Eckenrod v. GAF Corp.

Citation375 Pa.Super. 187,544 A.2d 50
Decision Date12 July 1988
Docket NumberA-B
PartiesJean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and Jean E. Eckenrod, in Her Own Right v. GAF CORPORATION, Raymark Industries, Inc., Owens-Corning Fiberglas Corporation,est Products Company, Garlock, Inc., John Crane-Houdaille, Inc., H.K. Porter Company, Inc., Individually and as Successor-in-Interest to Southern Textile Company, Formerly Southern Asbestos Company, the Pittsburgh Gage Company & Anchor Packing Company. Appeal of The PITTSBURGH GAGE COMPANY. Jean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and Jean E. Eckenrod, in Her Own Right, Appellant, v. GAF CORPORATION, Raymark Industries, Inc., Owens-Corning Fiberglas Corporation,est Products Company, Garlock, Inc., John Crane-Houdaille, Inc., H.K. Porter Company, Inc., Individually and as Successor-in-Interest to Southern Textile Co., Formerly Southern Asbestos Co., the Pittsburgh Gage Company & Anchor Packing Company.
CourtSuperior Court of Pennsylvania

Francis X. McTiernan, Jr., Pittsburgh, for Pittsburgh Gage.

Thomas W. White, Pittsburgh, for Eckenrod.

Kathy K. Condo-Caritis, Pittsburgh, for GAF.

David R. Johnson, Pittsburgh, for Raymark.

Thomas Herbertson, Pittsburgh, for A-Best.

John A. Bacharach, Pittsburgh, for Garlock.

Before OLSZEWSKI, TAMILIA and KELLY, JJ.

OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in favor of defendants-appellees A-Best Products Company ("A-Best"); Raymark Industries, Inc.; Owens-Corning Fiberglas Corporation; Garlock, Inc.; and H.K. Porter Company, Inc. ("Porter"). Appellant Eckenrod claims that there was an issue of material fact regarding the liability of Porter and A-Best. Appellant Gage Company maintains that the lower court erred in determining that appellant Eckenrod failed to present sufficient factual evidence that her decedent was exposed to asbestos manufactured and/or supplied by all appellees during his employment with Babcock & Wilcox Company ("B & W"). For reasons discussed below, we affirm the order of the trial court.

Appellant's decedent, Eugene C. Eckenrod, began employment as a millwright in 1959 with B & W. From 1959 to 1982, decedent worked as a maintenance pipefitter, welder, and millwright at the Wallace Run facility. In March 1982, decedent was diagnosed as having lung cancer. He died in November 1982.

Appellant Eckenrod filed suit on November 15, 1984, alleging that her decedent died as a result of exposure to defendants' asbestos products while working at B & W. Most of the defendants moved for summary judgment in early 1987 based on lack of product identification. On March 7, 1987 the motions of GAF Corporation, John Crane-Houdaille, Inc., and Anchor Packing Company were granted and the complaints against them dismissed. On May 7, 1987, the trial court granted the remaining motions for summary judgment and dismissed the complaints against each. 1 It is the May 7, 1987, order that appellants challenge herein.

Appellant Eckenrod challenges only the granting of summary judgment in favor of A-Best and Porter. Appellant Gage Company contends that the judgment was improper as to all defendants. 2 We have declared that when reviewing an order granting summary judgment, our function is to determine whether there exist issues of triable fact. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). We have further determined that:

A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well pleaded facts in the plaintiff's pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

Roland v. Krayco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986); see also Lucera v. Johns-Manville Corp., 354 Pa.Super. 520, 512 A.2d 661 (1986).

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. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). 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. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). 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. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants' products were the cause of plaintiff's injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Eckenrod contends that her decedent used asbestos gloves supplied by A-Best for twenty years, asbestos cloth supplied by A-Best for fifteen years, and asbestos cloth supplied by Porter for eight years while employed by B & W in the furnace area of the Wallace Run Facility. In support of her assertion, appellant claims that traveling requisition forms place both companies as a supplier of the products to B & W. In order to place her husband in the vicinity of the asbestos products and to detail his work activities, appellant relied on affidavits of three co-workers. The affiants indicated that they had worked with the decedent "upon occasion" at the Wallace Run facility; none, however, stated that the decedent worked exclusively or continuously at the Wallace Run furnace during his period of employment. Further, each indicated "exposure" to asbestos products but did not elaborate on the nature or length of the exposure or the brand of products available.

Additionally, while the affiants admitted that Mr. Eckenrod was "exposed to" asbestos products, none clarified the proximity of the products to the workers or that the appellees were the manufacturers/suppliers of the products being used. In fact, the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B & W. Each of these depositions indicates that various appellees sold asbestos products to B & W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product.

Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, 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. Schmidt v. Johns-Manville Corp., No. 80-3339 Slip op. (D.Md. November 30, 1982). Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto. Id.

Upon careful scrutiny of the record, we must uphold the trial court's granting of the motions for summary judgment in favor of Porter and A-Best. We acknowledge that the facts establish that the decedent on occasion was exposed to asbestos; there is no evidence, however, as to the...

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