dissenting:
I must respectfully dissent. The question at issue in this case is whether the decedent exercised due diligence in ascertaining the cause of his injury so that his claim would fall within the discovery rule exception to the statute of limita*221tions.1 The majority herein affirms the decision of the lower courts which found the due diligence requirement had not been met. Thus, the grant of summary judgment in favor of the appellees is sustained, and decedent’s claim is dismissed.
In order to best illustrate my frustration with the majority decision, I begin my discussion by restating this Court’s standard for reviewing a grant of summary judgment. Before summary judgment can be entered there must be a clear showing that there are no issues of material fact and that the moving party is entitled to judgment as a matter of law. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). The appellees herein moved for summary judgment on the basis that the decedent had been diagnosed with lung cancer in June of 1981, yet suit had not been filed until September 1985. On the basis of these facts, which are not in dispute, appellees asserted the complete defense of the statute of limitations, which for the negligence claim at issue is two years. 42 Pa.C.S. § 5524(2). Appellant opposed summary judgment asserting that the discovery rule should be applied in this case as the decedent was unable to ascertain the existence of his legal injury until August of 1985.2
In order to benefit from the application of the discovery rule a plaintiff must meet the requirements of the following two-pronged test:
[T]he statute of limitation in “creeping disease” cases begins to run ‘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.’
*222Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 136, 471 A.2d 493, 500 (1984), appeal denied, 527 Pa. 596, 589 A.2d 687 (1990) (emphasis supplied).
In this case, the majority perverts the rule by converting the condition precedent of “reasonably should know” to “could have known.” The majority concludes that the asbestos related nature of decedent’s cancer was apparent in Juñe of 1981. In reaching that conclusion the majority commits two errors. First, it places an oppressively high burden of due diligence upon the decedent; and second, it acts as a fact finder, a role which is clearly beyond the province of this Court in its appellate capacity, and highly inappropriate when ruling upon an appeal from a motion for summary judgment.3
In applying the discovery rule to this case, the majority places great emphasis upon the fact that a tissue sample taken from the decedent in 1981 revealed asbestos fibers in the lung. However, the majority fails to explain why the decedent reasonably should have known in June of 1981 that the tissue sample revealed asbestos fibers, when the tissue was not examined by any medical expert until August of 1985. The majority merely concludes that since the tissue sample was in existence in 1981, the information “could have been” ascertained in 1981. The majority finds decedent’s explanation that he believed in 1981 that his cancer was solely related to his cigarette smoking to be not credible by concluding that “[tjhere is no medical evidence in the record to support the decedent’s mistaken belief that his cancer was solely caused by his smoking.” (Majority opinion at p. 218). My review of the medical records in this case is at odds with the conclusion of the majority. In chronological order, the medical records reveal the following history:
June 3, 1981: Decedent entered Montefiore Hospital with lower back pain. It is noted that he smoked 1 to 2 packs of cigarettes per day, no mention of asbestosis.
*223June 17, 1981: Decedent is diagnosed with Adenocarcinoma right upper lobe. No mention of asbestosis. Lab report on lung mass contains no mention of asbestosis.
April 27, 1982: Upon a readmission complaining of back problems decedent is discharged with a notation that the lung findings are not significant despite previous surgery, recommendation is that he should stop smoking, as it produces a minimal cough.
November 16, 1982: In a disability determination, it is noted that decedent was a smoker and suffered pulmonary emphysema and carcinoma of the right lung. It is further noted that decedent has never worked in an occupation exposing him to gaseous fumes or noxious agents. There is no mention of asbestosis.
March 3, 1985: Decedent is admitted to Montefiore Hospital with a left lung mass. This report contains the first notation of exposure to asbestosis. A family history of lung cancer is also noted.
August 5, 1985: A review of the 1981 tissue of right lung reveals asbestos fibers.
August 7, 1985: A review of 1981 right lung tissue and 1985 left lung tissue is completed and both samples show presence of asbestos fibers. The first medical opinion is received by decedent which positively links the pulmonary carcinoma to exposure to asbestos fibers.
By my reading of the medical records in this case I am unable to agree with the majority conclusion that “[t]he record amply demonstrates that the asbestos related nature of the cancer was apparent in June of 1981.... ” (Majority opinion at p. 218). The majority finds the existence of the 1981 slide precludes a finding that decedent acted with due diligence in ascertaining the cause of his injury. The only way the majority can reach that conclusion is by conducting its own evaluation of the facts. That leads directly to the second point of disagreement with the majority decision.
When there are material facts at issue summary judgment can not be granted. Pennsylvania State University v. Coun*224ty of Centre, 532 Pa. 142, 615 A.2d 303 (1992). Clearly, in this case there are material facts at issue as to when this decedent “reasonably should have known” that he was injured so as to give rise to a claim in tort. Admittedly, the standard for resolving what is or is not reasonable diligence is an objective, not subjective one. It was best stated by the Superior Court in Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982):
The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. It is a community standard. It is sufficiently flexible, however, to take into account differences between persons, their capacity to meet certain situations and the circumstances confronting them at the time in question. In short, the standard of conduct required is a uniform one which takes ‘into account the fallibility of human beings.’ Restatement, Tort 2d, § 288, comment b. and c. Our law recognizes that, usually, what that standard is may be best determined by the collective judgment, wisdom, and experience of jurors who have been selected at random from the community whose standard is to be applied, [emphasis supplied].
I agree with the majority that where reasonable minds could not differ summary judgment must be entered. But I disagree with the majority’s conclusion that in this case, on these facts, reasonable minds could not differ. In fact, in this case, the panel of the Superior Court which first reviewed the matter reversed the order of the trial court, with one judge dissenting; when the case was reviewed by the Superior Court en banc, six judges agreed to reinstate summary judgment, while three judges dissented. The very history of this case strongly indicates that there are material facts in dispute such that reasonable minds could differ on the question of whether this decedent reasonably should have known the cause of his injury.
Finally, what is most troubling to me is that the majority view leads inextricably to a conclusion that lay people, such as the decedent herein, are now charged with the duty of ferret*225ing out all possible causes for diseases such as lung cancer or face losing any legal rights that they may have. Here, it is apparent that the decedent and his physician concluded in 1981 that the lung cancer was caused by smoking. In 1981, the cancer was properly diagnosed, but apparently its cause was not ascertained. What change in the law would now require the layman patient to go beyond what appeared on its face to be a reasonable diagnosis as to illness and cause, and demand that the slide be sent to another physician for a second opinion as to causation?
In my view, notwithstanding the four year delay, it is for the jury to determine if the decedent herein “reasonably should have known” in 1981 that the cause of his lung cancer was asbestos related. A jury should determine whether an untrained lay person who has just been diagnosed with lung cancer after smoking one to two packs of cigarettes per day for many years, “reasonably should have known” that the cancer was caused by exposure to asbestos.
Accordingly, for the reasons stated herein, I cannot agree with the recommendation of the majority. I am compelled to conclude that summary judgment was inappropriate and that the issue of whether or not this decedent exercised due diligence in ascertaining the cause of his injury is a question best left to the “collective judgment, wisdom, and experience” of a jury. I respectfully dissent.
NIX, G.J., joins this dissenting opinion.. This same issue was before the Court in Baumgart v. Keene, 542 Pa. 194, 666 A.2d 238 (1995); where a Per Curiam Order affirming the decision of the Superior Court was entered, as this Court was evenly divided on the application of the discovery rule to the facts in that case.
. Although the decedent knew he had suffered an “injury” when he was diagnosed with lung cancer in June of 1981 he was unaware that the cancer was a “legal injury.” The Restatement Second of Torts defines an injury which would give rise to a cause of action as "the invasion of a legally protected interest which, if it is the legal result of a tortious act, entitles one so injured to maintain an action in tort.” Restatement (Second) of Torts § 7, comment b.
. The majority at page 218-19 accuses this author of "frantically” combing the record in an attempt to manufacture a genuine issue of material fact. To the contrary, there was nothing "frantic” about the simple review of obvious factual information contained in the medical reports comprising part of this record.