Carollo v. Forty-Eight Insulation, Inc.
| Decision Date | 28 December 1977 |
| Citation | 381 A.2d 990,252 Pa.Super. 422 |
| Parties | Andrew V. CAROLLO and James Roy DeRocco v. FORTY-EIGHT INSULATION, INC., a corporation, Vimasco Corp., a corporation, Gustin-Bacon, Division of Certain Teed Products Corp., Eagle-Picher Industries, Inc., a corp., Pittsburgh Corning Corporation, Owens-Corning Fiberglass Corp., Johns-Manville Products Corporation and Benjamin Foster, a Division of Amchem Products, Inc. v. WHEELING PITTSBURGH STEEL CORPORATION, United Steelworkers of America, Local 1229, and the United Steelworkers of America International and George V. Hamilton, Inc. v. UNARCO INDUSTRIES, INC., the Philip Carey Manufacturing Company, a/k/a Philip Carey Corporation, and Briggs Manufacturing Company, a/k/a Panacon Corporation and the Celotex Corporation. |
| Court | Pennsylvania Superior Court |
Argued Nov. 9, 1976.
Patrick R. Riley, Greensburg, for appellant at No. 667.
Randall J. McConnell, Jr., Pittsburgh, with him James R. Miller Pittsburgh, for appellant at No. 682.
John David Rhodes, Pittsburgh, with him James R. Hartline Pittsburgh, for appellant at No. 684.
Charles J. Duffy, Jr., Alfred E. Lawson, Joseph B. Bagley, R. Kenneth Willman, Chester S. Fossee, and James F. Manley, Pittsburgh, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
This is an appeal from an order entering summary judgment.
Plaintiffs worked many years for Wheeling-Pittsburgh Steel Corporation, installing insulation in Wheeling-Pittsburgh's Monessen plant. They allege in their complaint that during the course of their employment they contracted asbestosis and pneumoconiosis as a result of prolonged inhalation of asbestos fibers. Defendants are manufacturers of insulation products of which asbestos is allegedly a component; among them are Benjamin Foster, a Division of Amchem Products, Inc., Gustin-Bacon, Division of Certain Teed Products Corp., and Vimasco Corporation. There are also additional defendants; these are still other manufacturers of insulation, and also Wheeling-Pittsburgh and the local and international unions that were plaintiffs' bargaining agents, United Steel Workers of America, Local 1229, and United Steel Workers of America International.
Benjamin Foster, Gustin-Bacon, Vimasco, and the unions moved for summary judgment in accordance with Pa.R.Civ.P. 1035. The motions were filed just before the date set for trial, and were denied on the ground that consideration of them would have delayed the trial. However, when one of the plaintiffs was hospitalized the trial was delayed anyway, so the lower court considered the motions on the merits, and granted them. These appeals are by two of defendants, Owens-Corning Fiberglass Corporation and Pittsburgh Corning Corporation, and one of additional defendants, Unarco Industries, Inc. [1]
The principles that govern such cases as this are settled.
One who moves for a summary judgment has the burden of showing that there is no genuine issue as to any material fact. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). To do this, the moving party must submit affidavits or other evidence in support of the motion. Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974). The court hearing the motion should accept as true all well-pleaded facts and any admissions on file, but should resolve any doubts as to the existence of a genuine issue of a material fact against the moving party. Schacter v. Albert, supra. On appeal, this court must examine the record in the light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Co., 222 Pa.Super. 261, 295 A.2d 143 (1972).
With these principles in mind, we may examine the several motions for summary judgment.
In answer to interrogatories, plaintiffs specified that the insulation product used by them at Wheeling-Pittsburgh was "insulkote." In its affidavit in support of its motion for summary judgment, Benjamin Foster said it did not manufacture a product called "insulkote," but that defendant Johns-Manville Products Corporation did. Benjamin Foster admitted manufacturing, and selling to Wheeling-Pittsburgh, a pre-mixed product similar to insulkote, but it said that no asbestos fibers could escape into the air from its product, so plaintiffs could not have suffered harm from inhaling it. Benjamin Foster said it sold no other product to Wheeling-Pittsburgh.
An examination of plaintiffs' depositions supports Benjamin Foster on these points. In considering these depositions we assume that when plaintiffs specified "insulkote", we are to read that to mean, "whatever pre-mixed product Benjamin Foster manufactured."
There is no evidence that Benjamin Foster sold Wheeling-Pittsburgh any product other than the pre-mixed product. DeRocco at 74, 109. The pre-mixed product was described as "a black substance like a tar," Carollo at 59; it came in 10 or 5-gallon cans, DeRocco at 74.
Plaintiff DeRocco testified as follows:
Q. Did you ever receive or utilize an insulating material that was delivered in a liquid form that was applied by a trowel or with a plastering-type of product; in other words, pre-mixed?
A. Yes.
Q. Who did you receive that from?
A. Insulcote.
Q. Insulcote?
A. C-o-t-e. I think the other was Scott's, S-c-o-t-t-'s. That's all I can recollect now.
Q. From this pre-mixed covering, you did not get any dust from that, did you, when you were using it, since it was already in a liquid state?
A. No, no dust. Odor, possibly, yes.
He also testified as follows, when counsel for Vimasco was questioning him about the various manufacturers and which of their products Wheeling-Pittsburgh used:
Q. And Benjamin Foster?
A. That's the prepared mixture of tar, or sort of a roofing cement, whatever you want to call it.
Q. This was already pre-mixed?
A. Pre-mixed.
Q. How would you get any dust or anything in your lungs from using premixed product.
A. I don't know about dust, I'm not we had to open it and mix it ourselves after it was an accumulation.
Q. Like a paint can?
A. Yes, you shake it up or mix it up, and it had a tough odor to it.
Q. It only had an odor, no flakes coming out of it?
A. I guess so.
There is no evidence to contest Benjamin Foster's affidavit that the combination of asbestos fiber with liquid resins and solvents prevented any asbestos fibers from escaping into the air.
The lower court therefore properly granted summary judgment in favor of Benjamin Foster.
In its affidavit in support of its motion for summary judgment, Gustin-Bacon denied that any Gustin-Bacon product used at the Wheeling-Pittsburgh plant in Monessen contained asbestos; its product that was used there, Gustin-Bacon said, was fiber glass. It admitted that it had manufactured two products, one from 1945 to 1947, and the other from 1945 to 1970, consisting of fiber glass insulation lined with asbestos paper or asbestos-treated cloth. However, it said that these products were promoted and sold solely for use in passenger railroad cars; that they were not suitable for insulating locomotives; and that tank cars during the pertinent period were being insulated with rock wool or cork.
There was ample evidence in plaintiffs' depositions that they used Gustin-Bacon's "snap-on" pipe insulation at the Wheeling-Pittsburgh plant, but they nowhere testified that this product contained asbestos. Thus the Gustin-Bacon affidavit, that the Gustin-Bacon product used at the plant contained only fiber glass, not asbestos, is uncontested. Also, in answers to interrogatories, plaintiffs specified that they worked on insulating locomotives and tank cars for Wheeling-Pittsburgh; there is no evidence that they ever worked on passenger railroad cars, or that any Gustin-Bacon fiber glass asbestos-lined insulation ever found its way into locomotives or tank cars. [2]
The lower court therefore properly granted summary judgment in favor of Gustin-Bacon.
Vimasco contends that the depositions of various persons in record-keeping capacities conclusively showed that no Vimasco product was sold to Wheeling-Pittsburgh during the period of plaintiffs' employment. Furthermore, in its affidavit in support of its motion for summary judgment, it asserts that it sells products containing asbestos only in an incapsulated or liquid state, and that during the manufacture of such products the asbestos fibers are soaked with binder ingredients so that they cannot escape into the air. In granting summary judgment in favor of Vimasco, the lower court said: "Vimasco sold no products to Wheeling-Pittsburgh, plaintiffs' employer," Lower Court Slip Opinion at 3.
Plaintiffs testified, however, to having used Vimasco products:
Q. Is it possible you did not use Vimasco products until the year 1972?
A. Until no, we used it earlier than that.
Q. When is the earliest you have used it?
A. Earlier than '72?
Q. Earlier than say 1945?
A. I can't pinpoint that. I don't recollect that. I can say I used it before 1972.
Q. Let's go backwards. Did you use it before 1965?
A. Yes.
Q. Before 1950?
A. Yes.
Furthermore there was evidence that the Vimasco products used were not only in an incapsulated or liquid state:
Q. As far as Vimasco is concerned, the product that you utilized by them in addition to the pre-mixed, was it sheets, block, rolls?
A. I would say block and cement. That's all I can remember. That's all I can recollect.
Q. Cement, you mean the kind that came in powdered form that you had to mix?
A. Right.
Plaintiffs further testified that they also used the Vimasco brand of three-foot sections of insulation for wrapping around pipes DeRocco at...
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Carollo v. Forty-Eight Insulation, Inc., FORTY-EIGHT
...381 A.2d 990 252 Pa.Super. 422 Andrew V. CAROLLO and James Roy DeRocco v. FORTY-EIGHT INSULATION, INC., a corporation, Vimasco Corp., a corporation, Gustin-Bacon, Division of Certain Teed Products Corp., Eagle-Picher Industries, Inc., a corp., Pittsburgh Corning Corporation, Owens-Corning F......