Grant v. GAF Corp.

Decision Date08 July 1992
Docket NumberA-B
Citation415 Pa.Super. 137,608 A.2d 1047
PartiesVivian GRANT, Administratrix of the Estate of Edward D. Grant, Deceased, and Vivian Grant, in her own right v. GAF CORPORATION, in its own right, and as successor-in-interest to the Ruberoid Company, Raymark Industries, Inc., in its own right and a successor-in-interest to Raybestos-Manhattan, Inc., the Celotex Corporation, in its own right and as successor-in-interest to The Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation; Keene Corporation, in its own right and as successor-in-interest to Baldwin Hill Co., Baldwin-Ehret-Hill, Inc., Ehret Magnesia Manufacturing Company and to the Insulation Division of Mandet Cork Company, to Mundet Company and to Keene Building Products Corporation, Eagle-Picher Industries, Inc., Owens-Corning Fiberglass Corporation, Owens-Illinois Inc., Garlock, Inc.,est Products Company, in its own right and as successor-in-interest to Asbestos Products Company; Pittsburgh Corning Corporation; Armstrong World Industries, Inc., in its own right and as successor-in-interest to Armstrong Cork Co. and Armstrong Contracting and Supply Co., Nicolet, Inc., in its own right and as successor-in-interest to Nicolet Industries, Inc., in its own right and as successor-in-interest to Keasbey & Mattison Co.; H.K. Porter Company, Inc., in its own right and as successor-in-interest to Southern Textile Company, formerly Southern Asbestos Company; Fibreboard Corporation, in its own right and as successor-in-interest to Fibreboard Paper Products Corporation, Pabco, Plant Rubber & Asbestos Works, and Plant Asbestos Co.; General Refractories Company, Inc.; A.P. Green Refractories Company; Theim Corporation, and its Division, Universal Refractories; Oglebay Norton Company, and its Division Ferro Engineering; Foseco, Inc.; Allied Glove Corporation, Harbison-Walker Refractories, Inc.; the Gage Company; George V. Hamilton, Inc.; Kaiser Refractories, Division of Kaiser Aluminum & Chemical Corporation;
CourtPennsylvania Superior Court

Tybe A. Brett, Philadelphia, for appellants (at 1579, 2043 and 2073).

Edward A. Schenck, Pittsburgh, for John Crane-Houdaille, Inc. appellee (at 1579 and 2073).

Fredric E. Orlansky, Pittsburgh, for Owens Corning Fiberglas Corp. appellee (at 1579, 2043 and 2073).

Anna M. Sosso, Pittsburgh, for A.P. Green Refractories, appellee (at 2043) and Johns-Manville, participating party (at 1579).

Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.

CIRILLO, Judge:

These consolidated appeals arise from civil actions commenced by three plaintiffs, individually and on behalf of the estates of their deceased husbands, against various manufacturers and sellers of asbestos-containing products. The complaints in each action alleged that plaintiffs' decedents had developed asbestosis and carcinoma as a result of exposure to defendants' products during the decedents' employment at U.S. Steel Corporation (USX). 1 Upon defendants' motions, the Court of Common Pleas of Allegheny County granted summary judgment in favor of defendant John Crane, Inc. and against plaintiff Vivian Grant (Mrs. Grant), administrator of the estate of Edward D. Grant; in favor of defendants GAF Corporation, Armstrong World Industries, Inc., The Gage Company and A.P. Green Refractories Company and against plaintiff Jean A. Gasparin (Mrs. Gasparin), administrator of the estate of Frank J. Gasparin; and in favor of defendant John Crane, Inc. and against plaintiff Mildred Murray (Mrs. Murray), administrator of the estate of Bernard Murray.

In 1985, prior to the filing of her civil action, Mrs. Grant filed a Workmen's Compensation/Occupational Disease petition (Fatal WC/OD Petition), pursuant to the Workmen's Compensation Act, 2 against her husband's employer, USX Corporation. The petition alleged that the decedent, who died at age 39, was exposed to "deleterious dusts, fumes, vapors and particulates throughout the course of [his] employment," and that the decedent's carcinoma was caused by this exposure in the workplace. A hearing was held before a workers' compensation referee, who determined that "decedent's cancer and subsequent death were not a result of any occupational exposure," and that Mrs. Grant had not met "her burden of proving that Decedent's lifetime disability or death was occupationally related." The testimony of Dr. Harvey Mendelow, who testified before the referee on behalf of USX Corporation, was accepted as competent and credible.

Mrs. Grant appealed the referee's decision to the Workmen's Compensation Appeal Board (the Board). The decision was affirmed. Mrs. Grant then appealed the Board's decision to the Commonwealth Court of Pennsylvania, which affirmed. Grant v. Workmen's Compensation Appeal Board (USX Corp.), No. 989 C.D.1990, slip op. at 4-5 (Pa.Cmwlth.Ct., filed Jan. 18, 1991).

Following the referee's decision, defendant John Crane, Inc. filed a motion for summary judgment in the civil action, and asserted that as a result of the workers' compensation determination Mrs. Grant was collaterally estopped from pursuing her claim. The trial court agreed and granted the defendant's motion. The court stated:

The issue decided in the workmen's compensation matter was identical to the one presented in the instant action, and ... there was a final judgment on the merits in the workmen's compensation proceeding. The plea of collateral estoppel is asserted against one who was a party or in privity with the party to the prior adjudication and the plea is asserted against a party who has had a full and fair opportunity to litigate the issue in question in...

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