Krauss v. Trane U.S. Inc.

• Decision Date: 22 October 2014
• Docket Number: Nos. 644 EDA 2013,s. 644 EDA 2013
• Citation: 104 A.3d 556,2014 PA Super 241
• Parties: Colleen M. KRAUSS, Executor of the Estate of Henry M. Krauss, Appellant v. TRANE U.S. INC., f/k/a American Standard, et al; Allis–Chalmers Corporation; Aqua Chem, Inc., d/b/a Cleaver Brooks Division, Individually and successor in interest to Springfield Boilers; Aventis Cropscience USA, Inc., a/k/a AMCHEM Products Inc., now known as Bayer Cropscience Inc., f/k/a Benjamin Foster Co., c/o Corporation Services Co. ; A.W. Chesterton Co.; Babcock Power, Inc., f/k/a Babcock Borsig Power Inc., f/k/a D.B. Riley Stoker Corporation ; Bondex International Inc., c/o Daniel J. Ryan, Esquire; Crane Company; Crown Cork and Seal Company Inc.; Durable Manufacturing Company, Inc.; Elliot Turbomachinery Company, a/k/a Elliot Company; Foster Wheeler Energy Corporation; Garlock Sealing Technologies, LLC; Georgia–Pacific Corporation, individually and as successor to Bestwall Gypsum Company; Goodrich Corporation; Goulds Pumps Incorporated; Guardline Inc. ; Industrial Holdings Corporation, f/k/a The Carborundum Company, individually and as successor in interest to Lockport Felt, A Division of the Carborundum Company; Ingersoll Rand Company; Kaiser Gypsum Company, Inc. ; KCG Inc., as successor in interest to Ruco; Metropolitan Life Insurance Company; Murco Wall Products, Inc.; Oakfabco, Inc., f/k/a Kewanee Boiler Corporation ; Owens–Illinois Inc., individually and as successor in interest to Owens–Illinois Glass Company; Rapid–American Corporation f/k/a Glen Alden Corporation, individually and as successor-by-merger to Glen Alden Corporation, Briggs Manufacturing Co., Philip Carey Corporation and Philip Carey Manufacturing Company; RPM Inc., as successor to Republic Powdered Metals, successor to Bondex; Sepco Corporation; The Sherwin–William Company; T.H. Agriculture & Nutrition LLC; Union Carbide Corporation, individually and f/k/a Union Carbide Chemicals and Plastic Company, Inc.; Uniroyal Holding, Inc., as successor to United States Rubber Company ; Viacom, Inc., individually and as successor-by-merger to CBS Corporation, f/k/a Westinghouse Electric Corporation; Wickes Corporation, individually and as successor by merger to Wickes Boiler Co. ; Zurn Industries Inc., a/k/a and as successor-by-merger to Erie City Iron Works; Kelly Moore Paint Company Inc.; Borden Chemical Inc., f/k/a Borden Chemical Company and n/k/a Hexio Specialty Chemicals Inc., Prentice Hall Corporation; Certain–Teed Corporation f/k/a Certainteed Products Corporation ; Ford Motor Company; Freeport–McMoran Inc., f/k/a Freeport Chemical Company, and successor to Agrico Inc.; The Pep–Boys Manny, Moe & Jack; A.P. Green a/k/a A.P. Green Refractories, Inc., f/k/a A.P. Green Refractories Company, and a subsidiary of ANH Refractories Company; Benjamin Foster Company, a division of AMCHEM; Harbison–Walker, f/k/a Harbison–Walker Refractories Company and a subsidiary of ANH Refractories Company; Kaiser Aluminum and Chemical Corporation, Appellees. Colleen M. Krauss, Executor of the Estate of Henry M. Krauss, Appellant v. CBS Corporation, et al; ANCO Insulations, Inc.; Borden Chemical Inc., f/k/a Borden Chemical Company and n/k/a Hexion Specialty Chemicals, Inc., Prentice Hall Corporation; CBS Corporation; Certain–Teed Corporation, f/k/a Certainteed Products Corporation ; Ford Motor Company; Freeport–McMoran Inc., f/k/a Freeport Chemical Company and Successor to Agrico Inc.; General Electric Company; Goulds Pumps Inc.; The Pep Boys–Manny, Moe & Jack; Trane U.S. Inc., f/k/a American Standard Inc.; Zurn Industries Inc., a/k/a and as successor-by-merger to Erie City Iron Works; A.P. Green a/k/a A.P. Green Refractories, Inc., f/k/a A.P. Green Refractories Company, and a subsidiary of ANH Refractories Company; Benjamin Foster Company, A Division of AMCHEM ; Harbison Walker f/k/a Harbison Walker Refractories Company and a subsidiary of ANH Refractories Company; Kaiser Aluminum and Chemical Corporation, Appellees.
• Court: Pennsylvania Superior Court

104 A.3d 556

2014 PA Super 241

Colleen M. KRAUSS, Executor of the Estate of Henry M. Krauss, Appellant

v.TRANE U.S. INC., f/k/a American Standard, et al;

Allis–Chalmers Corporation;

Aqua Chem, Inc., d/b/a Cleaver Brooks Division, Individually and successor in interest to Springfield Boilers;

Aventis Cropscience USA, Inc., a/k/a AMCHEM Products Inc., now known as Bayer Cropscience Inc., f/k/a Benjamin Foster Co., c/o Corporation Services Co. ;

A.W. Chesterton Co.;

Babcock Power, Inc., f/k/a Babcock Borsig Power Inc., f/k/a D.B. Riley Stoker Corporation ;

Bondex International Inc., c/o Daniel J. Ryan, Esquire;

Crane Company;

Crown Cork and Seal Company Inc.;

Durable Manufacturing Company, Inc.;

Elliot Turbomachinery Company, a/k/a Elliot Company;

Foster Wheeler Energy Corporation;

Garlock Sealing Technologies, LLC;

Georgia–Pacific Corporation, individually and as successor to Bestwall Gypsum Company;

Goodrich Corporation;

Goulds Pumps Incorporated;

Guardline Inc. ;

Industrial Holdings Corporation, f/k/a The Carborundum Company, individually and as successor in interest to Lockport Felt, A Division of the Carborundum Company;

Ingersoll Rand Company;

Kaiser Gypsum Company, Inc. ;

KCG Inc., as successor in interest to Ruco;

Metropolitan Life Insurance Company;

Murco Wall Products, Inc.;

Oakfabco, Inc., f/k/a Kewanee Boiler Corporation ;

Owens–Illinois Inc., individually and as successor in interest to Owens–Illinois Glass Company;

Rapid–American Corporation f/k/a Glen Alden Corporation, individually and as successor-by-merger to Glen Alden Corporation, Briggs Manufacturing Co., Philip Carey Corporation and Philip Carey Manufacturing Company;

RPM Inc., as successor to Republic Powdered Metals, successor to Bondex;

Sepco Corporation;

The Sherwin–William Company;

T.H. Agriculture & Nutrition LLC;

Union Carbide Corporation, individually and f/k/a Union Carbide Chemicals and Plastic Company, Inc.;

Uniroyal Holding, Inc., as successor to United States Rubber Company ;

Viacom, Inc., individually and as successor-by-merger to CBS Corporation, f/k/a Westinghouse Electric Corporation;

Wickes Corporation, individually and as successor by merger to Wickes Boiler Co. ;

Zurn Industries Inc., a/k/a and as successor-by-merger to Erie City Iron Works;

Kelly Moore Paint Company Inc.;

Borden Chemical Inc., f/k/a Borden Chemical Company and n/k/a Hexio Specialty Chemicals Inc., Prentice Hall Corporation;

Certain–Teed Corporation f/k/a Certainteed Products Corporation ;

Ford Motor Company;

Freeport–McMoran Inc., f/k/a Freeport Chemical Company, and successor to Agrico Inc.;

The Pep–Boys Manny, Moe & Jack;

A.P. Green a/k/a A.P. Green Refractories, Inc., f/k/a A.P. Green Refractories Company, and a subsidiary of ANH Refractories Company;

Benjamin Foster Company, a division of AMCHEM;

Harbison–Walker, f/k/a Harbison–Walker Refractories Company and a subsidiary of ANH Refractories Company;

Kaiser Aluminum and Chemical Corporation, Appellees.

Colleen M. Krauss, Executor of the Estate of Henry M. Krauss, Appellant

v.CBS Corporation, et al;

ANCO Insulations, Inc.;

Borden Chemical Inc., f/k/a Borden Chemical Company and n/k/a Hexion Specialty Chemicals, Inc., Prentice Hall Corporation;

CBS Corporation;

Certain–Teed Corporation, f/k/a Certainteed Products Corporation ;

Ford Motor Company;

Freeport–McMoran Inc., f/k/a Freeport Chemical Company and Successor to Agrico Inc.;

General Electric Company;

Goulds Pumps Inc.;

The Pep Boys–Manny, Moe & Jack;

Trane U.S. Inc., f/k/a American Standard Inc.;

Zurn Industries Inc., a/k/a and as successor-by-merger to Erie City Iron Works;

A.P. Green a/k/a A.P. Green Refractories, Inc., f/k/a A.P. Green Refractories Company, and a subsidiary of ANH Refractories Company;

Benjamin Foster Company, A Division of AMCHEM ;

Harbison Walker f/k/a Harbison Walker Refractories Company and a subsidiary of ANH Refractories Company;

Kaiser Aluminum and Chemical Corporation, Appellees.

Nos. 644 EDA 2013

Superior Court of Pennsylvania.

Argued April 8, 2014.

Filed Oct. 22, 2014.

Jonathan W. Miller, Philadelphia, for appellant.

Kevin L. Tuliszewski, for Georgia Pacific, appellee.

BEFORE: SHOGAN, STABILE and PLATT^* , JJ.

Opinion

OPINION BY SHOGAN, J.:

Appellant, Colleen M. Krauss, Executrix of the Estate of Henry M. Krauss (“Decedent”), appeals from the orders granting summary judgment in favor of Appellees General Electric Company (“GE”); Georgia–Pacific, L.L.C.; CBS Corporation–Westinghouse (“Westinghouse”); Goulds Pumps, Inc.; Zurn Industries; and Trane U.S. Inc., f/k/a American Standard (“American Standard”), (jointly “Appellee Manufacturers”).¹ We affirm.

The trial court summarized the factual and procedural history of this case as follows:

Appellant Colleen M, Krauss, as [Executrix] of the Estate of Henry M. Krauss, commenced suit against twelve (12) defendants on February 7, 2006, under the caption Krauss v. Anco Insulations, Inc., et al, Philadelphia Court of Common Pleas February Term 2006, No. 212. On January 8, 2007, Appellant filed a second suit against thirty-seven (37) additional defendants under the caption Krauss v. Allis Chalmers Corp., et al, Philadelphia Court of Common Pleas January Term 2007, No. 726. Appellant filed a Motion to Consolidate the two actions on February 7, 2011, and the cases were consolidated under the February Term 2006, No. 212 court term and number by court Order dated May 13, 2011.

Appellant Colleen M. Krauss contends Appellant's decedent, Henry M. Krauss, was employed in the bricklaying trade, and during the course of his employment, Mr. Krauss worked at various job sites throughout the state of Louisiana, including at Borden Chemical in Geimser, Kaiser Aluminum and Chemical Company in both Baton Rouge and Gramercy, Freeport Chemical in Convent, AgraCo in Donaldsville, and while in the employ of John Wayne Smith Masonry in Baton Rouge. Appellant claims Mr. Krauss also worked at Kirkland Masonry in Boca Raton, Florida. According to Appellant, Mr. Krauss worked at these job sites between the years of 1978 and 1983 with each job varying in length.

Appellant claims Appellant's decedent was exposed to asbestos at numerous jobsites from working with and/or around Appellees' products, including turbines manufactured by Appellees General Electric and CBS Corporation (Westinghouse); boilers manufactured by Appellees Zurn Industries, Foster Wheeler, LLC and Trane US. Inc. f/k/a American Standard; pumps manufactured by Appellee Goulds Pumps, Inc., and joint compound and other spackling and adhesive products manufactured by Appellee Georgia[-]Pacific, LLC. Appellant claims while on the job the decedent[,] Mr. Krauss[,] got asbestos on his clothes and hair and in his lungs, and as a result he contracted mesothelioma

. Appellant's decedent was not deposed before his death.

On November 13, 2012, all the Appellees filed Motions for Summary Judgment. Appellant filed Answers to the Motions for Summary Judgment of Appellees Georgia–Pacific, LLC; Foster Wheeler, LLC; CBS Corporation (Westinghouse); Goulds Pumps, Inc.; Zurn Industries and Trane US, Inc. f/k/a American Standard on November 30, 2012. Appellant filed an Answer to the Motion for Summary Judgment of Appellee General Electric Company on December 7, 2012. On January 16, 2013[, the trial court] granted summary judgment in favor of Appellee General Electric Company. On January 19, 2013[, the trial court] granted summary judgment in favor of Appellees Foster Wheeler, L.L.C.; Georgia–Pacific, LLC; CBS Corporation (Westinghouse); Goulds Pumps, Inc.; Zurn Industries and Trane U.S. Inc. f/k/a American Standard.

On February 21, 2013, Appellant filed [her] Notices of Appeal of the aforementioned Orders. On February 28, 2013, [the trial court] issued Orders directing Appellant to file a Concise Statement of Matters Complained of on Appeal pursuant to [Pa.R.A.P.] 1925(b). On March 18, 2013, Appellant filed [her] 1925(b) Statements.

Trial Court Opinion, 10/10/13, at 1–3.²

Appellant presents the following issues for our review:

A. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED ALL SIX MOTIONS FOR SUMMARY JUDGMENT WHERE THE AFFIDAVIT OF MIKE MORGAN RAISES A GENUINE ISSUE OF MATERIAL FACT CONCERNING

FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO [ ] ASBESTOS PRODUCTS OF ALL SIX MANUFACTURERS?

B. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF CBS CORPORATION WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN TURBINES OF CBS CORPORATION'S ACKNOWLEDGED PREDECESSOR, WESTINGHOUSE?

C. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF GENERAL ELECTRIC COMPANY WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN TURBINES OF GENERAL ELECTRIC COMPANY?

D. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF GEORGIA–PACIFIC WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING EXPOSURE TO GEORGIA–PACIFIC'S ASBESTOS–CONTAINING PRODUCTS?

E. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF GOULDS PUMPS WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN GOULDS PUMPS?

F. DOES THE RECORD REVEAL GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS CAN BE HELD LIABLE FOR THEIR INCLUSION OF THIRD PARTIES' ASBESTOS–CONTAINING PRODUCTS AS COMPONENTS IN THEIR OWN PRODUCTS?

G. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF TRANE WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN AMERICAN STANDARD BOILERS?

H. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF ZURN WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT,

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