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Burger v. Owens-Illinois

February 11, 2009

JON BURGER AND LOIS BURGER, H/W, APPELLANT
v.
OWENS ILLINOIS, INC., CROWN CORK & SEAL COMPANY, INC., DAP, INC. AN PNEUMO ABEX LLC, APPELLEE



Appeal from the Judgment entered September 13, 2006 In the Court of Common Pleas of Philadelphia County Civil at No(s): January Term, 2006 -- No. 4920.

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, Appellants Jon and Lois Burger present challenges to the orders entered in the Court of Common Pleas of Philadelphia County granting summary judgment in favor of four manufacturers, Crown Cork & Seal Company (hereinafter Crown Cork), DAP, Inc. (hereinafter DAP), Pneumo Abex LLC (successor by merger to Pneumo Abex Corporation) (hereinafter Pneumo Abex), and Owens-Illinois, Inc. (hereinafter Owens-Illinois). We affirm.

¶ 2 The relevant facts and procedural history are as follows: On February 3, 2006, Appellants Jon and Lois Burger filed a complaint against Appellees*fn1 alleging Mr. Burger suffers from mesothelioma*fn2 from the inhalation of asbestos fibers. Mr. Burger alleged he was exposed to asbestos from January 1, 1954 to January 1, 1956 when he worked at New York Shipyard in Camden, New Jersey (hereinafter New York Ship) as an electrician, from January 1, 1956 to January 1, 1997 when he worked at Public Service Electric & Gas Company as an engineer plant supervisor, and from 1956 to 1997 when he performed brake repairs at Bill Boll's Auto Repair in Sewell, New Jersey.

¶ 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 Mr. Burger was exposed to asbestos from Mundet Cork's product when he worked at New York Ship.*fn3 However, Crown Cork sought summary judgment on the basis the Burgers' claims were barred by 15 Pa.C.S.A. § 1929.1,*fn4 42 Pa.C.S.A. § 5502,*fn5 and 42 Pa.C.S.A. § 5524.1.*fn6 On the other hand, DAP, Pneumo Abex, and Owens-Illinois alleged there was no evidence that Mr. Burger inhaled the fibers of any asbestos-containing product, which was manufactured or sold by any of the three companies.

¶ 4 The Burgers filed responses to the motions for summary judgment, and the trial court entered summary judgment orders in favor of Appellees.*fn7

The Burgers filed timely notices of appeal to this Court after the claims against the remaining defendants were settled. By orders entered on October 27, 2006, the Burgers were directed to file Statements pursuant to Pa.R.A.P. 1925(b), the Burgers timely complied, and the trial court filed a Pa.R.A.P. 1925(a) opinion.*fn8 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 Burgers 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;*fn9 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 Burgers 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 Burgers in the case sub judice lack standing to raise their constitutional challenges and we decline to address the constitutional issues further.*fn10

¶ 7 The Burgers remaining claims relate to the trial court entering summary judgment in favor of DAP, Pneumo Abex, and Owens-Illinois on the basis the Burgers 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:

[W]e 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 292, 943 A.2d at 227.*fn11

¶ 9 Regarding the entry of summary judgment in favor of DAP, Mr. Burger's deposition testimony established that Mr. Burger used caulking, sealants, and a window glazing compound, which were manufactured by DAP, when he did home repairs. Deposition of Jon Burger, dated 3/3/06, at 233-245. However, Mr. Burger's deposition testimony established that he did not know whether any of the products contained asbestos in that he did not read any of the labels. Deposition of Jon Burger, dated 2/28/06, at 120-121; Deposition of Jon Burger, dated 3/3/06, at 233-237. Mr. Burger indicated the window glazing compound was sold in a can, and he was exposed to dust when he sanded the window glazing compound and cleaned it off his tools after it had dried. Deposition of Jon Burger, dated 3/3/06, at 233-234, 245-246. He further testified the sealant would get on his hands, and he would inhale dust when he removed old caulking. Deposition of Jon Burger, dated 3/3/06, at 236, 244-245. He indicated that he used the caulking approximately once a year. Deposition of Jon Burger, dated 3/3/06, at 236.

¶ 10 Based on the aforementioned deposition testimony, DAP filed its summary judgment motion on the basis that, while Mr. Burger identified various DAP products to which he was exposed, Mr. Burger presented no evidence that any of the products contained asbestos. Therefore, DAP asserted that the Burgers presented no facts supporting the conclusion Mr. Burger inhaled asbestos fibers, which were shed by a DAP product.

¶ 11 In their opposition to DAP's summary judgment motion, the Burgers acknowledged that Mr. Burger testified he did not know whether any of the products contained asbestos. However, counsel asserted that, after the deposition, since no one had asked Mr. Burger whether he recalled the specific trade name of any of DAP's products, counsel presented Mr. Burger with a list of DAP products and asked him whether he could identify any of the products. Mr. Burger identified DAP 33 Glazing Compound as a DAP product, which he had used. The Burgers attached to their response a notarized affidavit from Mr. Burger which provided in pertinent part:

JON BURGER, being duly sworn upon his oath deposes and says:

1. He had been made aware of the motions for summary judgment filed by various defendants and wishes to clarify testimony which he would have given at deposition if asked.

2. He recalls exposure to the products of DAP checked off on the attached list.

¶ 12 The Burgers also attached a list of products,*fn12 which DAP apparently provided during discovery, and Mr. Burger circled "33 Glazing." In response, DAP filed a reply arguing that Mr. Burger's affidavit was contrary to his deposition testimony, and therefore, should be disregarded as "wholly incredible."

¶ 13 The trial court determined that Mr. Burger's affidavit and the attached list of products, on which Mr. Burger circled "33 Glazing," was insufficient to overcome the entry of summary judgment. Specifically, the trial court indicated:

Despite Burger's failure over six days of deposition testimony to identify any asbestos containing DAP product to which he was exposed, in response to summary judgment, Plaintiffs submitted Jon Burger's affidavit wherein he swore that had he been asked at deposition he would have testified to exposure to DAP products identified on the attached list. See Plaintiff's Response, Exhibit E. In the face of Burger's failure to identify any asbestos products made by DAP over the course of a six day deposition, this Court found that Burger's affidavit was incredible and patently self-serving. "[A] trial court may disregard an affidavit when it is not 'wholly credible.'" Gruenwald v. Advanced Computer, 730 A.2d 1004, 1009 (Pa.Super. 1999); Lucera v. Johns-Manville Corp., 512 A.2d 661, 666 (Pa.Super. 1986). The mere fact that DAP made asbestos products fails to establish that [Mr.] Burger actually inhaled asbestos fibers when his testimony demonstrates otherwise. Thus, summary judgment in DAP's favor was warranted.

Trial Court Opinion filed 7/11/07 at 6 (citation omitted).

¶ 14 On appeal, the Burgers contend the trial court erred in making a credibility determination regarding Mr. Burger's affidavit. That is, the trial court should have accepted the affidavit in the light most favorable to the Burgers and concluded the affidavit, at the very least, presented a genuine issue of material fact as to whether Mr. Burger inhaled fibers from the asbestos containing product, DAP 33 Glazing Compound. The Burgers note that Mr. Burger's affidavit supplemented, but did not contradict, Mr. Burger's deposition testimony, and therefore, pursuant to Pennsylvania Rule of Civil Procedure 1035.3, the affidavit and list were properly attached to the Burgers' motion in opposition to the entry of summary judgment.*fn13

¶ 15 There is no doubt that Rule 1035.3 permits a party to supplement the record when it files a motion in opposition to the entry of summary judgment. As our Supreme Court stated in Gerrow v. John Royle & Sons, 572 Pa. 134, 813 A.2d 778 (2002) (plurality), which was expressly adopted by this Court in Reeves v. Middletown Athletic Assoc., 866 A.2d 1115 (Pa.Super. 2004), and Kurian v. Anisman, 851 A.2d 152 (Pa.Super. 2004):

Rule 1035.3 (response to motion for summary judgment) states: '(b) An adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.' Pa.R.Civ.P. 1035.3(b). Both the timing and scope of the supplementation are at issue. The Superior Court interpreted the rule broadly. We hold that the rule, read in pari material, with Rule 1035.2 (motion for summary judgment) and the Note and Explanatory Comment, does permit the supplementation which was attempted by [the plaintiff].

Rule 1035.2 reads:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or if, after the completion of discovery relevant to the motion, an adverse party who will bear the burden of proof at trial has failed to produce ...


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