Bugosh v. Allen Refractories Co.

• Decision Date: 18 July 2007
• Docket Number: No. 997 WDA 2006.,No. 996 WDA 2006.,No. 998 WDA 2006.,996 WDA 2006.,997 WDA 2006.,998 WDA 2006.
• Citation: 932 A.2d 901
• Parties: Judith R. BUGOSH, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, in her own Right v. ALLEN REFRACTORIES COMPANY, Allied Glove Corporation, American Smelting and Refining Company, as Successor-in-Interest to Lake Asbestos of Quebec, Ltd., Balph, W.G. Company, Capco Pipe Company, Inc., f/k/a Cement Asbestos Products Company, Certainteed Corporation, Corhart Refractories Co., Garlock, Inc., George V. Hamilton, Inc., Hinkel-Hoffman Supply Company, I.U. North America, Inc., as Successor by Merger to the Garp Company, Formerly Known as the Gage Company, Formerly Known as Pittsburgh Gage and Supply Company, Industrial Holdings Corporation, f/k/a Carborundum Company, J.H. France Refractories Company, Keystone Pipe & Supply Company, Mallinckrodt Group, Inc., in its Own Right and as Successor-in-Interest to Imcera Group, Inc. and International Minerals and Chemical Corporation, and as Successor-in-Interest to Allied Industrial Material Corporation and as Successor-in-Interest to E.J. Lavino Company Melrath Supply & Gasket Company, Metropolitan Life Insurance Company, a/k/a Metropolitan Insurance Company, Ohio Lime Corporation, Quigley Company, Inc., Safety First Industries, Inc., in its own Right and as Successor-in-Interest to Safety First Supply, Inc., Saint-Gobain Abrasives, Inc., Formerly Known as Norton Company, Unifrax Corporation, f/k/a Carborundum Company, Zurn Industries, a/k/a Erie City Iron Workers. Appeal of Taylored Industries, Inc. Judith R. Bugosh, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, in her own Right v. I.U. North America, Inc., as Successor by Merger to the Garp Company, Formerly Known as the Gage Company, Formerly Known as Pittsburgh Gage and Supply Company, E.W. Bowman, Inc., Emhart Glass Inc., Formerly Known as Emhart Manufacturing Company, Formerly Known as Hartford Empire, F.B. Wright Company, Surface Combusion, Inc., Taylored Industries, Inc. Appeal of I.U. North America. Judith R. Bugosh, Administratrix of the Estate of Edward J. Bugosh, Deceased, and Judith R. Bugosh, in her own Right v. E.W. Bowman, Inc., Emhart Glass Inc., Formerly Known as Emhart Manufacturing Company, Known as Hartford Empire and its Division Hartford Empire, F.B. Wright Company, I.U. North America, Inc., as Successor by Merger to the Garp Company, Formerly Known as the Gage Company, Formerly Known as Pittsburgh Gage and Supply Company, Surface Combustion, Inc., Taylored Industries, Inc. Appeal of Surface Combustion, Inc.
• Court: Pennsylvania Superior Court

932 A.2d 901

Judith R. BUGOSH, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, in her own Right v. ALLEN REFRACTORIES COMPANY, Allied Glove Corporation, American Smelting and Refining Company, as Successor-in-Interest to Lake Asbestos of Quebec, Ltd., Balph, W.G. Company, Capco Pipe Company, Inc., f/k/a Cement Asbestos Products Company, Certainteed Corporation, Corhart Refractories Co., Garlock, Inc., George V. Hamilton, Inc., Hinkel-Hoffman Supply Company, I.U. North America, Inc., as Successor by Merger to the Garp Company, Formerly Known as the Gage Company, Formerly Known as Pittsburgh Gage and Supply Company, Industrial Holdings Corporation, f/k/a Carborundum Company, J.H. France Refractories Company, Keystone Pipe & Supply Company, Mallinckrodt Group, Inc., in its Own Right and as Successor-in-Interest to Imcera Group, Inc. and International Minerals and Chemical Corporation, and as Successor-in-Interest to Allied Industrial Material Corporation and as Successor-in-Interest to E.J. Lavino Company Melrath Supply & Gasket Company, Metropolitan Life Insurance Company, a/k/a Metropolitan Insurance Company, Ohio Lime Corporation, Quigley Company, Inc., Safety First Industries, Inc., in its own Right and as

Successor-in-Interest to Safety First Supply, Inc., Saint-Gobain Abrasives, Inc., Formerly Known as Norton Company, Unifrax Corporation, f/k/a Carborundum Company, Zurn Industries, a/k/a Erie City Iron Workers.

Appeal of Taylored Industries, Inc.

Judith R. Bugosh, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, in her own Right v. I.U. North America, Inc., as Successor by Merger to the Garp Company, Formerly Known as the Gage Company, Formerly Known as Pittsburgh Gage and Supply Company, E.W. Bowman, Inc., Emhart Glass Inc., Formerly Known as Emhart Manufacturing Company, Formerly Known as Hartford Empire, F.B. Wright Company, Surface Combusion, Inc., Taylored Industries, Inc.

Appeal of I.U. North America.

Judith R. Bugosh, Administratrix of the Estate of Edward J. Bugosh, Deceased, and Judith R. Bugosh, in her own Right v. E.W. Bowman, Inc., Emhart Glass Inc., Formerly Known as Emhart Manufacturing Company, Known as Hartford Empire and its Division Hartford Empire, F.B. Wright Company, I.U. North America, Inc., as Successor by Merger to the Garp Company, Formerly Known as the Gage Company, Formerly Known as Pittsburgh Gage and Supply Company, Surface Combustion, Inc., Taylored Industries, Inc.

Appeal of Surface Combustion, Inc.

No. 996 WDA 2006.

No. 997 WDA 2006.

No. 998 WDA 2006.

Superior Court of Pennsylvania.

Argued March 15, 2007.

Filed July 18, 2007.

Reargument Denied September 25, 2007.

Matthew R. Wimer, Oakmont, for Taylored, appellant.

Jennifer E. Watson, Pittsburgh, for I.U. North, appellant.

Richard R. Malone, Toledo, OH, and Francis J. Stanek, Morgantown, WV, for Surface, appellant.

John R. Kane, Pittsburgh, for Bugosh, appellee.

BEFORE: JOYCE, BENDER and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 In these three unconsolidated appeals, Appellant manufacturers¹ challenge the $1,400,000 judgment against them² in a products liability action based on allegations that Appellee's decedent Edward J. Bugosh contracted malignant mesothelioma³ from exposure to their asbestos-containing products. We address, inter alia, the request by Appellant Taylored to mold the verdict to reflect funds received by Appellee from the Manville Personal Injury Settlement Trust, finding, pursuant to the requirements of the Trust Distribution Process, that Appellant's claim has been waived. We affirm as to all three judgments.

¶ 2 Appellee's decedent was exposed to asbestos through his employment at two different jobs during the period 1957 to 1966. The first of these jobs, lasting until 1962, which involved laying asbestos cement water and sewer lines for a Pittsburgh construction company, required him to cut pipe, printed with the word "asbestos," which had been delivered to the work site by trucks bearing the logo "Pittsburgh Gage," the predecessor of Appellant I.U. North America, Inc. (IUNA). The cutting process released clearly visible dust. Appellee's decedent was later employed in the decorating division of Anchor Hocking Glass Plant (AHG), a facility manufacturing various types of glass bottles. There his exposure to asbestos containing products included, but was not limited to the mixing of asbestos cement for bricks used to repair lehrs,⁴ and collecting for disposal asbestos pipe covering and other such materials used for replacement or repair of AHG equipment by Surface employees.

¶ 3 Appellee's decedent was diagnosed with mesothelioma in December of 2003, and died during the course of the trial in November of 2005, aged 70. The jury returned a verdict of $1,400,000 against all defendants, and these appeals followed. We will address each Appellant's claims separately. First however, we examine Appellee's contention that the untimeliness of these appeals deprives this Court of jurisdiction to hear them.

¶ 4 The jury returned its verdict on November 16, 2005. On November 25, Appellee moved for delay damages. Appellants filed their respective post trial motions on November 23, (Taylored), 28 (Surface Combustion), and 29 (IUNA). On April 7, 2006, Appellee entered judgment on the verdict pursuant to Pa.R.C.P. 227.4(1)(b), which provides for such procedure where the trial court fails to dispose of post trial motions within 120 days of their filing, and specifies that a judgment so entered is final and not subject to reconsideration.

¶ 5 Appellants moved to strike the judgment in documents filed April 12 and 13, arguing that Pa.R.C.P. 238(c)(3)(1) prohibits the entry of judgment upon the expiration of the 120 day post trial motions period where a request for delay damages is pending. Indeed, a Note to Rule 227.4(1)(b) specifically refers to the Rule 238(c)(3)(1) prohibition. On April 13, Appellee withdrew the request for delay damages, and on April 26 responded to Appellants' strike motions contending that judgments entered under Rule 227.4(1)(b) may not be stricken, and that because the motion for delay damages had been withdrawn, Rule 238(c)(3)(1) was no longer applicable. The trial court disagreed, and on the same date that the court struck the judgment, April 28, 2006, Appellee reentered it.

¶ 6 Before this Court, Appellee has sought to quash the appeals, again advancing the claim that April 7, not April 28, is the operative date for entry of judgment, making Appellants' notices of appeal, filed May 25 and 26, 2006, untimely. We are not persuaded.

¶ 7 The principal basis of Appellee's argument is derived from our decision in Morningstar v. Hoban, 819 A.2d 1191 (Pa.Super.2003), appeal denied, 577 Pa. 690, 844 A.2d 553 (2004). There we quashed an appeal from entry of judgment on the basis of untimeliness, and noted that judgments entered pursuant to Rule 227.4(1)(b) were immune from reconsideration. However, in that case no motion for delay damages was pending at the time the appellant first praeciped for entry of judgment on the verdict. In fact, the Morningstar Court specifically noted that "Appellee's motion for delay damages was resolved . . . long before Appellant filed a praecipe for the entry of judgment." Id. at 1195. Here, Appellee's motion for delay damages was not withdrawn until a week after the entry of judgment, and Appellee provides us with no authority supporting the notion that the withdrawal must be accorded retroactive effect. Accordingly, these appeals are properly before the Court.

¶ 8 As to Appellants' claims on appeal,

[f]or liability to attach in a products liability action, plaintiff must prove that defendant's product caused plaintiff's injury. Eckenrod [v. GAF Corp.], [] 375 Pa.Super. 187, 544 A.2d 50 [, 52 (1988)]. In asbestos litigation, plaintiff must present evidence that he inhaled asbestos fibers shed by defendant's product. Id. In Wilson v. A.P. Green Industries, Inc., 807 A.2d 922 (Pa.Super.2002), we stated "[i]deally, a plaintiff ... will be able to directly testify that plaintiff breathed in asbestos fibers and that those fibers came from defendant's product." Id. at 924. Without such direct evidence, plaintiff must rely on circumstantial evidence of exposure; specifically, plaintiff must meet the Eckenrod test. Id.

Gilbert v. Monsey Products Co., 861 A.2d 275, 276 (Pa.Super.2004), appeal denied, 582 Pa. 718, 872 A.2d 1199 (2005). The Eckenrod standard requires a plaintiff to show "the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto." Id. at 53 (citation omitted).

¶ 9 Appellant Taylored has presented three issues for our review challenging the trial court's refusal: (1) to grant its motion for a directed verdict; (2) to grant its new trial motion; and (3) to mold the verdict to reflect Appellee's receipt of funds from the Manville Trust.

¶ 10 Appellant's first issue advances the claim that Appellee's case, which rested on direct evidence of the decedent's exposure elicited from a co-worker, failed to meet the burden of proof, and thus the trial court erred in refusing to grant its motion for a judgment notwithstanding the verdict.

¶ 11 We first note that "[t]he entry of judgment notwithstanding a jury verdict . . . is a drastic remedy. A court cannot lightly ignore the findings of a duly selected jury." Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103, 110 (1987) (citation omitted).

There are two bases upon which a court may enter a judgment n.o.v.: (1) the movant is entitled to judgment as a matter of law, or (2), the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, a court reviews the record and concludes that even with all factual inferences decided adverse[ly] to the movant, the law nonetheless requires a verdict in [his] favor; whereas with...