Haldaman, D. v. Eaton Corporation

J-S47002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL HALDAMAN, AS PERSONAL IN THE SUPERIOR COURT OF REPRESENTATIVE FOR THE ESTATE OF PENNSYLVANIA GERDA W. HALDAMAN

Appellant

v.

EATON CORPORATION, AS SUCCESSOR- IN-INTEREST TO CUTLER-HAMMER, INC.

Appellee No. 1170 EDA 2012

Appeal from the Judgment Entered May 23, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL IN THE SUPERIOR COURT OF REPRESENTATIVE FOR THE ESTATE OF PENNSYLVANIA GERDA W. HALDAMAN

Appellant

v.

P & H MINING EQUIPMENT F/K/A HARNISCHFEGER CORPORATION

Appellee No. 1172 EDA 2012

Appeal from the Judgment Entered May 23, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL IN THE SUPERIOR COURT OF REPRESENTATIVE FOR THE ESTATE OF PENNSYLVANIA GERDA W. HALDAMAN

Appellant

v.

J-S47002-14

READING CRANE & ENGINEERING

Appellee No. 1173 EDA 2012

Appeal from the Judgment Entered May 23, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL IN THE SUPERIOR COURT OF RPRESENTATIVE FOR THE ESTATE OF PENNSYLVANIA GERDA W. HALDAMAN

Appellant

v.

MORGAN ENGINEERING F/K/A MORGAN CRANE

Appellee No. 1174 EDA 2012

Appeal from the Judgment Entered May 23, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL IN THE SUPERIOR COURT OF REPRESENTATIVE FOR THE ESTATE OF PENNSYLVANIA GERDA W. HALDAMAN

Appellant

v.

CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION

Appellee No. 1175 EDA 2012

Appeal from the Judgment Entered May 23, 2012 In the Court of Common Pleas of Philadelphia County

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Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL IN THE SUPERIOR COURT OF REPRESENTATIVE FOR THE ESTATE OF PENNSYLVANIA GERDA W. HALDAMAN

Appellant

v.

GENERAL ELECTRIC COMPANY

Appellee No. 1176 EDA 2012

Appeal from the Judgment Entered May 23, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2011, No. 4493

BEFORE: MUNDY, J., OLSON, J., and WECHT, J. MEMORANDUM BY MUNDY, J.: FILED OCTOBER 03, 2014

In these consolidated appeals, Appellant, Daniel Haldaman, personal representative of the estate of Gerda W. Haldaman, deceased (Decedent), and plaintiff in the underlying asbestos mass tort litigation, 1 appeals from the final judgment entered May 23, 2012,2 which also rendered final the trial

____________________________________________ 1 During the pendency of this appeal, original Appellant, Gerda W. Haldaman died on July 28, 2013. This Court granted the application for substitution of personal representative pursuant to Pennsylvania Rule of Appellate Procedure 502 on October 24, 2013. 2

March 12, 2012 order entering the jury verdict in favor of the last remaining defendant in the case, CertainTeed Corporation (CertainTeed is not a subject of these appeals). In a civil case, an appeal from the entry of a verdict is premature. Taxin v. Shoemaker, 799 A.2d 895, 860 (Pa. Super. 2002), citing Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1244 n.6 (Pa. (Footnote Continued Next Page)

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Appellee, Eaton Corporation, as successor in interest to Cutler-Hammer, Inc. (Eaton); Kentile Floors Inc. (Kentile); P & H Mining Equipment, f/k/a Harnischfeger Corporation (P&H); Reading Crane & Engineering (Reading); Morgan Engineering, f/k/a Morgan Crane (Morgan); CBS Corporation, f/k/a Westinghouse Electric Corporation (CBS Corp.); and General Electric Company (GE). After careful review, we affirm based on the thorough and well-supported opinion of the Honorable Sandra Mazer Moss.

We summarize the procedural history of this case, as gleaned from the certified record, as follows. The instant action was commenced by complaint, filed on March 2, 2011, by Decedent against the various

defendants, alleging she was exposed to asbestos dust while laundering her 3 work clothes, the asbestos dust was generated

contract mesothelioma and interstitial fibrosis. An amended complaint was

_______________________ (Footnote Continued) -trial motions, the trial court entered final judgment in this case. Trial Court Order, -trial motions and unequivocally enters judgment in the same order, that order is immediately appealable and an appeal should be filed within thirty days of its entry on Id. (emphasis in original); cf. Pa.R.C.P. 227.4(2) (directing the prothonotary to enter judgment upon praecipe unless the court itself has entered judgment). The caption has been adjusted accordingly. 3 Ray Haldaman died on April 3, 1996, prior to the commencement of the

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filed on August 9, 2011, naming additional defendants. The case was Upon conclusion of discovery, all of the defendants implicated in this appeal filed respective motions for summary judgment. Between February 13, motions.4

The case proceeded to a jury trial with CertainTeed as the one remaining defendant, commencing on March 7, 2012.5 The jury returned a verdict in favor of CertainTeed that was entered on March 13, 2012. Appellant filed timely post-trial motions on March 22, 2012. On April 19, 2012, Appellant filed seven notices of appeal challenging the judgment relative to each respective Appellee. On April 23, 2012, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on May

____________________________________________ 4 Eaton

on December 20, 2011, was

on December 22, 2011, was granted on February 21, 2012. 5 Other defendants were released from the case by stipulation of the parties or by settlement.

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10, 2012.6 -trial motions and ordered final judgment to be entered in the case.7 Meanwhile, also on May 23, 2012, this Court, acting sua sponte, consolidated the instant appeals. During the pendency of the consolidated appeal, this Court received a notice of suggestion of bankruptcy of Kentile on December 17,

2012, and duly stayed all proceedings on December 27, 2012. On ____________________________________________ 6

deemed waived because his Rule 1925(b) statement is insufficiently clear

1925(b) statement, Appellant noted the trial court had not provided a written explanation of its reasons for granting the

Statement, 5/10/12, at 1; See also Pa.R.A.P. 1925(b)(4)(vi) (providing, Appellant

such a case, the generality of the Statement will not be grounds for finding Appellant then advanced in general terms his allegation that the

explained its determination that Appellant failed to present any material fact sufficient to state a prima facie

whether this determination is correct in light of the factual record, which we deem is fairly suggested by her Rule 1925(b) statement. Accordingly, we decline to find waiver on the bases asserted by Morgan. 7 Having been filed before the final entry of judgment, appeal was premature. See Pa.R.A.P. 301. However, as noted, final judgment was subsequently entered, giving us jurisdiction over this appeal pursuant to notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day accord Am. and Foreign Ins. Co. v. , 948 A.2d 834, 842 n.1 (Pa. Super. 2008) (under Rule 905(a)(5), subsequent entry of judgment perfected premature appeal), affirmed, 2 A.3d 526 (Pa. 2010).

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September 19, 2013, Appellant filed a praecipe for discontinuance of his appeal involving Kentile, whereupon this Court vacated the stay as to the remaining Appellees in this consolidated appeal on April 14, 2014, and briefing was thereafter completed.

On appeal, Appellant raises the following issue for our review.

Whether the [s]ummary [j]udgment in [f]avor of Appellees, P&H Mining Equipment, Inc. was improperly granted in this case, when the entire evidentiary record showed the following: Mrs.

occurred because her husband worked at Bethlehem Steel and (1) the testimony of Mr. Weiss and others establishes he was exposed to asbestos from Kentile when replacing flooring; (2) the testimony of others establishes he was exposed to asbestos from

replacement parts; (3) the testimony of Mr. Potteiger and others establishes Mr. Haldaman was exposed to asbestos from multiple crane brake manufacturers? 8

____________________________________________ 8 P&H has not filed a brief in this appeal. Reading, CBS Corp., and GE contend in their appellate briefs that this Court should quash this appeal due

ure in

his statement of the case section is argumentative, fails to include a summary of argument, contains insufficiently developed argument, and fails to append the trial court -20; CBS Corp. and -16; see also Pa.R.A.P. 2111, 2116-2119. We

example, it places much of the factual analysis relevant to its argument in its statement of the case section, and the question presented is unartfully drafted. However, because these defects do not impede our ability to conduct appellate review, we decline to find waiver or quash the appeal. We (Footnote Continued Next Page)

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judgment requires us to determine whether the trial court abused its discretion or

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa. Super. 2012) (citations

ecord in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact

Barnes v. Keller, 62 A.3d 382, 385 ere there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be

Id. The rule governing summary judgment has been codified at Pennsylvania Rule of Civil Procedure 1035.2.

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the _______________________ (Footnote Continued) also note th

appeal referencing Kentile is moot.

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production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2

Motions for summary judgment necessarily and

of [his] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.

Glaab v. Honeywell Intern., Inc., 56 A.3d 693, 696 (Pa. Super. 2012), quoting Chenot v. A.P. Green Servs., Inc., 895 A.2d 55, 60 62 (Pa. Super. 2006). motion for summary judgment was the failure of Appellant to provide prima facie evidence of exposure by Ray Haldaman, and by extension Decedent, to

frequency,

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regularity, proximity factors of Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988), appeal denied, 553 A.2d 968 (Pa. 1988) and its progeny. summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of p

Id. at 53 (citations omitted).

Donoughe v. Lincoln Elec. Co., 936 A.2d 52, 72 (Pa. Super. 2007). a plaintiff may rely on circumstantial evidence of exposure, namely, the frequency of the use of the product and

Id. at 62 (internal quotation marks, brackets, and citations omitted).

There is no requirement that a plaintiff who suffers an asbestos related injury must establish the specific role played by each individual asbestos fiber within the body. Instead, in order to make out a prima facie case, it is well established that the plaintiff must present evidence that he inhaled

product. A plaintiff must, however, establish more than the mere presence of asbestos in the workplace. The plaintiff must establish that he worked in the vicinity product.

The nexus between an asbestos product and plaintiff may be established by direct and circumstantial evidence. The testimony of a witness

exposure to an asbestos-containing product is admissible when probative. Even when the plaintiff is not able to identify specific products manufactured

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by particular defendants, the testimony of co- workers is admissible to establish that the plaintiff worked in close proximity to the asbestos products in question.

Wright v. Allied Signal, Inc., 963 A.2d 511, 514-515 (Pa. Super. 2008) (internal quotation marks and citations omitted). Our Supreme Court has described how to apply these frequency, regularity, and proximity factors.

are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a

product caused his harm, from those in which such likelihood is absent on account of only casual or

Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 225 (Pa. 2007). In Gregg, judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a the necessary inference of a sufficient causal connection between the

Id. at 227.

Instantly, Appellant contends the trial court erred in determining he failed to produce evidence of frequent, regular, and proximate exposure to references the deposition testimony and affidavits of several of Ray

-workers as fulfilling his requirement to present a prima facie case of such exposure. Id. After careful review of the entire record, we

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conclude the trial court did not err or abuse its discretion in determining that all Appellees were entitled to summary judgment, as Appellant failed to Opinion, 8/22/12, at 5-8. The trial court carefully recounts the specific fails to present a material issue of fact about such exposure. Id.

Based on our independent review of the record, we agree. While the evidence viewed in the light most favorable to Appellant tends to show that, in general, asbestos containing products were present in the workplace times been around such products when they created dust, there is no products. More particularly, we agree that the deposition testimony and

-workers, John Weiss, Joseph Anfuso, Brian Gaugler, Michael Carl, John D. Wagner, Theodore Potteiger, Anthony Lubenesky, and Thomas G. Jones, relied on by Appellant, failed to establish an issue of material fact rel particular products and times, did not mention the presence of Ray Haldaman, and specific references to Ray Haldaman did not place him in proximity of specific asbestos containing products at specific times. All that

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Appellant established was general potential exposure from various sources nexus between Ray Haldaman, and by extension Decedent, and any of

See Wright, supra. Accordingly, we adopt the thorough analysis of the law and facts as developed by the Honorable Sandra Mazer Moss in her August 22, 2012 opinion as our own for purposes of further appellate review and affirm the orders granting summary judgment.9

Orders affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/3/2014

____________________________________________ 9

grant of as it is now moot.

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