Howard v. A.C. Chesterton Co.

23 Pa. D. & C.5th 492
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 23, 2011
DocketNo. 0202
StatusPublished

This text of 23 Pa. D. & C.5th 492 (Howard v. A.C. Chesterton Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. A.C. Chesterton Co., 23 Pa. D. & C.5th 492 (Pa. Super. Ct. 2011).

Opinion

TERESHKO, J.,

Plaintiffs, Margaret Howard and Robert Howard (“plaintiffs”), executors of the estate of John C. Ravert (“decedent”), appeal this court’s orders granting summary judgment to the following defendants: A.W. Chesterton, Co. (“Chesterton”), ACE Hardware Corp. (“ACE”), Monsey Products Corp. (“Monsey”), Pécora Corp. (“Pécora”), and Union Carbide Corp. (“Union Carbide”) (collectively “defendants”), and dismissing with prejudice all claims against said defendants. For the following reasons, this court’s orders [494]*494should be affirmed.

I. BACKGROUND

Plaintiffs commenced this asbestos mass tort action alleging that decedent John C. Ravert contracted mesothelioma as a result of his occupational exposure to asbestos products. See plaintiffs’ complaint, ¶13. On March 25, 2008, ACE, Chesterton, Monsey, and Pécora filed for summary judgment. On March 27, 2008, Union Carbide filed for summary judgment. On April 11, 2008, plaintiffs filed a response to each of the motions. Pécora replied on April 13, 2008. ACE, Chesterton, and Monsey replied on April 16, 2008. Union Carbide replied on April 18, 2008. Plaintiffs’ counter replies were filed for Union Carbide on April 23, 2008; for Pécora on April 24, 2008; and for ACE, Chesterton, and Monsey on April 28, 2008. Replies to plaintiffs’ counter replies were filed on April 28, 2008 by ACE (as a sur reply); April 30, 2008 by Monsey; and May 6, 2008 by Chesterton. All of defendants’ motions asserted lack of sufficient product identification as required by Ekenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988) and its progeny.

After careful review of the motions, responses, replies, and sur-reply, this court granted summary judgment in favor of each of the defendants and dismissed with prejudice plaintiffs’ claims on May 14, 2008. The case was then removed by remaining defendants Weil McClain and Goodyear to the United States District Court for the Eastern District of Pennsylvania on May 20, 2008. On May 30, 2008, plaintiff timely filed appeals from the orders granting summary judgment to these defendants.

On July 1, 2008, in response to this court’s order, [495]*495plaintiffs filed their concise statement of errors complained of on appeal pursuant to Pa.R.A.P. § 1925(b). This court issued its opinion August 6, 2008.

On October 1, 2009, the Pennsylvania Superior Court ruled that plaintiff’s appeal was interlocutory because there were still two remaining defendants in the case; therefore the order was not a final, appealable order. By order dated November 12, 2009, the Honorable Eduardo Robreno remanded the case back to the trial court finding that the removal to federal court was improper because there were no grounds to invoke federal subject matter jurisdiction under 28 U.S.C. §1332.

On September 10, 2010, plaintiff settled with all remaining defendants prior to trial. Thereafter, plaintiff petitioned the Superior Courtto reinstate the appeal initially filed May 30,2008 (1731 EDA 2008). The Superior Court denied plaintiff’s petition on reinstate the previous appeal, however plaintiff filed a new appeal on October 8, 2010 (2978 EDA 2010). Plaintiff filed a subsequent concise statement of errors complained of on appeal.

II. DISCUSSION

Plaintiff argues that this court erred by granting summary judgment to defendants. The available record in the instant matter, however, failed to establish that Ravert inhaled asbestos fibers from products sold, manufactured or supplied by the moving defendants. Thus, summary judgment was appropriate.

“In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any [496]*496doubts as to the existence of a genuine issue of material fact against the moving party.” Gilbert v. Monsey Prods. Co., 861 A.2d 275, 276 (Pa. Super. 2004). In reviewing a grant of summary judgment, an appellate court’s scope of review is plenary and will reverse only upon finding that the trial court abused its discretion or erred as a matter of law. Harahan v. AC & S, Inc., 816 A.2d 296 (Pa. Super. 2003).

Our Superior Court, in Eckenrod vs. GAF Corp., 544 A.2d 50 (Pa. Super. 1988), set forth the elements necessary to prove a prima facie case of asbestos liability:

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. 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. 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. Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of the plaintiff’s injury. Id. at 52 (internal citations omitted).

Further, our Supreme Court in Gregg v. VJ Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (Pa. 2007), recently reiterated the duty of a lower court when reviewing an asbestos motion for summary based on product identification:

... [W]e believe that it is appropriate for courts, at the summary judgment stage, to make a reasoned [497]*497assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of plaintiff’s/decedent’s asserted exposure, ajury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury. Id. at 30.

In light of this binding precedent, we review the record herein. Decedent, John Ravert was deposed by all defendants on June 25-27, 2007 and July 17-18, 2007. His deposition testimony fails to establish that decedent was exposed to asbestos fibers or asbestos dust shed from working with defendants’ products with the frequency, regularity, and proximity required under Pennsylvania law.1

ACE

Defendant ACE argued that the testimony of the decedent failed to establish that decedent was exposed to a respirable asbestos-containing product supplied by ACE. Decedent testified that he shopped at ACE stores frequently, for various items including nails, friction tape, thermometers, roof cement, and roof coat.2 See deposition of John Ravert, 7/17/07, pp. 565-568. However, he also testified that he did not remember purchasing any asbestos products from any ACE Hardware store which contained any inhalable dust. See deposition of John Ravert, 7/18/07, p. 602.

Decedent remembers shopping in one ACE store in [498]

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Related

Gregg v. VJ Auto Parts, Inc.
943 A.2d 216 (Supreme Court of Pennsylvania, 2007)
Eckenrod v. GAF Corp.
544 A.2d 50 (Superior Court of Pennsylvania, 1988)
Harahan v. AC & S, INC.
816 A.2d 296 (Superior Court of Pennsylvania, 2003)
Gilbert v. Monsey Products Co.
861 A.2d 275 (Superior Court of Pennsylvania, 2004)

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Bluebook (online)
23 Pa. D. & C.5th 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-ac-chesterton-co-pactcomplphilad-2011.