Appeal from the Judgment Entered July 16, 2007, In the Court of Common Pleas of Philadelphia County, Civil at No. January Term 2005, No. 2763.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: BENDER, DONOHUE, and FREEDBERG, JJ.
¶ 1 In this asbestos personal injury action, Appellant Theresa Wright, individually and as executrix of the estate of her late husband Raymond Wright, appeals from an order granting summary judgment in favor of Asten Johnson, Inc., successor to Asten Group, Inc. ("Asten"). Raymond Wright was employed as an electronic engineer with Scott Paper and on occasion worked in the paper manufacturing plant in Chester, Pennsylvania. Asten manufactured asbestos-containing dryer felts used in the paper manufacturing process. We conclude that there is sufficient record evidence to withstand summary judgment. Accordingly, we reverse and remand.
¶ 2 In January of 2005, Raymond Wright was diagnosed with mesothelioma, a cancer of the mesothelial tissue surrounding the lung caused by exposure to asbestos. He and his wife, Theresa Wright, filed suit against a number of parties, including Asten, alleging that Mr. Wright's workplace exposure to asbestos caused his mesothelioma. During the pendency of the action, Mr. Wright died from the disease. Asten ultimately moved for summary judgment contending that Appellant failed to adduce sufficient evidence to establish that Mr. Wright inhaled asbestos fibers shed from Asten dryer felts. The trial court granted summary judgment for Asten by order dated July 9, 2007, and docketed July 10, 2007. Appellant filed notice of appeal on July 19, 2007, and Appellant thereafter filed a statement of errors in compliance with Pennsylvania Rule of Appellate Procedure 1925. In turn, the trial court issued an opinion pursuant to Rule 1925.
¶ 3 The posture of this appeal requires that we address the threshold issue of our jurisdiction to entertain the appeal. Appeal may be taken only from a final order, that is, an order that disposes of all claims and all parties. Pa.R.A.P. 341(a). A number of defendants remained of record following the trial court's grant of summary judgment for Asten. This fact appears to call into question the finality of the trial court's order granting summary judgment to Asten. However, the record reflects a July 16, 2007 trial court docket entry noting that this case was settled as to all remaining non- bankrupt parties, except the Manville Fund, but the case against the Manville fund was dismissed. "A trial court order declaring a case settled as to all remaining parties renders prior grants of summary judgment final for Rule 341 purposes, even if the prior orders entered disposed of fewer that all claims against all parties." Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 650 (Pa. Super. 2002); Harahan v. AC&S, Inc., 816 A.2d 296, 297 (Pa. Super. 2003). In this case all parties are now settled, bankrupt, or dismissed by grant of summary judgment or otherwise. Consequently, the grant of summary judgment for Asten is a final order for appeal purposes and the present appeal is properly within our jurisdiction. Gutteridge, 804 A.2d at 650; Harahan, 816 A.2d at 297.
¶ 4 Appellant raises a single issue for our consideration, namely, whether the trial court abused its discretion or committed an error of law in concluding that there was insufficient record evidence to establish that Mr. Wright was exposed to Asten's asbestos-containing dryer felt product. The issue calls upon us to review whether the record evidence of exposure to asbestos-containing material was sufficient to meet the frequency, regularity, and proximity test of Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988).
¶ 5 We review a grant of summary judgment under the following well- settled standards: Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. [O]n appeal from a grant of summary judgment, we must examine the record in a light most favorable to the non-moving party. With regard to questions of law, an appellate court's scope of review is plenary. The Superior Court will reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion. Judicial discretion requires action in conformity with law based on the facts and circumstances before the trial court after hearing and consideration.
Gutteridge, 804 A.2d at 651. (citations omitted)
¶ 6 To withstand a summary judgment motion in an asbestos case, a plaintiff must meet the following standard:
In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer's product. Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use. Summary judgment is proper when the plaintiff has failed to establish that the defendants' products were the cause of plaintiff's injury.
Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, must be whether plaintiff has pointed to sufficient material facts in the record to indicate that there is a genuine issue of material fact as to the causation of decedent's disease by the product of each particular defendant. Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto.
Eckenrod, 544 A.2d at 52, 53. (citations omitted)
¶ 7 There is no requirement that a plaintiff who suffers an asbestos related injury must establish the specific role played by each individual asbestos fiber within the body. Gutteridge, 804 A.2d at 652; Lonasco v. A-Best Products Co., 757 A.2d 367, 375 (Pa. Super. 2000). "Instead, in order to make out a prima facie case, it is well established that the plaintiff must present evidence that he inhaled asbestos fibers shed by the specific manufacturer's product." Lonasco, 757 A.2d at 375-76 (italics added). A plaintiff must, however, establish more than the mere presence of asbestos in the workplace. The plaintiff must establish that he worked in the vicinity of a specific manufacturer's product. Gutteridge, 804 A.2d at 652; Lonasco, 757 A.2d at 376.
¶ 8 The nexus between an asbestos product and plaintiff may be established by direct and circumstantial evidence. Gutteridge, 804 A.2d at 652; Lilley v. Johns-Manville Corp., 596 A.2d 203, 207 (Pa. Super. 1991). The testimony of a witness with knowledge relating to the plaintiff's workplace exposure to an asbestos-containing product is admissible when probative. Gutteridge, 804 A.2d at 652-653; Lilley, 596 A.2d at 207. Even when the plaintiff is not able to identify specific products manufactured by particular defendants, the testimony of co-workers is admissible to establish that the plaintiff worked in close proximity to the asbestos products in question. Gutteridge, 804 A.2d at 653; Taylor v. Celotex Corp., 574 A.2d 1084, 1091-92 (Pa. Super. 1990).
¶ 9 The record before us discloses the following. Mr. Wright was employed as an electronic engineer in the research and development department of Scott Paper from 1958 to 1963. Mr. Wright's employment required him to be at Scott Paper manufacturing plants. Mr. Wright estimated that he spent one to two days out of every six months at Scott Paper's manufacturing plant in Chester, Pennsylvania. Mr. Wright recalled that while at the Chester plant asbestos "was flying around the room" from the rollers "as they manufactured the paper." Asked where the asbestos came from, Mr. Wright testified, "I think it was on the felts that they were running on." Mr. Wright did not specifically know whether the felts created dust, he did not specifically identify the manufacturer of the felts, and he did not specifically know at the time of his work at the plant that the felts contained asbestos. It should be noted that Mr. Wright acknowledged daily exposure to asbestos- containing products during a two year stint in the United States Navy, as well as exposure during instances that he performed brake work of his family's automobiles.
¶ 10 Beyond the testimony of Mr. Wright, the record contains the testimony of Albin Koronkiewicz. Mr. Koronkiewicz worked at Scott Paper from 1955 through 1992, and his entire career was spent working on the paper machines. Mr. Koronkiewicz knew that each of the eight paper machines included dryer felts made from asbestos, and that the machines ran almost constantly. When the machines ran they would create dust from the dryer felts. Mr. Koronkiewicz identified Asten as a manufacturer of the dryer felts in use at the Chester plant. The dryer felts contained a label with the Asten brand name and identifying the product as containing asbestos. Except for 30 to 60 day trials of other types of felts, all of the dryer felts in use at Chester were manufactured by Asten and contained asbestos. Mr. Koronkiewicz did not know Mr. Wright personally, but recognized him from a photograph as someone who would be in the Chester plant near the paper machines breathing dust from the dryer felts. There was no testimony indicating that Mr. Wright ever handled the dryer felts.
¶ 11 In entering summary judgment, the trial court concluded that Appellant failed to establish, either through direct or circumstantial evidence, that Mr. Wright inhaled asbestos fibers from Asten's product. The trial court found Mr. Wright's testimony lacking because it put him in the plant only one or two days out of every six months; because he did not know whether the felts created dust; because he did not know if the felts contained asbestos; and because he did not know who manufactured the felts. The trial court also found Mr. Koronkiewicz's testimony lacking because the testimony disclosed a "tenuous" identification of Mr. Wright; because the testimony erroneously placed Mr. Wright at the Chester plant at a time prior to the commencement of Mr. Wright's work there in 1958; and because the testimony indicated that felts other than the Asten felts were used at the plant. In sum, the trial court found:
Koronkiewicz testified that dryer felts from various manufacturers, not just Asten, were used at the Chester plant. Moreover, Plaintiff has failed to establish that [Mr. Wright] was present at the Chester plant with the frequency and regularity required by Eckenrod and its progeny. Koronkiewicz's testimony places [Mr. Wright] at the Chester plant for an indeterminate amount of time before he ever worked for Scott Paper and [Mr. Wright's] own testimony only established that he visited the plant at most between two to four days each of the five years he worked for Scott. Thus, at most [Mr. Wright] spent 20 days spread over a five year period at the Chester plant and there is no evidence that Asten dryer felts were in use on any of those 20 days.
As Plaintiff's evidence fails to establish that [Mr. Wright] inhaled asbestos fibers shed from Asten's product on a regular basis, summary judgment was appropriate.
Trial Court 1925 Opinion, 1/7/08, at 7.
¶ 12 Our review of the record leads us to conclude that the trial court took an overly restrictive view of the evidence and the applicable legal standards at the summary judgment stage. In this regard, we note the following deposition testimony of Mr. Wright:
Q: Okay. What did Scott Paper make at its Chester facility?
A: They made toilet paper, roll of all types.
Q: How did they do that, did they use machinery?
A: Machinery. They run it wide rolls and they had a slush that they poured down to make the paper and in turn packed it up and do rolls or whatever they had to do.
Q: Okay. How often would you get to that Chester plant?
A: I'd say at least one every six months or so for a day or two.
Q: All right. And how long would you spend there?
A: A day or so at a time.
Q: When you were at the plant were you exposed asbestos materials?
A: It was flying around the room.
Q: Where would it come from?
A: From the rollers, from the - - as they manufactured the paper.
Q: Where was asbestos on the rollers?
A: I would think it was on the felts that they were running on.
Deposition of Raymond Wright, 5/19/05, at 37-38.
¶ 13 In addition, we note the following deposition testimony of Mr. Koronkiewicz:
Q: When the machines function, do they function all day long?
A: Yes. The only time they would - - the only time a paper machine would go down either for maintenance; or Christmastime which we would shut down, I think it was, 72 hours. And then at the same token, that is right, the dryer felts had to - -the dryers had to run and the Yankee had to run to keep the belt dry. We would - - your mill engineers used to do that. They were allowed to go home for Christmas. They would work over the Christmas holidays.
Deposition of Albin Koronkiewicz, 2/8/07, at 25.
Q: How many total machines were operating in the 50's and ...