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DOROTHY SAMARIN v. GAF CORPORATION RAYMARK INDUSTRIES (09/28/89)

filed: September 28, 1989.

DOROTHY SAMARIN, EXECUTRIX OF THE ESTATE OF JACK G. SAMARIN, DECEASED AND DOROTHY SAMARIN, IN HER OWN RIGHT, APPELLANT,
v.
GAF CORPORATION; RAYMARK INDUSTRIES, INC.; CELOTEX CORPORATION, SUCCESSOR-IN-INTEREST TO PHILIP CAREY MANUFACTURING COMPANY; PHILIP CAREY CORPORATION; BRIGGS MANUFACTURING COMPANY AND/OR PANACON CORPORATION; KEENE BUILDING PRODUCTS CORPORATION; EAGLE-PICHER INDUSTRIES, INC.; OWENS-CORNING FIBERGLAS CORPORATION OWENS-ILLINOIS, INC.; GARLOCK, INC.; A-BEST PRODUCTS COMPANY; PITTSBURGH CORNING CORPORATION; ARMSTRONG WORLD INDUSTRIES, INC.; NICOLET INDUSTRIES, INC.; SUCCESSOR-IN-INTEREST TO KEASBY & MATTISON; H.K. PORTER COMPANY, INC.; SUCCESSOR-IN-INTEREST TO SOUTHERN TEXTILE COMPANY, FORMERLY SOUTHERN ASBESTOS COMPANY; PITTSBURGH GAGE & SUPPLY COMPANY; GATEWAY INDUSTRIAL SUPPLY AND ABEX CORPORATION, APPELLEES. ROBERT L. CARTWRIGHT AND ARGLYE CARTWRIGHT, HIS WIFE, APPELLANTS, V. GAF CORPORATION; RAYMARK INDUSTRIES, INC.; CELOTEX CORPORATION, SUCCESSOR-IN-INTEREST TO PHILIP CAREY MANUFACTURING COMPANY; PHILIP CAREY CORPORATION; BRIGGS MANUFACTURING COMPANY AND/OR PANACON CORPORATION; KEENE BUILDING PRODUCTS CORPORATION; OWENS-CORNING FIBERGLAS CORPORATION OWENS-ILLINOIS, INC.; GARLOCK, INC.; A-BEST PRODUCTS COMPANY; PITTSBURGH CORNING CORPORATION; ARMSTRONG WORLD INDUSTRIES, INC.; NICOLET INDUSTRIES, INC.; SUCCESSOR-IN-INTEREST TO KEASBY & MATTISON; H.K. PORTER COMPANY, INC.; SUCCESSOR-IN-INTEREST TO SOUTHERN TEXTILE COMPANY, FORMERLY SOUTHERN ASBESTOS COMPANY; PITTSBURGH GAGE & SUPPLY COMPANY; GATEWAY INDUSTRIAL SUPPLY AND ABEX CORPORATION, APPELLEES. MARCIA BYERS, D.B.N., C.T.A., ADMINISTRATRIX OF THE ESTATE OF EARLY BYERS, DECEASED AND JOHN E. BYERS, MARCIA E. BYERS, AND MARK A. BYERS, EXECUTORS OF THE ESTATE OF MARY BYERS, DECEASED, APPELLANTS, V. GAF CORPORATION IN ITS OWN RIGHT AS SUCCESSOR-IN-INTEREST TO THE RUBEROID COMPANY; RAYMARK INDUSTRIES, INC., IN ITS OWN RIGHT AND SUCCESSOR-IN-RIGHT TO RAYBESTOS-MANHATTAN, INC.; CELOTEX CORPORATION IN ITS OWN RIGHT AND SUCCESSOR-IN-INTEREST TO THE PHILIP CAREY MANUFACTURING COMPANY; PHILIP CAREY CORPORATION; BRIGGS MANUFACTURING COMPANY AND/OR PANACON CORPORATION; KEENE CORPORATION IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO BALDWIN HILL CO.; BALDWIN-EHRET-HILL, INC.; EHRET MAGNESIA MANUFACTURING COMPANY AND TO THE INSULATION DIVISION OF MUNDET CORK COMPANY, TO MUNDET COMPANY AND TO KEENE BUILDING PRODUCTS CORPORATION OWENS-CORNING FIBERGLAS CORPORATION OWENS-ILLINOIS, INC.; GARLOCK, INC.; A-BEST PRODUCTS COMPANY; PITTSBURGH CORNING CORPORATION; ARMSTRONG WORLD INDUSTRIES, INC., IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO ARMSTRONG CORK CO., AND ARMSTRONG CONTRACTING AND SUPPLY CO.; NICOLET INDUSTRIES, INC., IN ITS OWN RIGHT AND SUCCESSOR-IN-INTEREST TO KEASBY & MATTISON, CO.; H.K. PORTER COMPANY, INC., IN ITS OWN RIGHT AS SUCCESSOR-IN-INTEREST TO SOUTHERN TEXTILE COMPANY, FORMERLY SOUTHERN ASBESTOS COMPANY; THE GAGE COMPANY, FORMERLY PITTSBURGH GAGE & SUPPLY COMPANY; GATEWAY INDUSTRIAL SUPPLY AND ABEX CORPORATION, FRICTION PRODUCTS DIVISION, APPELLEES



Appeal from the Order dated July 18, 1988, in the Court of Common Pleas of Beaver County, Civil Division, at No. 1574 of 1985. Appeal from the Order entered August 5, 1988, in the Court of Common Pleas of Beaver County, Civil Division, at No. 1902 of 1985. Appeal from the Order entered on August 5, 1988, in the Court of Common Pleas of Beaver County, Civil Division, at No. 1904 of 1985.

COUNSEL

Theodore Goldberg, Pittsburgh, for Samarin, appellant (at 1247); Cartwright, appellants (at 1345); and Byers, appellants (at 1346).

Miles A. Kirshner, Pittsburgh, for Eagle-Picher, appellee (at 1247); participating party (at 1345 and 1346). Concetta Silvaggio, Pittsburgh, for A-Best, appellee (at 1247, 1345 and 1346).

Dale K. Forsythe, Pittsburgh, for Gateway Industrials, appellee, (at 1247, 1345 and 1346).

Thomas J. Michael, Pittsburgh, for Owens-Corning, appellee (at 1247, 1345 and 1346).

Thomas K. Lammert, Jr., Pittsburgh, for GAF Corporation, appellee (at 1247, 1345 and 1346).

L. Jane Charlton, Pittsburgh, for Celotex, appellee, (at 1247, 1345 and 1346).

Martin Greitzer, Philadelphia, amicus curiae.

Rowley, Beck and Montgomery, JJ. Rowley, J., files a concurring statement.

Author: Beck

[ 391 Pa. Super. Page 344]

The instant matter before this court involves the consolidated appeals of three sets of plaintiffs/appellants in asbestos related actions. Summary judgment was granted to multiple defendants in all three cases. We will first address the issues central to the resolution of all three appeals and then apply our findings to the facts of each particular case.

The general factual and procedural background of the three actions at issue are similar. Appellant Cartwright, Jack Samarin, the deceased husband of appellant Dorothy Samarin, and Earl Byers, the deceased father of appellants Marcia Byers, John Byers and Mark Byers worked for Babcock & Wilcox Corporation (B & W) in Beaver County. They worked within various of B & W's manufacturing facilities. B & W is a huge manufacturing business with a number of plants and buildings housing its various operations. In the manufacturing buildings there are procedures

[ 391 Pa. Super. Page 345]

    that call for operations at high temperatures. Appellants allege that a number of asbestos laden products were used throughout B & W's facilities at locations where temperatures reached great heights. Though neither Cartwright, Byers or Samarin worked with asbestos directly, they were exposed to asbestos dust released from the surrounding asbestos products used to control temperatures within B & W's facilities.

After taking the depositions of appellants, appellees in these cases filed motions for summary judgment claiming that the appellants could not establish that appellants or their decedents were exposed to the particular products of appellees. Appellants responded with affidavits and depositions of various workers at B & W regarding the use by appellants of asbestos products in the locations where appellants or their decedents worked. In addition, in answers to interrogatories appellants included lists of names of persons who would testify that the appellants or their decedents were exposed to certain asbestos products manufactured by appellees. Appellees argue that appellants' affidavits, depositions and answers to interrogatories do not provide evidence to show the necessary connection between their products and any alleged injury sufficient to establish liability and in some cases do not even provide sufficient evidence to establish that the products that allegedly caused the harm contained asbestos. The trial courts concluded there was no practical need for oral argument in the numerous B & W asbestos cases and granted summary judgment in favor of appellees.

The following issues are raised on appeal: (1) whether answers to interrogatories listing the names of persons who could identify products causing harm to appellants or their decedents is sufficient to defeat a motion for summary judgment; (2) whether tradesmen may testify as to whether a product contains asbestos based on the fact that the product can withstand high temperatures and/or that other tradesmen may have told them that the products contained asbestos; (3) whether the totality of the evidence offered in

[ 391 Pa. Super. Page 346]

    appellants' response to the motions for summary judgment meets the strict requirements set forth by this court in Eckenrod v. GAF Corporation, 375 Pa. Super. 187, 544 A.2d 50 (1988); and (4) whether the trial court erred in foregoing oral argument.

We begin by reviewing the standards governing summary judgment and then address those questions common to all three appeals before looking to the specific facts of each case where necessary.

A motion for summary judgment may properly be granted only "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 judgment as a matter of law." Pa.R.C.P. 1035(b). . . . In passing upon a motion for summary judgment the court must examine the record in the light most favorable to the nonmoving party. . . . It is not 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. . . . Any doubt must be resolved against the moving party. . . . The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. . . . The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 288, 515 A.2d 980, 981 (1986) (citations omitted).

Once a motion for summary judgment is made and is properly supported,*fn1 however, the non-moving party may

[ 391 Pa. Super. Page 347]

    not simply rest upon the mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). In such a case, Rule 1035(d) requires that "by affidavits or as otherwise provided in this rule, [the non-movant] must set forth specific facts showing that there is a genuine issue for trial."*fn2 The purpose of Rule 1035(d) "' is to assure that the motion for summary judgment may "pierce the pleading" and to require the opposing party to disclose the facts of his claim or defense.'" Roland v. Kravco, Inc., 355 Pa. Super. 493, 501, 513 A.2d 1029, 1034 (1986) (quoting Goodrich Amran 2nd ยง 1035(d):5 at 460 (1976) (emphasis added by Roland court), appeal denied, 517 Pa. 599, 535 A.2d 1058 (1987). Thus, once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment. Id., 355 Pa. Superior Ct. at 501, 513 A.2d at 1034.

The Roland court made clear that where there are witnesses who could allegedly state facts that would support the non-movant's claim, but have not yet done so, it is the non-movant's burden to establish those facts on the record to show that there exists a genuine issue of material fact. Id. The court specifically rejected the notion that it was the movant's burden to obtain statements from witnesses named by the non-movant whose testimony would allegedly support the non-movant's case once given. Id. As the Roland court observed, "[o]ur rules of civil procedure are

[ 391 Pa. Super. Page 348]

    designed to eliminate the poker game aspect of litigation and compel the players to put their cards face up on the table before the trial begins." Id.; see also Paparelli v. GAF Corporation, 379 Pa. Super. 62, 549 A.2d 597 (1988).

[ 391 Pa. Super. Page 349]

Our first inquiry is whether answers to interrogatories listing the names of persons who could identify products causing harm to appellants or their decedents is sufficient to defeat a motion for summary judgment. In all three of the instant cases, appellants received interrogatories asking for the names of any persons who could given information on appellants' or their decedents' exposure to asbestos. Samarin supplied a list with twenty-five names, Byers a list with one hundred and thirty-three names and Cartwright a list with one hundred and thirty-two names; with one addition, this list being identical to Byers'. The lists were structured to provide a person's name, address, the years worked at B & W, in some cases the jobs performed for B & W, and a list of names of asbestos manufacturers and suppliers that each person could apparently identify as having supplied asbestos containing products to B & W. These responses to the interrogatories do not include any information on the relationship of any of the persons listed to appellants or their decedents or the relationship of the listed asbestos containing products to appellants or their decedents. Under Roland v. Kravco Inc., supra, it is appellants' burden to be more specific and to reveal the relevant facts that these witnesses would testify to. From these facts, the trier of fact should be able to deduce that the listed person had some knowledge of the appellant's work place and some knowledge that appellants were exposed to appellees' products which contained some asbestos. It is not ...


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