J-A05008-15


                               2015 PA Super 82

NORMAN J. STERLING AND LAURA M.                  IN THE SUPERIOR COURT OF
STERLING, H/W                                          PENNSYLVANIA

                         Appellants

                    v.

P&H MINING EQUIPMENT, INC. A/K/A
JOY GLOBAL SURFACE MINING, INC.

                         Appellee                     No. 1006 EDA 2014


              Appeal from the Order Entered February 24, 2014
            In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): October Term, 2012 No. 3461


BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.

OPINION BY GANTMAN, P.J.:                              FILED APRIL 17, 2015

      Appellants, Norman J. Sterling and Laura M. Sterling, H/W, appeal

from the order entered in the Philadelphia County Court of Common Pleas,

which entered summary judgment in favor of Appellee, P&H Mining

Equipment, Inc. (“P&H”). We affirm.

      In its opinion, the trial court set forth the relevant facts and procedural

history of this appeal as follows:

         On October 24, 2012, [Appellants] commenced this suit
         against fifty-eight (58) defendants, alleging [Appellant] Mr.
         Sterling developed lung cancer [and asbestos-related lung
         diseases] from his exposure to various asbestos-containing
         products while employed by Bethlehem Steel Corporation
         from roughly 1952 to 1979.          With respect to P&H,
         [Appellants] claimed [Appellant] Mr. Sterling was exposed
         to asbestos-containing component parts of P&H cranes
         used in Bethlehem Steel’s “beam yard” (shipping yard). At
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           his October 22-23, 2014 deposition, [Appellant] Mr.
           Sterling described his work loading, unloading, and
           operating cranes, including some P&H cranes, in the beam
           yard from approximately 1969 to 1978.

           On December 23, [2013], P&H filed its Motion for
           Summary Judgment, arguing [Appellants] could not show
           [Appellant] Mr. Sterling was exposed to asbestos from its
           cranes. In their Answer, [Appellants] claimed [Appellant]
           Mr. Sterling’s testimony, and the prior testimony of other
           Bethlehem Steel employees, showed [Appellant] Mr.
           Sterling inhaled dust from brakes and wiring on P&H
           cranes, and P&H had previously admitted said brakes and
           wiring contained asbestos.

           On February 24, 2014, the [c]ourt granted P&H’s Motion,
           finding [Appellants] failed to produce sufficient evidence
           [Appellant] Mr. Sterling inhaled asbestos fibers from
           component parts of P&H cranes. On February 26, 2014,
           this matter settled as to all remaining defendants.

(Trial Court Opinion, filed August 18, 2014, at 1-2) (internal citations to the

record omitted).     Appellants filed a timely notice of appeal on March 18,

2014.     On April 2, 2014, Appellants filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

        Appellants raise a single issue for our review:

           DID THE [TRIAL] COURT ERR IN FAILING TO RESOLVE ALL
           CONTESTED ISSUES IN FAVOR OF THE NON-MOVING
           PARTY INCLUDING ALL REASONABLE INFERENCES, WHEN
           EVIDENCE OF [APPELLANT MR. STERLING] WORKING ON,
           UNDER, AND IN P&H OVERHEAD CRANES AT BETHLEHEM
           STEEL WAS DISREGARDED?

(Appellants’ Brief at 1).

        In their sole issue, Appellants argue that during his tenure at

Bethlehem Steel, Appellant Mr. Sterling worked on, under, and inside P&H


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cranes.     Appellants contend that by P&H’s own admission, its cranes

contained parts made with asbestos, including the brakes and wiring.

Appellants assert Appellant Mr. Sterling’s job duties constantly put him in

the direct vicinity of P&H cranes, and he and his coworkers frequently saw

dust produced by the cranes’ asbestos-containing brakes.        For example,

Appellants claim that Appellant Mr. Sterling’s duties as a crane man required

him to assist the repairmen who regularly performed dust-producing

maintenance on the brakes. Appellants suggest this brake dust continuously

“filled the air surrounding [Appellant] Mr. Sterling at Bethlehem Steel.”

(Appellant’s Brief at 5).     Appellants aver that Appellant Mr. Sterling

subsequently developed lung cancer due to asbestos inhalation. Appellants

conclude they produced sufficient evidence for a jury to consider whether

Appellants proved a causal connection between P&H cranes and Appellant

Mr. Sterling’s lung cancer, and this Court should reverse summary judgment

in favor of P&H. We disagree.

     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 Am., 908 A.2d 344,

347 (Pa.Super. 2006).       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

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        all doubts as to the existence of a genuine issue of
        material fact must be resolved against the moving party.
        Only where 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
        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).

     Additionally, in an asbestos case:

        [I]n order for a plaintiff to defeat a motion for summary
        judgment, a plaintiff must present evidence to show that
        he inhaled asbestos fibers shed by the specific
        manufacturer’s product.       Therefore, a plaintiff must
        establish more than the presence of asbestos in the
        workplace; he must prove that he worked in the vicinity of

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         the product’s use. Summary judgment is proper when the
         plaintiff has failed to establish that the defendants’
         products were the cause of plaintiff’s injury.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa.Super. 2014). See also

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

(stating plaintiff must establish in asbestos case that injuries were caused by

product of particular manufacturer or supplier).

      When evaluating the plaintiff’s evidence in an asbestos case at the

summary judgment stage, Pennsylvania courts apply the “frequency,

regularity, proximity” standard derived from Eckenrod v. GAF Corp., 544

A.2d 50 (Pa.Super. 1988), appeal denied, 520 Pa. 605, 553 A.2d 968 (1988)

(stating whether plaintiff can defeat summary judgment motion depends on

frequency of use of asbestos product and regularity of plaintiff’s employment

in proximity to product).   “[I]t is appropriate for courts, at the summary

judgment stage, to make a reasoned assessment concerning whether, in

light of the evidence concerning frequency, regularity, and proximity of a

plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make

the necessary inference of a sufficient causal connection between the

defendant’s product and the asserted injury.”      Gregg v. V-J Auto Parts,

Co., 596 Pa. 274, 292, 943 A.2d 216, 227 (2007). Nevertheless, the criteria

of frequency, regularity, and proximity “do not establish a rigid standard

with an absolute threshold necessary to support liability.” Id. at 290, 943

A.2d at 225.


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        Rather, they 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 sufficiently significant
        likelihood that the defendant’s product caused his harm,
        from those in which such likelihood is absent on account of
        only casual or minimal exposure to the defendant’s
        product. [A]pplication of the test should be tailored to the
        facts and circumstances of the case, such that, for
        example, its application should become somewhat less
        critical where the plaintiff puts forth specific evidence of
        exposure to a defendant’s product.          Similarly, …the
        frequency and regularity prongs become somewhat less
        cumbersome in cases involving diseases that the plaintiff’s
        competent medical evidence indicates can develop after
        only minor exposures to asbestos fibers.

Id. (internal citations and quotation marks omitted).

     Instantly, the trial court reasoned as follows:

        In this case, P&H was entitled to summary judgment.
        Even assuming the P&H cranes at Bethlehem Steel
        contained asbestos brakes and wiring, there was
        insufficient evidence from which to infer [Appellant] Mr.
        Sterling inhaled asbestos fibers from said brakes and
        wiring.

                                 *    *    *

        [Appellant] Mr. Sterling’s deposition testimony regarding
        his work with and around P&H cranes was insufficient to
        show he inhaled asbestos dust from the cranes’ wiring or
        brakes. [Appellant] Mr. Sterling testified his work on
        cranes, including P&H cranes, consisted of loading and
        unloading steel from the cranes as a “chain man” and
        operating the cranes from cabs as a “crane man.” He
        testified he was in a cab and the brakes were “out on the
        four wheels outside the cab.” He testified the brakes were
        repaired by millwrights and electricians. He testified he
        saw dust while working [in] the steel beam yard when
        cranes were operating and the dust came from the wheels
        of the cranes. He guessed he was exposed to dust from
        crane brakes merely because he saw some type of dust
        emanating from the wheels of operating cranes. There

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       was no factual basis to support any inference he breathed
       the dust or the dust contained asbestos. Absent any
       additional evidence regarding the nature of [Appellant] Mr.
       Sterling’s contact with crane brakes or wiring, his
       testimony would not support a reasonable inference he
       inhaled asbestos dust from wiring or brakes on P&H
       cranes.

       The cited testimony of other Bethlehem Steel employees in
       other cases did nothing to show [Appellant] Mr. Sterling
       inhaled dust from component parts of P&H cranes.
       [Appellants] offered (1) Brian Gaugler’s testimony, from
       Mr. Gaugler’s own trial, that Mr. Gaugler helped change
       crane brakes as a chain man, crane man, marker, bar
       turner, and forklift operator; (2) Michael Carl’s testimony,
       from Mr. Carl’s own trial, that Mr. Carl saw the brakes on
       cranes while oiling and greasing the cranes as a chain man
       and crane man; (3) John D. Wagner’s testimony, from Mr.
       Wagner’s own trial, that Mr. Wagner worked with crane
       wiring and brakes as a motor inspector; and (4) John G.
       Weiss’ testimony, from Mr. Weiss’ own trial, that Mr. Weiss
       inhaled dust from crane brakes and wiring while tearing
       out crane trolleys.      [Appellants] did not draw any
       connection between any of the foregoing testimony and
       [Appellant] Mr. Sterling’s purported exposure. Indeed,
       [Appellant] Mr. Sterling’s name was never mentioned by
       the four (4) witnesses.       Even assuming these other
       Bethlehem Steel employees were exposed to asbestos dust
       from crane brakes and wiring, there was still no basis to
       infer [Appellant] Mr. Sterling was similarly exposed. In
       fact, [Appellant] Mr. Sterling never placed himself working
       with any wiring or brakes as did the other four (4)
       Bethlehem Steel employees.

       In summary, the totality of [Appellant] Mr. Sterling’s
       testimony as to P&H is as follows:

       [Appellant] Mr. Sterling worked as a chain man and crane
       man at Bethlehem Steel. His job consisted of chaining up
       big piles of steel and putting them in a run and piling
       them. In doing so, he operated cranes, including P&H
       cranes. As a chain man, he would observe dust coming
       from the wheels of the cranes.


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         [Appellant] Mr. Sterling did not testify to any information
         as to the nature of the dust, how far he was from the dust,
         whether he inhaled the dust, or whether the dust he
         observed contained asbestos.

(Trial Court Opinion at 2-4) (internal citations to the record omitted). The

record supports the court’s analysis.    In answers to interrogatories, P&H

conceded in general terms that it had sold some equipment and replacement

component parts containing small amounts of asbestos. These admissions,

however, were insufficient to establish Appellant Mr. Sterling used or worked

on that equipment at Bethlehem Steel. Appellant Mr. Sterling also admitted

he worked mostly on cranes supplied by other companies.                Although

Appellant Mr. Sterling testified he saw dust emanate from the wheel area of

the cranes when the brakes were applied, he conceded there were multiple

sources of dust in the beam yard.     See Krauss, supra (stating plaintiff’s

speculative personal belief that product contained asbestos fails to create

genuine issue of fact as to existence of asbestos in product).

      Moreover, the testimony of other former Bethlehem Steel employees

provided no information regarding the frequency, regularity, or proximity of

Appellant Mr. Sterling’s own alleged exposure to asbestos in P&H products.

Appellants thus failed to adduce evidence sufficient to support an inference

that Appellant Mr. Sterling inhaled asbestos from component parts of P&H

cranes. Therefore, the court properly entered summary judgment in favor of

P&H. See Gregg, supra; Eckenrod, supra. Accordingly, we affirm.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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