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FRIED v. SUNGARD RECOVERY SERVS.

May 2, 1996

SIGMUND FRIED, et al.
v.
SUNGARD RECOVERY SERVICES, et al.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 MAY 2, 1996

 Defendant Intech Construction, Inc. moves this Court to grant it summary judgment on one claim and dismiss the other claims asserted against it in the Second Amended Complaint brought by Plaintiffs Sigmund Fried and Sam Wurst on behalf of themselves and a purported class. The facts of this case have been recited in previous decisions of this Court; similarly, many of the legal issues raised herein have been addressed before.

 Counts Two and Three

 First, Plaintiffs agree that Plaintiff Sam Wurst should be dismissed as a plaintiff from Count Two against Intech. They also agree that Count Three should be dismissed against Intech.

 Second, Intech seeks summary judgment on any of Plaintiffs' claims that are premised on asbestos removals on the mezzanine level of 401 North Broad Street. Plaintiffs assert violations of the Clean Air Act based on evidence that asbestos is present on the mezzanine level, Intech did construction work on the mezzanine level in 1990, and today it appears that some asbestos there may be damaged. Recognizing that this is not overwhelming proof, Plaintiffs indicate that as of the date of the motion, November, 1995, discovery was expected that might provide additional support for their claim. Since then, although there has been further briefing on this motion, Plaintiffs have not proffered any additional evidence. We cannot find that the existing evidence creates a genuine issue of fact as to whether asbestos was improperly disturbed by Intech on the mezzanine level. Accordingly, summary judgment is appropriately granted for claims based on asbestos removals or disturbances by Intech on the mezzanine level.

 Plaintiffs assert a second claim, however, alleging that Intech violated the Clean Air Act by failing to survey the mezzanine for asbestos before it commenced its construction activities. 40 C.F.R. ┬ž 61.145(a). Defendant rebuts this allegation by pointing out that the relevant regulation did not come into effect for more than six months after it began construction. For that reason, it argues, its motion to dismiss this claim should be granted. We agree and dismiss all claims based on Intech's failure to survey the mezzanine section.

 State Claims

 Intech seeks dismissal of all the state claims on the basis that no Plaintiff has alleged an injury. In fact, the only injury alleged in the Second Amended Complaint is the need for medical monitoring, which at the time this motion was filed, arguably was not an injury in Pennsylvania. This past month, however, the Supreme Court of Pennsylvania ruled on this precise issue.

 The Supreme Court addressed consolidated appeals from several plaintiffs in asbestos cases. Although no plaintiff had actual diseases from asbestos exposure, each plaintiff had asymptomatic pleural thickening. One question the Court answered was whether these plaintiffs were entitled to medical monitoring. The Court cited In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991) and In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995) and observed that the Third Circuit had predicted that the Supreme Court would recognize a claim for medical monitoring. Then, it held:

 
asymptomatic pleural thickening caused by occupational exposure to asbestos does not give rise to a cause of action for the damages requested by Appellants. We do recognize, however, a limited exception regarding damages for expenses incurred in the medical surveillance of the condition. . . . Although we hold that awarding damages for the increased risk and fear of cancer is contrary to the established jurisprudence of this Commonwealth, we find that recovery for medical monitoring is appropriate and just.

 Simmons v. Pacor, Indus., 674 A.2d 232, 1996 Pa. LEXIS 587, *24 (Pa. April 4, 1996) (emphasis added). To this end, it held, "we adopt the rationale [of Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (Ariz. App. 1987)] as the rule of law for this Commonwealth regarding plaintiffs diagnosed with asymptomatic pleural thickening caused by occupational exposure to asbestos." Id. at 18.

 Despite this apparently straightforward language, Intech and Plaintiff dispute how far this ruling goes. First, Intech contends that because the plaintiffs in Simmons did not request medical monitoring, that the ruling is mere dicta. We find that this ruling is not dicta, based on the statement, "we ...


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