Fiffick v. GAF Corp.

603 A.2d 208, 412 Pa. Super. 261, 1992 Pa. Super. LEXIS 267
CourtSuperior Court of Pennsylvania
DecidedFebruary 12, 1992
Docket597
StatusPublished
Cited by10 cases

This text of 603 A.2d 208 (Fiffick v. GAF Corp.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fiffick v. GAF Corp., 603 A.2d 208, 412 Pa. Super. 261, 1992 Pa. Super. LEXIS 267 (Pa. Ct. App. 1992).

Opinions

WIEAND, Judge:

In this case to recover damages for injuries allegedly resulting from exposure to asbestos, the trial court held that plaintiffs evidence was insufficient to show that he had been exposed to asbestos products manufactured by Owens Corning Fiberglas Corporation and, therefore, entered summary judgment in favor of said defendant. The plaintiff, John J. Fiffick, has appealed. After careful review of the record, we affirm.

From 1947 until his retirement in 1985, Fiffick labored in various capacities at the Wheeling-Pittsburgh Steel Plant in Monessen. In November, 1988, he filed an action against numerous manufacturers and distributors of asbestos products, alleging pulmonary and emotional injuries caused by exposure to airborne asbestos fibers at his place of employment. After discovery, Owens Corning filed a motion for summary judgment based on Fiffick’s inability to establish exposure to any asbestos product which it had manufactured or sold. The trial court, following argument and upon consideration of affidavits, discovery depositions and answers to interrogatories, granted the motion for summary judgment.

A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [264]*264show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). In Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989), the Court said:

In passing upon a motion for summary judgment the court must examine the record in the light most favorable to the nonmoving party____ It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried____ Any doubt must be resolved against the moving party____ The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings____ The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288, 515 A.2d 980, 981 (1986) (citations omitted).

Once a motion for summary judgment is made and is properly supported, however, the nonmoving party may not simply rest upon the mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). In such a case, Rule 1035(d) requires that “by affidavits or as otherwise provided in this rule, [the nonmovant] must set forth specific facts showing that there is a genuine issue for trial.” The purpose of Rule 1035(d) “ ‘is to assure that the motion for summary judgment may “pierce the pleading” and to require the opposing party to disclose the facts of his claim or defense.’ ” Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986) (quoting Goodrich Amran [sic] 2nd § 1035(d):5 at 460 (1976) (emphasis added by Roland court), appeal denied, 517 Pa. 599, 535 A.2d 1058 (1987). Thus, once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is [265]*265the basis for his or her argument resisting summary judgment. Id., 355 Pa.Superior Ct. at 501, 513 A.2d at 1034.

Id., 391 Pa.Superior Ct. at 346-347, 571 A.2d at 402 (footnotes omitted).

In an asbestos exposure case, summary judgment is properly entered in favor of a defendant when the plaintiff is unable to produce evidence from which a jury can find that the defendant’s products were the cause of the plaintiff’s injuries. In Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 544 A.2d 50 (1988), allocatur denied, 520 Pa. 605, 533 A.2d 968 (1988), the Superior Court said:

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).

Id., 375 Pa.Superior Ct. at 191, 544 A.2d at 52. See also: Bushless v. GAF Corp., 401 Pa.Super. 351, 357, 585 A.2d 496, 499 (1990); Samarin v. GAF Corp., supra, 391 Pa.Super. at 351, 571 A.2d at 404.

In the instant case, James DeRocco, another steelworker, stated that a product known as Kaylo and manufactured by Owens Coming had been purchased and used at the steel plant in Monessen. However, he could not say when or where the Kaylo was used. This was important because in 1972 Owens Coming discontinued the use of asbestos in the [266]*266manufacture of Kaylo. After 1972, the product was free of all asbestos.

The plaintiffs own testimony also fails to disclose that he was ever exposed to asbestos fibers emanating from Kaylo manufactured by appellee. Although plaintiff, in his deposition testimony, said that he had worked periodically within one to twenty-five feet of pipecoverers and that he had inhaled dust generated by the workers’ manipulation of asbestos materials, he could only place himself in proximity to Kaylo in the late 1970s and early 1980s. As we have already observed, however, the Kaylo manufactured and sold by Owens Corning after 1972 contained no asbestos.

The plaintiff-appellant argues that a jury could infer exposure to asbestos from DeRocco’s testimony because, according to expert testimony, asbestos fibers drift far from their point of origin after they have been released into the air. On this basis, he argues that some of the asbestos fibers from Kaylo must have been inhaled prior to 1972. A similar argument was made in Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir.1990). In a careful and well reasoned analysis of the evidence and correct application of Pennsylvania law, the Court concluded that expert testimony of fiber drift was valuable in assisting a plaintiff in meeting the Eckenrod standard, but that by itself it was insufficient to satisfy the quantum of evidence required by Eckenrod. The Robertson Court said:

Of the three Eckenrod

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Bluebook (online)
603 A.2d 208, 412 Pa. Super. 261, 1992 Pa. Super. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fiffick-v-gaf-corp-pasuperct-1992.