Kardos v. Armstrong Pumps, Inc.

222 A.3d 393

Joyce E. KARDOS, Executrix of the Estate of Nicholas J. Kardos, Deceased, and Joyce E. Kardos, in Her Own Right, Appellant

v.ARMSTRONG PUMPS, INC.; Atlas Industries, Inc.; Badger Meter, Inc.; Baltimore & Ohio Railroad, Chesapeake & Ohio Railroad, the Chessie System Railroad, and CSX Transportation, Inc. as Successor in Interest To All the Foregoing; Blue M ; Carrier Corporation; Cashco, Inc.; CBS Corporation, a Delaware Corporation, f/k/a Viacom Inc., Successor By Merger To CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; Chevron U.S.A. Products Company, Now Known as Chevron Products Company; Cooper Industries, LLC in Its Own Right and as Successor-in-Interest To Crouse Hinds Company and as Successor-in-Interest To Mcgraw-Edison Company; Crane Co.; Dezurik, Inc.; the Fairbanks Company ; Flowserve US, Inc., Soley and as Successor To Rockwell Manufacturing Company, Rockwell Valves, Inc., Edward Vogt Valve Company, and Hills-McCanna; Fort Kent Holdings, Inc., in Its Own Right and as Successor-in-Interest To Dunham Bush, Inc. and Warren Webster & Co. ; Goulds Pumps, Inc.; Grinnell LLC; Hammond Valve Company ; Hexagon Manufacturing Intelligence, in Its Own Right and as Successor in Interest To Brown & Sharpe; Honeywell, Inc.; I.U. North America, Inc., as Successor By Merger To the Garp Company, Formerly Known as the Gage and Supply Company ; Imo Industries, Inc., f/k/a Imo Delaval Turbine, Inc., Delaval Turbine, Inc., Delavaco Corporation; Industrial Holdings Corporation f/k/a Carborundum Company; Ingersoll-Rand; Invensys; ITT Corporation, f/k/a ITT Industries; Jendoco Construction; Leeds & Northrup Company; Limbach Company; M.S. Jacobs & Associates, Inc.; Metropolitan Life Insurance Company, a/k/a Metropolitan Insurance Company; Milton Roy Company; Mine Safety Appliance Company; Owens-Illinois, Inc.; Patterson Kelly Corporation, a/k/a Harsco Corporation; Rockwell Automation, Inc., in Its Own Right and as Successor-in-Interest To Allen Bradley; Safety First Industries, Inc., in Its Own Right and as Successor-in-interest To Safety First Supply, Inc. ; Spirax Sarco, Inc.; Square D. Company; the Clark Controller Company ; Trane U.S. Inc. f/k/a American Standard, Inc., Appellees

No. 62 WDA 2018

Superior Court of Pennsylvania.

Argued February 19, 2019

Filed October 28, 2019

John R. Kane, Pittsburgh, for appellants.

Deborah M. Knight, Philadelphia, for Flowserve U.S., appellee.

John W. Bruni, Pittsburgh, for Ingersoll-Rand, appellee.

Gregory M. Stokes, Philadelphia, for Rockwell, appellee.

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY GANTMAN, P.J.E.:

Appellant, Joyce E. Kardos, Executrix of the Estate of Nicholas J. Kardos, Deceased, and Joyce E. Kardos, in her own right, appeals from the final order entered in the Allegheny County Court of Common Pleas that disposed of the remaining claims against the remaining defendants in these cases consolidated at Docket No. G.D. 16-003521. Specifically, Appellant challenges the trial court's preclusion order of December 12, 2016, and the summary judgments entered on August 9, 2017, and August 18, 2017, in favor of Appellees, Armstrong Pumps, Inc., The Fairbanks Company ("Fairbanks"), Flowserve US, Inc. ("Flowserve"), Hammond Valve Company, Ingersoll-Rand, Patterson Kelly Corporation, a/k/a Harsco Corporation ("Patterson Kelly"), Rockwell Automation, Inc., in its own right and as successor-in-interest to Allen Bradley ("Rockwell Automation"), and Square D. Company ("Square D").¹ We vacate the orders entering summary judgment in favor of Appellees, reverse the order precluding Mr. Kardos' affidavit and deposition testimony from consideration at the summary judgment stage, and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. In January 2016, doctors diagnosed Mr. Kardos with mesothelioma, a type of cancer caused by exposure to asbestos. On March 10, 2016, Mr. Kardos and Appellant filed a complaint against numerous manufacturers, suppliers, and users of asbestos products. Between July 11, 2016 and July 15, 2016, Appellees Armstrong Pumps, Flowserve, Ingersoll-Rand, Patterson Kelly, Rockwell Automation, and Square D filed motions for summary judgment based on lack of product identification. Further discovery ensued, including a jobsite inspection at Mr. Kardos' former place of employment, Gulf Research.

On September 12, 2016, Mr. Kardos executed an affidavit regarding his work at Gulf Research and his exposures to asbestos while employed there. On September 28, 2016 and September 30, 2016, Defendant Mahoning Valley Supply Co. noticed Mr. Kardos for two separate days of deposition. Defendants and Appellees deposed Mr. Kardos on October 17, 2016 and October 24, 2016; at the end of the second day, Defendants and Appellees noticed a third day of deposition, which occurred on October 26, 2016. The depositions consisted solely of cross-examination regarding Mr. Kardos' work history and his exposure to asbestos-containing products. During the three days of deposition, Appellees Armstrong Pumps, Inc., Flowserve, Ingersoll-Rand, Rockwell Automation, and Square D all began and finished their cross-examinations; Appellees Fairbanks, Hammond Valve Company, and Patterson Kelly attended the deposition but did not question Mr. Kardos. Appellees and Defendants did not notice a fourth day of deposition. Mr. Kardos died on November 3, 2016. On November 14, 2016, Appellant was appointed as executrix of Mr. Kardos' estate and substituted as Plaintiff.

On December 5, 2016, Appellee Fairbanks filed a motion for summary judgment based on a lack of product identification; Appellee Fairbanks further argued the court should not consider Mr. Kardos' affidavit and deposition testimony because these documents were inadmissible hearsay. On December 5, 2016 and December 6, 2016, Appellees Square D and Rockwell Automation filed motions for summary judgment based on Mr. Kardos' lack of regular and frequent exposure to their products and failure to isolate the presence of asbestos in their products. On December 6, 2016, Appellee Hammond Valve Company filed a motion for summary judgment based on lack of product identification and also argued for the preclusion of Mr. Kardos' affidavit and deposition testimony. Appellant filed a response on December 7, 2016, which argued in part that the court should consider Mr. Kardos' affidavit and deposition testimony at the summary judgment stage, and that these documents could be admissible at trial under the Rules of Evidence and Civil Procedure.

On December 9, 2016, Defendant Jendoco Construction and Appellee Rockwell Automation each filed a motion to preclude Mr. Kardos' affidavit and deposition testimony. That same day, Appellee Patterson Kelly filed a motion for summary judgment, which requested preclusion of Mr. Kardos' affidavit and deposition testimony, and further argued that Mr. Kardos failed to meet his burden of product identification. On December 12, 2016, Appellee Armstrong Pumps, Inc., filed a motion to join all preclusion motions filed by other Defendants regarding Mr. Kardos' affidavit and deposition testimony. That same day, the court entered an order that precluded Appellant from using Mr. Kardos' affidavit and deposition testimony in response and opposition to any party's motion for summary judgment.

On August 9, 2017, the court granted summary judgment in favor of Appellees Armstrong Pumps, Inc., Fairbanks, Flowserve, Hammond Valve Company, Ingersoll-Rand, and Patterson Kelly. The court granted summary judgment in favor of Appellees Rockwell Automation and Square D on August 18, 2017. The case proceeded to trial against the remaining Defendants, all of whom eventually settled. The final orders to settle, discontinue, and end were entered on December 6, 2017, which effectively resolved all the remaining claims against the remaining parties. On January 2, 2018, Appellant timely filed a notice of appeal challenging the earlier preclusion and summary judgment orders. The court ordered Appellant, on January 9, 2018, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on January 29, 2018.

Appellant raises the following issues for our review:

WAS THE AFFIDAVIT AND DEPOSITION OF NICHOLAS KARDOS PROPER EVIDENCE TO BE CONSIDERED BY THE TRIAL COURT IN RESPONSE TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT?

WAS THE DEPOSITION OF NICHOLAS KARDOS ADMISSIBLE AT TRIAL PURSUANT TO PENNSYLVANIA RULE OF EVIDENCE 804(B)(1) AND PENNSYLVANIA RULE OF CIVIL PROCEDURE 4020(A)(3) ?

DID THE TRIAL COURT'S RULING OF EXCLUDING THE THREE-DAY DEPOSITION OF A PLAINTIFF DYING FROM MESOTHELIOMA VIOLATE THE OPEN COURT AND REMEDIES CLAUSE OF PA. CONST. ART. I, § [11] AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE PENNSYLVANIA CONSTITUTION AND PUBLIC POLICY?

(Appellant's Brief at 7).

In her first issue, Appellant argues the Rules of Civil Procedure allow the court to consider depositions and affidavits during summary judgment proceedings, even when these documents would be inadmissible hearsay at trial. Appellant contends the use of Mr. Kardos' deposition, where he testified consistently with his affidavit, was proper in this context and expected under the Rules of Civil Procedure. Appellant submits Mr. Kardos was the most appropriate person to speak about his work and asbestos exposure because he had direct and independent knowledge, and this first-hand knowledge weighed in favor of consideration at the summary judgment stage.

In her second issue, Appellant argues Mr. Kardos' deposition falls under the Rule 804(b)(1) exception to hearsay, as Mr. Kardos is unavailable due to his death, he testified during a lawful deposition, and Appellees had the opportunity to cross-examine Mr. Kardos, even though they might not be fully satisfied with their cross-examination. Appellant posits not all parties must...