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ANDREW V. CAROLLO AND JAMES ROY DEROCCO v. FORTY-EIGHT INSULATION (12/28/77)

decided: December 28, 1977.

ANDREW V. CAROLLO AND JAMES ROY DEROCCO
v.
FORTY-EIGHT INSULATION, INC., A CORPORATION, VIMASCO CORP., A CORPORATION, GUSTIN-BACON, DIVISION OF CERTAIN TEED PRODUCTS CORP., EAGLE-PICHER INDUSTRIES, INC., A CORP., PITTSBURGH CORNING CORPORATION, OWENS-CORNING FIBERGLASS CORP., JOHNS-MANVILLE PRODUCTS CORPORATION AND BENJAMIN FOSTER, A DIVISION OF AMCHEM PRODUCTS, INC. V. WHEELING PITTSBURGH STEEL CORPORATION, UNITED STEELWORKERS OF AMERICA, LOCAL 1229, AND THE UNITED STEELWORKERS OF AMERICA INTERNATIONAL AND GEORGE V. HAMILTON, INC. V. UNARCO INDUSTRIES, INC., THE PHILIP CAREY MANUFACTURING COMPANY, A/K/A PHILIP CAREY CORPORATION, AND BRIGGS MANUFACTURING COMPANY, A/K/A PANACON CORPORATION AND THE CELOTEX CORPORATION



Nos. 667, 682 and 684 APRIL TERM, 1976, Appeals from the Orders and Judgments dated and entered March 9, 1976 of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. 2880 July Term, 1974 and No. 2881 July Term, 1974.

COUNSEL

Patrick R. Riley, Greensburg, for appellant at No. 667.

Randall J. McConnell, Jr., Pittsburgh, with him James R. Miller, Pittsburgh, for appellant at No. 682.

John David Rhodes, Pittsburgh, with him James R. Hartline, Pittsburgh, for appellant at No. 684.

Charles J. Duffy, Jr., Alfred E. Lawson, Joseph B. Bagley, R. Kenneth Willman, Chester S. Fossee, and James F. Manley, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, dissents.

Author: Spaeth

[ 252 Pa. Super. Page 426]

This is an appeal from an order entering summary judgment.

Plaintiffs worked many years for Wheeling-Pittsburgh Steel Corporation, installing insulation in Wheeling-Pittsburgh's Monessen plant. They allege in their complaint that during the course of their employment they contracted asbestosis and pneumoconiosis as a result of prolonged inhalation of asbestos fibers. Defendants are manufacturers of insulation products of which asbestos is allegedly a component; among them are Benjamin Foster, a Division of Amchem Products, Inc., Gustin-Bacon, Division of Certain Teed Products Corp., and Vimasco Corporation. There are also additional defendants; these are still other manufacturers of insulation, and also Wheeling-Pittsburgh and the local and international unions that were plaintiffs' bargaining agents, United Steel Workers of America, Local 1229, and United Steel Workers of America International.

Benjamin Foster, Gustin-Bacon, Vimasco, and the unions moved for summary judgment in accordance with Pa.R.Civ.P. 1035. The motions were filed just before the date set for trial, and were denied on the ground that consideration of them would have delayed the trial. However, when one of the plaintiffs was hospitalized the trial

[ 252 Pa. Super. Page 427]

    was delayed anyway, so the lower court considered the motions on the merits, and granted them. These appeals are by two of defendants, Owens-Corning Fiberglass Corporation and Pittsburgh Corning Corporation, and one of additional defendants, Unarco Industries, Inc.*fn1

The principles that govern such cases as this are settled.

One who moves for a summary judgment has the burden of showing that there is no genuine issue as to any material fact. Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). To do this, the moving party must submit affidavits or other evidence in support of the motion. Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974). The court hearing the motion should accept as true all well-pleaded facts and any admissions on file, but should resolve any doubts as to the existence of a genuine issue of a material fact against the moving party. Schacter v. Albert, supra. On appeal, this court must examine the record in the light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Co., 222 Pa. Super. 261, 295 A.2d 143 (1972).

With these principles in mind, we may examine the several motions for summary judgment.

-- Benjamin Foster's Motion --

In answer to interrogatories, plaintiffs specified that the insulation product used by them at Wheeling-Pittsburgh was "insulkote." In its affidavit in support of its motion for summary judgment, Benjamin Foster said it did not manufacture a product called "insulkote," but that defendant Johns-Manville Products Corporation did. Benjamin Foster admitted manufacturing, and selling to Wheeling-Pittsburgh, a pre-mixed product similar to insulkote, but it said that no asbestos fibers could escape into the air from its product, so plaintiffs could not have suffered harm from

[ 252 Pa. Super. Page 428]

    inhaling it. Benjamin Foster said it sold no other product to Wheeling-Pittsburgh.

An examination of plaintiffs' depositions supports Benjamin Foster on these points. In considering these depositions we assume that when plaintiffs specified "insulkote", we are to read that to mean, "whatever pre-mixed product Benjamin Foster manufactured."

There is no evidence that Benjamin Foster sold Wheeling-Pittsburgh any product other than the pre-mixed product. DeRocco at 74, 109. The pre-mixed product was described as "a black substance like a tar," Carollo at 59; it came in 10 or 5-gallon cans, DeRocco at 74.

Plaintiff DeRocco testified as follows:

Q. Did you ever receive or utilize an insulating material that was delivered in a liquid form that was applied by a trowel or with a plastering-type of product; in other words, pre-mixed?

A. Yes.

Q. Who did you receive that from?

A. Insulcote.

Q. Insulcote?

A. C-o-t-e. I think the other was Scott's, S-c-o-t-t-'s. That's all I can recollect now.

Q. From this pre-mixed covering, you did not get any dust from that, did you, when you were using it, since it ...


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