor-

poration.

ili

TABLE OF CONTENTS

Page

TN gee ee ee i

Parties to the Proceedings .............-.-.-+--5+:: ii

cance pect ree ee SRAAS VOOR S HSS iv

Opinions Below ...............-- eee e cece eee eee. 1

Septemnemt GF Turiediction. ..... 2.0.00. c ces eccens 2

Constitutional Provisions and Statutes Involved.... 2

OE GE oe Pree err errr Ter errr eee 2

Reasons for Denying the Writ ...............---+-- 5

I. There are no “special and important” rea-

sons for granting the writ of certiorari..... 6

Il. A district court sitting in diversity applies

the forum’s choice of law rules in determin-

ing the applicable statute of limitations.... 7

III. The Pennsylvania choice of law rules require

the application of the Pennsylvania two-year

statute of limitations, which bars peti-

tioner’s cause of action, as the injury was

discovered or should have been discovered

in 1984 or at latest by 1986, and suit was not

es Vee aa a eK a OO 88 owe 10

IV. Even if the Maryland three year statute of

limitations was to apply, the petitioner’s

Cinimm 86 OttH) Lime DOFTEG.... 21... 0 cccceces 12

V. The statute of limitations (whether Pennsyl-

vania or Maryland) is an adequate and inde-

pendent state law grounds dispositive of the

issues, and thus any decision on a “federal

question” would not be outcome determina-

EE eee er ee ey atk a we ae ae 13

ee a Ck ee ka a eo 16

iv

TABLE OF AUTHORITIES

Page

Cases:

Bayless v. Philadelphia National League Club, 579

F.2d 37, 39 (3d Cir. 1978), aff’d. 615 F.2d 1352

SR era ree ose ton Or ERT oe SME eC See tas 10

Branti v. Finkel, 100 S.Ct. 1287, 445 U.S. 507, 63

Ce. Se ee ME Se veeer eka he tas eas ek eeaes en 15

Coleman v. Thompson, 111 S.Ct. 2546, 115 L.Ed. 2d

ce et i | OE OTE E EEE eer eT ee eT ETT 13, 14

Doughty v. Prettyman, 219 Md. 83, 88, 148 A.2d 438

2 PEE E TE TET er ee a rer ere eter eee Pree 9

Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct.

SG, TE Le Be AAW in sank ices panne scvenes 8

Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103

Sue AEE Sa 05 Fh cde R CE eee e an aeeeetheeetens 13

Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72

mS FP errr er ner eer rere 13

Henry v. Mississippi, 379 U.S. 443, 13 L.Ed. 2d 408,

85 S.Ct. 564 (1965), reh. denied, 380 U.S. 926, 13

Se: Ue Ry OS i To awe Sekt ear aynccunnes 13

Herb v. Pitcairn, 324 U.S. 117, 89 L.Ed. 789, 65 S.Ct.

Ren Ora hr et, rer ey ere 14

Johnson v. Railway Express Agency, 421 U.S. 454,

462, 95 S.Ct. 1716, 44 L.Ed. 2d 295 (1975)........ 8, 9

Lavne & Bowler Corp. v. Western Well Works, Inc.,

261 US. 367, 43 S04. 422, 67 L.Bd. 26 712......... 7

Leonard v. Wharton, 268 F. Supp. 715, 718 (D. Md.

1967), appeal dismissed, 396 F.2d 452 (4th Cir.

1968), cert denied, 393 U.S. 1028, 89 S.Ct. 624, 21

Be 8 ey rey rere rr sere errr ere re 9

McKenna v. Ortho Pharmaceutical Corp., 622 F.2d

657 (3d Cir. 1980), cert. denied, 449 U.S. 976, 101

S.Ct. 367, G L.Ed. BA Zo? CYSGR). ... i cee ce ewes: 8

TABLE OF AUTHORITIES —- Continued

Page

Merry v. Westinghouse Electric Corp., 684 F. Supp.

ie Be eR er ee ee ee 10

Mills v. International Harvester Co., 554 F. Supp.

OEE le Be PE & oe ke os ee ee ei ee Y

Morley v. Cohen, 610 F. Supp. 798, 827 (D.C. Md.

PU eres Oreo re ea ea eee Yy

Piccolini v. Simon's Wrecking, 686 F. Supp. 1063,

ere Ga ee, Pe ok sy ae ea ees 10

Quadrini v. Sikorsky Aircraft Division, 425 F. Supp.

81 (D. Conn. 1977), on reconsideration on other

grounds, S05 F.2d. 1069 (IFS1)... 06. eco ence k ees 8,9

Reed v. Charizio, 183 F. Supp. 52, 53 (E.D. Vp. 1960) ..... 9

Rice v. Sioux City Memorial Park Cemetery, 75 S.Ct.

BEG Ce vos hk ee ee eee ee eee en aera 7

Ross v. Johns-Manville Corp., 766 F.2d 823 (1985)...... R

Zacchini v. Scripps-Howard Broadcasting Co., 433

CS. Sie, Se ak. ee osc cee ee eee 13

STATUTES AND CONSTITUTIONAL PROVISIONS:

6 US. es ee i a ee ee eee 2,7, 9, 14

Maryland Code (1984), Section 5-101 of the Courts

and Judicial Proceedings Article .................. 12

42 Pa. (S.A. SOC Bee eukec so ees tas ee ee eee Zz, 0

OTHER AUTHORITIES:

Supreme Court Rules; Rule 10... 2.5... ...005s-05505 6

No. 91-1500

¢

In The

Supreme Court of the United States

October Term, 1991

+

GLENN M. SHRIVER,

Petitioner,

VS.

GAF CORPORATION,

Respondent.

¢

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

*

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

Respondent GAF Corporation (“GAF”) respectfully

opposes petitioner’s writ of certiorari to review the judg-

ment of the United States Court of Appeals for the Third

Circuit.

OPINIONS BELOW

The Order of the Court of Appeals for the Third

Circuit dated December 4, 1991, denying rehearing, has

not been reported. It is reproduced in Petitioner’s Appen-

dix B (“Pet. App. B”).

The Judgment Order of the Court of Appeals for the

Third Circuit dated November 7, 1991 has not been

reported. It is reproduced in Petitioner’s Appendix A

(“Pet. App. A”). The Opinion of the United States District

Court for the Middle District of Pennsylvania dated April

24, 1991 has not been reported. It is reproduced in Peti-

tioner’s Appendix C (“Pet. App. C’).

+

am STATEMENT OF JURISDICTION

Petitioner invokes this Court’s jurisdiction under 28

U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Pennsylvania Statute involved, 42 Pa.C.S.A. Sec-

tion 5524(2) is set forth in petitioner’s brief at p. 4. The

Maryland Statute involved, Maryland Code (1984),

Courts and Judicial Proceedings, Section 5-101 is set forth

in petitioner’s brief at pp. 3-4. The Federal Statute

involved, 16 U.S.C. Section 457 is set forth in petitioner’s

brief at p. 3. Federal Rule of Civil Procedure 41(b) is set

forth in petitioner’s brief at p. 7.

+

STATEMENT OF THE CASE

This case involves a claim for personal injuries insti-

tuted in the United States District Court for the Middle

District of Pennsylvania (the “district court”) more than

six years following the date of injury. On or about April

17, 1990, Petitioner, Glenn M. Shriver (“Shriver”), filed

this products liability action against Respondent, GAF

Corporation (“GAF”), alleging that he was over-exposed

to ammonia fumes at his work place on or about March 5,

1984. Shriver also claims the exposure caused him to

develop hypersensitivity to ammonia fumes.

Following discovery, which included a review of

Shriver’s medical and employment records, workmen’s

compensation documents, letters from his prior attorney,

Answers to Interrogatories and the deposition testimony

of Shriver; GAF filed a Motion for Summary Judgment

because Shriver’s claims were barred by both the Penn-

sylvania two-year and Maryland three-year statutes of

limitations.

On April 24, 1991, the district court entered an Order

and Judgment granting GAF’s Motion for Summary Judg-

ment. The district court found that Shriver suffered an

ascertainable and actionable injury in 1984, and knew or

had reason to know that his recurring symptoms arose

from that incident. On May 23, 1991, Shriver appealed the

April 24, 1991 Order and Judgment to the United States

Court of Appeals for the Third Circuit (the “Court of

Appeals”), which affirmed on November 7, 1991, “for the

reasons set forth in the opinion of the district court.” Pet.

App. A-2. The same court denied Petitioner’s motion for

rehearing on December 4, 1991. Pet. App. B-2. This peti-

tion for writ of certiorari followed.

Respondent hereby adopts the recitation and applica-

tion of the facts set forth in the district court’s opinion,

Pet. App. C. Respondent believes Petitioner inaccurately

represents to this Court that doctors were unable to

establish the cause of Petitioner’s illness until April 19,

1988. Although Shriver did not file a Complaint against

GAF alleging he was over-exposed to ammonia fumes

from a GAF blueprint copy machine until April 17, 1990,

Shriver admitted his exposure to ammonia fumes

occurred at his workplace more than six years prior to

filing this lawsuit, beginning on March 5, 1984. Pet. App.

C-10. As a result of this over-exposure, Shriver developed

immediate symptoms including burning eyes, burning

skin, dizziness, a feeling of collapse, itchiness, choking

feeling and a feeling of fire in his lungs which were

diagnosed by various physicians and labeled hypersen-

sitivity to ammonia fumes. Shriver knew his injury was

related to his ammonia exposure of March 5, 1984 when,

on March 21, 1984 he filed a Federal Employee’s Notice of

Traumatic Injury and Claim for Continuation of Pay/

Compensation with the U.S. Department of Labor. He

also knew of his potential claim against GAF by March

27, 1985, when his attorney advised him that the claim

must be timely filed.

In an attempt to avoid the statute of limitations bar,

Shriver claims that although his symptomatology was

continuous, ongoing and the direct and proximate result

of the March 5, 1984 exposure, the statute did not begin to

run until April 19, 1988, a date when he claims to have

learned his condition was labeled “hypersensitivity to

ammonia.” As the district court stated, “there is no dis-

pute that plaintiff was aware that he was injured in 1984,

that his injury was caused by defendant’s alleged negli-

gence, or that his respiratory problems were aggravated

by his exposure to low doses of ammonia between 1984

ee

and 1986,” Pet. App. C-5. The district court found, after

“close examination of the deposition, medical records,

and correspondence with attorneys” that Shriver “knew,

or certainly had reason to know, that he suffered a recur-

ring reaction to ammonia (regardless of the label) which

would not have occurred but for the initial accident.” Pet.

App. CIO-II.

As the petitioner knew or should have known of his

illness and his right to sue by 1984, or by 1986 at the

latest, his suit filed in 1990 is time barred, regardless of

whether the Pennsylvania two year statute of limitations

or the three year Maryland statute of limitations applies.

*

REASONS FOR DENYING WRIT

A review on writ of certiorari is a matter of judicial

discretion, and will be granted “only when there are

special and important reasons therefore.” Rule 10.1,

Supreme Court Rules. In this case, a writ of certiorari

should be denied because there is no substantial federal

question which requires determination. There is no con-

flict among the Courts of Appeal, and the Court of

Appeals below did not decide a federal question in a

manner conflicting with any decisions of this Court.

The decision of the United States District Court for

the Middle District of Pennsylvania, affirmed by the

Appellate Court, is in accord with the decisions of other

district courts in finding that when a party is injured on

federal property, the substantive law, but not the pro-

cedural law, of the state surrounding the federal property

must prevail. There are no principles important to the

public which must be settled here, and no substantial

federal questions to resolve.

Furthermore, the state law grounds for judgment,

namely that the Petitioner’s action is barred by both the

Pennsylvania and Maryland statutes of limitations, is an

independent and adequate ground for determining the

issue. Specifically, because Petitioner’s claim is barred

regardless of whether the Pennsylvania or the Maryland

statute of limitations is applicable, a determination that

federal law does or does not require the application of

either Pennsylvania or Maryland’s statute of limitations

will not impact the outcome of the case. Therefore, any

determination of a purported Federal question will effec-

tively be advisory only.

I. There are no “special and important” reasons for

granting the writ of certiorari.

A review on writ of certiorari is a matter of judicial

discretion, and will be granted “only when there are

special and important reasons therefore.” Rule 10.1,

Supreme Court Rules. These “special and important rea-

sons” include a conflict between United States courts of

appeal on the same matter; a conflict between a state

court of last resort and a United States court of appeals;

when a state court or United States court of appeals

decides a question of federal law in a way which conflicts

with an opinion of the United States Supreme Court; or

where a United States court of appeals has decided an

important question of federal law which “should” be

settled by the United States Supreme Court. Rules

10.1(a)-(c), Supreme Court Rules. Although the list is not

exhaustive, none of these issues is present in this case,

and petitioner asserts no other reason that this Court

should grant a writ of certiorari. As stated by Mr. Chief

Justice Taft, speaking for a unanimous Court,

. it is very important that we be consistent in

not granting the writ of certiorari except in cases

involving principles the settlement of which are

important to the public, as distinguished from

that of the parties, and in cases where there is a

real and embarrassing conflict of opinion

between the Circuit Courts of Appeals.” Rice v.

Sioux City Memorial Park Cemetery, 75 S.Ct. 614

(1955), citing Lavne & Bowler Corp. v. Western

Well Works, Inc., 261 U.S. 387, 43 S.Ct. 422, 423,

67 L.Ed. 2d 712.

Petitioner admits in his brief that there is no conflict

on this issue in the district courts, and no conflicting

authority on the issue in the Courts of Appeal. Peti-

tioner’s brief at page 19. Petitioner asserts no public

principle of great importance which needs to be or which

ought to be settled. The only purpose of this petition for

writ of certiorari is an attempt by the Petitioner to avoid

the bar of the statute of limitations on his personal injury

claim.

II. A district court sitting in diversity applies the

forum’s choice of law rules in determining the

applicable statute of limitations.

It is undisputed that a district court sitting in diver-

sity applies the forum’s choice of law rules in determin-

ing the applicable statute of limitations in an action under

16 U.S.C. Section 457. The law of diversity jurisdiction

states that, “a federal court, sitting in diversity, follows

the forum’s choice of law rules to determine the applica-

ble statute of limitations.” Guaranty Trust Co. v. York, 326

U.S. 99, 65 S.Ct. 1464, 189 L.Ed. 2079 (1945); Ross v. Johns-

Manville Corp., 766 F.2d 823 (1985); and McKenna v. Ortho

Pharmaceutical Corp., 622 F.2d 657 (3d Cir. 1980), cert.

denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed. 2d 237 (1980).

Consistent with that principle, the district court applied

the Pennsylvania statute of limitations because under

both Pennsylvania and Maryland law the statute of lim-

itations is procedural.!

Thus, under diversity jurisdiction, the statute of lim-

itations of the forum (Pennsylvania) applies to this case.

Furthermore, even if a federal question was at issue,

Pennsylvania’s statute of limitations would apply.

“Generally, when Congress has created a federal right but

not prescribed a period for its enforcement, federal courts

will borrow the most closely analogous statute of limita-

tions of the state in which the federal court sits... ”

Quadrini v. Sikorsky Aircraft Division, 425 F. Supp. 81 (D.

Conn. 1977), on reconsideration on other grounds, 505

F.2d 1049 (1981), citing Johnson v. Railway Express Agency,

421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed. 2d 295 (1975) and

other cases. Although in his brief at page 20, petitioner

contends that Quadrini is erroneous, Petitioner then states

' By convoluted reasoning Shriver attempts to convince

this court to ignore the law of Maryland by suggesting F.R.C.P.

41(b) converts all statutes of limitation to substantive law.

F.R.C.P. 41(b) applies to orders of dismissal and is for use when

a plaintiff's right has been extinguished in one court and

plaintiff then attempts to bring the same action in a second

court.

at page 24 of his brief that “We do not quarrel with the

holding of the Johnson case”.

Even though Shriver admits that a federal court will

generally apply the statute of limitations of the forum

(i.e. Pennsylvania), he claims that 16 U.S.C. § 457 sup-

ports an argument that Maryland’s statute of limitations

nevertheless applies in this case. Shriver’s position is

unfounded. 16 U.S.C. Section 457 states that when a party

is injured on federal property, the substantive law, but not

the procedural law, of the state surrounding the federal

property must prevail. See Quadrini v. Sikorsky Aircraft

Division, 425 F. Supp. 81 (D. Conn. 1977), on reconsidera-

tion on other grounds, 505 F. Supp. 1049 (1981); Reed v.

Charizio, 183 F. Supp. 52, 53 (E.D. Vp. 1960); Morley v.

Cohen, 610 F. Supp. 798, 827 (D.C. Md. 1985).* Since Mary-

land law holds that a statute of limitation is procedural,’

Shriver’s argument must fail. As both Pennsylvania and

2 Furthermore, it appears that Petitioner accepts this as

correct law. See District Court Opinion, Pet. App. C-2 (“We

agree with plaintiff (i.e. petitioner) that when a party is injured

on federal property, the substantive law, but not the procedural

law, of the state surrounding the property must prevail.”)

3 As the district court stated “plaintiff overlooks relevant

Maryland precedent which holds that the statute of limitations

is a procedural matter governed by the law of the forum.” Pet.

App. C-2-3. Maryland’s own position on this issue is carefully

ignored by Shriver, because it is clear that Maryland recognizes

that a statute of limitations is procedural and that, as to mat-

ters of procedural law, Maryland applies the law of the forum.

Doughty v. Prettyman, 219 Md. 83, 88, 148 A.2d 438 (1959);

Morley v. Cohen, supra, (Md. 1985); Leonard v. Wharton, 268 F.

Supp. 715, 718 (D. Md. 1967), appeal dismissed, 396 F.2d 452

(4th Cir. 1968), cert. denied, 393 U.S. 1028, 89 S.Ct. 624, 21 L.Ed.

2d 571 (1969); see also Mills v. International Harvester Co., 554 F.

Supp. 611, 612 (D. Md. 1982).

10

Maryland consider statutes of limitation to be procedural,

the district court was correct in applying the procedural

(i.e. limitations) law of the forum, Pennsylvania. That

decision is wholly consistent with existing law.

III. The Pennsylvania choice of law rules require the

application of the Pennsylvania two-year statute of

limitations, which bars petitioner’s cause of

action, as the injury was discovered or should have

been discovered in 1984 or at latest by 1986, and

suit was not filed until 1990.

The Pennsylvania statute of limitations for personal

injury claims is “two years from the time that injury was

done.” 42 Pa. C.S.A. § 5524(2). The “injury is done when

the act heralding a possible tort inflicts damage which is

physically objecti{ve] [sic] and ascertainable.” Piccolini v.

Simon's Wrecking, 686 F. Supp. 1063, 1072 (M.D. Pa. 1988);

see also Merry v. Westinghouse Electric Corp., 684 F. Supp.

852, 854 (M.D. Pa. 1988).

Pennsylvania has adopted the discovery rule, which

states that the statutory period commences from the time

a plaintiff knows or reasonably should have known the

cause of his or her injury. Bayless v. Philadelphia National

League Club, 579 F.2d 37, 39 (3d Cir. 1978), aff'd. 615 F.2d

1352 (1980). Under the discovery rule, “[t]he burden is on

an injured party once he discovers the cause of his inju-

ries to determine within the statutory period the party’s

whose negligence or breach of duty were responsible for

the event or condition.” Piccolini, supra, 686 F. Supp. at

1071-1072. Pennsylvania applies a two year statute of

limitations to personal injuries, and the statute begins to

11

run when the injured party knows or should know the

cause of his or her injury.

The district court determined that Petitioner knew or

should have known of his injuries by 1984 or by 1986 at

latest.

The district court stated that:

There is no dispute that plaintiff was aware that

he was injured in 1984, that his injury was

caused by defendant’s alleged negligence, or

that his respiratory problems were aggravated

by his exposure to low doses of ammonia

between 1984 and 1986.

Pet. App. C-5.

Shriver was advised by all of his treating physicians

that his injuries were ammonia-related and that exposure

to ammonia was detrimental to his health. Petitioner

“informed several physicians and admitted in deposition

that he believed he had ‘recurring symptoms following

his anhydrous ammonia accident in 1984’ ”. Pet. App.

C-10. The district court found, after “close examination of

the deposition, medical records, and correspondence with

attorneys” that Shriver “knew, or certainly had reason to

know, that he suffered a recurring reaction to ammonia

(regardless of the label) which would not have occurred

but for the initial accident.” Pet. App. C-10-11. The Court

further stated that the information admitted by Petitioner

in his applications for occupational! disease compensation

“coupled with physicians’s reports reveal that (peti-

tioner) unequivocally knew, by 1986 at the latest, that his

continuing symptoms were caused by the 1984 incident.”

Pet. App. C-12-13.

12

Shriver’s testimony, medical records, letters from his

attorney and workmen’s compensation records on which

the district court based its finding unalterably establish

that Petitioner was on notice of his injuries and their

cause by 1984, or by 1986 “at the latest”.

IV. Even if the Maryland three year statute of limita-

tions was to apply, the Petitioner’s claim is still

time barred.

There is no dispute that Maryland would apply a

three year statute of limitations to a personal injury claim

filed in its court. Maryland Code (1984), Petitioner’s brief

at pp. 3-4 (“a civil action shall be filed within three years

from the date it accrues.”) Clearly, the district court

found that the cause of action accrued in 1984 or, “at the

latest”, by 1986. Therefore, the applicable Maryland stat-

ute also bars petitioner’s claim, as the injury and its cause

were discovered in 1984, or by 1986 at latest, and suit was

not filed until 1990.

Whether Maryland or Pennsylvania procedural law

applies, Petitioner’s action is time barred. The district

court found, as noted above, that Petitioner was or

should have been aware of his injury by 1984, or by 1986,

“at the latest”. The Appellate Court affirmed the decision

“for the reasons stated” by the district court. As 1986

predates the filing of the suit by more than three years,

Petitioner is barred by both Pennsylvania’s and Mary-

land’s statutes of limitations.

13

V. The statute of limitations (whether Pennsylvania or

Maryland) is an adequate and independent state

law grounds dispositive of the issues, and thus any

decision on a “federal question” would not be out-

come determinative.

The principle that the Supreme Court will not review

state court judgments resting on independent and ade-

quate state grounds, even if those judgments also decide

questions of federal law, applies whether the state law

ground is substantive or procedural. Coleman v. Thompson,

111 S.Ct. 2546, 115 L.Ed. 2d 640 (1991); Harris v. Reed, 489

U.S. 255, 109 S.Ct. 1038, 103 L.Ed. 2d 308 (reliance by state

court on a procedural bar is permissible independent

basis for disposition of case); Henry v. Mississippi, 379 U.S.

443, 13 L.Ed. 2d 408, 85 S.Ct. 564 (1965), reh. denied, 380

U.S. 926, 13 L.Ed. 2d 813, 85 S.Ct 878 (The Supreme Court

will decline to review state court judgments which rest on

independent and adequate state substantive or pro-

cedural grounds, even where those judgments also decide

federal questions.); Zacchini v. Scripps-Howard Broadcast-

ing Co., 433 U.S. 562, 97 S.Ct. 2849 (1977) (United States

Supreme Court has no jurisdiction to review decision of

State court which rests on both federal and state grounds,

either of which would be dispositive); Hathorn v. Lovorn,

457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed. 2d 824 (1982) (failure

to comply with a state procedural rule may constitute an

independent and adequate state ground barring Supreme

Court review of a federal question where the procedural

rule is regularly followed).

For example, in Coleman, supra, this Court stated:

This Court will not review a question of federal

law decided by a state court if the decision of

14

that court rests on a state law ground that is

independent of the federal question and ade-

quate to support the judgment. . . . This rule

applies whether the state law ground is substan-

tive or procedural. (citations omitted).

115 L.Ed. 2d at 655. The Coleman Court then quoted from

Herb v. Pitcairn, 324 U.S. 117, 125-126, 89 L.Ed. 789, 65

S.Ct 459 (1945):

We are not permitted to render an advisory

opinion, and if the same judgment would be

rendered by the state court after we corrected its

views of federal laws, our review could amount

to nothing more than an advisory opinion.

Although this principle is usually applied to state court

and habeas corpus decisions, the same logic should apply

in this case. Even if this Court were to determine that the

district court was incorrect in applying Pennsylvania law,

and its view of the federal law was “corrected” such that

16 U.S.C. section 457 required the application of Mary-

land procedural law, the same decision would be ren-

dered by the court below. This is undoubted, because the

Court's finding that petitioner had legal notice by 1984 or

by 1986 “at the latest”, assures that a suit brought in 1990,

at least four years later, will be barred by a three year

statute of limitations (Maryland’s) the same as by a two

year statute of limitations (Pennsylvania’s).

Petitioner’s petition for a writ of certiorari is nothing

other than an attempt to seek relief from petitioner’s

failure to file a personal injury claim within the statutory

period. Petitioner’s claim is clearly barred whether Penn-

sylvania’s or Maryland’s statute of limitations applies

15

(and thus regardless of whether Petitioner could charac-

terize Maryland’s statute of limitations as somehow sub-

stantive). The only factor which could give relief to the

petitioner is a factual finding by this Court that Petitioner

did not know of his injuries until some date within the

relevant statutory period (i.e. in 1988 or after). The dis-

trict court found repeatedly that Petitioner knew of his

injuries as of 1986, at latest, if not by 1984. The Appellate

Court affirmed for the reasons stated by the district court.

This Court will not generally review factual findings in

which the district court and court of appeal concur. Branti

v. Finkel, 100 S.Ct. 1287, 445 U.S. 507, 63 L.Ed. 2d 574, 580,

fn. 6 (1980) (absent exceptional circumstances, it is settled

practice of the Supreme Court to accept factual deter-

minations in which the district court and the court of

appeals concur.) The district court’s findings in this case

are “undisputed”, and the Court of Appeals affirmed “for

the reasons set forth in the opinion of the district court.”

Petitioner’s claim is time barred regardless of any

determination this Court might make regarding any pur-

ported issue of federal law. This fact, along with the fact

that the legal doctrines relied upon have not been

attacked as faulty or in conflict with other decisions,

makes this case an inappropriate case in which to grant a

writ of certiorari. No special or important reasons, and in

fact no federal question, exists. There is no reason in this

case for a writ of certiorari to be granted.

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16

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari to the Court of Appeals for the Third Circuit

should be denied.

Respectfully submitted,

Rosert H. Matis

(Counsel of Record)

Rosert B. Bopzin

MicHaet A. BROWN

Mesirov GELMAN JAFFE

CRAMER & JAMIESON

1735 Market Street

Philadelphia, PA 19103

(215) 994-1000

Attorneys for Respondent

GAF Corporation