The opinion of the court was delivered by: FULLAM
Before FULLAM, BECHTLE and SHAPIRO, J.J.
The three judges to whom the captioned cases are assigned have jointly heard argument on the pending motions of defendants Charter Consolidated, P.L.C. and Charter Consolidated Investment, P.L.C. for summary judgment. The motions raise essentially identical issues in the three cases, issues which may have significant impact upon a great many pending asbestos-related cases. This Memorandum expresses the views of the three judges involved, and disposes of the summary judgment motions in all three cases. The differences among the three cases, in their facts and the precise details of the pleadings, have no bearing on the pending motions. Where necessary for purposes of illustration, the record in the Parker case will be utilized.
Plaintiffs, citizens and residents of Pennsylvania, seek to recover damages occasioned by their, or their decedents', exposure to asbestos in the course of their employment, during various periods between 1941 and 1981. The ultimate issue presented by the pending Motions for Summary Judgment is whether plaintiff may have a legal basis for imposing liability upon the moving defendants, Charter Consolidated, P.L.C. ("Charter"), Charter Consolidated Investments, P.L.C. (CCI) (hereinafter sometimes jointly referred to as "the Charter defendants").
Plaintiffs allege, in substance, that the Charter defendants "mined, manufactured, produced and/or sold asbestos fiber and/or asbestos products either directly or indirectly to the plaintiff's employer" (Parker Complaint, para. 2(e), (f)). Actually, as all parties acknowledge, the Charter defendants have never themselves mined or sold or supplied asbestos or asbestos products; their involvement in this litigation is predicated upon their relationship with Cape Industries, an English holding company which, in turn, through its wholly owned subsidiaries, was engaged in the mining and sale of asbestos in South Africa, during the relevant period. Charter owns CCI, which is operated essentially as the investment division or department of Charter; CCI owns 67.3% of the stock of Cape Industries which, until June 1979, was extensively engaged in asbestos mining and sale, through wholly owned subsidiaries.
For many, many years, asbestos mined and sold by Cape Industries was marketed extensively in this country; indeed, Cape Industries had an American subsidiary, North American Asbestos Corp., which handled the marketing and distribution of its products throughout this country.
Cape Industries, North American Asbestos, and various other subsidiaries of Cape Industries, were named as defendants in a great many asbestos-related lawsuits in this country. In the latter part of 1977, the Cape Industries interests paid $1.1 million as their share of a settlement of certain asbestos-related litigation in Texas. On the very day when this occurrence came to the attention of the Cape Industries Board, the Board agreed promptly to implement a
reorganization of the Group's asbestos selling arrangements, particularly in the U.S.A., which in future would be more closely controlled from South Africa. As part of this reorganization it is proposed that North American Asbestos Corporation should be wound up.
Ex. 3 to supplemental brief of Lac d'Amiante du Quebec, Ltd., at p. 3. The dissolution of North American Asbestos Corporation was completed as of May 1978.
At about the same time, acting on the basis of extensive legal advice from both English and American lawyers, Cape adopted, and has since carried out, a firm policy of simply ignoring litigation against it in courts in the United States, on the theory (which, at least for present purposes, must be deemed valid) that default judgments against it in American courts cannot be enforced against it in England or elsewhere (see, e.g., Charter's annual report for 1982, quoted in LAQ's supplemental brief at p. 5 n.5). Apparently, Cape has also instructed its insurers not to defend any such lawsuits (id. p. 4 & n.3).
In June 1979, Cape completely divested itself of its asbestos-mining subsidiaries. The mines were sold to Transvaal Consolidated Land and Exploration Company (TCL), a South African concern. Cape obligated itself to indemnify the purchaser against valid and enforceable judgments arising out of asbestos litigation then pending or instituted within three years after the sale; but it was a condition of the indemnity agreement that the purchaser would not appear in, defend, or otherwise participate in any such litigation in the United States (i.e., TCL would continue the policy of allowing default judgments to be entered).
Plaintiffs and the other parties opposed to the Charter defendants' motions
contend that the Charter defendants exercised direct control over these decisions and actions by Cape Industries, and that the circumstances warrant imposition of liability directly upon the Charter defendants, without regard to the formalities of the corporate structure. That is, they argue that the Charter defendants represent merely the alter ego of Cape Industries, and that the corporate veil should be pierced.
In support of their summary judgment motions, the Charter defendants advance a host of arguments: the corporate structure was adopted for perfectly legitimate reasons having nothing to do with asbestos litigation; the evidence establishes that the Charter defendants did not in fact exercise the required degree of control over Cape Industries; the complained-of actions by Cape Industries were neither fraudulent, illegal, nor contrary to public policy, but merely ...