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Graver v. Foster Wheeler Corporation

Superior Court of Pennsylvania

June 26, 2014

DAVID AND FRANCES GRAVER, H/W, Appellees
v.
FOSTER WHEELER CORPORATION APPEAL OF: FOSTER WHEELER, LLC, SURVIVOR TO A MERGER WITH FOSTER WHEELER CORPORATION, Appellant; DAVID AND FRANCES GRAVER, H/W, Appellants
v.
FOSTER WHEELER CORPORATION, LLC SURVIVOR TO A MERGER WITH FOSTER WHEELER CORPORATION, Appellee

Appeal from the Judgment Entered December 28, 2011 In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): June Term, 2010, No. 2723. Before DiNUBILE, J.

Maria K. Karos, Dallas, TX, for Foster Wheeler.

Robert E. Paul, Philadelphia, for Graver.

BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.[*]

OPINION

PANELLA, J.

Page 384

The instant matter involves cross appeals arising from an asbestos mesothelioma case. Although both parties have raised a number of issues for our consideration, we find it necessary to reach only one. That issue is whether the statute of repose for improvements to real property set forth in 42 Pa.Cons.Stat.Ann. § 5536 bars asbestos personal injury claims against entities engaged in performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property. We determine that it does.

David Graver, now deceased, was employed at Pennsylvania Power and Light's (" PP& L" ) Holtwood Steam Plant from 1983 until his retirement in 2010. See Trial Court Opinion, 12/28/11, at 3. Within the plant was a boiler designed by Foster Wheeler Corporation (" Foster Wheeler" ). See id. at 5. The boiler was 11 to 13 stories

Page 385

tall, and it is undisputed that it contained asbestos products. See id. During his employment, Mr. Graver alleges he was exposed to asbestos emanating from the boiler's insulation causing him to develop mesothelioma. See id. at 3. As a result, he and his wife sued Foster Wheeler.

Prior to trial, Foster Wheeler filed a motion for summary judgment claiming the statute of repose barred the Gravers' claims against it. See Foster Wheeler's Motion for Summary Judgment (filed July 13, 2011). The trial court denied the motion. See Trial Court Order Denying Foster Wheeler's Motion for Summary Judgment (filed July 27, 2011). Upon conclusion of the Gravers' case, Foster Wheeler filed a motion for compulsory nonsuit again alleging the relevant statute of repose bars suit against it. See Foster Wheeler's Motion for Compulsory Nonsuit (filed September 26, 2011). The trial court also denied this motion. See Reproduced Record [1] (" R.R." ) 1840a, at 91.[2]

A jury found in favor of the Gravers. See Trial Court Opinion, 12/28/11, at 2. Mr. Graver received a gross verdict of $3 million dollars, and Mrs. Graver obtained a $1.5 million dollar verdict for loss of consortium. See id. The trial court molded these verdicts based on the jury's finding that five settling defendants were also liable. See id. Accordingly, the trial court reduced the verdicts by one-sixth for a modified verdict of $500,000 for Mr. Graver and $250,000 for Mrs. Graver. See id. at 3. Both parties filed post-trial motions,[3] which the trial court denied. Each party filed a timely appeal.

The dispositive issue arises from Foster Wheeler's claim that the statute of repose for improvements to real property contained in 42 Pa.Cons.Stat.Ann. § 5536 bars all of the Gravers' claims against it. The Gravers dispute this contention by claiming, inter alia, there is no statutory right to repose in asbestos cases pursuant to Abrams v. Pneumo Abex Corp., 602 Pa. 627, 981 A.2d 198 (Pa. 2009). We begin by addressing our standard and scope of review.

Since we are presented with the trial court's denial of a motion notwithstanding the verdict, we will reverse only upon finding an abuse of discretion or an error of law that controlled the outcome of the case. See Executive Risk Indem., Inc. v. Cigna Corp., 2013 PA Super. 197, 74 A.3d 179, 182 (Pa. Super. 2013) (citation omitted).

The relevant statute of repose states in part:

(a) General rule. Except as provided in subsection (b), a civil action or proceeding against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after ...

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