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Margaret. T. Petrina, Executrix v. Allied Glove Corporation

June 8, 2012

MARGARET. T. PETRINA, EXECUTRIX OF THE ESTATE OF JOSEPH E. PETRINA, DECEASED, AND MARGARET T. PETRINA, IN HER OWN RIGHT, APPELLANT
v.
ALLIED GLOVE CORPORATION, CHAMPLAIN CABLE CORPORATION, AS SUCCESSOR-IN-INTEREST TO HERCULES INC.; CRANE CO., CROWN CORK AND SEAL COMPANY; F.B. WRIGHT COMPANY; GEORGE V. HAMILTON, INC., GEORGIA PACIFIC CORPORATION; GOULDS PUMPS, INC.; HONEYWELL, INC.; ITT CORPORATION, F/K/A/ ITT INDUSTRIES; I.U. NORTH AMERICA, INC., AS SUCCESSOR BY MERGER TO THE GARP COMPANY, FORMERLY KNOWN AS THE GAGE COMPANY, FORMERLY KNOWN AS PITTSBURGH GAGE AND SUPPLY COMPANY; INDUSTRIAL HOLDINGS CORPORATION F/K/A CARBORUNDUM COMPANY; INGERSOLL-RAND; KAISER GYPSUM COMPANY, INC., KENTILE FLOORS, INC.; MCCLURE-JOHNSTON COMPANY; MINE SAFETY APPLIANCE COMPANY; SAFETY FIRST INDUSTRIES, INC., IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO SAFETY- FIRST SUPPLY, INC.; UNION CARBIDE CORPORATION AND ITS LINDE DIVISION, APPELLEES



Appeal from the Order December 30, 2008, Court of Common Pleas, Allegheny County, Civil Division at No. GD 08-008333

BEFORE: DONOHUE, LAZARUS and OTT, JJ.

OPINION BY DONOHUE, J.:

Appellant, Margaret. T. Petrina ("Petrina"), Executrix of the Estate of Joseph E. Petrina, deceased ("Deceased"), and in her own right, appeals from the order entered on December 30, 2008, in the Court of Common Pleas of Allegheny County granting summary judgment in favor of Appellee, Union Carbide Corporation ("Union Carbide"). Petrina contends that the trial court erred in ruling that answers to interrogatories submitted in response to Union Carbide's motion for summary judgment were inadmissible hearsay and thus did not constitute evidence of record showing a genuine issue of fact for trial. Concluding that the trial court's ruling was in error, we reverse the order granting summary judgment and remand the case for further proceedings.

On April 25, 2008, Petrina filed a complaint against various manufacturers and suppliers of asbestos-containing products. Petrina alleged that exposure to asbestos during the course of Deceased's career on various construction projects during the 1950s through the 1970s caused him to contract mesothelioma that resulted in his death. After the close of discovery, on September 28, 2008, Union Carbide filed a motion for summary judgment for lack of product identification, asserting that no evidence demonstrated that Deceased had been exposed to any asbestoscontaining product attributable to Union Carbide.

In her response, Petrina produced deposition testimony from various witnesses, including the Petrina children, that Deceased had breathed in asbestos dust from a joint compound called "Gold Bond" manufactured by National Gypsum, a non-party to this case as a result of its bankruptcy. Union Carbide does not deny that it owned and operated asbestos mines during the time of Deceased's exposure to dust from Gold Bond, or that it was one of several suppliers of asbestos to National Gypsum for use in the manufacturer of Gold Bond during the relevant time period. Such evidence from Petrina, without more, would be insufficient to avoid summary judgment, since it would not constitute evidence that Union Carbide was the supplier of the asbestos in the Gold Bond to which Deceased was exposed. Accordingly, in her response to Union Carbide's summary judgment motion, Petrina offered answers to interrogatories filed by National Gypsum in 1984 in a California case (Tollett, et al. v. Johns-Manville Corp., No. C322816, County of Los Angeles, California). In the answers to interrogatories, National Gypsum stated that Union Carbide was the exclusive supplier of asbestos used in National Gypsum's Gold Bond joint compound from 1967 until 1975.*fn1 The answers to interrogatories were verified by an affidavit signed by Robert Oberkircher, the assistant controller of National Gypsum's Gold Bond Building Products Division. Mr. Oberkircher is now deceased. At oral argument on Union Carbide's motion for summary judgment, Petrina indicated that she intended to call at trial a corporate representative of National Gypsum to testify consistent with the facts contained in the Tollett interrogatory answers. Petrina further stated that in the unlikely event that the corporate representative denied Union Carbide was National Gypsum's exclusive supplier of asbestos after 1967, then the Tollett answers to interrogatories would be admissible as substantive evidence as a prior inconsistent statement pursuant to Rule 803.1(1) of the Pennsylvania Rules of Evidence. After considering the parties' submissions, legal arguments and briefs, the trial court granted summary judgment in favor of Union Carbide by order dated December 30, 2008.

This timely appeal followed, in which Petrina raises two issues for our consideration. First, Petrina contends that the trial court applied the wrong standard of review when deciding Union Carbide's motion for summary judgment, as it viewed the evidence in the light most favorable to the moving party rather than the non-moving party. In particular, Petrina argues that the trial court's focus on the hearsay nature of National Gypsum's answers to interrogatories was inappropriate, as this evidence constituted a proper response in opposition to a motion for summary judgment. Second, Petrina claims that the trial court erred in ruling that Rule 803.1(1) does not apply to prior inconsistent statements by corporate entities. We will address each issue in turn.

With respect to the first issue, our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa. Super. 2006). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938 (2002). In reviewing a trial court's grant of summary judgment,

we apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.

Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of [a] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, 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 and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.

Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa. Super. 2006) (internal citations and quotation marks omitted).

Rule 1035.3 of the Pennsylvania Rules of Civil Procedure states in pertinent part:

Rule 1035.3. Response. Judgment for Failure to Respond

(a) Except as provided in subdivision (e), the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty ...


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