Appeal from the Judgment Entered August 5, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): January Term, 2005, No. 0531
The opinion of the court was delivered by: Gantman, J.:
BEFORE: GANTMAN, J., PANELLA, J., and FITZGERALD, J.*fn1
Appellant, Karl Glaab, appeals from the summary judgment entered in the Philadelphia County Court of Common Pleas in favor of Appellees in this asbestos action. Appellant asks us to determine whether he made out a prima facie case of a compensable asbestos-related injury to defeat the entry of summary judgment. We hold Appellant presented a prima facie case of an asbestos-related compensable injury to overcome a dispositive motion at this stage of the proceedings. Accordingly, we vacate and remand the case for further prosecution.
The trial court sets forth the relevant facts and procedural history of this case as follows:
[Appellant] instituted this action on January 5, 2005, alleging [Appellant] was "diagnosed as suffering from pulmonary asbestosis and asbestos-related pleural disease as well as suffering from pulmonary impairment and disability causally related to asbestos exposure and asbestos disease with symptoms, including but not limited to, shortness of breath," as a result of his occupational exposure to asbestos-containing products.' In support of his allegations, [Appellant] submitted the expert report of pulmonologist, Jonathan Gelfand, M.D. Dr. Gelfand reported that [Appellant] "has shortness of breath climbing one flight of stairs," and also "has a dry cough most days." Dr. Gelfand's report further indicated that [Appellant] is 72 inches tall, weighs 232 pounds and smoked one pack of cigarettes a day for approximately 20 to 25 years. Dr. Gelfand administered a pulmonary function test ("PFT"), the results of which led Dr. Gelfand to opine that "severe airflow obstruction with some air trapping and moderate reduction of diffusion," was present. In addition, Dr. Gelfand acknowledged that [Appellant's] "pulmonary function test does not technically meet the criteria for restriction."
1From 1954 through 2003 [Appellant] worked for various plumbing contractors.
On October 9, 2007, [Appellees] filed motions for summary judgment, asserting that [Appellant] failed to state a compensable injury pursuant to Giffear v. Johns- Manville Corp., 632 A.2d 880 (Pa. Super. 1994) and Quate v. Am. Std., Inc., 818 A.2d 510, 513 (Pa. Super. 2003). [Appellees] argued that "a litany of non-asbestos related medical conditions contribut[ed] to [Appellant's] shortness of breath" including:
a) Heart attack 2006 and 2007; b) Bypass surgery with 6 bypasses 2006; c) Insulin dependent diabetes; d) Prostate cancer; e) Chronic obstructive pulmonary disease; f) Pneumonia; g)
Hypothyroidism; h) Hemochromatosis; and i) Chronic back pain.
[Appellees] contended that based on the evidence of record, "[Appellant] has failed to establish the necessary causal link between his shortness of breath and his asbestos exposure because his panoply of current medical conditions create symptoms which are consistent with those that occur from exposure to asbestos, including shortness of breath."
On October 29, 2007, [Appellant] answered [Appellees'] motion arguing that [Appellant] first began experiencing shortness of breath around 2001. [Appellant] argued that his shortness of breath "has gotten worse" from 2001 and he now cannot complete the walk from his garage to his house, a distance of 100 yards, without taking a break. [Appellant] further argued that Dr. Gelfand's report created a reasonable basis on which to relate the physical symptoms suffered by [Appellant] (his shortness of breath on exertion) to asbestos exposure.
On November 29, 2007, after consideration of [Appellees'] motions and [Appellant's] responses thereto, this [c]court granted [Appellees'] motions for summary judgment and dismissed with prejudice all claims against all remaining [Appellees].
After [Appellant] appealed and timely filed his 1925(b)
Statement of Matters Complained of on Appeal, this [c]court issued its [o]pinion on August 7, 2008.
On November 9, 2010, the Superior Court issued an Order remanding this matter for a reconsideration in light of the Pennsylvania Supreme Court's decision in Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152 (2010).
(Trial Court Opinion, filed December 21, 2011, at 1-3) (internal citations and footnote omitted). After reconsideration, the trial court again granted summary judgment in favor of Appellees on August 5, 2011.
On September 1, 2011, Appellant filed a timely notice of appeal. The trial court directed Appellant on October 7, 2011, to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant ...