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 *160the 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.
*161The 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.