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Vanaman v. DAP

February 11, 2009

ROBERT VANAMAN, EXECUTOR OF THE ESTATE OF VIOLET VANAMAN, DECEASED AND ROBERT VANAMAN, WIDOWER IN HIS OWN RIGHT, APPELLANT
v.
DAP, INC. AND CROWN CORK & SEAL COMPANY, INC., APPELLEE



Appeal from the Judgment entered September 13, 2006, In the Court of Common Pleas of Philadelphia County Civil at No(s): January Term, 2004 -- No. 3713.

The opinion of the court was delivered by: Stevens, J.

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN, KLEIN, GANTMAN, PANELLA, and DONOHUE, JJ.

OPINION

¶ 1 Following settlement and the entry of judgment on September 13, 2006, with regard to the last remaining defendant in a mass asbestos products liability action, Appellant Robert Vanaman, as Executor of the Estate of his wife, Violet Vanaman, and in his own right, presents challenges to the orders entered in the Court of Common Pleas of Philadelphia County granting summary judgment in favor of two manufacturers, Crown Cork & Seal Company (hereinafter Crown Cork), and DAP, Inc. (hereinafter DAP).

We affirm.

¶ 2 The relevant facts and procedural history are as follows: On November 29, 2004, Violet and Robert Vanaman*fn1 filed a complaint against Appellees Crown Cork and DAP*fn2 alleging Mrs. Vanaman contracted mesothelioma*fn3 as a result of exposure to asbestos products, which were manufactured by Crown Cork and DAP. Specifically, the Vanamans contended that Mr. Vanaman worked at Atlantic Refinery from 1948 to 1961 and Sun Oil from 1961 to 1987, and Mrs. Vanaman inhaled fibers from Mr. Vanaman's work clothes. They alleged Mrs. Vanaman was also exposed to asbestos when the Vanamans conducted home repairs; however, they admitted that, from 1949 to 1993, Mrs. Vanaman smoked approximately one pack of cigarettes per day.

¶ 3 On July 19, 2006, Appellees filed motions for summary judgment. Specifically, Crown Cork, who once owned the Mundet Cork Company (Mundet Cork), which operated an asbestos insulation business, did not contest that Mrs. Vanaman was exposed to asbestos from a Mundet Cork product.*fn4 However, Crown Cork sought summary judgment on the basis the Vanamans' claims were barred by 15 Pa.C.S.A. § 1929.1,*fn5 42 Pa.C.S.A. § 5502,*fn6 and 42 Pa.C.S.A. § 5524.1.*fn7 On the other hand, DAP alleged there was no evidence that Mrs. Vanaman inhaled the fibers of any asbestos- containing product, which was manufactured or sold by DAP.

¶ 4 The Vanamans filed responses to the motions for summary judgment, and the trial court entered summary judgment orders in favor of Appellees.*fn8 This timely appeal followed, and the Vanamans were ordered to file a Pa.R.A.P. 1925(b) statement. The Vanamans timely complied, and the trial court filed a Pa.R.A.P. 1925(a) opinion.*fn9 Thereafter, this Court sua sponte listed this case for en banc consideration.

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.

As already noted, on 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 v. A.P. Green Services, Inc., 804 A.2d 643, 651 (Pa.Super. 2002) (citations omitted).

¶ 5 Regarding the entry of summary judgment in favor of Crown Cork, the Vanamans allege the following: (1) The trial court improperly granted summary judgment in favor of Crown Cork since 15 Pa.C.S.A. § 1929.1 is unconstitutional in that it created a one-member, closed class in violation of Pennsylvania's Equal Protection Clause, Article III, § 32, and is discriminatory as to other corporations; and (2) The trial court improperly granted summary judgment in favor of Crown Cork since 15 Pa.C.S.A. § 1929.1 interferes with the Commerce Clause and protects in-state corporations at the expense of out-of-state corporations, which do business in Pennsylvania. We conclude the Vanamans lack standing to raise these constitutional challenges.

¶ 6 As discussed supra, Crown Cork filed a motion for summary judgment in another case, Johnson v. American Standard, 2009 Pa.Super. 22 (filed Feb. 6, 2007) (en banc), for which an Opinion has been filed by the present en banc panel. Writing for the Majority, our esteemed colleague, the Honorable Maureen Lally-Green, has explained that an appellant must have standing to challenge whether 15 Pa.C.S.A. § 1929.1 is unconstitutional as applied to Crown Cork. For the reasons discussed in Johnson, we conclude that the Vanamans in the case sub judice lack standing to raise their constitutional challenges and we decline to address the constitutional issues further.*fn10

¶ 7 The Vanamans remaining claims relate to the trial court entering summary judgment in favor of DAP on the basis the Vanamans did not present evidence establishing a genuine issue of material fact as to product identity and/or exposure to asbestos.

To survive a motion for summary judgment 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 [as to the manufacturer] 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 [filed by a manufacturer], 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.

Gutteridge, 804 A.2d at 652 (quotations, quotation marks, and citations omitted). See Donoughe v. Lincoln Electric Co., 936 A.2d 52 (Pa.Super. 2007) (holding that, in a products liability case involving asbestos exposure, a plaintiff must present evidence he inhaled asbestos fibers shed by the defendant's product).

¶ 8 Moreover, with regard to causation, in Gregg v. V-J Auto Parts Company, 596 Pa. 274, 943 A.2d 216 (2007), our Supreme Court explained the appropriate application of the "frequency, regularity, and proximity" criterion to asbestos product cases at the summary judgment stage. Specifically, the Supreme Court held that, in a products liability suit brought against a manufacturer or supplier of a product containing asbestos, in order to survive summary judgment, a plaintiff must meet the "frequency, regularity, and proximity" test, even if the plaintiff presents direct evidence of inhalation.*fn11 In so holding, the Supreme Court stated the following:

We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable. Other jurisdictions have considered alternate theories of liability to alleviate the burden. Such theories are not at issue in this case, however, and we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation..The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.

In summary, we believe that it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff's/decedent's asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant's product and the asserted injury.

Gregg, 596 Pa. at 291-92, 943 A.2d at 226 (citations and footnotes omitted).

¶ 9 Regarding the entry of summary judgment in favor of DAP, we examine the relevant portions of Mr. Vanaman's deposition testimony:

BY MR. KADISH:

Q: The next name that you have a check mark next to is DAP, Inc. Why did you ...


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