Godlewski v. Pars Mfg. Co.

Citation597 A.2d 106,408 Pa.Super. 425
Decision Date04 June 1991
Docket NumberNos. 3217,OWENS-CORNING,s. 3217
Parties, Prod.Liab.Rep. (CCH) P 12,925, Prod.Liab.Rep. (CCH) P 12,981 Stanley GODLEWSKI and Bertha Godlewski, his wife, Appellants, v. PARS MANUFACTURING COMPANY; Owens-Corning Fiberglas Corp.; Lehigh Valley Refractories, Inc.; Anchor Packing Company, Inc.; Celotex Corporation; C.E. Refractories, Division of Combustion Engineering, Inc.; Melrath Gasket, Inc. Robert B. MYERS and Kathryn Myers, his wife, Appellants, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc.; Garlock, Inc. Michael CYWINSKI and Olga Cywinski, his wife, Appellants, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Garlock, Inc.; Flintkote Company. Mary MAROSEVITCH, Administratrix of the Estate of William Marosevitch, Deceased and in her own right, Appellant, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc. Alfred LINCAVAGE, Appellant, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc.; Celotex Corporation; Flintkote Company. Robert DELESCAVAGE and Mary Ann Delescavage, his wife, Appellants, v.FIBERGLAS CORP.; Celotex Corporation; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc.; Combustion Engineering, Inc.; Flintkote Company. PHILA. 1989, 3225-3229 PHILA. 1989
CourtSuperior Court of Pennsylvania

Martin Greitzer, Philadelphia, for appellants (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).

Fredric E. Orlansky, Pittsburgh, for Owens-Corning Fiberglas, appellee (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).

Thomas C. Herbertson, Pittsburgh, for C.E. Refractories, appellee (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).

Diana L. Moro-Bishop, Philadelphia, for Pars Mfg., appellee (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).

Before CAVANAUGH, TAMILIA and HESTER, JJ.

HESTER, Judge:

This is a consolidated appeal from an order entered in the Court of Common Pleas of Luzerne County on November 8, 1989, which granted certain manufacturers and distributors of asbestos-containing products summary judgment. For the reasons set forth below, we reverse in part and remand for further proceedings.

The procedural history of this case may be summarized as follows. Between 1986 and 1988, Stanley Godlewski, Robert Delescavage, Michael Cywinski, Robert B. Myers, and Alfred Lincavage, former employees of the Foster-Wheeler Energy Corporation, instituted actions against several manufacturers and distributors of asbestos-containing materials in an effort to recover damages for injuries allegedly sustained as a result of their job-related exposure to those products. 1 All but Lincavage were joined in the actions by their wives. Mary Marosevitch, in her own right and as administratrix of the estate of William Marosevitch, another Foster-Wheeler employee, initiated a similar suit. 2 In each case, following the closure of both the pleadings and discovery, certain defendants, who asserted that appellants could not demonstrate any exposure to asbestos-containing products manufactured or distributed by them, moved for summary judgment. On November 8, 1989, the trial court, which considered the motions filed in the various cases together, concluded that there were no genuine issues of material fact for resolution and determined that the moving parties were entitled to judgment as a matter of law. Accordingly, it granted the requested relief. This timely appeal followed. 3

Appellants initially assert that the trial court erroneously failed to consider each of the individual actions prior to disposing of the various summary judgment motions. In support of this assertion, which we find is without merit, they contend that the court heard no argument on the motions and disposed of them jointly.

We first consider the oral argument aspect of appellant's claim. It is clear in this Commonwealth that parties to a civil action generally have the right to orally argue motions. Pa.R.C.P. 211. However, pursuant to Rule 270(d) of the Local Rules of Luzerne County, which implements that general principle, a party seeking the opportunity to argue a motion must make a request for argument. 4 In the present case, our review of the record reveals that appellants did not make the necessary request. Therefore, we conclude that they may not predicate error on the court's failure to require oral argument prior to disposing of the motions for summary judgment.

We next turn to the question of the propriety of the trial court's joint disposition of the summary judgment motions. Although our review of the record reveals that the trial court granted the motions in a single order and discussed those dispositions only generally in its opinion, we do not believe that these facts necessarily demonstrate that the trial court improperly failed to examine each individual case. Since all of the actions involved claims arising from exposure to asbestos-containing products and the contested motions challenged appellants' ability to establish a connection between the injuries suffered and the materials of the manufacturers and distributors, one may conclude that the manner of the court's disposition merely was a function of these similarities. Accordingly, appellants are not entitled to relief on this basis.

Appellants also challenge the appropriateness of the summary judgment grants. Preliminarily, we note that our standard for reviewing the propriety of a summary judgment grant is well established. In Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 372, 585 A.2d 504, 507 (1991), we discussed that standard and, quoting Kaller's, Inc. v. Spencer Roofing, 388 Pa.Super. 361, 565 A.2d 794 (1989), stated:

A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass'n., 362 Pa.Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmak Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Moreover in summary judgment proceedings, the court's function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Service, 377 Pa.Super. 366, 372, 547 A.2d 411, 414 (1988). Thus an order grantIng a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Ackler v. Raymark Indus., Inc., 380 Pa.Super. 183, 185, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 321, 528 A.2d 177, 179 (1987); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1987).

Keeping these principles in mind, we must determine whether the trial court correctly granted the contested summary judgment motions. As appellants' claims concern the motions of only three of the defendants, Pars Manufacturing Company ("Pars"), Combustion Engineering, Inc. ("C.E."), and Owens-Corning Fiberglas Corporation ("Owens-Corning"), our analysis will be categorized according to appellee.

Pars Manufacturing Company

We initially consider the appropriateness of the relief granted to Pars Manufacturing Company in both the Godlewski and Lincavage cases. In those actions, Pars moved for summary judgment contending that Godlewski and Lincavage could not establish a connection between their injuries and products distributed by Pars since it sold no asbestos-containing materials to Foster-Wheeler during either person's term of employment. In support of this contention, which related to the ability of Godlewski and Lincavage to establish a fact necessary to support their recovery, see Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988), Pars relied exclusively upon an affidavit of its former chairman and chief executive officer.

It is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action. See Eckenrod v. GAF Corp., supra (wherein, by approving grants of summary judgment on motions that were based upon the failure of the plaintiffs to satisfy an element necessary of their case, we impliedly utilized this principle); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (wherein the Supreme Court considered the language of F.R.C.P. 56(c), which is similar to that set forth in Pa.R.C.P. 1035(b) and explicitly indicated the same). However, it is equally clear that even an uncontradicted affidavit of the moving party or his witnesses will not support, due to the factual issue it raises concerning the credibility of its maker, a grant of summary judgment. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981). In the present case, since Pars relied solely on an affidavit of a witness to...

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