Gorton v. Air & Liquid Sys. Corp.

• Citation: 303 F.Supp.3d 278
• Decision Date: 19 March 2018
• Docket Number: Civ. Action No. 1:17–1110
• Parties: Thomas D. GORTON, II, and his wife, Rhonda J. Gorton, Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION As Successor–by–Merger to Buffalo Pumps, et al., Defendants.
• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

303 F.Supp.3d 278

Thomas D. GORTON, II, and his wife, Rhonda J. Gorton, Plaintiffs,

v.AIR & LIQUID SYSTEMS CORPORATION As Successor–by–Merger to Buffalo Pumps, et al., Defendants.

Civ. Action No. 1:17–1110

United States District Court, M.D. Pennsylvania, (Harrisburg).

Signed March 19, 2018

Thomas D. Gorton, II, pro se.

Jason B. Duncan, Law Offices of Peter Angelos, P.C., Harrisburg, PA, Lamont G. McClure, Law Office of Peter G. Angelos, PC, Bethlehem, PA, for Plaintiff.

John A. Fitzpatrick, Wilbraham, Lawler & Buba, Eric J. Kadish, James P. Hadden, Maron Marvel Bradley Anderson & Tardy LLC, Catherine N. Jasons, Thomas P. Hanna, Kelley Jasons McGowan Spinelli Hanna & Reber LLP, Christina M. Rideout, Thomas P. Hanna, Kelley Jasons McGowan Spinelli & Hanna, L.L.P., John Patrick McShea, III, McShea Law Firm, PC, Conrad O. Kattner, McShea Tecce, P.C., Leah A. Lewis, Susan M. Valinis, Reilly Janiczek McDevitt Henrich & Cholden, PC, Joan P. Depfer, Daniel J. Ryan, Jr., Tiffany J. Giangiulio, Christopher N. Santoro, Marshall Dennehey Warner Coleman & Goggin, G. Daniel Bruch, Lauren E. Burke, Peter L. Lejeune, Swartz Campbell LLC, Jason W. Rubin, Goldberg, Miller & Rubin, Tiffany F. Turner, Dickie McCarney & Chilcote, Sharon L. Caffrey, Duane Morris LLP, Carolyn A. Williams, Walter S. Jenkins, Lina M. Carreras, Maron Marvel Bradley Anderson & Tardy LLC, Lee C. Janiczek, Reilly, Janiczek & McDevitt, P.C., John C. McMeekin, II, Rawle & Henderson, LLP, Nathan J. Andrisani, Morgan, Lewis & Bockius LLP, Edward T. Finch, Lavin, O'Neil, Cedrone & Disipio, George S. Bobnak, Christie & Young PC, Christopher N. Santoro, Peter J. Neeson, Scott F. Griffith, Rawle & Henderson, LLP, Joseph I. Fontak, Leader & Berkon LLP, Stewart R. Singer, Ronald L. Daugherty, Salmon, Ricchezza, Singer & Turchi, LLP, Alan R. Gries, Jennifer L. Seme, Gibbons, P.C., Sean R. Riley, LitchField Cavo LLP, W. Matthew Reber, Kelley Jasons McGuire Spinelli & Hanna, LLP, Joseph Cagnoli, Jr., Goldberg Segalla, John A. Turlik, Segal, McCambridge, Singer & Mahoney, Ltd., Thomas J. Johanson, Philadelphia, PA, A. Kai Seelaus, Pro Hac Vice; Barnard Mezzanotte Pinnie and Seelaus LLP, Edward R. Paul, Paul, Flandreau & Berger, LLP, Media, PA, Timothy J. Chiappetta, Dickie, McCamey & Chilcote, P.C., Julie S. Greenberg, Sharon L. Caffrey, Duane Morris, LLP, C. James Zeszutek, David J. Singley, Dinsmore & Shohl LLP, Pittsburgh, PA, Dennis F. Wolford, Kathryn L. Johnston, Reed, Tosh, Wolford & Douglass, PC, Beaver, PA, Vincent F. Reilly, Reilly, Janiczek, McDevitt, Henrich & Cholden, P.C., Merchantville, NJ, John J. Dugan, Salmon, Ricchezza, Singer & Turchi, LLP, Philadelphia, NJ, Joshua D. Lee, Riley Safer Holmes & Cancila LLP, Chicago, IL, Sean M. Marotta, Hogan Lovells US LLP, Washington, DC, for Defendants.

OPINION

CONTI, Chief District Judge

I. Introduction

Pending before the court in this asbestos case initiated by plaintiffs Thomas D. Gorton, II ("Mr. Gorton") and Rhonda J. Gorton (together with Mr. Gorton, "plaintiffs") is a motion to dismiss the complaint (ECF No. 4) filed by defendant Ford Motor Company ("Ford") and a motion to dismiss the complaint filed by Pacific Bell Telephone Co. ("Pacific Bell"), Nevada Bell Telephone Co. ("Nevada Bell"), AT & T Corp.¹ and AT & T, Inc. (collectively with Pacific Bell, Nevada Bell, and AT & T Corp., the "telephone defendants").² Three main arguments are raised in support of dismissal of the complaint: (1) the court is without subject-matter jurisdiction over the claims asserted against the telephone defendants because those claims fall under the exclusive jurisdiction of state workers' compensation systems; (2) the court is without personal jurisdiction over any of the moving defendants; and (3) plaintiffs failed to state any plausible claims for relief.

The arguments with respect to this court's subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) are not persuasive because worker's compensation exclusivity does not limit a federal court's jurisdiction. That argument is more appropriately addressed on the merits of the case. As explained in this opinion, personal jurisdiction may be based upon specific or general jurisdiction. Here, there is no specific jurisdiction. With respect to general jurisdiction, the issue is whether Ford and the telephone defendants consented to general jurisdiction in Pennsylvania under 42 PA. CONS. STAT. § 5301. Because Pacific Bell, Nevada Bell, and AT & T, Inc. were not registered as foreign corporations in Pennsylvania at the time plaintiffs claim that their acts or omissions resulted in Mr. Gorton's exposure to asbestos and there are otherwise insufficient facts to establish personal jurisdiction, the motions to dismiss with respect to those defendants will be granted for lack of personal jurisdiction, pursuant to Rule 12(b)(2). Ford and AT & T Corp. were registered as foreign corporations under Pennsylvania law at the time plaintiffs allege their acts or omissions caused Mr. Gorton's asbestos exposure. Plaintiffs' allegations against those defendants, however, are conclusory and do not pass muster under Rule 12(b)(6). The claims asserted against them will be dismissed without prejudice.

II. Procedural History

On June 23, 2017, this diversity action was removed from the Dauphin County Court of Common Pleas to the United States District Court for the Middle District of Pennsylvania. (ECF No. 1.) Plaintiffs, who are husband and wife, named at least sixty-five defendants in the complaint, including Ford and the telephone defendants. (Id. at 1–4.) Plaintiffs assert the following six counts in the complaint:

—Count I: Products Liability;

—Count II: Breach of Implied Warranty;

—Count III: Negligence;

—Count IV: Intentional Conduct—Fraudulent Concealment;

—Count V: Premises Liability (against only the telephone defendants ); and

—Count VI: Loss of Consortium.

(Id. )

On June 30, 2017, Ford filed a motion to dismiss the complaint and a brief in support of the motion. (ECF Nos. 4, 101.) On the same day, the telephone defendants filed a motion to dismiss the complaint and a brief in support of the motion. (ECF Nos. 10, 102.) On July 14, 2017, plaintiffs filed a response in opposition to each of the motions to dismiss. (ECF Nos. 27, 28.) On July 25, 2017, Ford filed a reply brief in support of its motion to dismiss. (ECF No. 41.) On July 28, 2017, the telephone defendants filed a reply brief in support of its motion to dismiss. (ECF No. 50.)

On January 29, 2018, the court held a hearing with respect to the motions to dismiss. (H.T. 1/29/2018.) Plaintiffs entered three exhibits into evidence. (Id. at 20.) The court having heard from the parties determined supplemental briefing was necessary to resolve the pending motions. (Id. at 46–51.) On February 8, 2018, Ford and the telephone companies filed their supplemental briefs in support of their motions to dismiss. (ECF Nos. 230, 232.) On February 21, 2018, plaintiffs filed their supplemental briefs in response. (ECF Nos. 254, 255.)

The motions to dismiss having been fully briefed are now ripe to be decided by the court.

III. Factual Allegations in the Complaint

Mr. Gorton sustained an asbestos-related injury, and in January 2017, was diagnosed with Pleural Mesothelioma

. (ECF No. 1–4 ¶ 12.) Mr. Gorton was informed of his diagnosis in February 2017. (Id. ) Plaintiffs alleges that while Mr. Gorton was employed by some of the named defendants he was exposed to asbestos through the use of products created by some of the named defendants or while employed on the premises of some of the named defendants. (Id. ¶ 7.)

According to plaintiffs, each defendant has or is "transacting business in Dauphin County, Pennsylvania." (Id. ¶ 6.) Ford has a service address of "c/o CT Corporation System, 116 Pine Street, Suite 320, Harrisburg, Pennsylvania 17101." (Id. ¶ 2(r).) Pacific Bell, "dba AT & T California" has a service address of "CT Corporation System, 818 W. 7^th Street, Suite 930, Los Angeles, California 90017." (Id. ¶ 2(hhh).) Nevada Bell, "d/b/a AT & T Nevada," has a service address of "The Corporation Trust Company of Nevada, 701 S. Carson Street, Suite 200, Carson City, Nevada 89701." (Id. ¶ 2(kkk).) AT & T, Inc. and AT & T Communications Inc., "f/k/a AT & T Communications of Ohio, Inc.," have a service address of "CT Corporation System, 116 Pine Street, Suite 320, Dauphin County, Harrisburg, Pennsylvania 17101." (Id. ¶ 2(lll) and (mmm).)

From the 1950s through the early 2000s, Mr. Gorton breathed air that was contaminated with asbestos dust and fibers shed by asbestos products sold, manufactured, supplied, or distributed upon the premises owned by defendants named in this action, including Ford and the telephone companies. (Id. ¶ 9.) Specifically, Ford manufactured and sold asbestos-containing brake shoes, linings, blocks, and pads and other automotive products. (Id. ¶ 11(r).) The telephone companies used or manufactured "various asbestos products to include but not limited to insulation, both spray and pre-formed, wiring, fire-proofing materials, and asbestos bags or pillows used to seal and fireproof the cable holes," and controlled "various facilities throughout the United States where plaintiff worked." (Id. ¶ 11(hhh, jjj, kkk, lll, mmm).)

From September 1962 until July 1968, Mr. Gorton was employed by Pacific Bell in Los Angeles, California. (Id. ¶ 8(b).) In 1978, and from 1986 through 1988, Mr. Gorton was employed by Nevada Bell in Carson City, Nevada, North Lake Tahoe, Nevada, and Reno, Nevada. (Id. ¶ 8(e).) From 1986 through 1988, Mr. Gorton was employed by AT & T, Inc. and AT & T Communications Inc. in Columbus, Ohio. (Id. ¶ 8(f)-(g).)

IV. Facts Based upon Evidence Presented at the Hearing on January 29, 2018, and attached to the Parties' Submissions with respect to the Motions to Dismiss

AT & T Corp. has been registered as a foreign corporation with the Commonwealth of Pennsylvania since June 4, 1912. (H.T. 1/29/2018 at 20; Pls.' Ex. 1.) Ford has been...