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Eckenrod v. GAF Corp.

Superior Court of Pennsylvania
May 6, 1988
375 Pa. Super. 187 (Pa. Super. Ct. 1988)

Summary

granting summary judgment in spite of plaintiff's evidence of direct handling of defendants' products

Summary of this case from Jackson v. Anchor Packing Co.

Opinion

Argued January 14, 1988.

Filed May 6, 1988. Rearguments Denied July 12, 1988.

Appeal from the Court of Common Pleas of Beaver County, Civil No. 1507 of 1984, Reed, J.

Francis X. McTiernan, Jr., Pittsburgh, for Pittsburgh Gage.

Thomas W. White, Pittsburgh, for Eckenrod.

Kathy K. Condo-Caritis, Pittsburgh, for GAF.

David R. Johnson, Pittsburgh, for Raymark.

Thomas Herbertson, Pittsburgh, for A-Best.

John A. Bacharach, Pittsburgh, for Garlock.

Before OLSZEWSKI, TAMILIA and KELLY, JJ.



This is an appeal from an order granting summary judgment in favor of defendants-appellees A-Best Products Company ("A-Best"); Raymark Industries, Inc.; Owens-Corning Fiberglas Corporation; Garlock, Inc.; and H.K. Porter Company, Inc. ("Porter"). Appellant Eckenrod claims that there was an issue of material fact regarding the liability of Porter and A-Best. Appellant Gage Company maintains that the lower court erred in determining that appellant Eckenrod failed to present sufficient factual evidence that her decedent was exposed to asbestos manufactured and/or supplied by all appellees during his employment with Babcock Wilcox Company ("B W"). For reasons discussed below, we affirm the order of the trial court.

Appellant's decedent, Eugene C. Eckenrod, began employment as a millwright in 1959 with B W. From 1959 to 1982, decedent worked as a maintenance pipefitter, welder, and millwright at the Wallace Run facility. In March 1982, decedent was diagnosed as having lung cancer. He died in November 1982.

Appellant Eckenrod filed suit on November 15, 1984, alleging that her decedent died as a result of exposure to defendants' asbestos products while working at B W. Most of the defendants moved for summary judgment in early 1987 based on lack of product identification. On March 7, 1987, the motions of GAF Corporation, John Crane-Houdaille, Inc., and Anchor Packing Company were granted and the complaints against them dismissed. On May 7, 1987, the trial court granted the remaining motions for summary judgment and dismissed the complaints against each. It is the May 7, 1987, order that appellants challenge herein.

Appellant Pittsburgh Gage Company did not file a motion for summary judgment.

Appellant Eckenrod challenges only the granting of summary judgment in favor of A-Best and Porter. Appellant Gage Company contends that the judgment was improper as to all defendants. We have declared that when reviewing an order granting summary judgment, our function is to determine whether there exist issues of triable fact. Bobb v. Kraybill, 354 Pa. Super. 361, 511 A.2d 1379 (1986). We have further determined that:

Appellees Garlock, Inc., Raymark Industries, Inc., and H.K. Porter Company, Inc., contend that appellant Gage Company has waived its right to appeal by not challenging the motions for summary judgment in the trial court. We note, however, that an order granting summary judgment is final and appealable. Progressive Home Federal Savings and Loan Ass'n v. Kocak, 359 Pa. Super. 120, 518 A.2d 808 (1986). Therefore, appellant Gage Company was not required to raise challenges to the motions or the order in the trial court.

A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well pleaded facts in the plaintiff's pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976).

Roland v. Krayco, Inc., 355 Pa. Super. 493, 513 A.2d 1029 (1986); see also Lucera v. Johns-Manville Corp., 354 Pa. Super. 520, 512 A.2d 661 (1986).

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer's product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa. Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use. Pongrac v. Consolidated Rail Corp., 632 F. Supp. 126 (E.D.Pa. 1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants' products were the cause of plaintiff's injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Eckenrod contends that her decedent used asbestos gloves supplied by A-Best for twenty years, asbestos cloth supplied by A-Best for fifteen years, and asbestos cloth supplied by Porter for eight years while employed by B W in the furnace area of the Wallace Run Facility. In support of her assertion, appellant claims that traveling requisition forms place both companies as a supplier of the products to B W. In order to place her husband in the vicinity of the asbestos products and to detail his work activities, appellant relied on affidavits of three co-workers. The affiants indicated that they had worked with the decedent "upon occasion" at the Wallace Run facility; none, however, stated that the decedent worked exclusively or continuously at the Wallace Run furnace during his period of employment. Further, each indicated "exposure" to asbestos products but did not elaborate on the nature or length of the exposure or the brand of products available.

Additionally, while the affiants admitted that Mr. Eckenrod was "exposed to" asbestos products, none clarified the proximity of the products to the workers or that the appellees were the manufacturers/suppliers of the products being used. In fact, the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B W. Each of these depositions indicates that various appellees sold asbestos products to B W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product.

Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, must be whether plaintiff has pointed to sufficient material facts in the record to indicate that there is a genuine issue of material fact as to the causation of decedent's disease by the product of each particular defendant. Schmidt v. Johns-Manville Corp., No. 80-3339 Slip op. (D.Md. November 30, 1982). Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto. Id.

Upon careful scrutiny of the record, we must uphold the trial court's granting of the motions for summary judgment in favor of Porter and A-Best. We acknowledge that the facts establish that the decedent on occasion was exposed to asbestos; there is no evidence, however, as to the regularity or nature of decedent's contact with asbestos. Moreover, there is no testimony establishing that Mr. Eckenrod worked with asbestos supplied and/or manufactured by Porter or A-Best or any of the other appellees. The mere fact that appellees' asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered. Pongrac, supra; Anastasi, supra. Absent testimony of record that identifies appellees' products as being present in the furnace, there is not even a reasonable inference that appellant was exposed to appellees' asbestos products. Pongrac, supra; see also Wible, supra.

Appellant Gage Company also challenges the granting of summary judgment in favor of the remaining appellees. After careful review of the record, we find that the standard delineated supra has not been satisfied regarding these appellees as well. Appellant Gage Company has failed to point to any testimony which establishes that Mr. Eckenrod inhaled asbestos fibers shed by the remaining appellee's products. Therefore, we must uphold the trial court's determination in this regard as well.

The order and judgment of the trial court are affirmed.

Concurring statement by Kelly, J.


I agree with the majority as to its disposition of appellant Eckenrod's claim. Eckenrod failed to present evidence as to the nature or regularity of decedent's exposure to asbestos, or evidence that decedent worked with asbestos products supplied or manufactured by appellees.

I differ, however, with the majority's disposition of the appeal of appellant Gage Company. Gage Company, defendant in the court below, failed to file even a memorandum opposing a grant of the remaining defendants' summary judgment motions. It is a longstanding tenet of appellate jurisprudence that a party may not ordinarily raise a claim for the first time at the appellate level. See Pa.R.A.P. 302(a); see also Marzullo v. Stop-N-Go Food Stores, 364 Pa. Super. 106, 109, 527 A.2d 550, 551 (1987); Valvano v. Galardi, 363 Pa. Super. 584, 592, 526 A.2d 1216, 1220 (1987). The rationale behind this principle is that the trial court in the first instance must be permitted the opportunity to address any arguments which a party may have. Szakmeister v. Szakmeister, 344 Pa. Super. 465, 496 A.2d 1199 (1984); Cherry v. Willer, 317 Pa. Super. 58, 463 A.2d 1082 (1983). I would hold that appellant Gage Company waived its right to challenge the grant of summary judgment by failing to challenge the co-defendants' motion for summary judgment in the court below. See Pennsylvania Department of Transportation v. Phillips, 87 Pa. Commw. 504, 488 A.2d 77 (1985).

In support of its position that Gage Company was not required to raise any challenge in the court below, the majority cites the rule that an order granting summary judgment is final and appealable. While this rule explains Gage's failure to file post-verdict motions challenging the order granting summary judgment, it does not excuse Gage's failure to challenge the co-defendants' motions for summary judgment.


Summaries of

Eckenrod v. GAF Corp.

Superior Court of Pennsylvania
May 6, 1988
375 Pa. Super. 187 (Pa. Super. Ct. 1988)

granting summary judgment in spite of plaintiff's evidence of direct handling of defendants' products

Summary of this case from Jackson v. Anchor Packing Co.

In Eckenrod, the Pennsylvania Superior Court, in affirming the trial court's order granting summary judgment in favor of the defendants, stated that in order for liability to attach in a products liability action, "plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier."

Summary of this case from Rotondo v. Keene Corp.

In Eckenrod the plaintiff's decedent had been employed as a millwright and maintenance pipefitter in the Wallace Run facility of Babcock and Wilcox.

Summary of this case from Robertson v. Allied Signal, Inc.

In Eckenrod, the Pennsylvania Superior Court affirmed a grant of summary judgment in favor of defendant asbestos manufacturers because plaintiff failed to provide sufficient evidence of decedent's exposure to defendants' products.

Summary of this case from D'Amico v. Garlock Sealing Technologies, LLC

In Eckenrod, the Pennsylvania Superior Court held that "a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use."

Summary of this case from Chicano v. General Electric Company

In Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988), the Pennsylvania Superior Court specifically discussed this burden in the context of an asbestos action.

Summary of this case from Zenson v. Owens Corning Fiberglas Corp.

In Eckenrod, the Pennsylvania Superior Court upheld a trial court order granting summary judgment in favor of Defendants who manufactured or supplied asbestos products which allegedly caused the death of the Plaintiff's decedent where the Plaintiff did not present evidence to show that her deceased husband inhaled asbestos fibers shed by the Defendants' products.

Summary of this case from Harkovich v. Keene Corp.

requiring proof that a plaintiff “inhaled asbestos fibers shed by the specific manufacturer's product”

Summary of this case from Nelson v. Airco Welders Supply

In Eckenrod, three coworkers supplied affidavits indicating that they worked with the deceased plaintiff and that the deceased plaintiff was exposed to asbestos products, but the affidavits "did not elaborate on the nature or length of the exposure or the brand of the products available."

Summary of this case from Weible v. Allied Signal, Inc.

In Eckenrod, plaintiff filed suit against various defendant manufacturers, alleging that her husband's death was caused by exposure, during his employment with Babcock Wilcox ("B W"), to various asbestos products manufactured by the defendants. Defendants filed motions for summary judgment based on plaintiff's lack of product identification.

Summary of this case from Bushless v. Gaf Corp.

In Eckenrod, the Court upheld the grant of a summary judgment against the plaintiff in a products liability action on the ground that the plaintiff had failed to present any evidence to establish that injury had been caused by the asbestos products of a particular manufacturer or supplier.

Summary of this case from Taylor v. Celotex Corp.
Case details for

Eckenrod v. GAF Corp.

Case Details

Full title:Jean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and…

Court:Superior Court of Pennsylvania

Date published: May 6, 1988

Citations

375 Pa. Super. 187 (Pa. Super. Ct. 1988)
544 A.2d 50

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