Kolar v. Buffalo Pumps Inc.

15 Pa. D. & C.5th 38
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 2, 2010
Docketno. 0199
StatusPublished
Cited by1 cases

This text of 15 Pa. D. & C.5th 38 (Kolar v. Buffalo Pumps Inc.) 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
Kolar v. Buffalo Pumps Inc., 15 Pa. D. & C.5th 38 (Pa. Super. Ct. 2010).

Opinion

MOSS, J.,

Plaintiffs Stephen J. Kolar and his wife, Carol Kolar, appeal our orders granting [40]*40summary judgment in favor of Buffalo Pumps Inc., FMC Corp., Gormann Rupp Co., Ingersoll-Rand Co. and Yarway Corp. (collectively, the defendants). For the following reasons, our orders should be affirmed.

I. BACKGROUND

Plaintiffs commenced this asbestos mass tort action on April 6,2009. The complaint alleges plaintiff Stephen Kolar contracted mesothelioma from exposure to products manufactured or supplied by defendants. Complaint, ¶4. The complaint incorporates by reference the master long-form complaint filed at October term 1986, no. 0001, pleading counts of strict liability and negligence. Plaintiffs’ general master long-form complaint, ¶¶ 6-12.

From 1972 until 1975, Kolar was employed by Grand Forks, North Dakota, in part- and full-time positions at the Grand Forks water maintenance shop (until about 1974), wastewater plant (until about 1975), and water treatment plant (until 1995). Deposition of Stephen J. Kolar, 5/6/2009, 34-35. Kolar testified he performed maintenance work on Buffalo, Chicago, Gorman, and Ingersoll centrifugal and sludge pumps while employed by Grand Forks. Id. at 148. Chicago pumps were used for cold water pressurization. Id. at 92-93. Gorman-Rupp sludge and centrifugal pumps were used at the wastewater plant, as were Ingersoll-Rand centrifugal pumps. Id. at 148-49. The record is unclear about how Buffalo pumps were used at Grand Forks.

Kolar testified his maintenance work caused him to contact asbestos gaskets, or remnants thereof, on pump case housings and flanges. See e.g. Kolar deposition, [41]*41155-56 (describing Kolar’s maintenance of Buffalo pumps). Kolar identified the gaskets as manufactured either by Garlock Inc. or Crane Co. Id. at 96, 151-52, 155, and 156. Both Crane and Garock Sealing Technologies LLC, individually and as successor-in-interest to Garlock, were also named defendants. Plaintiffs’ complaint, 2.

Plaintiffs submitted evidence Buffalo centrifugal pumps may have used asbestos gaskets in its “chem-rated pumps.” Plaintiffs’ response to defendant Buffalo Pumps Inc.’s motion for summary judgment, exhibit A (bulletin 803A), 27. Bulletin 803A, a sales brochure of unknown vintage, includes a table entitled “materials of construction.” Id. The entry for component number 65 states “asbestos standard/teflon optional.” Id. The entry for components 65 J and 65K states “asbestos (standard).” Id. The table entries apparently correspond to a parts diagram on the preceding page. Id. at 26. The parts diagram is wholly illegible. See id.

Plaintiffs also submitted Buffalo’s responses to plaintiff’s interrogatories and request for production of documents from Shaeffer v. A. W. Chesterton before the Honorable H. A. Hanna of the Cuyahoga County Court of Common Pleas in Ohio. Plaintiffs’ reponse to Buffalo’s motion for summary judgment, exhibit F. In relevant part, the admissions state:

“By way of further response, the Buffalo Pumps Division of the Buffalo Forge Co., since at least approximately 1955, manufactured, among other things, pumps. These pumps were made of metal alloys, and the pumps themselves contained no asbestos materials. The metal [42]*42components of certain of these pumps required packing and gaskets. Upon manufacture, the original pump was typically supplied to a customer with the appropriate packing and gaskets. Buffalo Pumps Inc. also believes that the Buffalo Pumps Division of the Buffalo Forge Company on some occasions provided small numbers of gaskets to certain customers along with replacement parts for pumps. From at least approximately 1955 to approximately 1985, gaskets and packing supplied in certain original centrifugal pumps may have contained asbestos.” Id. at 8.

Plaintiffs submitted no evidence Kolar worked on gaskets original to any Buffalo pump.

As to Chicago, Gorman, and Ingersoll, plaintiffs submitted no evidence those manufacturers’ pumps came with any original asbestos components at all or that Kolar worked on gaskets original to those pumps.

As to Yarway, Kolar testified steam trap maintenance caused him to contact asbestos insulation covering the traps, adjacent piping, or asbestos gaskets, or remnants thereof, on trap flanges. Kolar deposition, 139-40. Kolar identified Garlock as manufacturer of the flange gaskets. Id. at 139. Kolar testified there were no asbestos components inside the trap itself. Id. at 340. Kolar also testified Yarway did not supply “any insulation on the flanges or on the pipes leading to the steam trap.” Id. at 341.

In separate summary judgment motions, defendants argued for dismissal because plaintiffs failed to satisfy the product identification requirements of Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988). See e.g. Buffalo’s motion for summary judgment, 1-2. Eck[43]*43enrod requires a plaintiff in an asbestos products liability suit to adduce sufficient evidence of exposure to “a product of the particular manufacturer or supplier” being sued. 375 Pa. Super, at 190-91, 544 A.2d at 52. Because Kolar identified Garlock and Crane gaskets, and not any product of defendants, plaintiffs could not meet the Eckenrod product identification requirement. See e.g. Buffalo’s motion for summary judgment, 1. Additionally, some defendants argued under Pennsylvania law, a manufacturer is not liable for replacement materials manufactured, sold or supplied by others after a product has left manufacturer’s control. See e.g. Gorman-Rupp’s motion for summary judgment, 3.

Plaintiffs responded defendants were liable for “placing [products] into the stream of commerce that required, and specifically called for the use of asbestos gaskets, like the ones Mr. Kolar as exposed to.” See e.g. plaintiffs’ response to Buffalo’s motion for summary judgment, 6. Citing Chicano v. General Elec. Co., 2004 U.S. Dist. Lexis 20330 (turbine manufacturer liable for injury from third-party asbestos insulation), plaintiffs argued defendants were liable for failing to warn. Id. at 6-7. As to Buffalo alone, plaintiffs argued the product specifications called for asbestos gaskets. Id. at 4.

In separate replies, defendants argued once again plaintiffs failed to make product identification. See e.g. Buffalo’s reply to its motion for summary judgment, 1. Defendants also argued Chicano did not control, because unlike the Chicano, turbines, the pumps and traps here did not require asbestos and defendants never suggested using asbestos. Id. at 2.

[44]*44After consideration of each motion, response and reply, we separately granted defendants’ summary judgment motions and dismissed all claims against defendants by orders dated December 1,2009 and docketed December 2,2009, On December 10,2009, after eight days of trial, the case was marked settled, discontinued and ended by the trial judge. Order of Honorable Eugene E. Maier, entered 12/10/2009 and docketed 12/17/2009.

On January 19, 2010, plaintiffs filed this appeal.

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Bluebook (online)
15 Pa. D. & C.5th 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolar-v-buffalo-pumps-inc-pactcomplphilad-2010.