J-S23016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SHARON GILBERT, EXECUTIVE FOR         :    IN THE SUPERIOR COURT OF
 THE ESTATE OF GUY GILBERT AND         :         PENNSYLVANIA
 SHARON GILBERT IN HER OWN             :
 RIGHT, HIS WIFE                       :
                                       :
                   Appellant           :
                                       :
                                       :
              v.                       :    No. 3228 EDA 2017
                                       :
                                       :
 ADVANCE AUTO PARTS A/K/A              :
 ADVANCE STORES CO., INC.,             :
 AUTOMOTIVE DISTRIBUTION               :
 NETWORK, LLC, AND FORD MOTOR          :
 COMPANY                               :

             Appeal from the Order Entered August 29, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 2458 November Term, 2015

 SHARON GILBERT, EXECUTIVE FOR         :    IN THE SUPERIOR COURT OF
 THE ESTATE OF GUY GILBERT AND         :         PENNSYLVANIA
 SHARON GILBERT IN HER OWN             :
 RIGHT, HIS WIFE                       :
                                       :
                   Appellant           :
                                       :
                                       :
              v.                       :    No. 3231 EDA 2017
                                       :
                                       :
 ADVANCE AUTO PARTS A/K/A              :
 ADVANCE STORES CO., INC.,             :
 AUTOMOTIVE DISTRIBUTION               :
 NETWORK, LLC, AND FORD MOTOR          :
 COMPANY                               :

             Appeal from the Order Entered August 29, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 2458 November Term, 2015
J-S23016-18


    SHARON GILBERT, EXECUTIVE FOR                :   IN THE SUPERIOR COURT OF
    THE ESTATE OF GUY GILBERT AND                :        PENNSYLVANIA
    SHARON GILBERT IN HER OWN                    :
    RIGHT, HIS WIFE                              :
                                                 :
                       Appellant                 :
                                                 :
                                                 :
                v.                               :   No. 3233 EDA 2017
                                                 :
                                                 :
    ADVANCE AUTO PARTS A/K/A                     :
    ADVANCE STORES CO., INC.,                    :
    AUTOMOTIVE DISTRIBUTION                      :
    NETWORK, LLC, AND FORD MOTOR                 :
    COMPANY                                      :

                Appeal from the Order Entered August 29, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): 2458 November Term, 2015


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                  FILED JULY 23, 2018

        Appellant Sharon Gilbert, as the executive of the estate of Guy Gilbert

(Decedent) and in her own right as Decedent’s wife, appeals from the orders

granting summary judgment in favor of Appellees Advance Auto Parts, A/K/A

Advance Stores Co., Inc. (Advance), Automotive Distribution Network, LLC

(Automotive), and Ford Motor Company (Ford).1 Appellant claims that she

adduced adequate evidence establishing that that Decedent was exposed to

Appellees’ asbestos-containing products. We affirm.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   This Court consolidated these appeals sua sponte on October 27, 2017.



                                           -2-
J-S23016-18



       We summarize the relevant allegations in Appellant’s second amended

short-form complaint.2 Between 1975 and 1985, Decedent worked as an auto

mechanic at Alray Tire (Alray) in Pittsburgh, Pennsylvania. During that time,

Decedent worked on brakes and brake linings and was exposed to dust

containing asbestos. On September 1, 2015, Decedent was diagnosed with

mesothelioma.3 Decedent died on November 23, 2015.

       Decedent was not deposed before his passing.         During discovery,

Appellant deposed E. Wayne Felgar and John L. Price, Decedent’s manager

and coworker at Alray, respectively, and obtained expert reports.

       Appellees filed motions for summary judgment on June 20, 2017.

Appellant filed responses, and Appellees filed replies. On August 29, 2017,

the trial court entered the instant orders granting summary judgment in favor

of Advance, Automotive, and Ford.4 Appellant subsequently settled the case

as to all non-bankrupt parties without prejudice, and the case against the

Manville Fund was dismissed without prejudice to reopening the matter in

arbitration. See Trial Work Sheet, 9/7/17.

____________________________________________


2The parties utilized the pleadings and motions practices in the Philadelphia
Court of Common Pleas for asbestos cases. Appellant filed her second
amended complaint on September 28, 2016.

3“Mesothelioma is a malignancy involving the covering of the lung or the lining
of the pleural and abdominal cavities; it is a rare disease associated with
exposure to asbestos.” Linster v. Allied Signal, Inc. 21 A.3d 220 (Pa.
Super. 2011).

4 We discuss the details of Appellees’ motions for summary judgment,
Appellant’s responses, Appellees’ replies, and the trial court’s ruling below.

                                           -3-
J-S23016-18



      Appellant timely appealed. The trial court did not require the submission

of a Pa.R.A.P. 1925(b) statement, but filed an opinion suggesting that

Appellant failed to demonstrate exposure to any product sold, manufactured,

or distributed by Appellees.

      Appellant presents the following question for review:

      When the evidence is reviewed in a light most favorable to the
      [Appellant], does it appear more likely than not that [Decedent]
      was exposed to asbestos-containing Ford products, and asbestos-
      containing products supplied by Advance . . . and Automotive . . .
      and then developed mesothelioma?

Appellant’s Brief at 1-2.

      Appellant claims that the trial court erred in failing to review the record

in a light most favorable to her as the non-moving party. Appellant notes:

      Multiple people testified [Decedent] worked on Ford vehicles
      throughout his time at Alray Tire, and believed the brakes he
      changed contained asbestos. Multiple people testified asbestos-
      containing products were purchased from stores owned by
      Advance Auto and Automotive Distribution Network. Ford and
      other defendants confirmed brakes on Ford vehicles contained
      asbestos. Multiple people have testified [Decedent] was a
      mechanic who did maintenance on a litany of vehicles including
      Fords.

Appellant’s Brief at 4. As set forth in greater detail below, Appellant contends

that the record contained genuine issues of fact that Appellees manufactured

or supplied asbestos brakes to Alray, that Decedent was exposed to Appellees’

products, and that those exposures were frequent, regular, and proximate.

      The principles governing our review are well settled.




                                      -4-
J-S23016-18


      Our standard of review on an appeal from the grant of a motion
      for summary judgment is well-settled. A reviewing court 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
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 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 non-moving party, and all doubts as to the existence of a
      genuine issue of material fact must be resolved against the
      moving party.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014) (some

citations omitted).

      In an asbestos case,

      plaintiff must establish that the injuries were caused by a product
      of the particular manufacturer or supplier. Additionally, in 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.

Id. at 563.

      Plaintiff bears the burden of identifying a defendant “as a manufacturer

or seller of a particular offending product, before . . . injuries may be found to

                                      -5-
J-S23016-18



be proximately caused by some negligence of [the defendant].” Cummins v.

Firestone Tire & Rubber Co., 495 A.2d 963, 967 (Pa. 1985). The failure to

identify the offending product is fatal to a plaintiff’s claim because without

proper   product identification,      the   plaintiff   cannot show   a defendant

manufactured or sold the product. Id. at 969.

      As to product identification,

      The testimony of a witness with knowledge relating to the
      plaintiff’s workplace exposure to an asbestos-containing product
      is admissible when probative. Even when the plaintiff is not able
      to identify specific products manufactured 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, 515 (Pa. Super. 2008) (citations

omitted).

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

set forth a “frequency, regularity, and proximity” test for causation in asbestos

cases. Id. at 192 (holding that fact that specific asbestos products were in

the same facility did not show adequate exposure to those products). The

Pennsylvania Supreme Court instructs that the:

      frequency, regularity and proximity factors in asbestos litigation .
      . . 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.




                                        -6-
J-S23016-18



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

involving mesothelioma, “the frequency and regularity prongs become less

cumbersome” as that condition has the potential to develop after minor

exposures to asbestos. Linster, 21 A.3d at 223.

       The Pennsylvania Supreme Court has recognized that at summary

judgment, it is appropriate for a court

       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, 943 A.2d at 227.           The trial court thus bears a “duty to prevent

questions from going to the jury which would require it to reach a verdict

based on conjecture, surmise, guess or speculation.” Krauss 104 A.3d at 568

(citation omitted).

       Two cases inform the proper application of the frequency, regularity,

and proximity factors: Gregg and Rost v. Ford Motor Co., 151 A.3d 1032

(Pa. 2016).     In the former case, this Court ultimately upheld the grant of

summary judgment in favor of a parts supplier.          In the latter case, the

Pennsylvania Supreme Court refined the application of the frequency,

regularity, and proximity factors with respect to causation and damages

following trial.5
____________________________________________


5 Although Rost involved issues that arose following trial, the decision
highlights the proper application of frequency, regularity, and proximity



                                           -7-
J-S23016-18



        In Gregg, the plaintiff asserted that the decedent worked with brake

linings and clutches on cars and trucks throughout his lifetime and died of

pleural mesothelioma. Gregg v. V-J Auto Parts Co., 975 A.2d 1171, 1172

(Pa. Super. 2009). The plaintiff, the decedent’s son, brought an action against

the supplier of the parts.         Id.    In support, the plaintiff produced three

depositions in support of the action against the supplier.

        First, the decedent’s daughter testified that the decedent sometimes

worked on brakes and purchased products from the supplier’s store. Id. at

1177.     However, she was unaware of whether these products contained

asbestos and could not recall the particular products purchased from the

subject store or how many purchases were made. Id.

        Second, the plaintiff was also deposed and testified that the decedent

worked on automobiles when plaintiff was young.             Id. at 1177-78.   The

plaintiff was unsure whether the particular brakes used by the decedent

contained asbestos and could not identify any particular manufacturer of the

products used by the decedent. Id. at 1178. However, he later learned that

all brakes in that period of time contained asbestos. Id. at 1178. The plaintiff

was not able to recall what parts the decedent purchased from the subject

store, but did recall that decedent also purchased brakes from a different

store. Id.



____________________________________________


factors, which may also be applied at the summary judgment stage of a
proceeding.

                                           -8-
J-S23016-18



      Third, the decedent’s coworker testified that he helped the decedent

install brakes, but could not recall how many times he did so or the parts used.

Id. The coworker asserted he went to the subject store with the decedent to

buy parts. Id. He assumed, but did not know for certain, that the brakes

contained asbestos. Id.

      The supplier filed a motion for summary judgment arguing that the

plaintiff could not establish any of those products contained asbestos. Id. at

1172. The supplier asserted the plaintiff could only show that the decedent

used brake products purchased from its store on two or three occasions. Id.

The trial court initially granted summary judgment in favor of the supplier

based on insufficient product identification evidence, but later ruled that the

plaintiff failed to establish the frequency, regularity, and proximity of the

decedent’s exposure to the supplier’s products. Following a series of appeals

that reached the Pennsylvania Supreme Court, the Pennsylvania Supreme

Court remanded the plaintiff’s appeal from the grant of summary judgment

against the plaintiff to this Court.

      Upon remand, this Court affirmed the trial court’s ruling. Specifically,

we reasoned:

      there is simply no evidence to support the conclusion that the
      decedent had more than de minimis contact with [the supplier’s]
      products. The type of product bought and the type of product used
      by decedent that was purchased at [the supplier’s] store, was
      generally unknown. There is no evidence at all to support the
      conclusion that the decedent had definite contact with [the subject
      store’s] products, which contained asbestos.



                                       -9-
J-S23016-18



Id. at 1178.

      In Rost, the plaintiff proceeded to trial against Ford. At trial, the plaintiff

asserted that he worked at a garage for three to four months following his

graduation from high school in 1950. Id. at 1037. He worked as a “gofer,”

and he did basic car maintenance and was responsible for cleaning the garage.

Id. He testified that he was exposed to asbestos, when he removed asbestos

lining from brake shoes and threw them away, when other mechanics would

use compressed air to blow out dirt and debris inside brake drums (blow outs),

and when he cleaned dust and debris from “brake jobs, blow outs, and clutch

and engine work.” Id.

      In Rost, the plaintiff presented evidence that eighty-five to ninety

percent of the vehicles serviced at the garage were Ford vehicles. Id. Ford

also stipulated that “all model year Ford vehicles, from 1945 until 1950, used

asbestos brakes and asbestos clutches, and that Ford’s brakes and clutches

were forty to sixty percent chrysotile asbestos by weight.” Id.

      After working at the garage for three to four months, Appellant had

several jobs.   In at least one of those jobs, the plaintiff was exposed to

asbestos “at pretty high levels” when working in proximity to turbines at

Metropolitan Edison between 1960 and 1970. Id. at 1038. By 1972, however,

the plaintiff began wearing a mask in the areas with high levels of asbestos.

Id.

      The plaintiff in Rost presented expert evidence regarding the amount

of asbestos fibers he would have been exposed to at the garage. Id. at 1040.

                                       - 10 -
J-S23016-18



The plaintiff’s causation expert also opined that the exposure to asbestos at

the garage significantly contributed to the development of the plaintiff’s

mesothelioma. Id.

      The jury in Rost found in favor of the plaintiff and awarded a total of

$994,800 in damages. Id. at 1041. The jury also found that the plaintiff’s

exposure to asbestos products from three companies during the plaintiff’s

tenure at Metropolitan Edison was a substantial cause of the plaintiff’s

mesothelioma.     Id.   The trial court thus molded the verdict and awarded

damages against Ford in the amount of $248,700. Id.

      Ford appealed, and this Court affirmed.        The Pennsylvania Supreme

Court granted allowance of appeal, in part, to illuminate further “the proper

application of the ‘frequency, regularity, and proximity’ criteria in asbestos

product liability litigation.” Id. at 633.

      The Rost Court reiterated two basic precepts:

      First, expert testimony based upon the notion that “each and
      every breath” of asbestos is substantially causative of
      mesothelioma will not suffice to create a jury question on the issue
      of substantial factor causation. Second, to create a jury question,
      a plaintiff must adduce evidence that exposure to defendant’s
      asbestos-containing product was sufficiently “frequent, regular,
      and proximate” to support a jury’s finding that defendant’s
      product was substantially causative of the disease.

Id. at 646 (footnote omitted).

      The Rost Court rejected Ford’s argument that the plaintiff prevailed

based on “each and every breath” evidence. Upon a detailed review of the

record, the Court the plaintiff’s expert testified regarding the effect of asbestos

                                      - 11 -
J-S23016-18



exposure and offered a proper opinion that the plaintiff’s exposure to asbestos

at the garage was a substantial factor in the plaintiff’s development of

mesothelioma.

        The Rost Court further rejected Ford’s argument that the plaintiff failed

to establish that his exposure to asbestos at the garage was a substantial

causative factor compared his exposure to asbestos at Metropolitan Edison.

The Court emphasized that “evidence of ‘frequent, regular, and proximate’

exposures to the defendant’s product creates a question of fact for the jury to

decide.” Id. at 1050 (citing Gregg, 943 A.2d at 226-27). Thus, a plaintiff

need not “exclude every other possible cause for his or her injury[.]” Id. at

1051.

        Mindful of the foregoing principles, and before addressing Appellant’s

specific claims, we summarize the undisputed portions of the record. Here,

the record established that Appellant was exposed to dust containing asbestos

at Alray Tire.6 Felgar and Price both testified that they believed the brakes

they used contained asbestos. They indicated asbestos brakes were the best

products at the time, and that all brakes would have contained asbestos at

the time Decedent worked at Alray. Felgar identified Raybestos as one brand

of brakes used at Alray, and Price identified Raybestos and Bendix as the two

brands of brakes he remembered most. Price testified that Decedent would



____________________________________________


6 The description of brake replacements proffered by Appellant was
substantially similar to that in Rost.

                                          - 12 -
J-S23016-18



have used the same brands. Price recalled that the packaging material for

one brand of brakes indicated that it contained asbestos.

      Further, based on the record, it can be inferred that Appellant’s

responsibilities as a mechanic required closer contact with asbestos products

than those of the plaintiff in Rost.    We also acknowledge that Decedent

worked at Alray for approximately ten years versus the Rost plaintiff’s career

of several months as a “gofer.”

      As to Advance and Automotive, Felgar described Alray’s parts suppliers

in the following exchange in his deposition:

      Q     . . . Did you order straight from the parts company?

      A     From the parts store, the local parts store.

      Q      Do you recall any of parts stores you ordered from at Alright
      [sic] Tire?

      A     Auto Parts Plus was very close on Rodi Road. They became
      Auto Parts Plus part way through, because they were bought out
      by somebody else. What they were before that, I can’t tell you.
      Beacon Auto Parts and Advanced Auto Parts, also.

            DEFENSE COUNSEL: What was that last one?

      [Felgar]    Advanced.

            [Appellant’s counsel]: Advanced.

      [Appellant’s counsel] Can you provide any address for Beacon
      Auto Parts or just a city or street?

      [Felgar]    Beacon was on Frankstown Road. I don’t remember
      the street address. Parts Plus was on Rodi Road. Like I said, it was
      two blocks or a half a mile from the Duff Road intersection. So we
      got most of our parts there, because of the location being close to
      us.

      Q     Would the mechanics also order from these place?


                                     - 13 -
J-S23016-18


       A    Yes, depending if they had the brakes that we needed or
       something specific or the price was a possibility.

R.R. at 517a.7

       As to Ford, Felgar testified that he also ordered parts from dealerships,

including a “Ford Dealer in Monroeville” and “Biondi Lincoln Mercury/Ford

dealer.” Id. at 445a. Additionally, Felgar testified that Alray predominantly

serviced Chevrolets and Fords. Id. at 452.

       Price confirmed that Alray would obtain parts from the “Auto Parts Plus”

and “Beacon Auto Parts.” Price also testified that he and Felgar worked mainly

on Chevrolets, Fords, and Dodges.

                  Advance’s Motion for Summary Judgment

       Advance, in its motion for summary judgment, noted that Felgar

testified that he ordered parts from three stores, including “Advanced Auto

Parts.”   R.R. at 300a-301a.          Advance did not dispute that there was a

corporate connection between Advance and the “Advanced Auto Parts” store

referred to by Felgar. See id at 301a. However, Advance argued that Felgar’s

testimony on cross-examination revealed that he could not state with certainty

whether he purchased parts from the “Advanced Auto Parts” store. Id.

       Specifically, Advance cited to the following portion of          Felgar’s

deposition:

____________________________________________


7 We cite to the reproduced record in this appeal for the convenience of the
parties. We note that Appellant has not provided full transcripts of the
depositions of Felgar and Price, and that our review is limited to the excerpts
provided by the parties in their motions and responses.

                                          - 14 -
J-S23016-18


     [Advance’s counsel]    So I want to ask you some questions
     about [the “Advanced Auto Parts” store Felgar identified during
     direct examination]. Do you know what their address was?

     [Felgar]   I’m not sure. I did remember that. Beacon, I
     mentioned, was taken over by Car Quest. So it was part Beacon
     and part Car Quest during the time period. It was the one that
     was up on Frankstown Avenue.

     Q     Do you know when they were taken over?

     A     During the period I worked there. I can’t say for sure.

     Q    When you were being asked questions earlier, you said you
     thought Advanced Auto. Do you know if Alright [sic] purchased
     from Advanced?

     A   To say with exact surety, I really don’t. You have to
     remember this is back 30, 40 years ago. I was trying to recall that.

     Q     Would I be correct in saying then that you cannot offer any
     testimony that [Decedent] would have installed or removed
     brakes that were supplied by Advanced Auto?

     A    I think I bought from Advanced, but can I swear to it after
     40 years? Could you? I can’t.

     Q     No, I understand. Would it be fair to say that you don’t know
     the supplier of any of the brakes that were removed at Alray?

           [Appellant’s counsel]: Objection.

     Q     That [Decedent] removed? Excuse me.

     A     No, there’s no way of knowing when you take them off,
     unless you had remembered putting them on.

     Q    And same would be true for the brand? You wouldn’t know
     what brand was being removed?

           [Appellant’s counsel]: Objection.

     A    No, there’s nothing on the pad of the shoe that tells you
     what brand they are.




                                    - 15 -
J-S23016-18



R.R. at 345a-46a. Advance thus argued that there was “no evidence that

[Decedent] removed or installed a brake supplied by Advance during his

employment at Alray.” Id. at 301a (Advance’s Mot. for Summ. J. at 5).

       In response, Appellant emphasized that Felgar testified that he ordered

from the “Advanced Auto Parts” store. Appellant further alleged that “Beacon

Auto Parts” was affiliated with Advance based on Felgar’s testimony that

“Beacon Auto Parts” turned into “Car Quest.” R.R. at 506a. According to

Appellant, “[a] cursory internet search” indicated that “Advanced Auto Parts”

and “Carquest” were part of the same company headquartered in Roanoke,

Virginia. Id.

       Advance replied, denying any corporate connection between the

“Beacon Auto Parts” store.

       [Appellant’s] counsel makes a last-ditch effort to hold Advance in
       this claim by claiming that they are the same company as
       Carquest and that Beacon Auto Parts, another auto parts store Mr.
       Felgar made purchases from for Alray, is affiliated with Carquest
       based on an assumption by Mr. Felgar. However, as the attached
       documents show, Beacon Auto Parts is not affiliated with Carquest
       and/or Advance.[8]

       Beacon Auto Parts still exists today and it has been confirmed that
       they had a location on Frankstown Road as testified to by Mr.
       Felgar. However, Beacon Auto Parts is affiliated with the
       Aftermarket Auto Parts Alliance a/k/a Auto Value. Auto Value is
       comprised of over 50 independent shareholders. As indicated by
       the Shareholders list attached to this Reply, neither Advance nor
____________________________________________


8Advance attached to its reply an internet “yellow pages” that listed a “Beacon
Auto Parts” store on Frankstown Road, as well as internet pages bearing an
Auto Value emblem and apparently displaying (1) an image of a Beacon Auto
Part/Auto Value store in North Carolina and (2) a list of shareholders in Auto
Value, which did not include Advance. R.R. at 583a-606a.

                                          - 16 -
J-S23016-18


      Carquest are shareholders in Auto Value. In fact, Auto Value is a
      competitor of Advance. Therefore, Carquest has no liability for
      any purchases allegedly made at Beacon Auto Parts. Additionally,
      even if the Court is to find that Advance has liability for Beacon
      Auto Parts, there is no evidence that [Decedent] installed a brake
      purchased from Beacon Auto Parts. Mr. Felgar was never asked
      which specific auto parts he purchased from Beacon.

R.R. at 579a. Appellant did not file a sur-reply to Advance’s reply or otherwise

move to strike the attached documents.

      The trial court granted summary judgment in favor of Advance,

concluding that

      Appellant has not produced sufficient evidence [Decedent] was
      exposed to asbestos from auto parts supplied or distributed by
      [Advance]. To the contrary, [Decedent’s] former manager, [E.]
      Wayne Felgar, only gave general deposition testimony that
      [Advance] was one of the parts stores from whom Alray Tires
      purchased auto parts. In fact, Mr. Felgar testified he could not
      specifically recall anything that might have been purchased from
      [Advance] during the time Mr. Felgar worked for Alray Tires.
      Moreover, [Decedent]’s former coworker, John Price, made no
      reference to [Advance] in his deposition testimony.

Trial Ct. Op., 12/1/17, at 24.

      Appellant asserts that (1) Advance is a supply company that distributed

asbestos-containing brakes; (2) Felgar testified he purchased brakes from

“Carquest and Advanced Auto[;]” and (3) Felgar believed those brakes

contained asbestos. Appellant’s Brief at 24. Thus, Appellant contends the

record, when read in a light most favorable to her as the non-moving party,

established Decedent’s exposure to asbestos-containing brake from Advance.

Id.




                                     - 17 -
J-S23016-18



     Following our review, we discern no basis to disturb the trial court’s

ruling as to Advance.   There was no direct testimony that Appellant was

exposed to an asbestos part supplied by either the “Advanced Auto Parts”

store or the “Beacon Auto Parts.” Appellant relied on general assertions that

Alray would have obtained parts from “Advanced Auto Parts” store or the

“Beacon Auto Parts” and that the brakes purchased would have contained

asbestos.   This evidence provided no reasoned basis to determine the

frequency of Appellant’s exposure to asbestos-containing parts supplied

specifically by Advance. Thus, even assuming some products from Advance

contained asbestos, a finder of fact would have no basis to assess whether the

exposure to Advance’s products was substantial or de minimis. Cf. Gregg,

975 A.2d at 1178. Thus, Appellant’s evidence that Decedent’s exposure to

Advance’s asbestos-containing products was too speculative to survive

summary judgment. See Krauss 104 A.3d at 568.

                                Automotive

     Automotive, in its motion for summary judgment, averred that the

record contained no evidence that Decedent was exposed to any product that

it manufactured or distributed. R.R. at 210a.

     Appellant responded that Felgar testified that he usually purchased parts

from “Auto Parts Plus,” which “was very close [to Alray] on Rodi Road.” See

R.R. at 383a, 395a. Appellant asserted that

     According to [Automotive]’s website, “The AUTOMOTIVE
     DISTRIBUTION NETWORK is the umbrella organization for three
     of the premier groups in the automotive aftermarket: Parts Plus,

                                    - 18 -
J-S23016-18


     Independent Auto Parts of America, and Auto Pride. . . .” Parts
     Plus, identified by Mr. Felgar is under the umbrella of
     [Automotive]. Asbestos-containing products including brakes
     were bought by Mr. Felgar from Parts Plus and installed by
     [Decedent]. When all the evidence is taken into consideration
     [Automotive]’s summary judgement motion must be denied.

R.R. 383a-384a (emphasis added).

     In its reply, Automotive further denied any association to the “Auto Parts

Plus” store referred to by Felgar. R.R. at 543a. According to Automotive:

     No documentary evidence is produced that demonstrates that a
     local parts store called Auto Parts Plus is the same as or is affiliated
     with Parts Plus. This is just [Appellant]’s counsel’s incorrect
     presumption that because the two entities have similar names
     that they must be the same. That presumption, as noted, is not
     supported by any testimony or document that describes Auto
     Parts Plus as part of Parts Plus.

     Attached hereto as Exhibit “A” is the affidavit of Robert Johnson,
     Vice President and General Counsel of Automotive Distribution
     Network, LLC. As noted by Mr. Johnson, Automotive Distribution
     Network, LLC was not created until 2005, thirty years after it is
     alleged [Decedent]’s employer began to buy automotive parts
     from local parts stores. Moreover, Automotive Distribution
     Network, LLC does not purchase, possess, or sell automotive
     products and only acts to negotiate purchase terms for the owners
     of the network. As a result, Automotive Distribution Network, LLC
     was not in existence at the time of [Decedent]’s alleged exposure
     to asbestos-containing products and it could not have been in the
     position to sell products to [Decedent]’s employer.[fn1]

            Defendant Automotive Distribution Network, LLC did not
        [fn1]

        produce the affidavit of Mr. Johnson in support of its motion
        for summary judgment because there was no allegation in
        the complaint that Auto Parts Plus was the same as Parts
        Plus or that it was in any way affiliated with Automotive
        Distribution Network, LLC. It is only because the unfounded
        and conflated statements of [Appellant]’s counsel regarding
        an alleged connection that Automotive Distribution Network,
        LLC finds it necessary to produce the affidavit now.



                                     - 19 -
J-S23016-18



R.R. at 543. Appellant did not file a sur-reply to Advance’s reply or otherwise

move to strike the attached documents.

      The trial court concluded:

      With regard to Appellee Automotive Distribution Network, LLC,
      Appellant has produced no evidence [Decedent] was exposed to
      asbestos from auto parts supplied or distributed by Automotive
      Distribution Network, LLC. To the contrary, the only two exhibits
      attached to Appellant’s Answer to Appellee Automotive
      Distribution Network, LLC's Motion for Summary Judgment are the
      deposition transcripts of [E.] Wayne Felgar and John Price, and
      neither witness mentions Automotive Distribution Network, LLC
      anywhere in those transcripts.

Trial Ct. Op. at 25.

      Appellant asserts that (1) Automotive “admits it is also known as Auto

Parts Plus[,]” a supply company that distributed asbestos-containing brakes;

(2) Felgar testified he purchased brakes from “Autoparts Plus[;]” and (3)

Felgar believed those brakes contained asbestos.       Appellant’s Brief at 25.

Thus, Appellant contends the record, when read in a light most favorable to

her as the non-moving party, established Decedent’s exposure to asbestos-

containing brakes from Automotive. Id.

      We agree with the trial court that Appellant failed to establish a genuine

issue of fact that Automotive supplied asbestos-containing products to Alray.

There was no direct evidence that Automotive was affiliated with or a

successor in interest to the “Auto Parts Plus” store on Rodi Road. Appellant’s

further attempt to establish that Automotive was affiliated with the “Auto Parts

Plus” store by way of a “cursory internet search” would provide no basis to


                                     - 20 -
J-S23016-18



draw a reasonable inference that Automotive supplied parts to Alray during

Decedent’s tenure. See Cummins, 495 A.2d at 967. Thus, we conclude that

trial court’s entry of summary judgment in favor of Automotive was proper.

See Krauss, 104 A.3d 556, 562-63

                                    Ford

     Ford, in its motion for summary judgment, asserted:

            Ford is only liable for original equipment (OE) brakes
        [fn1]

        either removed from or installed on Ford vehicles. Ford OE
        replacement brakes are purchased from a Ford dealership
        and are not available at aftermarket stores. Aftermarket
        brakes, sold under various brand names, are generally sold
        at auto supply stores and can be purchased as replacement
        brakes for Ford and other manufacturers’ vehicles. Installing
        and/or removing aftermarket brakes from a Ford vehicle
        does not result in any exposure to Ford OE brakes or any
        exposure attributable to Ford.

     Ford is not liable for any alleged exposures that may have
     occurred from products it did not manufacture, i.e., aftermarket
     replacement brakes installed on Ford vehicles.[fn2] Since
     [Appellant] has not produced any evidence that [Decedent] was
     ever exposed to Ford original equipment brakes [Appellant]’s
     evidence of record fails to meet the “frequency, regularity, and
     proximity” standard for defeating summary judgment . . . .
        [fn2] Ford
                 is not liable for other manufacturers’ products, such
        as aftermarket brakes or clutches, that are used on a Ford
        vehicle.

R.R. at 225a-26a (citations omitted).

     Additionally, Ford asserted that the record established that Appellant

could not establish that his exposure to parts obtained from its dealerships

was frequent and regular. R.R. at 227a. In support, Ford cited the following

portions of Felgar’s deposition testimony on cross-examination

                                    - 21 -
J-S23016-18


     [Felgar]     Like I said we normally only bought brakes from the
     dealer if the customer specified they wanted them from the dealer,
     which wasn’t very often or nonexisting, or someone else didn’t
     have a supply of them, then we’d go there to get them, but that
     was true with everything else, also.

     Q     But you have no specific recollection of purchasing a
     replacement brake from a Ford dealer?

     A     No.

R.R. 242a-43a.

     Ford also noted the following exchange during Price’s deposition:

     Q   How about for the dealership, [were parts] delivered or did
     somebody go out and get them?

     [Price]    That was fifty/fifty, every once and a while we’d go
     out and get them. Sometimes they would deliver them to us. I
     mean, we didn’t have to buy parts at a dealership that often,
     because the parts stores normally had them.

     Q     Now, do you recall any specific dealerships that Alray
     ordered parts from?

     A     No. Not -- not specific names of them . . . .

R.R. 250a-51a.

     Appellant responded to Ford’s motion for summary judgment as follows:

     Mr. Price and Mr. Felgar testified [Decedent] did brake changes on
     Ford vehicles. Mr. Felgar testified he purchased automotive parts
     from Ford dealerships. Mr. Price testified Mr. Gilbert installed
     asbestos-containing brakes on multiple vehicles, including Ford,
     and scuffed up the brake pads prior to install. Mr. Price testified
     there was dust throughout the shop and Mr. Gilbert did not wear
     a mask.

     In discovery responses, . . . Ford admits that it sold vehicles and
     aftermarket service parts which included asbestos-containing
     brake linings. . .. Ford further admits that these linings contained
     chrysotile asbestos between 40% and 60% by weight and that



                                    - 22 -
J-S23016-18


        they continued to use asbestos in brake linings until 1997.[9] When
        all the evidence is taken into consideration Ford’s motion for
        summary judgement must be denied.

R.R. 442a.

        In its reply, Ford asserted:

        Mr. Felgar was unable to testify that he ever ordered Ford brakes
        for use at Alray Tires. [Appellant] mischaracterizes Mr. Felgar’s
        testimony and only cites to the portions regarding what “would
        have” happened and the possible options available if brakes were
        not available “through the aftermarket.” However, when asked
        directly, Mr. Felgar was unable to testify that he saw [Decedent]
        install a set of replacement brakes bought from a Ford dealership
        on any Ford vehicles. Accordingly, any argument that Mr. Gilbert
        installed Ford replacement brakes is speculative.

        [Appellant’s] opposition misconstrues the testimony: Mr. Felgar
        testified that “some parts” were bought from car dealerships, “but
        brakes was normally not one of them.” Mr. Felgar testified that
        brakes would be purchased from a dealership if they were not
        available through the aftermarket-and that if that had happened,
        brakes may have been purchased at the Ford dealership. In no
        way is this evidence that [Decedent] removed or installed Ford
        brakes. In fact, Mr. Felgar specifically testified that he did not have
        a specific recollection of purchasing a replacement brake from a
        Ford dealer. Mr. Felgar specifically testified that he was unable to
        testify about how many Ford vehicles worked on at Alray, and he
____________________________________________


9   The specific admission by Ford states:

        Ford believes asbestos-containing friction products were
        incorporated into its vehicles since it began selling mass
        production vehicles in the early 1900s. Ford states that the use of
        asbestos-containing friction products were phased out of the
        majority of Ford's vehicles by 1984. By 1993, the only vehicles in
        which asbestos-containing friction products were still used were
        low-volume limousine applications. Their use in limousines was
        discontinued in 1997.

R.R. at 466a.


                                          - 23 -
J-S23016-18


      was unable to testify about the brand of brakes [Decedent] would
      have removed from a vehicle before performing a brake change.
      Any allegation that [Decedent] installed Ford brakes on any of the
      Ford vehicles he may have worked on is purely speculative.

R.R. 560a-561a (citations to exhibits omitted).

      The trial court granted summary judgment in favor of Ford, reasoning:

      With regard to [Ford], Appellant has not presented sufficient
      evidence [Decedent] was exposed to asbestos from brakes
      manufactured supplied, and/or distributed by [Ford]. While
      Appellant produced [Ford]’s interrogatories in which Ford stated it
      sold vehicles and aftermarket service parts, including asbestos-
      containing brake linings and pads, through franchised Ford dealers
      and authorized distributors in the United States during the
      relevant time period, Appellant produced no evidence that
      [Decedent] was exposed to asbestos from working with or around
      Ford brakes. To the contrary, [Decedent]’s former manager, [E].
      Wayne Felgar, only gave general deposition testimony that Ford
      was one of the makes of vehicles the mechanics worked on at
      Alray Tires. While Mr. Felgar referenced a “Ford Dealer in
      Monroeville” and a “Biondi Lincoln Mercury/Ford dealer” from
      whom Alray Tires purchased auto parts, when further questioned
      during his deposition he could not say whether he had any specific
      recollection of ever ordering or purchasing replacement brakes
      from Biondi Mercury. Likewise, [Decedent]’s former coworker,
      John Price, only gave general deposition testimony that Ford was
      one of the main brands of vehicles [Decedent] worked on. While
      both of the aforementioned fact witnesses gave general testimony
      about [Decedent] performing brake jobs at Alray Tires, Appellant
      has produced no evidence which specifically ties [Decedent] to
      the performance of the removal and/or installation of Ford brakes,
      or even places [Decedent] in the proximity of other Alray Tires
      employees who were doing such work with Ford brakes.

Trial Ct. Op. at 23-24.

      Appellant reiterates in this appeal that there was evidence that (1)

Felgar ordered parts from two Ford dealerships; (2) Ford sold vehicles and

aftermarket parts that contained asbestos during Decedent’s entire career at


                                    - 24 -
J-S23016-18



Alray, and during the time he did thousands of brake changes; (3) Ford sold

brake linings that were forty to sixty percent asbestos by weight; and (4) the

Ford used asbestos products until 1997.10 Appellant’s Brief at 46.

       Appellant further contends that the trial court erred in concluding that

without evidence of the identity of the manufacturers of the asbestos-

containing parts installed on the Ford vehicles, Ford had no liability. Id.

Appellant suggests that this reasoning:

       harkens to a quasi “bare metal”[11] defense. According to the trial
       court unless it could be established that the asbestos-containing
       replacement component parts were also manufactured by Ford,
       Ford could not be held liable. This is simply not the case under
       current Pennsylvania law.”




____________________________________________


10 Appellant, for the first time on appeal, suggests that Ford recommended
the use of asbestos-containing brake linings for its vehicle. Appellant does
not point to any portion of the record supporting that assertion.

11 The district court for the United States Eastern District of Pennsylvania
stated:

       Indeed, as asbestos litigation has evolved, and the major
       manufacturing defendants have declared bankruptcy, the
       litigation has moved away from the manufacturers of asbestos,
       and defendants in the cases now pending before this Court are
       typically those that manufactured so-called “bare-metal” products
       that contained or were later encapsulated in asbestos.

          Although litigants often refer to the defense raised herein as
          the “bare-metal defense,” it is more properly understood,
          as explained below, as a challenge to a plaintiff’s prima facie
          case to prove duty or causation.

Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 793 (E.D. Pa. 2012).

                                          - 25 -
J-S23016-18



Id. at 46-47. Appellant provides no citations to law or further discussion for

this argument.

      As to Appellant’s arguments based on the record, we are constrained to

conclude that Appellant failed to establish a genuine issue of fact that he was

exposed to products associated with Ford. At the outset, we reiterate that in

Rost, there was deemed to be sufficient exposure to not only survive

summary judgment but prevail at trial. However, in Rost, Ford conceded that

all Ford vehicles contained asbestos parts in the five years preceding the

plaintiff’s employment at the garage in 1950. Rost, 151 A.3d at 1037. Thus,

there was evidence from which to draw an inference that the plaintiff would

have been exposed to original parts on Ford vehicles, which were a substantial

portion of the garage’s business.

      Here, in contrast, Appellant relies on Ford’s admission that a phase-out

of asbestos products did not occur in the majority of its vehicles until 1984,

but that a full phase-out did not occur until 1997. The admission suggests

that some Ford vehicles would have original asbestos parts installed during

the time Decedent was at Alray from 1975 and 1985. However, Appellant did

not adduce evidence of when Ford’s phase-out started, the scope of the phase-

out, or any other information regarding how many Ford vehicles could have

contained original asbestos-containing parts during Decedent’s time at Alray.

Similarly, Appellant provided information in the record to assess Appellant’s

exposure to original parts on Ford vehicles, as opposed to replacement parts

from other manufacturers or suppliers. Thus, even if Alray primarily serviced

                                    - 26 -
J-S23016-18



Ford, Chevrolet, and Dodge vehicles, the record did not contain adequate

information to infer that the frequency of Decedent’s contact with the asbestos

parts original to Ford vehicles or bearing Ford’s replacement parts was more

than de minimis. See Rost, 151 A.3d at 1037; Gregg, 975 A.2d at 1178.

      With respect to Decedent’s exposure to Ford’s aftermarket brakes

purchased from Ford dealerships, we agree with the trial court that Appellant’s

evidence was inadequate.       Appellant relies on bare assertions that Alray

ordered parts from two Ford affiliated dealerships. As noted by the trial court,

there was no direct evidence that Felgar or any of the other mechanics ordered

Ford brakes from the dealership. Indeed, Felgar and Price both testified that

they did not order parts from the dealerships often and neither could

remember whether they ordered brakes. Accordingly, Appellant has provided

no evidence from which a finder of fact could reasonably assess the frequency

of Decedent’s exposure to Ford products. See Gregg, 975 A.2d at 1172.

      We also discern no merit to Appellant’s argument that the trial court

erred in concluding that Ford could not be held liable for original parts installed

on a Ford vehicle but were manufactured by another party. Put simply, there

is no support for Appellant’s suggestion that the trial court granted summary

judgment in favor of Ford on that basis. Moreover, Appellant fails to develop

any argument for his claim that Ford could be held liable for replacement parts

installed on a Ford vehicle but were manufactured by another party.           See

Pa.R.A.P. 2119(a); McCabe v. Marywood Univ., 166 A.3d 1257, 1264 (Pa.




                                      - 27 -
J-S23016-18



Super. 2017).     Thus, we decline to address that claim.        Accordingly,

Appellant’s claim of legal error warrants no relief.

      In sum, we conclude that the trial court appropriately determined that

there was insufficient evidence of Decedent’s exposure to asbestos in

Appellees’ parts. Moreover, we conclude that Appellant failed to raise genuine

issues of fact that the exposure to Appellees’ parts was sufficiently frequent

and regular. Having reviewed the record, we discern no merit to Appellant’s

overarching claim that the trial court erred in failing to apply the proper

standard of review.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/18




                                     - 28 -
