No. 55 Pittsburgh 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. 79-29762.
Alfred S. Pelaez, Pittsburgh, for appellant.
Alan Shapiro, Pittsburgh, for appellees.
Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ.
[ 319 Pa. Super. Page 380]
This is an appeal by the appellant, Martha Christman, from the Order of the Court of Common Pleas of Allegheny County (per Judges McGowan and Narick) granting a Motion
[ 319 Pa. Super. Page 381]
For Summary Judgment on behalf of appellee, Dravo Corporation (hereinafter Dravo or appellee). We affirm.
In this jurisdiction, a ruling on a motion for summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.Civ.P. 1035(b). In Wilk v. Haus, 313 Pa. Super. 479, 460 A.2d 288 (1983), a panel of this Court elaborated upon the standard to be utilized in ruling on a motion for summary judgment:
"The language of Rule 1035, adopted in 1966, was taken verbatim from Federal Rule of Civil Procedure 56(c). Interpretation of the scope of Rule 1035 can be aided by reference to the cases decided under the Federal rule, which establish the following criteria. On motion for summary judgment the Court must consider the entire setting of the case and all the papers that are included in the record . . . One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact . . . The Court must consider both the record actually presented and the record potentially possible at the time of trial . . . . A hearing on a motion for summary judgment is not a trial on the merits, and the Court on such motion should not attempt to resolve conflicting contentions of fact . . . The court is to accept as true all well pleaded facts in the plaintiff's pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom . . . The record must be examined in the light most favorable to the nonmoving party . . . . In passing upon a motion for summary judgment it is no 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. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment . . . . A party should not be deprived of an adequate opportunity
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to fully develop (sic) his case by witnesses and a trial, when the issues involved make such procedure the appropriate one . . . . It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts . . . Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment."
Id., 313 Pa. Superior Ct. at 482, 460 A.2d at 289-290.
With the preceding in mind, we will now "consider the entire setting of the case and all the papers that are included in the record." Id. To-wit, on November 7, 1979 appellant, in her capacity as executrix of the estate of her husband (Jacob F. Christman), filed a Complaint in Trespass and Assumpsit against Dravo and Johns-Manville. Therein, as is relevant to the case at bar, appellant alleged:
FOURTH: During a period of time from 1942 to 1945, the plaintiff's decedent worked for Dravo Corporation as a mechanic/welder at Neville Island, Pennsylvania. During the course of his duties, the decedent worked with and around asbestos products believed to have been supplied by the defendant, Johns-Manville, and supplied to the decedent by Dravo Corporation.
FIFTH: As a result of the decedent's exposure to the asbestos products, he developed an insidious lung condition that eventually was diagnosed as mesothelcoma [sic -- mesothelioma] [on May 8, 1978]. This disease resulted in the decedent's death on February 21, 1979.
Furthermore, premised upon the grounds of negligence, breach of an implied warranty of merchantability and strict liability under Section 402A, appellant demanded judgment against Dravo and Johns-Manville in an amount in excess of $10,000.00. In response, Dravo filed preliminary objections in the nature of a demurrer, a motion to strike or, alternatively, a motion for a more specific complaint. In relevant part, Dravo's preliminary objections raised the following points:
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. . . . The Complaint alleges that plaintiff's decedent was an employee of DRAVO CORPORATION who sustained exposure to asbestos products during a period of his employment with DRAVO and subsequently developed an insidious lung condition which resulted in the decedent's death on February 21, 1979 . . . .
2. DRAVO demurs to the Complaint which avers that the plaintiff's decedent was an employee of DRAVO and that the disease which resulted in the decedent's death developed as a result of the decedent's exposure to asbestos products during the period of the decedent's employment with DRAVO. This action cannot be maintained against DRAVO. The plaintiff's exclusive remedy is under the Pennsylvania Workmen's Compensation Act or the Federal Longshoremen's and Harborworkers' [sic] Compensation Act.
After oral argument and upon the submission of briefs, the trial court dismissed Dravo's preliminary objections in the nature of a demurrer and a motion to strike; however, the court directed the appellant to file an amended complaint setting forth, inter alia, "the specific grounds on which [appellant] contend[ed] that the within claim [was] removed from the Pennsylvania Workmen's Compensation Act[.]" In compliance therewith, appellant stated in Count I, Paragraph 6, of the Amended Complaint that she was entitled to bring suit in state court against Dravo "by virtue of the fact ...