                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-1996

In Re: TMI
Precedential or Non-Precedential:

Docket 94-7598




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        ___________

                        No. 94-7598
                        ___________


                        IN RE: TMI


            DOROTHY L. ALDRICH; FAITH ALLEMAN;
            PHILIP ANGELI; MICHAEL J. ANOKA;
            RUTH V. ANOKA; CATHERINE J. BALINOSKY;
            REGIS E. BEASLEY; LOUIS BORDA;
            BETTY MARIE BOYLESTEIN; GEORGE L. BOYLESTEIN;
            SHIRLEAN BURHANAN; RUTH E. BUTLER;
            FRANK J. CAKA; SUSAN H. CHYNOWETH;
            DANIEL M. CHYNOWETH; CATHERINE COSTELLO;
            JOHN T. COSTELLO; MARTHA A. COSTIK;
            RICHARD N. COSTIK; MARY MARGARET EARHART;
            EDWARD FERGUSON; MARCO G. GLAD, JR.;
            LINDA I. GLAD; BARBARA GRANDON;
            HELEN M. HANK; EDWARD JOHN HERTZOG;
            MARIE H. HERTZOG; DIANNE HINDERMYER;
            GEORGE VANCE HITZ; MARJORIE B. HITZ;
            CAROL C. HOCH; LOUIS A. HOCH;
            ESTATE OF ROBERT P. HOLMES;
            THELMA M. NAGY; BARRY OBERCASH;
            GEORGEANN PRISTELLO; JAMES J. PRISTELLO;
            JAMIE LYNN PRISTELLO; KENNETH R. SNYDER;
            PATRICIA SOUTHARD; JOSEPH STEWART;
            CHARLOTTE EVELYN STEWART,
                                 Appellants


 _______________________________________________

 On Appeal from the United States District Court
     for the Middle District of Pennsylvania
       (D.C. Civil Action No. 88-cv-01452)
               ___________________


                 Argued May 1, 1995

Before:   SCIRICA, McKEE and SAROKIN, Circuit Judges

               (Filed      July 18, l996)



                            ARNOLD LEVIN, ESQUIRE (ARGUED)
                                  Levin, Fishbein, Sedran & Berman
                                  320 Walnut Street, Suite 600
                                  Philadelphia, Pennsylvania 19106

                                  LEE C. SWARTZ, ESQUIRE
                                  Hepford, Swartz & Morgan
                                  111 North Front Street
                                  P.O. Box 889
                                  Harrisburg, Pennsylvania 17108

                                  WILLIAM R. WILSON, JR., ESQUIRE
                                  654 North State Street
                                  Jackson, Mississippi 39202

                                     Attorneys for Appellants


                                  ELLEN K. SCOTT, ESQUIRE (ARGUED)
                                  ALFRED H. WILCOX, ESQUIRE
                                  Pepper, Hamilton & Scheetz
                                  18th and Arch Streets
                                  3000 Two Logan Square
                                  Philadelphia, Pennsylvania 19103

                                     Attorneys for Appellees


                          __________________

                          OPINION OF THE COURT
                           __________________


SCIRICA, Circuit Judge.

         In the wake of the Three Mile Island nuclear accident
in 1979, more than two thousand individuals brought suit for
personal injuries. The forty-two plaintiffs in this appeal
missed Pennsylvania's two year limitations date, and filed suit
in Mississippi in order to fall within that state's six year
statute of limitations. These plaintiffs now challenge the
retroactive application of the choice of law provision of the
Price-Anderson Amendments Act of 1988, Pub. L. No. 100-408, 102
Stat. 1066. Retroactive application of the choice of law
provision would require application of Pennsylvania's statute of
limitations to all actions arising from the Three Mile Island
accident and would bar plaintiffs' claims filed in Mississippi.
Plaintiffs argue retroactive application of the choice of law
provision violates federal constitutional guarantees of due
process. Alternatively they argue that even if the Pennsylvania
statute of limitations applies, Pennsylvania law provides for a
grace period in which to file their claims. Because retroactive
application of the choice of law provision was a rational
exercise of Congress' legislative power, we hold it does not
violate due process. Additionally, we hold Pennsylvania law does
not provide for a grace period under the circumstances of this
case.
         The same plaintiffs also challenge summary judgment
rendered against them in actions they filed in Pennsylvania state
court after the two year limitation date. They assert the
statute of limitations should have been tolled under Pennsylvania
law. Because plaintiffs have failed to raise a material issue of
fact, we will affirm summary judgment.
                 I. Facts and Procedural History
         On March 28, 1979, the Three Mile Island nuclear power
facility located near Harrisburg, Pennsylvania released radiation
into the atmosphere. As a result, thousands of area residents
and businesses filed suit against the owners and operators of the
facility, alleging various injuries. In 1985, each of the
forty-two plaintiffs involved in this appeal filed suit in
Pennsylvania state court, Mississippi state court, and
Mississippi federal court to recover for personal injuries
allegedly suffered in the incident. The Mississippi actions were
filed within that state's six year statute of limitations for
personal injury actions.
         In September 1986, defendants moved for summary
judgment in plaintiffs' Pennsylvania state court actions
contending each claim related to health problems diagnosed more
than two years before plaintiffs commenced their suits. The
Court of Common Pleas of Dauphin County, Pennsylvania entered
summary judgment for defendants, finding plaintiffs' claims
barred by Pennsylvania's two year statute of limitations. In re
TMI Litig. Cases Consolidated II, No. 426 S (1985) (Dauphin Co.
February 20, 1987); In re TMI Litig. Cases Consolidated II, No.
426 S (1985) (Dauphin Co. July 6, 1987). The Pennsylvania
Superior Court affirmed. In re TMI Litig. Cases Consolidated II,
No. 00426 Harrisburg 1987 (Pa. Super. July 15, 1988).
         Subsequently, Congress enacted the Price-Anderson
Amendments Act of 1988, Pub. L. No. 100-408, 102 Stat. 1066,
which created a federal cause of action--the "public liability
action"--for injuries resulting from nuclear incidents, 42 U.S.C.
  2014(hh) (1988), and provided for jurisdiction over and the
consolidation of such actions in the federal district court in
the district where the accident occurred, 42 U.S.C.
2210(n)(2). Defendants removed the Pennsylvania and Mississippi
state cases to federal court in the Middle District of
Pennsylvania pursuant to 42 U.S.C.   2210(n)(2). At the time of
removal of the Pennsylvania state cases, the time to appeal the
grant of summary judgment to the Pennsylvania Supreme Court had
not yet expired. The Mississippi federal actions were
transferred to the Middle District of Pennsylvania pursuant to 28
U.S.C.   1404(a).
         After consolidation of the cases in the Middle District
of Pennsylvania, defendants filed a motion for summary judgment
with respect to the Mississippi state and federal court actions
on the grounds that plaintiffs' claims were untimely under the
Price-Anderson Amendments Act of 1988. Section 11(b) of the
Amendments Act, the choice of law provision (codified at 42
U.S.C.   2014(hh) (1988)), provides that "the substantive rules
of decision in [any public liability action] shall be derived
from the law of the State in which the nuclear incident involved
occurs."      Section 20(b) of the Amendments Act, the effective date
provision (codified as a note to 42 U.S.C.   2014), provides that
"the amendments made by Section 11" of the Amendments Act "shall
apply to nuclear incidents occurring before, on, or after the
date of the enactment of this Act." 42 U.S.C.    2014 note
(emphasis added). The district court held that    20(b), read in
conjunction with   11(b), compels retroactive application of
Pennsylvania's two year statute of limitations to the causes of
action brought by the plaintiffs, mandating the dismissal of the
Mississippi state and federal cases as time barred. In re TMI
Litig. Cases Consol. II, No. 88-1452, slip. op. at 2-6 (M.D. Pa.
Aug. 16, 1993). Plaintiffs do not dispute this reading of the
Amendments Act on appeal.
         Plaintiffs asserted before the district court that
retroactive application of the choice of law provision would
violate constitutional guarantees of due process. They also
argued that Pennsylvania law, incorporated as federal law by the
Amendments Act, would provide a grace period in which to file
their claims. The district court rejected both arguments, id. at
15-20, and plaintiffs now appeal the district court's grant of
summary judgment.
         The district court also adopted the prior judgment
rendered by the Court of Common Pleas against plaintiffs in the
Pennsylvania state cases. Id. at 23. Plaintiffs sought
reconsideration of the grant of summary judgment, arguing that
under the intervening holding of the Pennsylvania Superior Court
in Marinari v. Asbestos Corp., 612 A.2d 1021 (Pa. Super. 1992),
their claims arising from "second injuries" should not have been
dismissed. Upon reconsideration, the district court ordered
plaintiffs to specify which plaintiffs had "second injuries"
subject to the Marinari rule. In re TMI Litig. Cases Consol. II,
No. 88-1452, slip. op. at 13 (M.D. Pa. June 1, 1994). On July
12, 1994, the parties entered into a stipulation that Marinaridid not
relate to the "initial injury" claims which were the
subject of defendants' motion for summary judgment and that any
"second injury" claims would be treated in a separate class
action. In re TMI Litig. Cases Consol. II, No. 88-1452 (M.D. Pa.
July 14, 1994). The district court then entered summary judgment
against plaintiffs on the "initial injury" claims and dismissed
them as time barred. In re TMI Litig. Cases Consol. II, No. 88-
1452 (M.D. Pa. July 22, 1994). Plaintiffs appeal this order,
arguing the statute of limitations had not expired on "initial
injury" claims.
         The district court had jurisdiction over these "public
liability actions" under 42 U.S.C.   2210(n)(2), and we exercise
jurisdiction over the district court's final orders under 28
U.S.C.   1291. Our review of the district court's grant of
summary judgment is plenary. See F.D.I.C. v. Bathgate, 27 F.3d
850, 860 (3d Cir. 1994).
                   II. Statutory Construction
         The district court held the language of   20(b) is
unambiguous and "by its very terms clearly requires the
retroactive application of all of the provisions of    11,
including the choice of law provision." In re TMI Litig. Cases
Consol. II, No. 88-1452, slip. op. at 3 (M.D. Pa. Aug. 16, 1993).
Although plaintiffs have not challenged the district court's
reading of the Amendments Act on appeal, we exercise plenary
review of the district court's construction of the Act. Moody v.
Sec. Pac. Business Credit, Inc., 971 F.2d 1056, 1063 (3d Cir.
1992).
         Section 20(b) unambiguously calls for the retroactive
application of the choice of law provision in   11(b). The
choice of law provision in turn provides that "the substantive
rules for decision" shall be derived from Pennsylvania law.
Since the statute of limitations is a substantive rule of
decision, Menichini v. Grant, 995 F.2d 1224, 1228 n.2 (3d Cir.
1993); 42 Pa. Cons. Stat. Ann.   5524 (1981), we believe the
Pennsylvania statute of limitations applies retroactively to
plaintiffs' causes of action filed in Mississippi. Congress
could have exempted statutes of limitations from retroactive
application, but it did not. Accordingly, plaintiffs'
Mississippi causes of action are time-barred, unless some
constraint imposed by the Constitution or state law prevents this
result.
                        III. Due Process
         The district court held the choice of law provision of
the Price-Anderson Amendments Act requires application of
Pennsylvania law, including the Pennsylvania statute of
limitations, to the Mississippi state and federal cases.
Plaintiffs argue the retroactive application of Pennsylvania's
statute of limitations to bar properly filed and already pending
causes of action violates federal constitutional due process.
Well-established precedent indicates that it does not.
                                A.
         Under the United States Constitution, legislation
affecting a pending tort claim is not subject to "heightened
scrutiny" due process review because a pending tort claim does
not constitute a vested right. See Hammond v. United States, 786
F.2d 8, 12 (1st Cir. 1986) (plaintiff does not have a vested
right in a tort cause of action until there is a final,
unreviewable judgement); see also Arbour v. Jenkins, 903 F.2d
416, 420 (6th Cir. 1990) (retroactivity of a statute does not
make it unconstitutional as a legal claim affords no enforceable
property right until reduced to final judgement); Sowell v.
American Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989) (same).
Other courts of appeals that have recently addressed the
constitutionality of retroactive legislation that either
abolishes or substantially affects a plaintiff's pending tort
cause of action have reviewed such legislation on a "rational
basis" standard. See, e.g., In re Consolidated U.S. Atmospheric
Testing Litig., 820 F.2d 982, 990-91 (9th Cir. 1987) (plaintiff
challenging retroactivity bears the burden of showing that the
legislature acted in arbitrary, irrational way), cert. denied sub
nom. Konizeski v. Livermore Labs, 485 U.S. 905 (1988); see alsoHammond,
786 F.2d at 13. In In re TMI Litig. Cases Consol. II,
940 F.2d 832 (3d Cir. 1991), cert. denied sub nom. Gumby v.
General Pub. Utils. Corp., 503 U.S. 906 (1992), we held that due
process requires only that "the retroactive application of a
statute is supported by a legitimate legislative purpose
furthered by rational means." Id. at 860 (quoting Pension
Benefit Guarantee Corp. v. R.A. Gray & Co., 467 U.S. 717, 729
(1984)). Accordingly, in order to show that retroactive
application of the choice of law provision of the Amendments Act
violates due process guarantees, plaintiffs bear the burden of
showing that retroactive application was "irrational in purpose
and effect." Id. at 861. This they cannot do.
                                B.
         Congress adopted the Amendments Act "to effect
uniformity, equity, and efficiency in the disposition of public
liability claims" arising from nuclear accidents. H.R. Rep. No.
104, 100th Cong., 1st Sess., pt. 3, at 18 (1987). We believe
retroactive application of the Amendments Act's choice of law
provision furthers each of these goals.
         First, retroactive application of the Amendments Act's
choice of law provision uniformly applies Pennsylvania law to all
plaintiffs. Second, retroactive application advances equity by
applying the same law to all similarly situated plaintiffs and
eliminating inconsistent results. While retroactive application
of the choice of law provision requires dismissal of these
plaintiffs' claims which were filed in compliance with
Mississippi's six year statute of limitations, this result is not
inequitable. These actions were time-barred in Pennsylvania when
they were brought, and plaintiffs resorted to a distant forum in
order to avoid Pennsylvania's statute of limitations.
Application of the law of the state in which the accident
occurred, the plaintiffs live, and where the plaintiffs were
allegedly injured is not inequitable.
         Finally, retroactive application of the choice of law
provision promotes efficiency by allowing the constitutional
exercise of federal jurisdiction over, and the consolidation of,
these "public liability actions." Prior to the Amendments Act,
the Price-Anderson Act provided for federal jurisdiction over
only a limited class of cases--those arising from an
"extraordinary nuclear occurrence." Kiick v. Metropolitan Edison
Co., 784 F.2d 490, 493 (3d Cir. 1986); Stibitz v. Gen. Pub.
Utils. Corp., 746 F.2d 993, 997 (3d Cir. 1984), cert. denied, 469
U.S. 1214 (1985). Because the Nuclear Regulatory Commission did
not designate the Three Mile Island accident an "extraordinary
nuclear occurrence," the federal courts lacked subject matter
jurisdiction to hear Three Mile Island cases filed in
jurisdictions across the country. This situation resulted in
"duplicative determinations of similar issues in multiple
jurisdictions." S. Rep. No. 218, 100th Cong., 1st Sess. 13
(1987), reprinted in 1988 U.S.C.C.A.N. 1476, 1488.
         Congress sought to remedy the procedural problems
plaguing the Three Mile Island cases by retroactively providing
for federal jurisdiction over them and allowing their
consolidation. But in creating federal jurisdiction, Congress
was constrained by the constitutional principle that it cannot
confer subject matter jurisdiction on federal courts where there
is no underlying federal statute creating a federal question.
See Osborne v. Bank of United States, 22 U.S. (9 Wheat) 738
(1824); Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480
(1983); see also In re TMI Litig. Cases Consol. II, 940 F.2d at
849 ("a case cannot be said to arise under a federal statute
where there is nothing more than a jurisdictional grant.").
Congress was clearly aware of this constitutional constraint.
It did not, therefore, simply grant federal courts subject matter
jurisdiction over all cases arising from nuclear accidents.
Instead it created substantive federal law governing nuclear
accidents in the choice of law provision of the Amendments Act by
providing "the substantive rules of decision in [any public
liability action] shall be derived from the law of the State in
which the nuclear incident involved occurs." 42 U.S.C.
2014(hh). In the absence of the retroactive application of the
choice of law provision to the Three Mile Island cases, Congress'
retroactive creation of federal jurisdiction over them in the
Amendments Act would be nothing more than an unconstitutional
grant of jurisdiction without any underlying substantive federal
legislation creating a federal question. In re TMI Litig. Cases
Consol. II, 940 F.2d at 854-55; O'Connor v. Commonwealth Edison
Co., 13 F.3d 1090, 1096-1101 (7th Cir.), cert. denied, 114 S. Ct.
2711 (1994). Accordingly, there is little doubt that the
retroactive application of the choice of law provision has
furthered the efficient and uniform processing of claims arising
from the Three Mile Island accident by allowing those claims to
be brought and to be consolidated in federal court.
         Because retroactive application of the choice of law
provision to pending causes of action advances Congress' goals of
uniformity, equity and efficiency in the disposition of claims
arising from nuclear accidents, it is not arbitrary and
irrational. Plaintiffs have not demonstrated retroactive
application violates constitutional due process. Cf. O'Conner v.
Commonwealth Edison Co., 13 F.3d at 1102 (retroactive application
of Amendments Act not arbitrary and irrational); In re TMI Litig.
Cases Consol. II, 940 F.2d at 860-61 (same).
             IV. Grace Period under Pennsylvania Law
         Plaintiffs also argue retroactive application of the
Amendments Act's choice of law provision does not require
dismissal of the Mississippi actions. They assert the choice of
law provision incorporates all Pennsylvania law as federal law,
including a century-old line of Pennsylvania cases that holds due
process requires a grace period when the legislature
retroactively curtails a statute of limitations. See Kay v.
Pennsylvania Railroad Co., 65 Pa. 269 (1870); Byers v.
Pennsylvania Railroad Co., 18 Pa. Co. Ct. R. 187 (Allegheny Co.
1896); Philadelphia B. & W.R. Co. v. Quaker City Flour Mills Co.,
127 A. 845 (Pa. 1925); Ferki v. Frantz's Transfer Co., 31 A.2d
586 (Pa. Super. 1943); Wilson v. Central Penn Indus., Inc., 452
A.2d 257 (Pa. Super. 1982). The district court declined to
follow this line of cases, doubting its vitality in light of
intervening developments in property law relating to vested
rights, and refusing to read broad due process rights into the
Pennsylvania Constitution on such a weak precedential basis. In
re TMI Litig. Cases Consol. II, No. 88-1452, slip. op. at 17-19
(M.D. Pa. Aug. 16, 1993). Even if the grace period doctrine
retains force under the Pennsylvania Constitution, we do not
believe the Pennsylvania Supreme Court would apply it under the
facts of this case.
         None of the Pennsylvania grace period cases addresses a
situation in which Pennsylvania plaintiffs failed to sue within
the time period allotted by the Pennsylvania statute of
limitations and brought suit in another state's courts to avoid
Pennsylvania's time bar. We believe the Pennsylvania borrowing
statute, 42 Pa. Cons. Stat. Ann.   5521 (1981), accurately
reflects current state policy against "forum shopping" by
applying to claims arising in another state either the other
state's statute of limitations or the Pennsylvania statute of
limitations, whichever is shorter. "Pennsylvania's borrowing
statute unequivocally [evinces] the legislative intent to prevent
a plaintiff who sues in Pennsylvania from obtaining greater
rights than those available in the state where the cause of
action arose." Gwaltney v. Stone, 564 A.2d 498, 503 (Pa. Super.
1989). We believe Pennsylvania courts would not look favorably
on plaintiffs here who missed Pennsylvania's statute of
limitations, although Pennsylvania is the state where the
accident occurred, and brought suit in Mississippi. Even if the
Pennsylvania Supreme Court would require a grace period when the
Pennsylvania legislature retroactively shortens a statute of
limitations, we do not believe they would require a grace period
in this case.
        V. The Discovery Rule and Fraudulent Concealment
         Plaintiffs in the Pennsylvania state cases appeal the
district court's grant of summary judgment on their "initial
injury" claims. First, plaintiffs argue the statute of
limitations was tolled under the "discovery rule" until they knew
or should have known their injuries were caused by the Three Mile
Island accident. Plaintiffs assert there are material issues of
fact as to whether they knew or should have known the cause of
their injuries. Second, plaintiffs argue the statute of
limitations was tolled because defendants fraudulently concealed
information about the Three Mile Island accident.
                      A. The Discovery Rule
         The discovery rule tolls the running of a statute of
limitations until "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, 471 A.2d 493, 500 (Pa. Super. 1984) (in
banc); see also Hayward v. Medical Ctr. of Beaver County, 608
A.2d 1040, 1043 (Pa. 1992). Every plaintiff has a duty to
exercise "reasonable diligence" in ascertaining the existence of
an injury and its cause. Stauffer v. Ebersole, 560 A.2d 816, 817
(Pa. Super.), app. denied, 571 A.2d 384 (1989).
         In their brief, plaintiffs assert that several
plaintiffs filed their actions within two years of diagnosis of a
specific injury, and thereby complied with the discovery rule.
Under Pennsylvania law, plaintiffs bear the burden of proving
they filed their claims within the applicable statute of
limitations. See Osei-Afriyie v. Medical College of
Pennsylvania, 937 F.2d 876, 884 (3d Cir.) (citing cases), cert.
denied, 112 S. Ct. 581 (1991). Where, as here, the non-moving
party bears the burden of proof at trial, summary judgment is
appropriate if non-movants fail to "make a showing sufficient to
establish the existence of an element essential to [their] case."
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993). In responding to
a motion for summary judgment, the non-moving party must "go
beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file,
designate specific facts showing there is a genuine issue for
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(internal quotations omitted). Beyond mere assertions,
plaintiffs have not directed us to any evidence in the record
that raises a material issue of fact as to whether any plaintiff
filed suit within two years of discovery of an "initial injury."
Accordingly, we believe summary judgment was appropriate.
         Plaintiffs also argue that "because the [discovery
rule] involves questions of what a reasonable person should have
known, a classic jury question is invariably presented, thereby
precluding the use of the summary judgment procedure." Brief of
the Appellants at 35-36. But the Court of Common Pleas held, and
the record confirms, that the plaintiffs knew of the Three Mile
Island accident, and knew or should have known that exposure to
radiation could cause adverse health affects. In such
circumstances, the discovery rule does not toll the running of
the statute of limitations.
         Plaintiffs also assert summary judgment was improper
because factual questions remain as to whether they used
reasonable diligence to discover the cause of their injuries.
The Court of Common Pleas held:
              The responses to interrogatories . . .
         reveal plaintiffs knew of their specific
         injury more than two years prior to the time
         they filed their complaint. Thus, at that
         time they possessed the requisite knowledge
         to set the statutory clock running. Under
         the law of Pennsylvania they were under a
         duty to use all reasonable diligence to
         investigate the operative facts of their
         cause of action. . . . Given the notoriety of
         the accident and the plethora of
         investigative reports available to
         plaintiffs, it is clear that they had the
         "means of discovery" available to them.

In re TMI Litig. Cases Consolidated II, No. 426 S (1985), slip
op. at 8-9 (Dauphin Co. February 20, 1987). Plaintiffs have not
directed us to any evidence in the record that leads us to doubt
these conclusions. Accordingly, we believe the district court
properly granted summary judgment with respect to "initial
injury" claims.
                    B. Fraudulent Concealment
         Plaintiffs also argue the statute of limitations was
tolled because defendants fraudulently concealed information
relating to the Three Mile Island accident. See Molineux v.
Reed, 532 A.2d 792, 794 (Pa. 1987) ("Where through fraud or
concealment, the defendant causes the plaintiff to relax his
vigilance or deviate from his right of inquiry, the defendant is
estopped from invoking the bar of the statute of limitations.")
(internal quotations omitted). In order to establish fraudulent
concealment by a defendant, a plaintiff must prove "an
affirmative or independent act of concealment that would divert
or mislead the plaintiff from discovering the injury" or its
cause. Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir. 1991). But
plaintiffs have not directed us to any evidence that defendants
sought to conceal the cause of their injuries. While plaintiffs
have referred to statements by defendants' employees downplaying
the seriousness of the accident immediately after it occurred,
such statements do not create an issue of material fact with
respect to fraudulent concealment.
         In response to plaintiffs' fraudulent concealment
argument, the Court of Common pleas found:
              The contention simply cannot prevail.
         Here, defendants did not "conceal" the fact
         that radiation escaped from the TMI facility.
         Defendants did nothing to induce plaintiffs
         not to file timely claims. In fact, the
         notice of the 1981 class action settlement,
         which was disseminated to all households
         within twenty-five miles of the reactor and
         widely publicized, put all persons on notice
         that if they believed they had a claim for
         personal injury, they should start their own
         lawsuit. This is not the type of conduct
         which could give rise to a claim of estoppel.

              Moreover, given the vast amount of
         information available to plaintiffs
         concerning the nature and extent of the
         accident, it is not rationally possible to
         ascertain any basis from which plaintiffs
         could claim that defendants are estopped from
         asserting the limitations defense.
         Defendants engaged in no affirmative action
         which could have caused these plaintiffs to
         deviate from their right of inquiry.

In re TMI Litig. Cases Consolidated II, No. 426 S (1985), slip
op. at 10 (Dauphin Co. February 20, 1987).
         We agree that defendants' statements could not have
caused plaintiffs to deviate from their right of inquiry into the
source of their injuries. The record reflects that voluminous
information about the Three Mile Island accident was in the
public domain. Moreover, many other plaintiffs obtained
sufficient information to file suit within the statute of
limitations. Under these circumstances, plaintiffs' have not
raised a genuine issue of material fact with respect to
fraudulent concealment. Summary judgment was proper.
                          VI. Conclusion
         The choice of law provision of the Price Anderson
Amendments Act, 42 U.S.C.    2014(hh), mandates the retroactive
application of Pennsylvania's two year statute of limitations to
the plaintiffs claims filed in Mississippi state and federal
court. Retroactive application comports with constitutional
requirements of due process, and, in the circumstances of this
case, Pennsylvania law does not provide for a grace period in
which plaintiffs may file their claims. No issue of material
fact precluded a grant of summary judgment based on the statute
of limitations in the Pennsylvania state cases. For the
foregoing reasons, we will affirm the judgment of the district
court.



SAROKIN, Circuit Judge, dissenting.
              I dissent primarily because I cannot conclude that
Congress intended the Amendments Act to extinguish pending suits
that were timely instituted in accordance with then-applicable
statutes of limitations simply because they would not have
satisfied the statute of limitations of the forum in which the
underlying nuclear accident occurred. Nor can I conclude that
Congress intended that certain pending claims survive while other
identical ones cease to exist as a result of limitations periods
that did not apply on the day those claims were filed. Certainly
such a result is inconsistent with Congress's intent to promote
"'equitable and uniform treatment of victims.'" TMI II, 940 F.2d
at 861 (quoting H.R.Rep. No. 104, 100th Cong., 1st Sess., pt. 1,
at 18, 29 (1987)).
              I agree with the majority that the jurisdictional
provision, the choice-of-law provision, and the definition of
"public liability action" contained in section 11 apply
retroactively to lawsuits that were pending when the Amendments
Act was passed. Because the majority's understanding of that
retroactive application sweeps too broadly, however, I
respectfully dissent.
              It is well established that "[a] law is
retrospective if it 'changes the legal consequences of acts
completed before its effective date.'" Miller v. Florida, 482
U.S. 423, 430 (1987)(quoting Weaver v. Graham, 450 U.S. 24, 31
(1981)). Thus, retroactive legislation includes "'all statutes,
which, though operating only from their passage, affect vested
rights and past transactions.'" Id. (quoting Society for the
Propagation of the Gospel v. Wheeler, 22 F.Cas. 756, 767 (No.
13,156)(CCDNH 1814))(emphasis added). In the words of Justice
Story,
         "every statute, which takes away or impairs
         vested rights acquired under existing laws,
         or creates a new obligation, imposes a new
         duty, or attaches a new disability, in
         respect to transactions or considerations
         already past, must be deemed retrospective .
         . . ."

Id. (citation omitted). Nevertheless, "deciding when a statute
operates 'retroactively' is not always a simple or mechanical
task." Landgraf v. USI Film Products, __ U.S. __, 114 S. Ct.
1483, 1498 (1994). Ultimately, whether a particular application
is retroactive "depends upon what one considers to be the
determinative event by which retroactivity or prospectivity is to
be calculated." Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U.S. 827, 857 n.3 (1990)(Scalia, J., concurring).
              In this case, Congress expressly stated that the
Amendments Act "shall apply to nuclear incidents occurring
before, on, or after the date of the enactment of this Act." 42
U.S.C.   2014 (emphasis added). I agree with the majority that
the term "nuclear incidents" includes pending actions arising
from such incidents. What is unclear from the statute is how
exactly the "shall apply" language should be interpreted in the
context of pending actions.
              The statute itself offers no guidance on this
point. As a theoretical matter, however, retroactivity can be
understood in one of two ways. First, it can be understood as
the majority apparently construes it: as a rewriting of history.
Under this theory, section 20 reaches into the past to transform
pending lawsuits as of their inception, undoing and rewriting all
subsequent proceedings and applying new law as though it had
existed from the date of filing. This theory engenders a
historical fiction pursuant to which plaintiffs' suits were
public liability actions when they were filed in 1985, governed
by Pennsylvania substantive law and subject to original federal
jurisdiction, although the Amendments Act did not take effect
until three years later.
              Alternatively, the Amendments Act can be seen as
retroactive in the more limited sense that it "attaches new legal
consequences to events completed before its enactment."
Landgraf, 114 S. Ct. at 1499. This theory would mean simply that
all pending actions asserting public liability were transformed
on August 20, 1988 into public liability actions, and that the
federal courts acquired original jurisdiction over those actions
as of, but not prior to, that date.
              Either interpretation of retroactivity is
acceptable as a theoretical matter. It is our task to determine
which is the correct one under the circumstances of this case.
              I conclude that the latter interpretation of
retroactivity under section 20 is the correct one, for several
reasons. First and foremost, applying the Amendments Act to
pending cases from August 20, 1988 forward accomplishes the goals
that Congress intended the retroactivity provision to accomplish
by defining the pending Three Mile Island cases as public
liability actions and providing for their removal to federal
court and litigation under federal substantive law.
              Second, where, as here, the statute is ambiguous
as to the appropriate scope of retroactivity, I believe that the
well-established presumption against statutory retroactivity
requires interpreting that scope narrowly. In this case, the
statute neither states explicitly that the substantive law of the
state in which the incident occurred applies "retroactively" to
pending actions nor offers any guidance as to how the language
"shall apply" should be interpreted in the context of a pending
action. It is ambiguous as to whether section 11 applies to
pending actions as of August 20, 1988, or whether, as the
majority concludes, it applies to such actions as of their
inception. In the absence of explicit Congressional instruction,
I believe that the principles underlying the anti-retroactivity
presumption make the former interpretation far more appropriate
than the sweeping approach to retroactivity enunciated by the
majority.
              Third, this interpretation eliminates the strained
historical fiction on which the majority opinion, by necessity,
must be based, thereby providing a more rational analytic
framework for effectuating Congress's intent and leading to a
more equitable result. For the most part, the practical effect
of the retroactivity provision is the same under either
interpretation; in either case, rulings made prior to the passage
of the Amendments Act on the basis of substantive law which no
longer applies can be modified to conform to the new governing
law of the case. Causes of action recognized in the filing state
but not in the forum state can be dismissed. Rules of evidence,
burdens of proof, and jury instructions all can be adjusted to
accommodate the law of the forum. Under the majority's
interpretation, these adjustments would be made by adopting a
fiction that Pennsylvania law applied from the beginning and then
relitigating the entire case accordingly. Under my
interpretation, these adjustments can be made simply by applying
Pennsylvania law after August 20, 1988 to motions, new or
renewed, brought by the parties. In other words, after August
20, 1988, a party can move to dismiss a claim that no longer has
any legal basis, renew a summary judgment motion that failed
previously but might now succeed, or seek reconsideration of
prior evidentiary rulings that do not stand up under the new
governing law. Thus, while the two interpretations require
different procedures for implementation, the ultimate effect on
the parties is, for the most part, the same in both cases.
              In the statute of limitations context, however,
the difference in theory between the two interpretations
translates into a crucial difference in outcome. The historical
fiction on which the majority's theory is premised forces the
majority to conclude that plaintiffs' action, although filed
within the Mississippi statute of limitations, is now barred by
the Pennsylvania statute of limitations--an inequity which I
believe contravenes Congress's intent and which my theory avoids.
Statutes of limitations are uniquely concerned with a specific
point in time: the date on which the complaint was filed. While
a defendant can raise the statute of limitations as a defense at
any time during the course of a lawsuit, the relevant question
for the court is always whether, at the time the case was filed,
the applicable statute of limitations was satisfied. Because the
majority reasons that section 20 requires extending Pennsylvania
law back in time to the inception of plaintiffs' action, it
concludes that Pennsylvania's statute of limitations applied--and
was violated--at the time the suit was filed. However, at the
time it was filed, plaintiffs' lawsuit was not a public liability
action. As a result, I conclude that it was governed at the time
it was filed by Mississippi, not Pennsylvania, law. Although the
substantive law of Pennsylvania governs plaintiffs' case from
August 20, 1988 forward, the statute of limitations was satisfied
or violated back in 1985, when Mississippi law applied. At that
time, under the applicable law, I conclude that it was satisfied.
              Finally, the interpretation I endorse conforms
with the "settled policy" of federal courts to "avoid an
interpretation of a federal statute that engenders constitutional
issues if a reasonable alternative interpretation poses no
constitutional question," Gomez v. United States, 490 U.S. 858,
864 (1989), by eliminating the constitutional questions of due
process raised by the majority's interpretation. If the
Amendments Act applies to pending actions from August 20, 1988
forward, then there is no issue as to whether the Act violates
the due process rights of plaintiffs to pending lawsuits, because
the Pennsylvania statute of limitations does not apply to deprive
plaintiffs of their cause of action.
              As a result, I conclude that the retroactivity
provision of the Amendments Act does not rewrite history as
applied to pending actions, but rather operates by changing the
ground rules midway through the game, altering the legal status
and governing law of pending actions from the time of its
enactment forward.
              The majority proffers that it agrees with this
interpretation, and denies that its interpretation of section 20
engenders a rewriting of history. Nevertheless, while
conceding that the definition of public liability action, the
choice-of-law provision, and the original jurisdiction provision
apply to pending cases from August 20, 1988 forward, the majority
concludes that plaintiffs' lawsuit was filed in violation of
Pennsylvania's two-year statute of limitations. Both positions
cannot be correct. In effect, the Amendments Act drew a bright
line down the middle of this lawsuit on August 20, 1988, dividing
the case into two distinct parts. Prior to August 20, 1988, the
suit was generic and Mississippi law governed; since that date,
it has been a public liability action and Pennsylvania law
governs. I think it logically inconsistent to hold, as the
majority does, that plaintiffs' suit was not a public liability
action when it was filed, and yet conclude that it was required
at the time it was filed to satisfy the Pennsylvania statute of
limitations--a statute that only applies to this action in its
public liability incarnation. Either plaintiffs' lawsuit was a
public liability action when it was filed, subject to federal
jurisdiction and Pennsylvania's statute of limitations, or it was
not.
              Therefore, in my view it is the majority, and not
I, who seeks to treat the statute of limitations differently from
all other "substantive rules for decision" of Pennsylvania law.
While concluding that Pennsylvania substantive law operates on
plaintiffs' lawsuit from August 20, 1988 forward, the majority
carves out an exception for the statute of limitations, allowing
it to reach back in time--crossing the imaginary line drawn by
the Amendments Act--to operate on the suit on the day it was
filed. This treatment of the statute of limitations clashes
directly with the majority's overarching theory of the case.
Statutes of limitations, as discussed above, can only be violated
(or satisfied) at one specific point in time--the day on which
the suit was filed--notwithstanding that such violations can be
called to the attention of the court at any point during the
pendency of a lawsuit. Under the majority's own interpretation
of section 20, this case was not a public liability action when
it was filed, and Pennsylvania law did not apply. As a result,
the majority's treatment of the statute of limitations cannot be
reconciled with its interpretation of the meaning and effect of
the Amendments Act.
              The majority seeks to justify this illogical
result in terms of congressional intent. It is not at all clear,
however, that Congress intended the choice-of-law provision of
the Amendments Act to encompass statutes of limitations. While
it is well established that statutes of limitations are
characterized as substantive law for purposes of the doctrine of
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), see Guaranty
Trust Co. of New York v. York, 326 U.S. 99, 109 (1945), this does
not mean that they are considered substantive in other contexts.
Indeed, in holding that statutes of limitations are substantive
for purposes of the Erie doctrine, such that federal courts
sitting in diversity must apply state statutes of limitations,
the Supreme Court confined its analysis narrowly to the context
of Erie:
              It is therefore immaterial whether
              statutes of limitation are
              characterized either as
              'substantive' or 'procedural' in
              State court opinions in any use of
              those terms unrelated to the
              specific issue before us. Erie R.
              Co. v. Tompkins was not an endeavor
              to formulate scientific legal
              terminology. It expressed a policy
              that touches vitally the proper
              distribution of judicial power
              between State and federal courts.
              In essence, the intent of that
              decision was to ensure that, in all
              cases where a federal court is
              exercising jurisdiction solely
              because of the diversity of
              citizenship of the parties, the
              outcome of the litigation in
              federal court should be
              substantially the same, so far as
              legal rules determine the outcome
              of a litigation, as it would be if
              tried in a State court.

Guaranty Trust Co. of New York, 326 U.S. at 109 (emphasis added).

              In this case, the majority opinion's conclusion
that "the statute of limitations is a substantive rule of
decision," Majority Opinion, typescript at 9, is based entirely
on cases holding that statutes of limitations are substantive
rather than procedural for purposes of Erie. The
characterization of statutes of limitations as substantive for
Erie purposes, however, was not based on an assessment of their
procedural or substantive nature in the abstract but rather on
their impact on the federalism concerns that Erie's rough
procedural/substantive distinction was intended to address. SeeGuaranty
Trust Co., 326 U.S. at 109.
              In this case, by contrast, there is no federalism
concern at issue and no balance of power between federal and
state courts to be maintained. The cause of action is federal,
and the only question is whether Congress intended the term
"substantive rules for decision" to include statutes of
limitation. The legislative history of the Amendments Act is
silent on this point; indeed, there is nothing to indicate that
Congress even considered the status of statutes of limitations
under that Act, much less intended to include them as substantive
rules of decision. Moreover, a review of Pennsylvania case law
makes clear that the courts of Pennsylvania "generally treat
statutes of limitations as 'procedural.'" AAMCO Transmissions,
Inc. v. Harris, 759 F. Supp. 1141, 1143-44 (E.D. Pa.
1991)(footnotes omitted); Boyle v. State Farm Mutual Automobile
Ins. Co., 456 A.2d 156, 162 (1983); Altoona Area Sch. Dist. v.
Campbell, 618 A.2d 1129, 1134 (1992). This strikes me as a
strong indication that the courts of Pennsylvania would not
consider the phrase "substantive rules for decision" to include
Pennsylvania's statutes of limitations. For these reasons, I
do not think that congressional intent with respect to statutes
of limitations is clear enough to sustain the majority's
logically inconsistent conclusion that plaintiffs' suit is time-
barred. See Majority Op., typescript at 10 ("Congress could
have exempted statutes of limitations from retroactive
application, but it did not.").
              Nor is there any evidence in the legislative
history or elsewhere that Congress intended the sweeping
retroactivity that the majority endorses. On the contrary, the
legislative history indicates that the Amendments Act was based
on the lessons of claims resulting from the TMI accident:
              The experience with claims
              following the TMI accident
              demonstrates the advantages of the
              ability to consolidate claims after
              the nuclear incident. Attorneys
              representing both plaintiffs and
              defendants in the TMI litigation
              testified . . . that the ability to
              consolidate claims in federal court
              would greatly benefit the process
              for determining compensation for
              claimants . . . . The availability
              of the provisions for consolidation
              of claims in the event of any
              nuclear incident . . . would avoid
              the inefficiencies resulting from
              duplicative determinations of
              similar issues in multiple
              jurisdictions that may occur in the
              absence of consolidation.

S. Rep. No. 218, 100th Cong., 2d Sess. 13, reprinted in 1988 U.S.
Cong. & Admin. News 1476, 1488; In re TMI Litig. Cases Consol.
II, 940 F.2d 832, 853 n.18 (3d Cir. 1991)(stating that Congress'
decision to enact the Amendments Act was based on the lessons of
litigation resulting from the TMI accident). This indicates to
me that Congress contemplated providing a mechanism for
consolidating TMI cases to facilitate their continued litigation.
This forward-looking approach evidenced by the legislative
history is wholly inconsistent with a congressional desire to
extinguish those suits on technical grounds.
              Because I conclude that retroactive application of
the choice-of-law provision means simply that Pennsylvania
substantive law applies to and governs the instant litigation
from August 20, 1988 forward, I respectfully dissent from the
majority's far-reaching and overly broad interpretation of
section 20 and from its conclusion that Pennsylvania's two-year
statute of limitations reaches back in time to bar plaintiffs'
suit. Accordingly, I would reverse.
