# Opposition Brief — Shriver v. GAF Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 987

## Text

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.

¢

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0365%3A2. Public record. Not legal advice.