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Gresik v. PA Partners

December 23, 2009

PAULA (LIVINGSTON) GRESIK, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF GERALD LIVINGSTON, JR., APPELLANT
v.
PA PARTNERS, L.P.,
JOSEPH L. BELTOWSKI AND KAREN M. BELTOWSKI, HIS WIFE
v.
PA PARTNERS, L.P., APPELLANT
v.
PAULA (LIVINGSTON) GRESIK, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF GERALD LIVINGSTON, JR.,
v.
PA PARTNERS, L.P.
JOSEPH L. BELTOWSKI AND KAREN M. BELTOWSKI, HIS WIFE APPELLANTS
v.
PA PARTNERS, L.P.,
JOSEPH L. BELTOWSKI AND KAREN M. BELTOWSKI, HIS WIFE
v.
PA PARTNERS, L.P.,



Appeal from the Order Entered August 1, 2008 In the Court of Common Pleas of Somerset County Civil Division at Nos. 325 and 326 Civil 1996.

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

BEFORE: FORD ELLIOTT, P.J., ORIE MELVIN and BENDER, JJ.

¶ 1 Joseph Beltowski, Karen Beltowski, his wife, and Paula Livingstone Gresick, individually and as the administratrix of the estate of Gerald Livingstone, Jr. (Plaintiffs), appeal from the order entering summary judgment in favor of PA Partners, L.P. (Defendant), in Plaintiffs' action against Defendant arising from an accident that occurred in a steel mill previously owned by Defendant. For the reasons that follow, we affirm.

¶ 2 In two separate opinions, the trial court set forth the facts and the procedural history of this case as follows:

Defendants owned and operated a steel plant located near Hollsopple, Somerset County, Pennsylvania, from approximately December 1, 1983 until December 21, 1988. During their tenure as owners/operators of this steel plant, Defendants modified the equipment and operations of the plant to produce steel ingots rather than steel wheels for railroad cars. Among the modifications made to the steel plant were the reduction in size of the fire bricks lining the electric furnace's interior sides and removal of a layer of fire bricks from the bottom of the electric furnace.

On two occasions between May 1984 and December 1988, during the Defendants' ownership of the steel plant, a "burn through" occurred. A "burn through" occurs when the molten steel located within the electric furnace burns through the fire brick lining of the electric furnace as well as the electric furnace shell wall and flows out of the electric furnace itself. On each of these two occasions, the molten steel that burned through the electric furnace shell wall came in contact with a four to six inch water line that supplied water to the cooling panels on the furnaces. This contact in turn caused the water line to rupture and create steam explosions that spewed steam and debris onto the pouring platform below where the electric furnace operators were located. The first "burn through" occurred on electric furnace number one and the second "burn through" occurred on furnace number two. The "burn through" on electric furnace number two resulted in a rupture of a water line that supplied water to the furnace's cooling panels and a steam explosion resulted. However, a worker on the pouring platform escaped the effects of the steam explosion by exiting from the pouring platform by way of an "access draw bridge" that connected the pouring platforms between furnaces number one and two. Some time after the second "burn through" and prior to December 21, 1988, Defendants removed the "access draw bridge" in order to facilitate the operation of the steel plant's overhead cranes.

On December 21, 1988, Defendants sold their interest in the Hollsopple steel plant to Stonycreek Steel, Inc. Thereafter, Stonycreek Steel, Inc. essentially rehired the management and plant workers who had worked for the Defendants in the steel plant and operated the plant in the same manner as the Defendants, namely for steel ingot production. Stonycreek Steel, Inc., later operated under the name of FirstMiss Steel, Inc.

On June 8, 1994, Gerald L. Livingston, Jr., (hereinafter "Decedent") and Joseph L. Beltowski, employees of Stonycreek Steel, Inc., were operating electric furnace number one at the Hollsopple steel plant. At 4:30 a.m., a "burn through" occurred causing molten steel to exit the electric furnace and come into contact with a four to six inch water line which supplied water to the cooling panels of the electric furnace. The water line was not "armored" or "shielded" to prevent molten steel from coming into contact with the line in the event of a "burn through." A series of steam explosions resulted which caused hot steel fragments and parts of the plant's pollution control "dog house" structure to fall onto the pouring platform and strike Decedent and Mr. Beltowski who stood on the pouring platform. There were no means of escape for the Decedent and Mr. Beltowski. As a result of the explosions, the plant lost electric power for the protective overhead electric doors on the pouring platform and the pouring platform was also without lighting. As a result, Decedent died and Mr. Beltowski suffered severe injuries including burns of approximately forty percent of his body.

Trial Court Opinion (T.C.O.), 11/21/02, at 2-4.

Both Plaintiffs subsequently filed civil actions against numerous businesses and corporations associated with the steel mill. Following many years of litigation, only one Defendant remains in the suit today. Similarly, only one viable cause of action remains to be addressed, namely whether Defendant, as seller of the steel mill, can be held liable to Plaintiffs under the RESTATEMENT (SECOND) OF TORTS § 353 pertaining to undisclosed dangerous conditions known to a vendor. The sole Defendant has now called upon this court to [1] reconsider its prior ruling on the Second Motion for Summary Judgment following receipt of additional pre-trial deposition testimony, and [2] to review the "Law of the Case" as previously espoused by [the] Honorable Judge Kim Gibson in his previous interlocutory ruling on Summary Judgment.

T.C.O., 8/1/08, at 2-3. The trial court granted Defendant's Third Motion for Summary Judgment and Plaintiffs then filed this appeal raising four questions for our review. Defendant has filed a cross-appeal, requesting that if we conclude that the trial court erroneously granted Defendant's Third Motion for Summary Judgment, we consider the two issues presented in its cross-appeal. As we here conclude that the trial court did not err in granting the motion, we do not reach the issues presented by Defendant in its cross-appeal.

¶ 3 In their brief, Plaintiffs present four questions for our review:

I. Did the Lower Court err in sustaining the Demurrers to/and or striking portions of the Plaintiff/Appellants' initial and Amended Complaints?

II. Did the Lower Court commit an error of Law in granting Summary Judgment insofar as it created an exception to the holding of Houseman v. Girard Mutual Building and Loan Association without any controlling legal authority?

III. Did the Lower Court commit an error of Law in granting Summary Judgment insofar as it essentially denied the Plaintiff/Appellants' recovery by the imputation of their employer's negligence to their claims in violation of case Law?

IV. Did the Lower Court err in failing to recognize a cause of action for negligent training and sustain the Demurrers to the Plaintiff's allegations of improper negligent operational training of the plants [sic] work force[?]

Brief for Appellant at 5.

¶ 4 In the first question presented for our review, Plaintiffs claim that the trial court erred in granting Defendant's preliminary objections.

In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt.

Floor, Inc. v. Altig, 963 A.2d 912, 915 (Pa. Super. 2009). In the instant case, Plaintiffs challenge the trial court's grant of Defendant's preliminary objections in the form of a demurrer. "When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom." Burgoyne v. Pinecrest Community Assoc., 924 A.2d 675, 679 (Pa. Super. 2007).

ΒΆ 5 Plaintiffs have divided their first question presented for review into two parts. In the first part, they argue that Defendant could have been held liable under a theory of contractor and/or engineer negligence under Section 385 of the ...


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