dissenting:
My review of the record leads me to conclude that there are genuine issues of material fact as to whether decedent exercised due diligence. Unlike my review of other recent asbestos cases, my concern is not over due diligence in ascertaining an injury, but rather in ascertaining the cause of that injury. The Cathcart test has two distinct parts:
[t]he statute of limitations begins to run in ‘creeping disease’ cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.
Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (emphasis added). “Reasonably should know” is measured by the due diligence standard. Due diligence, thus, applies equally to both parts of the test, and both parts of the test must be satisfied before the statute begins to run.
Thus, while I agree with the majority that the diagnosis of mesothelioma may, as a matter of law, indicate knowledge of an injury as early as the end of January 1985, under the facts of this case, this does not satisfy the second prong of Cathcart: knowledge the injury was caused by another’s conduct.
In the record, decedent consistently denied ever having been exposed to asbestos. Decedent’s wife testified in her deposition that decedent never told her that he worked with asbestos products. Decedent’s treating physician, Dr. Garcia, testified in his affidavit that “while Mr. Anthony Baumgart was under my care, I never secured from him a history of having had exposure to asbestos.” (Affidavit of Dr. Alfredo J. Garcia, 2/18/92.) In a letter to appellant’s counsel dated March 26, 1988, Dr. Garcia -wrote, “at your request I have reviewed my records and I do not recall discussing] with him (decedent) or his wife the relationship between mesothelioma and asbestos.” Records from the treating physicians at Allegheny General Hospital also indicate a uniform denial of ever having been exposed to asbestos. Dr. Paul, the physician who diagnosed decedent’s mesothelioma, stated in his affidavit:
*174Mr. Baumgart (decedent) never gave me a history of exposure to asbestos even though I asked him on several occasions if he had exposure to asbestos. He stated that he had not been exposed to asbestos. I did not at any time during his lifetime tell him that his mesothelioma was caused by asbestos exposure.
(Affidavit of Dr. Jay Paul, 2/26/92.)
The one constant throughout the entire record is that decedent denied any exposure to asbestos. Considering the record in a light most favorable to appellant, as we are required to do, we must then conclude that decedent believed he was never exposed to asbestos. Such facts certainly impact on the due diligence question with respect to the second prong of the Cathcart test. Assuming the majority is correct that decedent had knowledge of his injury on January 29, 1985, that mesothelioma is an injury related cancer, from that date until the date of his death appellant only lived 60 days. Twenty-two of those days were spent in the hospital, and the remainder of the time was spent in the dying process. Perhaps a jury would not find it unreasonable for decedent to have failed to investigate and determine the cause of his mesothelioma during that sixty-day period. Especially when the record indicates that no doctor ever informed decedent that mesothelioma was caused by asbestos exposure and appellant denied ever having been exposed to asbestos.
DEL SOLE and KELLY, JJ., join in this Dissenting Opinion.