Chenot v. A.P. Green Services, Inc.

895 A.2d 55

Joanne CHENOT, Executrix of the Estate of Fred Chenot, Deceased, and Joanne Chenot in Her Own Right, v. A.P. GREEN SERVICES, INC., a/k/a Bigelow-Liptak Corporation, A.P. Green Industries, Inc. f/k/a A.P. Green Refractories Co., A-Best Products Company, Inc., in its Own Right and as Successor in Interest to Asbestos Products Company, Allied Glove Corporation, Armstrong World Industries, Inc., Asbestos Claims Management (AMAC) Successor by Change of Name Only to the National Gypsum Company, Beazer East, Inc., in its Own Right and as Successor in Interest to Koppers Co. Inc. and Other Related Companies Including Thiem Corp., Beazer USA Inc. and Beazer P. LC, CBS Corporation f/k/a Westinghouse Electric Corporation, Dravo Corporation, Durabla Manufacturing Company, in its Own Right and as Successor to Durabla Canada Ltd., the Flintkote Company, GAF Corporation, in its Own Right and as Successor in Interest to the Ruberoid Company, the Gage Company f/k/a Pittsburgh Gage and Supply Company, George V. Hamilton Inc., Hatzel & Buehler Inc., Limbach Company, Mahoning Valley Supply Company of Youngstown, Ohio, the Marmon Group, Inc., in its Own Right and as Successor in Interest to the Cerro-Marmon Corp, Cerro Corp, Cerro Wire & Cable Co., Inc., the Rockbestos Co., and the Rockbestos Products Corp., McCarls, Inc., Ms Jacobs & Associates, OIC Valves, Fabri-Valve, Division of ITT Grinnell Valve Company Inc., Cashco, Inc., Dezurik, Inc., Crane Valve Group, Marlin Valve, Ohio Edison Company, Okonite Company Owens Illinois Inc., Pabst Electric Company, Inc., Rutland Fire Clay Company, the Sager Corporation, Successor in Interest to the Sager Glove Corporation, Townsend & Bottum, Inc., United States Gypsum Company, Wheeler Protective Apparel, Inc., Metropolitan Life Insurance Company a/k/a Metropolitan Insurance Company, Appellees, v. Hardware & Supply Company, Industrial Brown Hoist Corporation, d/b/a American Hoist & Derrick Co., Inc., Leeds & Northrup Company, W.M. Pattison Supply Company, American Blower Supply Inc., Tom Brown Inc., a/k/a Tom Brown Industrial Supply Company, Illes Power & Control Company, Pennsylvania & West Virginia Supply a/k/a Ross Willoughby Company, Scott Lumber Company d/b/a the Louis Berkman Company, Belden Brick Company, Alltel Supply Inc., f/k/a Buckeye Telephone & Supply Company, Building Products Supply Company, Inc., Argo Packing Company, F & L Holding Company, Inc., f/k/a Frick & Lindsay Company, Milton Roy Company the Gage Company f/k/a Pittsburgh Gage & Supply Inc., A-S-H Industries a/k/a Allen Sherman Hoff Company, Graybar Electric Company Inc., Eaton Corporation, Successor-in-Interest to Cutler-Hammer, Inc., Appellees.

Appeal of: Joanne Chenot.

Superior Court of Pennsylvania.

Argued April 27, 2004.

Filed March 13, 2006.

COPYRIGHT MATERIAL OMITTED

David Rodes, Pittsburgh, for appellant.

Michael R. Bucci, Pittsburgh, for Beazer East, appellee.

Mark Shepard, Pittsburgh, for Ohio Edison, appellee.

BEFORE: HUDOCK, GANTMAN, and POPOVICH, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Joanne Chenot, as Executrix of the Estate of Fred Chenot, deceased, and in her own right, appeals from the order of the Allegheny County Court of Common Pleas, which granted summary judgment in favor of Appellee, Beazer East, Inc. ("Beazer").¹ We reverse and remand for further proceedings consistent with this disposition.

¶ 2 The relevant facts and procedural history of this appeal are as follows. Fred Chenot ("decedent") worked as a helper for an independent contractor ("Philip Carey") in 1951. Philip Carey performed work for the Koppers Company ("Koppers"), predecessor in interest to Beazer, at Koppers' Kobuta manufacturing facility outside of Pittsburgh, PA.² While working as a helper for Philip Carey at Koppers' Kobuta facility, decedent removed existing insulation containing asbestos from the tanks and pipes and replaced it with new insulation containing asbestos products. During the process, he was exposed to considerable dust created by both the tear out of old asbestos insulation as well as the dust created by the installation of new asbestos insulation. Decedent's known exposure to occupational asbestos was at the Kobuta facility in 1950-1951 and at Ohio Edison's R.E. Burger Power Station from 1954-1955. After 1955, decedent stopped working with the insulators. None of his subsequent employment resulted in asbestos exposure.

¶ 3 Decedent was diagnosed with mesothelioma on September 24, 1998.³ On August 4, 1999, decedent filed a complaint in the Allegheny County Court of Common Pleas alleging damages caused by his exposure to asbestos-containing products during the course of his employment. As to Beazer, Appellant specifically charged premises liability, alleging Beazer breached its duty to decedent as a business invitee to maintain the Koppers premises in a reasonably safe condition and/or to warn or protect decedent against the latent hazardous dangers of transportable respirable asbestos fibers arising from the use of asbestos on its premises. Decedent died on January 12, 2000, during the pendency of his claim, and the court substituted Appellant as plaintiff.

¶ 4 During the course of discovery, Appellant repeatedly sought responses from Beazer, in relevant part, to determine the scope of Koppers knowledge about asbestos and its use on the Kobuta premises. On June 26 and July 13, 2001, Appellant filed two separate motions to compel answers to Appellant's discovery requests addressed to Beazer and obtained an order dated July 20, 2001, compelling Beazer to respond within twenty (20) days. Again, on April 25, 2002, Appellant filed another motion to compel Beazer to respond to the same discovery requests and another order was issued on April 29, 2002, directing Beazer to completely answer Appellant's discovery requests.

¶ 5 Without complying with the court's orders, Beazer filed a motion for summary judgment on May 15, 2002, on the grounds that Appellant had failed to identify Koppers as a manufacturer or supplier of asbestos-containing products. Beazer contended it was entitled to judgment as a matter of law because Appellant had failed to meet the requirements of Eckenrod.⁴ In the alternative, Koppers asserted the components it designed, installed, or maintained were "improvements" to real property, and Appellant's claims were barred by the statute of repose under 42 Pa. C.S.A. § 5536.

¶ 6 On June 21, 2002, Appellant filed another motion to compel full and complete answers to discovery requests addressed to Beazer. The motion also requested sanctions in the form of striking Beazer's defenses and deeming the allegations contained in Appellant's complaint as admitted.

¶ 7 On June 25, 2002, Beazer responded to Appellant's motion to compel and motion for sanctions, claiming Appellant's discovery requests were overly broad. Beazer also maintained it was not impeding the discovery process, Appellant's discovery was just a "fishing expedition," and the motion should be denied. Nothing in the record appears to have addressed Appellant's motion for sanctions or Beazer's response.⁵

¶ 8 On August 2, 2002, Appellant filed a response in opposition to Beazer's motion for summary judgment. Appellant thoroughly argued her premises liability claim against Koppers. Appellant further explained that Beazer had failed to provide full and complete answers to specific interrogatories, which would establish that Koppers knew or should have known about the existence and risk of asbestos-related lung diseases. Appellant also argued there was direct testimony in the case so far regarding decedent's direct exposure to asbestos-containing substances at the Kobuta facility and his exposure was significant.

¶ 9 On November 15, 2002, Beazer filed a "supplemental motion for summary judgment" addressing Appellant's premises liability claim. In the motion, Beazer made several assertions: (1) Koppers was originally only a lessee of the Kobuta facility but might actually have been an owner of a portion of the facility during the time decedent worked there as an employee of Philip Carey in 1951; (2) Koppers was operating its plant at the request of and for the benefit of the United States government; (3) Appellant failed to establish the nature of decedent's exposure to asbestos while working at the Koppers facility or the regularity of such exposure; (4) Appellant did not establish a duty or breach of duty owed to decedent, as decedent worked for a highly qualified independent contractor whose work Koppers neither directed or controlled; (5) the court should take judicial notice of the fact that decedent's employer was a major player in the insulation industry; and, (6) "[t]he components designed, built or operated by Koppers constituted `improvements' to real property, as defined in Pennsylvania's statute of repose, codified at 42 Pa.C.S.A. § 5536," which barred Appellant's claims. (Motion for Summary Judgment, filed 11/15/02, at 1-4; R.R. 983a-986a).

¶ 10 The case was placed on the January 2003 trial list. On January 3, 2003, the trial court granted Beazer's motion for summary judgment. On January 17, 2003, Appellant filed a motion for reconsideration. Appellant argued (1)she had established decedent's exposure to asbestos at Koppers' facility; (2) as a member of the Industrial Hygiene Foundation and the National Safety Council in the 1930's and 1940's, Koppers received information from these organizations regarding the risks inherent in asbestos exposure; (3) Koppers owed a duty of care to decedent as a business invitee; (4) Koppers breached its duty by failing to warn decedent of the hazards of asbestos exposure; and, (5) Koppers' breach of that duty was a substantial factor in causing decedent's death. Given Koppers' actual knowledge and its failure to warn decedent, coupled with evidence of decedent's unchallenged exposure to asbestos at Koppers' facility, Appellant urged the court to reconsider and vacate...