dissenting.
I respectfully dissent. Based upon my reading of pertinent case law, including Marinari v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992) (en banc), I believe the trial court correctly determined that Appellants were entitled to summary judgment in this scenario. Hence, I would reverse the order of the Superior Court.
In their brief, Appellants accurately point out that Marinari has always been interpreted as permitting one action for nonmalignant diseases and one action for malignant diseases; no Pennsylvania court has ever afforded an asbestos plaintiff an opportunity to file multiple lawsuits for different types of malignancies. As noted by the Majority, the Marinari Court sought to rectify the problem with the original rule that required plaintiffs to sue for all present and future harm caused by asbestos exposure when the first nonmalignant disease was detected: plaintiffs were receiving speculative damage awards that amounted to a windfall if the plaintiff failed to develop a malignant disease such as cancer or mesothelioma. Accordingly, the Marinari Court drew a critical distinction between a claim for a symptomatic nonmalignant disease, which must be pursued within two years of the diagnosis, and a subsequent claim for a malignant disease that has not yet appeared. If the plaintiff later develops cancer or mesothelioma due to asbestos exposure, he now has the ability to institute a second action to recover additional damages for that injury on the rationale that malignant diseases are separate and distinct from nonmalignant diseases.
The Majority acknowledges that “particular language” from Marinari and subsequent decisions indicates that plaintiffs are limited to “one cause of action for a malignant asbestos-related disease and one cause of action for a nonmalignant asbestos-related disease,” yet it concludes that those cases actually permit asbestos plaintiffs to institute a new lawsuit each time they are diagnosed with a separate and distinct malignant disease. Majority opinion at 1181-82. I do not follow this logic, nor do I subscribe to the view that it is unjust to deny recovery for a second malignant disease attributable to the same exposure that caused the first malignancy.
In the instant case, the record establishes that Appellees sued numerous companies in 1990 after Mr. Daley was diagnosed with pulmonary asbestosis and lung cancer stemming from occupational exposure to asbestos fibers. Neither of the appellants herein was involved in that action, which ended in 1994 with a monetary settlement. In 2005, Mr. Daley was diagnosed with a different malignant condition attributable to the same exposure, and he initiated a second action against Appellants and eleven other companies. The Majority views the second lawsuit as a necessary means of preventing “the very mischief Marinari was designed to abolish with its separate disease rule.” Majority opinion at 1189 (quoting Daley v. A.W. Chesterton, Inc., 971 A.2d 1258, 1265 (Pa.Super.2009)). I disagree with that assessment.
The so-called “two-disease rule” promulgated in Marinari was designed to abolish speculative damage awards for malignant diseases that asbestos plaintiffs might never develop; thus, following Marinari, plaintiffs were no longer permitted to re*1192cover damages for “risk and fear of cancer.” See, e.g., Abrams v. Pneumo Abex Corp., 939 A.2d 388, 392 (Pa. Super.2007) (en banc) (citing Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996)). Under the new approach, a plaintiff who opted to sue following the initial diagnosis of a symptomatic, nonmalignant disease could bring a second action if he subsequently developed a malignant disease. See Simmons, supra at 237 (observing that Mari-nan resolved the problem of awarding damages for risk of future harm to asbestos plaintiffs “by permitting a plaintiff to commence separate causes of action for separate asbestos related diseases, ie., one for a nonmalignant asbestos related disease which had become manifest and another cause of action for the subsequent development of a separate malignant disease such as lung cancer or mesothelio-ma”). Appellees achieved the underlying objective of the two-disease rule in 1994 when they recovered damages for a nonmalignant condition (pulmonary asbestosis) and a malignant condition (lung cancer) caused by occupational exposure to asbestos-containing products. Based on their present claims, which are predicated on the same events that prompted the 1994 settlement, it is clear that Appellees could have sued Appellants in 1990 but failed to do so. Unlike the Majority, which makes no mention of this fact and concludes that Appellees should be allowed to proceed because lung cancer and mesothelioma have different latency periods, I agree with the trial court that Appellees are no longer entitled to seek compensation for asbestos-related injuries.
Contrary to the Majority view, the two-disease rule was not designed to toll the statute of limitations until every conceivable asbestos-related disease has been detected. I would accord an element of finality to asbestos litigation in this Commonwealth by holding that Appellees’ failure to sue Appellants for a previously-diagnosed malignant condition caused by the same exposure precludes their present claims. Thus, I dissent.