J-A05006-19

                               2019 PA Super 324

 JOYCE E. KARDOS, EXECUTRIX OF           :   IN THE SUPERIOR COURT OF
 THE ESTATE OF NICHOLAS J.               :         PENNSYLVANIA
 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            :
J-A05006-19


 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., DELAVLCO      :
 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

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J-A05006-19



            Appeal from the Final Order Entered December 6, 2017
              In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): No. G.D. 16-003521,
                               No. G.D. 16-003523


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

OPINION BY GANTMAN, P.J.E.:                           FILED OCTOBER 28, 2019

       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

____________________________________________


1Upon Appellant’s praecipe, this Court issued a per curiam order on February
20, 2019, directing the Prothonotary to mark the case settled, discontinued,
and ended as to Appellees Armstrong Pumps, Inc., and Hammond Valve
Corporation, and to remove these Appellees as parties from this appeal.

                                           -3-
J-A05006-19


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-


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J-A05006-19


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


                                     -5-
J-A05006-19


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.


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J-A05006-19


      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

                                      -7-
J-A05006-19


opportunity to cross-examine Mr. Kardos, even though they might not be fully

satisfied with their cross-examination. Appellant posits not all parties must

be present at a deposition to qualify under Rule 804(b)(1), only that the

parties had an opportunity to attend. Appellant continues Appellees’ counsel

were all present at Mr. Kardos’ deposition, and the decision of some attorneys

to refrain from asking questions of Mr. Kardos does not call for the exclusion

of his deposition testimony. Appellant insists the civil standard under Rule

804(b)(1) is plainly an opportunity to cross-examine, while the criminal

standard under Rule 804(b)(1) provides for a full and fair opportunity to cross-

examine. Appellant asserts Mr. Kardos attended three full days of deposition

and was available to all Appellees’ counsel.

      Appellant further argues Mr. Kardos’ deposition is admissible at trial

under Rule 4020(a)(3), which allows for the admission of depositions if the

court finds it is in the interests of justice and exceptional circumstances exist.

Appellant maintains Mr. Kardos gave substantially complete testimony on his

exposure to asbestos from which a jury could rule in Appellant’s favor.

Appellant contends at the very least, the court should have permitted the use

of the deposition against those Appellees who had concluded their cross-

examination of Mr. Kardos.

      In her final issue, Appellant argues the preclusion of Mr. Kardos’ affidavit

and deposition violates the Open Court and Remedies Clause of the

Pennsylvania Constitution as well as public policy, because the court denied


                                      -8-
J-A05006-19


Mr. Kardos and Appellant a remedy and set a precedent that could allow future

defendants to delay or manipulate depositions to their ultimate advantage.

Appellant concludes this Court should reverse the court’s entry of summary

judgment, remand for the court to consider Mr. Kardos’ affidavit and

deposition testimony at the summary judgment stage, and declare his

deposition testimony admissible at trial. We agree in part.

     Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

error of law.   Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347

(Pa.Super. 2006).

        Judicial discretion requires action in conformity with law on
        facts and circumstances before the trial court after hearing
        and consideration. Consequently, the court abuses its
        discretion if, in resolving the issue for decision, it misapplies
        the law or exercises its discretion in a manner lacking
        reason. Similarly, the trial court abuses its discretion if it
        does not follow legal procedure.

Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations and quotation marks omitted).       Our scope of review is

plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001),

cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).         In

reviewing a trial court’s grant of summary judgment,

        [W]e apply the same standard as the trial court, reviewing
        all the evidence of record to determine whether there exists
        a genuine issue of material fact. We view the record in the
        light most favorable to the non-moving party, and all doubts
        as to the existence of a genuine issue of material fact must
        be resolved against the moving party. Only where there is

                                      -9-
J-A05006-19


         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 entered. All doubts as to the
         existence of a genuine issue of a material fact must be
         resolved against the moving party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] 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.

         Upon appellate review, we are not bound by the trial court’s
         conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted) (emphasis added).

      In an asbestos case, the plaintiff must present sufficient evidence

establishing product identification to survive a summary judgment motion.

Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa.Super. 1988), appeal denied,

520 Pa. 605, 553 A.2d 968 (1988). That is, “[the] plaintiff must establish that

the injuries were caused by a product of a particular manufacturer or

supplier.” Vanaman v. DAP, Inc., 966 A.2d 603, 607 (Pa.Super. 2009) (en

banc).   In other words, the plaintiff must present some evidence that he

                                     - 10 -
J-A05006-19


inhaled asbestos fibers shed by the specific manufacturer’s product.

Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 652 (Pa.Super.

2002), appeal denied, 574 Pa. 748, 829 A.2d 1158 (2003). As a result, the

plaintiff must do more than just show the mere presence of asbestos in the

workplace. Lonasco v. A-Best Products Co., 757 A.2d 367, 376 (Pa.Super.

2000), appeal denied, 566 Pa. 645, 781 A.2d 145 (2001).           Instead, the

plaintiff must prove he worked in the vicinity of a specific manufacturer’s

product. Id.

      When evaluating the plaintiff’s evidence in asbestos cases at the

summary judgment stage, Pennsylvania courts use the “frequency, regularity,

and proximity” test established in Eckenrod. Gregg v. V-J Auto Parts, Co.,

596 Pa. 274, 292, 943 A.2d 216, 227 (2007). In Gregg, our Supreme Court

adopted the Eckenrod standard and held that courts should make a reasoned

assessment of whether, in light of the evidence on the frequency, regularity,

and proximity of a plaintiff’s alleged exposure, a jury could draw a sufficient

causal connection between the defendant’s product and the asserted injury.

Id. at 290, 942 A.2d at 227.       Therefore, the relevant inquiry under a

manufacturer’s motion for summary judgment is “whether [a] plaintiff has

pointed to sufficient material facts in the record to indicate that there is a

genuine issue of material fact as to the causation of decedent’s disease by the

product of each particular defendant.” Vanaman, supra at 607. See also

Rost v. Ford Company, 637 Pa. 625, 151 A.3d 1032 (2016) (emphasizing


                                    - 11 -
J-A05006-19


that “frequent, regular, and proximate” test in this context requires evidence

of exposure sufficient to allow jury to infer causal connection between

exposure     to   asbestos-containing     products     and     development     of

mesothelioma).

      Eckenrod, however, is not a rigid test that sets an absolute threshold

required to support liability. Gregg, supra at 290, 943 A.2d at 225. Rather,

courts should apply Eckenrod in an evaluative fashion, in a way tailored to

the facts and circumstances of the case. Linster v. Allied Signal, Inc., 21

A.3d 220, 224 (Pa.Super. 2011), appeal denied, 614 Pa. 714, 38 A.3d 826

(2012).    Application of the test becomes less stringent where the plaintiff

produces specific evidence of exposure to a defendant’s product.             Id.

Similarly, in cases involving mesothelioma, the frequency and regularity

requirements should become “less cumbersome.”            Id.   A plaintiff cannot

survive summary judgment, however, if a jury would need to speculate to find

in plaintiff’s favor. Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa.Super.

2014).

      Regarding summary judgment,            the   Pennsylvania Rules of Civil

Procedure provide:

          Rule 1035.1. Motion       for      Summary         Judgment.
          Definition

          As used in Rule 1035.1 et seq., “record” includes any

          (1) pleadings,

          (2) depositions, answers to interrogatories, admissions and

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J-A05006-19


        affidavits, and

                    Note: See Definition Rule 76 for the definition of
                    “affidavit.” See Rule 1035.4 governing affidavits
                    supporting or defending a motion for summary
                    judgment.

        (3) reports signed by an expert witness that would, if filed,
        comply with Rule 4003.5(a)(1), whether or not the reports
        have been produced in response to interrogatories.

Pa.R.C.P. 1035.1.

        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 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.

              Note: Rule 1035.2 sets forth the general principle that
              a motion for summary judgment is based on an
              evidentiary record which entitles the moving party to
              judgment as a matter of law.

                                    *    *    *

Pa.R.C.P. 1035.2.

        Rule 1035.3. Response.          Judgment for Failure to
        Respond

        (a) Except as provided in subdivision (e), the adverse party

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J-A05006-19


         may not rest upon the mere allegations or denials of the
         pleadings but must file a response within thirty days after
         service of the motion identifying

             (1) one or more issues of fact arising from evidence in
             the record controverting the evidence cited in support of
             the motion or from a challenge to the credibility of one
             or more witnesses testifying in support of the motion, or

             (2) evidence in the record establishing the facts
             essential to the cause of action or defense which the
             motion cites as not having been produced.

                                    *     *      *

         (c) The court may rule upon the motion for judgment or
         permit affidavits to be obtained, depositions to be taken or
         other discovery to be had or make such other order as is
         just.

Pa.R.C.P. 1035.3(a), (c).

         Rule 1035.4. Affidavits

         Supporting and opposing affidavits shall be made on
         personal knowledge, shall set forth such facts as would be
         admissible in evidence, and shall show affirmatively that the
         signer is competent to testify to the matters stated therein.
         Verified or certified copies of all papers or parts thereof
         referred to in an affidavit shall be attached thereto or served
         therewith.      The court may permit affidavits to be
         supplemented or opposed by depositions, answers to
         interrogatories, or further affidavits.

Pa.R.C.P. 1035.4. An affidavit is defined as “a statement in writing of a fact

or facts, signed by the person making it, that either (1) is sworn to or affirmed

before an officer authorized by law to administer oaths, or before a particular

officer or individual designated by law as one before whom it may be taken,

and officially certified to in the case of an officer under seal of office, or (2) is


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J-A05006-19


unsworn and contains a statement that it is made subject to the penalties of

18 Pa.C.S. § 4904 relating to unsworn falsification to authorities[.]” Pa.R.C.P.

76.

      Supporting affidavits in response to a motion for summary judgment are

acceptable as proof of facts. Phaff v. Gerner, 451 Pa. 146, 150, 303 A.2d

826, 829 (1973) (discussing expired Pa.R.C.P. 1035(d), which contains

substantially similar language as in current Rule 1035.4).        Cf. Welsh v.

National Railroad Passenger Corporation, 154 A.3d 386 (Pa.Super.

2017), appeal denied, 641 Pa. 514, 168 A.3d 1283 (2017) (holding trial court

properly refused to consider, at summary judgment stage, signed but unsworn

statements, which plaintiffs asserted were affidavits, because they did not

conform to definition of “affidavit” in Rule 76).

      A nonmoving party can, however, respond to a motion for summary

judgment by relying solely on a proper affidavit to create a genuine issue of

material fact, i.e., a credibility question for the jury.   Burger v. Owens

Illinois, Inc., 966 A.2d 611, 620 (Pa.Super. 2009) (holding trial court erred

in refusing to consider non-movant’s affidavit where affidavit was consistent

with deposition testimony). A party can file a proper affidavit to supplement

the record in order to oppose summary judgment, but the trial court may

disregard the affidavit if the affidavit contradicts the party’s prior testimony,

which makes the affidavit inherently unreliable. Id.

      “The admissibility of evidence is a matter addressed to the sound


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J-A05006-19


discretion of the trial court and should not be overturned absent an abuse of

discretion.” Education Resources Institute, Inc. v. Cole, 827 A.2d 493,

499 (Pa.Super. 2003), appeal denied, 577 Pa. 721, 847 A.2d 1286 (2004)

(quoting Delpopolo v. Nemetz, 710 A.2d 92, 94 (Pa.Super. 1998)).

     Pennsylvania Rule of Evidence 801 defines hearsay as follows:

        Rule 801. Definitions That Apply to This Article

           (a) Statement. “Statement” means a person's oral
        assertion, written assertion, or nonverbal conduct, if the
        person intended it as an assertion.

          (b) Declarant. “Declarant” means the person who
        made the statement.

           (c)   Hearsay. “Hearsay” means a statement that

           (1) the declarant does not make while testifying at the
        current trial or hearing; and

          (2) a party offers in evidence to prove the truth of the
        matter asserted in the statement.

Pa.R.E. 801. Generally, hearsay is inadmissible. Pa.R.E. 802.

     Rule 804 provides in relevant part as follows:

        Rule 804.    Exceptions to the Rule Against
        Hearsay─When the Declarant is Unavailable as a
        Witness

           (a) Criteria for Being Unavailable. A declarant is
        considered to be unavailable as a witness if the declarant:

                                 *     *      *

           (4) cannot be present or testify at the trial or hearing
        because of death…[.]

                                 *     *      *

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J-A05006-19



              (b) The Exceptions. The following are not excluded
           by the rule against hearsay if the declarant is unavailable as
           a witness:

              (1)   Former testimony. Testimony that:

                    (A) was given as a witness at a trial, hearing, or
              lawful deposition, whether given during the current
              proceeding or a different one; and

                    (B) is now offered against a party who
              had─or, in a civil case, whose predecessor in
              interest had─an opportunity and similar motive to
              develop it by direct, cross-, or redirect
              examination.

Pa.R.E. 804(a)(4), (b) (emphasis added).

         The Pennsylvania Rules of Civil Procedure allow a non-movant to use

hearsay in opposition to a motion for summary judgment. Petrina v. Allied

Glove Corp., 46 A.3d 795, 799 (Pa.Super. 2012). See also Pa.R.C.P. 1035.1,

1035.3. A trial court should consider purported hearsay presented by a non-

movant at the summary judgment stage if the non-movant can provide a

plausible avenue for the admission at trial of the hearsay. Petrina, supra at

799.

         The Rules of Civil Procedure allow the use of deposition testimony at

trial:

           Rule 4020. Use of Depositions at Trial

           (a) At the trial, any part or all of a deposition, so far as
           admissible under the rules of evidence, may be used against
           any party who was present or represented at the taking of
           the deposition or who had notice thereof if required, in
           accordance with any one of the following provisions:

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J-A05006-19



                                  *     *      *

            (3) The deposition of a witness, whether or not a party,
            may be used by any party for any purpose if the court
            finds

              (a) that the witness is dead[.]

Pa.R.C.P. 4020(a)(3)(a).      Depositions are generally admissible when

otherwise permitted under the rules of evidence. DeArmitt v. New York

Life Ins. Co., 73 A.3d 578, 591 (Pa.Super. 2013). Depositions are sufficient

lawful proceedings, which warrant admission at trial when the deponent is

unavailable and cannot testify. Collura v. L & E Concrete Pumping, Inc.,

686 A.2d 392, 396 n.3 (Pa.Super. 1996).            Persuasive cases from other

jurisdictions demonstrate depositions, which are unfinished due to the

deponent’s illness or death, are admissible at the summary judgment and trial

stages. See Derewecki v. Pennsylvania R.R. Co., 353 F.2d 436 (3d Cir.

1965) (holding court properly admitted deceased employee’s deposition

testimony at trial, although second day of deposition was unfinished due to

employee’s illness, where defendant previously had opportunity to cross-

examine employee and exclusion of deposition testimony would have severely

prejudiced plaintiff); Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y.

1989) (holding deposition of deceased plaintiffs’ witness is allowable at trial,

where exclusion of testimony at trial would substantially harm plaintiffs’ case;

although defendants did not cross-examine witness, defendants could

mitigate prejudice by stipulating to certain facts at trial); Bank of Montreal

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v. Estate of Antoine, 86 So.3d 1262 (Fla. Dist. Ct. App. 2012) (citing to

Derewecki, supra) (holding trial court erred in excluding unfinished

deposition testimony of deceased co-defendant at trial even though living co-

defendant did not have opportunity to cross-examine, because prejudice to

living co-defendant was not substantial); Farmer v. Nostrand Ave. Meat

and Poultry, 831 N.Y.S.2d 443 (N.Y. App. Div. 2007) (holding trial court

erred in excluding decedent’s deposition at summary judgment stage, where

defendant had ample opportunity to test facts and veracity of decedent; while

defendant could have asked more questions, this assertion alone did not

warrant preclusion of entire deposition testimony).

      Instantly, doctors diagnosed Mr. Kardos with mesothelioma in January

2016; and Appellant and Mr. Kardos filed a complaint against numerous

manufacturers. Appellees filed motions for summary judgment based on lack

of product identification. After a jobsite inspection, Mr. Kardos executed an

affidavit, and Defendants noticed him for deposition.            Defendants and

Appellees cross-examined Mr. Kardos for three days; Appellees Fairbanks,

Hammond Valve Company, and Patterson Kelly attended the deposition but

did not question Mr. Kardos. No party noticed Mr. Kardos for a fourth day of

deposition.   Mr. Kardos died eight days after the last day of deposition.

Defendant     Jendoco   Construction    and     Appellees   Rockwell   Automation,

Patterson Kelly, and Armstrong Pumps, Inc., all filed motions to preclude the

use of Mr. Kardos’ affidavit and deposition testimony, which the court granted


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globally.    The court subsequently granted summary judgment in favor of

Appellees.

      Here, the Rules of Civil Procedure explicitly allow Mr. Kardos’ affidavit

and deposition testimony to be part of a record for summary judgment

proceedings.     See Pa.R.C.P. 1035.1(2); Burger, supra.        Regarding the

affidavit, Paragraph 9 contains a statement that Mr. Kardos signed the

document subject to the penalties of Section 4904, as required for

consideration during summary judgment. See Pa.R.C.P. 76, 1035.1, 1035.4.

Mr. Kardos had direct personal knowledge of the statement of facts contained

within the affidavit. See Pa.R.C.P. 1035.4. Further, Mr. Kardos’ affidavit was

consistent with his deposition testimony, so the court had no reason to reject

the affidavit as inherently unreliable. See Burger, supra. Therefore, Mr.

Kardos’ affidavit conformed to the Rules of Civil Procedure and was an

acceptable proof of fact for purposes of summary judgment. We conclude the

court improperly precluded the use of the affidavit during summary judgment

proceedings. See Pa.R.C.P. 1035.1-1035.4; Phaff, supra; Burger, supra;

Education Resources Institute, Inc., supra.

      Mr. Kardos’ deposition consisted solely of three days of cross-

examination by Defendants and Appellees. Even if the deposition testimony

is hearsay, Appellant as a non-movant is entitled to use hearsay in opposition

to Appellees’ motions for summary judgment.            See Petrina, supra.

Moreover, Appellant provided a plausible avenue for admission of the


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deposition testimony at trial, through Rule 804. See id.; Pa.R.E. 804(b)(1)(B)

(allowing for use of deposition testimony of unavailable witness if “offered

against a party who had−or, in a civil case, whose predecessor in interest

had−an opportunity and similar motive to develop it by direct, cross-, or

redirect examination”). Rule 804(b)(1)(B) merely required Appellees to have

the opportunity to develop the testimony. See id.

      Further, we reject Appellees’ attempts to analogize the current case to

Sutch v. Roxborough Memorial Hospital, 142 A.3d 38 (Pa.Super. 2016),

appeal denied, 640 Pa. 378, 163 A.3d 399 (2016).        In Sutch, we held a

defense expert’s trial testimony, which violated a court order against

discussing the decedent’s smoking history, could not be used against the

defense attorney at a subsequent civil contempt hearing.      Id. at 77.   We

stated the expert’s trial testimony was hearsay without an exception under

the Rules of Evidence, because the defense attorney, against whom the

testimony would be used, was not given any opportunity to cross-examine her

expert when his testimony was first challenged. Id. The contempt hearing

occurred two years later, and the trial court had not given the defense

attorney any opportunity during trial to expose her expert’s potential bias and

reasons for the evasive testimony he gave when the trial court questioned the

expert about the violation during trial. Id.

      Here, Defendants and Appellees cross-examined Mr. Kardos for three

solid days of deposition.   Importantly, after the second day of deposition,


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Defendants and Appellees noticed Mr. Kardos for a third day of deposition,

which occurred two days later. From the end of the third day of deposition

until Mr. Kardos’ death over a week later, no party noticed a fourth day of

deposition or indicated any unfinished business. Defendants and Appellees

deposed Mr. Kardos for the specific purpose of the current litigation and

focused their questioning on product identification. Unlike Sutch, Appellees

had the opportunity to cross-examine Mr. Kardos for three days and could

have noticed Mr. Kardos for a fourth day of deposition if necessary. They did

not do so before his death.    Therefore, Mr. Kardos’ deposition testimony

arguably meets the hearsay exception under Rule 804(b)(1)(B). See Pa.R.E.

804(b)(1)(B).

     Appellees all attended Mr. Kardos’ deposition with an opportunity to

question him; Mr. Kardos’ death and the hearsay exception combined

reasonably to allow the admission of the deposition testimony at trial. See

Pa.R.C.P. 4020(a)(3)(a); DeArmitt, supra; Collura, supra.       Because Mr.

Kardos’ deposition testimony arguably falls under a hearsay exception and

could be allowable at trial, the court should have consider the testimony at

the summary judgment stage. See Petrina, supra. Therefore, we conclude

the court erred when it precluded the use of Mr. Kardos’ deposition testimony

during summary judgment proceedings.           See Education Resources

Institute, Inc., supra. The preclusion of Mr. Kardos’ testimony resulted in

significant prejudice to Appellant, as she needed this testimony to oppose


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summary judgment on the ground of lack of product identification.               See

Eckenrod, supra. See also Derewecki, supra; Farmer, supra.

       Based on the foregoing, we hold Appellant as non-movant can use Mr.

Kardos’ properly executed affidavit, signed subject to the penalties of Section

4904, as part of the record in opposition to Appellees’ motions for summary

judgment, because it is not inherently unreliable. We further hold Appellant

can use Mr. Kardos’ deposition testimony to oppose Appellees’ summary

judgment motions, where Appellees had the opportunity to cross-examine Mr.

Kardos, who later became unavailable due to his death, and the deposition

testimony meets a hearsay exception.               Accordingly, we vacate the orders

entering summary judgment in favor of Appellees, reverse the order

precluding the use of Mr. Kardos’ affidavit and deposition testimony in

opposition to Appellees’ summary judgment motions, and remand for further

proceedings.2

       Orders entering summary judgment vacated; preclusion order reversed;

case remanded for further proceedings. Jurisdiction is relinquished.




____________________________________________


2 Due to our disposition, we decline to address Appellant’s third issue on
appeal, referring to constitutional violations, where Pennsylvania law provides
“a restraining principle that counsels against reaching a constitutional
question if a non-constitutional ground for [a] decision is available.” See
Com., Dept. of Transp. v. Taylor, 576 Pa. 622, 633, 841 A.2d 108, 114
(2004); Commonwealth v. Farabaugh, 136 A.3d 995, 1001 (Pa.Super.
2016), appeal denied, 643 Pa. 140, 172 A.3d 1115 (2017).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2019




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