J-A27009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES FLOYD, JR., EXECUTOR OF THE                 IN THE SUPERIOR COURT OF
ESTATE OF JAMES C. FLOYD, SR.,                          PENNSYLVANIA
DECEASED,

                            Appellant

                       v.

ASTENJOHNSON, INC.

                                                      No. 3663 EDA 2015


                    Appeal from the Order October 28, 2015
             In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): No. 3992, January Term, 2013


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J. *

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 19, 2017

        Appellant, James Floyd, Jr., as Executor of the Estate of James C.

Floyd, Sr., Deceased, appeals from the order entered in the Philadelphia

County Court of Common Pleas, which entered summary judgment in favor

of Appellee, AstenJohnson, Inc. We affirm.

        The trial court summarized the relevant facts and procedural history as

follows.

        [Appellant] commenced this suit against forty-five (45)
        defendants on February 1, 2013. [Appellant] alleged James
        Floyd, Sr. [“Decedent”] contracted [m]esothelioma through his
        exposure to various asbestos-containing products while


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      employed at Sun Oil from 1939 to 1951 and at Scott Paper from
      1951 to 1984.

             [Appellee] is the successor-in-interest to Asten-Hill
      Manufacturing Co. (1932-1977) and Asten Group, Inc. (1977-
      1994). Both companies manufactured dryer felts and fabrics
      used on paper making machines. [Appellee] admits that until
      1980, some but not all of the felts manufactured by [Appellee]
      contained asbestos and claims it ceased manufacturing
      asbestos-containing felts and fabrics in 1980. [Decedent] was
      not deposed in this case. His son, Appellant, was deposed on
      July 24, 2015, and testified that he worked at Scott Paper with
      his father from 1977 to 1984.

             On August 15, 2015, [Appellee] filed its [m]otion for
      [s]ummary [j]udgment, arguing [Appellant] could not show
      [Decedent] was ever exposed to an asbestos-containing
      [Appellee] product. [Appellant] claimed [Appellant’s] testimony,
      combined with the testimony of other Scott Paper employees
      deposed in previously unrelated cases, showed [Decedent] was
      exposed to dust from asbestos-containing [Appellee’s] dryer
      felts.

             On October 28, 2015, the [lower court] granted
      [Appellee’s] motion, finding [Appellant] failed to produce
      sufficient evidence Decedent inhaled asbestos from [Appellee’s]
      dryer felts. On November 17, 2015 the matter settled as to all
      remaining non-bankrupt parties.

Trial Court Opinion, filed 4/28/16, at 1-2 (unpaginated opinion) (internal

citations to the record omitted). Appellant filed a timely notice of appeal.

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

      1. DID THE LOWER COURT ERR WHEN IT RULED THAT THERE
         WAS NO GENUINE ISSUE OF MATERIAL FACT AS TO
         [DECEDENT’S] EXPOSURE TO ASBESTOS WHILE WORKING
         WITH ASBESTOS DRYER FELTS MANUFACTURED BY
         [APPELLEE]?

Appellant’s Brief, at 4.




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      Specifically, Appellant argues that he presented sufficient evidence,

through the depositions of Appellant and former Scott Paper employees,

Albin Koronkiewicz and James Golden, from which a reasonable jury could

infer that Decedent’s mesothelioma was caused by his exposure to

[Appellee’s] asbestos-containing dryer felts. See id., at 11-12. Further,

Appellant argues that the trial court’s failure to conclude that the deposition

testimony of Koronkiewicz provided a genuine issue of material fact that,

during the time Decedent worked at Scott Paper, [Appellee’s] dryer felts

contained asbestos which released particles into the air, violates the binding

precedent of Wright v. Allied Signal, Inc., 963 A.2d 511 (Pa. Super.

2008). See id., at 11.

      Appellee   counters   that   the   Court’s   finding   in   Wright,    that

Koronkiewicz’s deposition testimony provided a genuine issue of material

fact sufficient to survive summary judgment, is not binding precedent in this

case. See Appellee’s Brief, at 14-15. Specifically, Appellee contends that the

Wright Court’s finding that Koronkiewicz’s testimony created a genuine

issue of fact hinged upon Koronkiewicz’s identification of plaintiff as a person

who was exposed to the asbestos dust. And that testimony, according to

Appellee, is simply not present here. See id.

      We review a challenge to the entry of summary judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.
      In evaluating the trial court’s decision to enter summary

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      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

      Further, we apply specific standards to motions for summary judgment

involving claims of asbestos-related injuries.

      [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 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) (citing

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

      In order to determine whether plaintiff has provided sufficient evidence

that defendant’s products were the cause of plaintiff’s injuries, our courts

apply the “frequency, regularity, proximity standard.” Gregg v. V-J Auto

Parts, Company, 943 A.2d 216, 226 (Pa. 2007). This standard, originally



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set forth in Eckenrod, requires a plaintiff attempting to defeat a motion for

summary judgment to present evidence concerning “the frequency of use of

the product and the regularity of plaintiff’s employment in proximity

thereto.” 544 A.2d at 53. The trial court, in evaluating this evidence

concerning frequency, regularity and proximity of exposure, must then make

a reasoned assessment of whether a jury would be justified in making “the

necessary   inference   of   a   sufficient   causal   connection   between   the

defendant’s product and the asserted injury.” Gregg, 943 A.2d at 227.

      In order to make this assessment the trial court must not apply the

criteria of frequency, regularity and proximity as a “rigid standard with an

absolute threshold necessary to support liability.” Id. at 225.

      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 causal 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.

Sterling v. P & H Mining Equipment, 113 A.3d 1277, 1281 (Pa. Super.

2015) (citing Gregg, 943 A.2d at 225).




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     Instantly, the trial court found the evidence in this case analogous to

the evidence produced in Sterling, and therefore reasoned as follows.

          In this case, [Appellant] was entitled to summary
     judgment. The only testimony that mentions or even
     contemplates [Decedent’s work] was [Appellant’s] deposition.
     [Appellant] was employed at Scott Paper from 1977 to 1994 as a
     process lab supervisor.

           [Appellant’s] testimony establishes [Decedent] replaced
     dryer felts approximately twice a year, and it was a “dusty job.”
     [Appellant] could only say the dust came from the mills, he could
     not say more specifically where it came from or its contents.
     [Appellant] never testified the felts he saw his father work with
     were manufactured or supplied by [Appellee], nor could he say
     the felts contained asbestos.

           This testimony is insufficient to show (1) the dryer felt
     Decedent worked with was an [Appellee] felt; (2) Decedent
     inhaled dust from any of the felts; (3) the felts Decedent worked
     with contained asbestos. Since none of the other depositions
     supplied by [Appellant] mention Decedent, [Appellant] has failed
     to provide any sufficient evidence establishing [Decedent]
     inhaled dust from an [Appellee] product, let alone on a regular
     and frequent basis.

            [Appellant] also supplied in its answer the deposition of
     Albin Koronkiewicz from two unrelated asbestos cases involving
     Koronkiewicz’s co-wrokers and other employees of Scott Paper;
     The Wright case and the Norton case. Koronkiewicz testified as
     far as he knew, he thought the felts were made of asbestos. He
     testified the felts at Scott Paper were made by Appellee, Albany,
     and possibly a third manufacturer he could not recall. He
     testified Ray Wright would visit the paper plant on occasion, and
     there was no way for him to avoid breathing dust from Appellee
     felts.

            In Koronkiewicz’s testimony for the Norton case, he
     testified all of the asbestos felts he opened from the [19]50’s to
     [the 19]70’s were [Appellee] asbestos felts.




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              [Appellant] also supplied the deposition testimony of
        [Appellee] [c]orporate [r]epresentative David McCann and an
        interrogatory answer from [Appellee] to show the asbestos
        content of the [Appellee] felts. McCann testified in 1971 some
        [Appellee] felts contained asbestos, and some did not. Through
        Interrogortories, [Appellee] stated, “[s]ome of the dryer fetls
        and fabrics were woven, in part, using chrysotile (asbestos)-
        containing yarn[.]”

                                     *****

              While    Koronkiewicz’s   testimony     establishes   some
        [Appellee] felts at Scott Paper, it would still be speculative to
        conclude the felts Decedent and Koronkiewicz worked with were
        the same brand, just because both men worked at the same
        plant. [Appellant] has produced no evidence [] Decedent worked
        with, or was exposed to dust from, any product manufactured by
        [Appellee].

              Even if assumed some of the felts [] Decedent worked with
        were [Appellee’s], further speculation would be required to
        establish those felts contained asbestos. Even more speculation
        would be required to establish he was exposed to dust from
        [Appellee’s] [f]elts on a regular and frequent basis.

Trial Court Opinion, 4/28/16, at 7-9 (unpaginated opinion) (internal citations

to the record omitted).

        Our review of the record supports the trial court’s conclusion that this

case is analogous to Sterling, as well as its subsequent analysis of the

evidence. See 113 A.3d at 1277. In Sterling, we held that summary

judgment is proper in an asbestos case where plaintiff’s only evidence

consists of plaintiff’s personal belief that dust contains asbestos and the

testimony of co-workers who were unable to note the frequency, regularity,

or proximity of plaintiff’s alleged exposure to asbestos. See id., at 1282-

1283.

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        Here, while Appellee conceded in answers to interrogatories that it

produced and sold asbestos-containing dryer felt during the period Decedent

worked at Scott Paper, this admission is insufficient to conclude that

Appellee even sold asbestos-containing dryer felts to Scott Paper, let alone

that Decedent encountered these dryer felts. Further, Appellant was only

able to provide evidence that Decedent worked in dusty conditions with the

dryer felts, but conceded that he was unable to identify the source of the

dust, the brand of the dryer felts, and whether or not the dryer felts

contained asbestos. Thus, as the Court found in Sterling, the only evidence

presented concerning Decedent’s tenure at Scott Paper failed to contain any

information concerning Decedent’s frequency, regularity, or proximity to

Appellee’s asbestos-containing dryer felts. See id., at 1282.

        Moreover, despite Appellant’s contention, we are not required to

regard the finding in Wright as binding precedent, as Koronkiewicz’s

deposition testimony was credited in Wright mainly because Koronkiewicz

was able to identify Wright as a person who worked frequently in close

proximity to an asbestos-containing product. See 963 A.2d at 519. Here, by

contrast, Koronkiewicz’s deposition testimony cannot be treated in the same

way as it was in Wright because Koronkiewicz never identifies Decedent as

a person having exposure to Appellee’s asbestos-containing dryer felts.

Thus, because the deposition testimony Appellant provides of other Scott

Paper    employees   provides   no   information   regarding    the   frequency,


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regularity, or proximity of Decedent’s alleged exposure to asbestos in

Appellee’s dryer felts, we find that Appellant failed to adduce sufficient

evidence to support the inference that Decedent inhaled asbestos from

Appellee’s dryer felts. Therefore, the trial court properly entered summary

judgment in favor of Appellee.

     Order affirmed.

     Judge Lazarus joins the memorandum.

     Justice Fitzgerald concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




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