J-S47002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL HALDAMAN, AS PERSONAL                IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE OF                  PENNSYLVANIA
GERDA W. HALDAMAN

                      Appellant

                 v.

EATON CORPORATION, AS SUCCESSOR-
IN-INTEREST TO CUTLER-HAMMER, INC.

                      Appellee                   No. 1170 EDA 2012


            Appeal from the Judgment Entered May 23, 2012
          In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL                IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE OF                  PENNSYLVANIA
GERDA W. HALDAMAN

                      Appellant

                 v.

P & H MINING EQUIPMENT F/K/A
HARNISCHFEGER CORPORATION

                      Appellee                   No. 1172 EDA 2012


            Appeal from the Judgment Entered May 23, 2012
          In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL                IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE OF                  PENNSYLVANIA
GERDA W. HALDAMAN

                      Appellant

                 v.
J-S47002-14



READING CRANE & ENGINEERING

                      Appellee                   No. 1173 EDA 2012


            Appeal from the Judgment Entered May 23, 2012
          In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL                IN THE SUPERIOR COURT OF
RPRESENTATIVE FOR THE ESTATE OF                   PENNSYLVANIA
GERDA W. HALDAMAN

                      Appellant

                 v.

MORGAN ENGINEERING F/K/A MORGAN
CRANE

                      Appellee                   No. 1174 EDA 2012


            Appeal from the Judgment Entered May 23, 2012
          In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL                IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE OF                  PENNSYLVANIA
GERDA W. HALDAMAN

                      Appellant

                 v.

CBS CORPORATION, F/K/A
WESTINGHOUSE ELECTRIC
CORPORATION

                      Appellee                   No. 1175 EDA 2012


            Appeal from the Judgment Entered May 23, 2012
          In the Court of Common Pleas of Philadelphia County


                                  -2-
J-S47002-14


            Civil Division at No(s): February Term, 2011, No. 4493

DANIEL HALDAMAN, AS PERSONAL                     IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE OF                       PENNSYLVANIA
GERDA W. HALDAMAN

                            Appellant

                       v.

GENERAL ELECTRIC COMPANY

                            Appellee                No. 1176 EDA 2012


               Appeal from the Judgment Entered May 23, 2012
             In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): February Term, 2011, No. 4493


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 03, 2014

       In these consolidated appeals, Appellant, Daniel Haldaman, personal

representative of the estate of Gerda W. Haldaman, deceased (Decedent),

and plaintiff in the underlying asbestos mass tort litigation, 1 appeals from

the final judgment entered May 23, 2012,2 which also rendered final the trial

____________________________________________
1
  During the pendency of this appeal, original Appellant, Gerda W. Haldaman
died on July 28, 2013. This Court granted the application for substitution of
personal representative pursuant to Pennsylvania Rule of Appellate
Procedure 502 on October 24, 2013.
2

March 12, 2012 order entering the jury verdict in favor of the last remaining
defendant in the case, CertainTeed Corporation (CertainTeed is not a subject
of these appeals). In a civil case, an appeal from the entry of a verdict is
premature. Taxin v. Shoemaker, 799 A.2d 895, 860 (Pa. Super. 2002),
citing Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1244 n.6 (Pa.
(Footnote Continued Next Page)

                                           -3-
J-S47002-14




Appellee, Eaton Corporation, as successor in interest to Cutler-Hammer, Inc.

(Eaton); Kentile Floors Inc. (Kentile); P & H Mining Equipment, f/k/a

Harnischfeger Corporation (P&H); Reading Crane & Engineering (Reading);

Morgan Engineering, f/k/a Morgan Crane (Morgan); CBS Corporation, f/k/a

Westinghouse Electric Corporation (CBS Corp.); and General Electric

Company (GE). After careful review, we affirm based on the thorough and

well-supported opinion of the Honorable Sandra Mazer Moss.

       We summarize the procedural history of this case, as gleaned from the

certified record, as follows.            The instant action was commenced by

complaint, filed on March 2, 2011, by Decedent against the various

defendants, alleging she was exposed to asbestos dust while laundering her
                                3
                                    work clothes, the asbestos dust was generated



contract mesothelioma and interstitial fibrosis. An amended complaint was


                       _______________________
(Footnote Continued)
                                                              -trial motions,
the trial court entered final judgment in this case. Trial Court Order,
                                                          -trial motions and
unequivocally enters judgment in the same order, that order is immediately
appealable and an appeal should be filed within thirty days of its entry on
                         Id. (emphasis in original); cf. Pa.R.C.P. 227.4(2)
(directing the prothonotary to enter judgment upon praecipe unless the
court itself has entered judgment).      The caption has been adjusted
accordingly.
3
    Ray Haldaman died on April 3, 1996, prior to the commencement of the



                                            -4-
J-S47002-14


filed on August 9, 2011, naming additional defendants.               The case was



Upon conclusion of discovery, all of the defendants implicated in this appeal

filed respective motions for summary judgment.               Between February 13,



motions.4

       The case proceeded to a jury trial with CertainTeed as the one

remaining defendant, commencing on March 7, 2012.5 The jury returned a

verdict in favor of CertainTeed that was entered on March 13, 2012.

Appellant filed timely post-trial motions on March 22, 2012.           On April 19,

2012, Appellant filed seven notices of appeal challenging the judgment

relative to each respective Appellee.            On April 23, 2012, the trial court

directed Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on May




____________________________________________
4
    Eaton


                                                        on December 20, 2011, was



on December 22, 2011, was granted on February 21, 2012.
5
  Other defendants were released from the case by stipulation of the parties
or by settlement.



                                           -5-
J-S47002-14


10, 2012.6                                                               -trial

motions and ordered final judgment to be entered in the case.7 Meanwhile,

also on May 23, 2012, this Court, acting sua sponte, consolidated the instant

appeals.     During the pendency of the consolidated appeal, this Court

received a notice of suggestion of bankruptcy of Kentile on December 17,

2012, and duly stayed all proceedings on December 27, 2012.                On
____________________________________________
6

deemed waived because his Rule 1925(b) statement is insufficiently clear

                              1925(b) statement, Appellant noted the trial
court had not provided a written explanation of its reasons for granting the

Statement, 5/10/12, at 1; See also Pa.R.A.P. 1925(b)(4)(vi) (providing,
Appellant

such a case, the generality of the Statement will not be grounds for finding
          Appellant then advanced in general terms his allegation that the



explained its determination that Appellant failed to present any material fact
sufficient to state a prima facie

whether this determination is correct in light of the factual record, which we
deem is fairly suggested by her Rule 1925(b) statement. Accordingly, we
decline to find waiver on the bases asserted by Morgan.
7
  Having been filed before the final entry of judgment,
appeal was premature. See Pa.R.A.P. 301. However, as noted, final
judgment was subsequently entered, giving us jurisdiction over this appeal
pursuant to                                           notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
                                  accord Am. and Foreign Ins. Co. v.
                          , 948 A.2d 834, 842 n.1 (Pa. Super. 2008) (under
Rule 905(a)(5), subsequent entry of judgment perfected premature appeal),
affirmed, 2 A.3d 526 (Pa. 2010).


                                           -6-
J-S47002-14


September 19, 2013, Appellant filed a praecipe for discontinuance of his

appeal involving Kentile, whereupon this Court vacated the stay as to the

remaining Appellees in this consolidated appeal on April 14, 2014, and

briefing was thereafter completed.

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

              Whether the [s]ummary [j]udgment in [f]avor of
              Appellees, P&H Mining Equipment, Inc. was
              improperly granted in this case, when the entire
              evidentiary record showed the following: Mrs.

              occurred because her husband worked at Bethlehem
              Steel and (1) the testimony of Mr. Weiss and others
              establishes he was exposed to asbestos from Kentile
              when replacing flooring; (2) the testimony of others
              establishes he was exposed to asbestos from

              replacement parts; (3) the testimony of Mr. Potteiger
              and others establishes Mr. Haldaman was exposed to
              asbestos from multiple crane brake manufacturers?
                           8



____________________________________________
8
  P&H has not filed a brief in this appeal. Reading, CBS Corp., and GE
contend in their appellate briefs that this Court should quash this appeal due


                                                                         ure in

his statement of the case section is argumentative, fails to include a
summary of argument, contains insufficiently developed argument, and fails
to append the trial court                             -20; CBS Corp. and
                          -16; see also Pa.R.A.P. 2111, 2116-2119. We

example, it places much of the factual analysis relevant to its argument in
its statement of the case section, and the question presented is unartfully
drafted. However, because these defects do not impede our ability to
conduct appellate review, we decline to find waiver or quash the appeal. We
(Footnote Continued Next Page)

                                           -7-
J-S47002-14


                                                                           judgment

requires us to determine whether the trial court abused its discretion or

                                                                            Petrina

v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa. Super. 2012) (citations

                               ecord in the light most favorable to the nonmoving

party, and all doubts as to the existence of a genuine issue of material fact

                                                         Barnes v. Keller, 62 A.3d

382, 385                                                            ere 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

            Id. The rule governing summary judgment has been codified at

Pennsylvania Rule of Civil Procedure 1035.2.

             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     the     completion of discovery
                       relevant to       the      motion, including the
                       _______________________
(Footnote Continued)
also note th

appeal referencing Kentile is moot.


                                            -8-
J-S47002-14


                   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.

Pa.R.C.P. 1035.2

           Motions for summary judgment necessarily and

           of [his] 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.

Glaab v. Honeywell Intern., Inc., 56 A.3d 693, 696 (Pa. Super. 2012),

quoting Chenot v. A.P. Green Servs., Inc., 895 A.2d 55, 60 62 (Pa.

Super. 2006).



motion for summary judgment was the failure of Appellant to provide prima

facie evidence of exposure by Ray Haldaman, and by extension Decedent, to

                                                                      frequency,


                                     -9-
J-S47002-14


regularity, proximity factors of Eckenrod v. GAF Corp., 544 A.2d 50 (Pa.

Super. 1988), appeal denied, 553 A.2d 968 (Pa. 1988) and its progeny.



summary judgment by showing circumstantial evidence depends upon the

frequency of the use of the product and the regularity of p

                                    Id. at 53 (citations omitted).



            Donoughe v. Lincoln Elec. Co., 936 A.2d 52, 72 (Pa. Super.

2007).                                 a plaintiff may rely on circumstantial

evidence of exposure, namely, the frequency of the use of the product and

                                                                     Id. at 62

(internal quotation marks, brackets, and citations omitted).

                  There is no requirement that a plaintiff who
           suffers an asbestos related injury must establish the
           specific role played by each individual asbestos fiber
           within the body. Instead, in order to make out a
           prima facie case, it is well established that the
           plaintiff must present evidence that he inhaled

           product. A plaintiff must, however, establish more
           than the mere presence of asbestos in the
           workplace.  The plaintiff must establish that he
           worked in the vicinity
           product.

                  The nexus between an asbestos product and
           plaintiff may be established by direct and
           circumstantial evidence. The testimony of a witness

           exposure to an asbestos-containing product is
           admissible when probative. Even when the plaintiff
           is not able to identify specific products manufactured

                                    - 10 -
J-S47002-14


           by particular defendants, the testimony of co-
           workers is admissible to establish that the plaintiff
           worked in close proximity to the asbestos products in
           question.

Wright v. Allied Signal, Inc., 963 A.2d 511, 514-515 (Pa. Super. 2008)

(internal quotation marks and citations omitted).   Our Supreme Court has

described how to apply these frequency, regularity, and proximity factors.

                           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

           product caused his harm, from those in which such
           likelihood is absent on account of only casual or


Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 225 (Pa. 2007). In Gregg,



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

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



the necessary inference of a sufficient causal connection between the

                                              Id. at 227.

     Instantly, Appellant contends the trial court erred in determining he

failed to produce evidence of frequent, regular, and proximate exposure to



references the deposition testimony and affidavits of several of Ray

              -workers as fulfilling his requirement to present a prima facie

case of such exposure.   Id.   After careful review of the entire record, we

                                   - 11 -
J-S47002-14


conclude the trial court did not err or abuse its discretion in determining that

all Appellees were entitled to summary judgment, as Appellant failed to



Opinion, 8/22/12, at 5-8.       The trial court carefully recounts the specific




fails to present a material issue of fact about such exposure. Id.

      Based on our independent review of the record, we agree. While the

evidence viewed in the light most favorable to Appellant tends to show that,

in general, asbestos containing products were present in the workplace



times been around such products when they created dust, there is no



products.   More particularly, we agree that the deposition testimony and

                                  -workers, John Weiss, Joseph Anfuso, Brian

Gaugler, Michael Carl, John D. Wagner, Theodore Potteiger, Anthony

Lubenesky, and Thomas G. Jones, relied on by Appellant, failed to establish

an issue of material fact rel



particular products and times, did not mention the presence of Ray

Haldaman, and specific references to Ray Haldaman did not place him in

proximity of specific asbestos containing products at specific times. All that


                                      - 12 -
J-S47002-14


Appellant established was general potential exposure from various sources



nexus between Ray Haldaman, and by extension Decedent, and any of

                                               See Wright, supra. Accordingly, we

adopt the thorough analysis of the law and facts as developed by the

Honorable Sandra Mazer Moss in her August 22, 2012 opinion as our own for

purposes of further appellate review and affirm the orders granting summary

judgment.9

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2014




____________________________________________
9

grant of

as it is now moot.


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