PENNSYLVANIA RECORD

A three-judge panel of the state Superior Court reversed the decision of a western

Pennsylvania trial court judge last week that granted summary judgment to a defendant in an asbestos case initiated by the widow of a man who died from mesothelioma.

In a June 8 order, the appellate panel reversed a Dec. 30, 2008, decision by an Allegheny County Court of Common Pleas judge that granted summary judgment to Union Carbide Corp. in a case in which Margaret T. Petrina filed suit in the spring of 2008 against various manufacturers and suppliers of asbestos-containing products.

Petrina alleges that her husband, Joseph E. Petrina, died as a result of his coming into contact with the fiber during his working years, between the 1950s and 1970s.

After discovery ended in late September 2008, defendant Union Carbide Corp. filed a motion for summary judgment for lack of product identification, asserting that no evidence demonstrated that Joseph Petrina had been exposed to any asbestos-containing product attributable to Union Carbide.

In response, Margaret Petrina produced deposition testimony from various witnesses that her late husband had breathed asbestos dust from a joint compound called “Gold Bond,” which was manufactured by National Gypsum, a non-party to this case as a result of the defunct company’s subsequent bankruptcy.

Union Carbide has not denied that it owned and operated asbestos mines at the time of Joseph Petrina’s exposure to Gold Bond dust. The company also admitted to having supplied asbestos to National Gypsum for use in the Gold Bond product, court papers state.

After the case came before a western Pennsylvania trial judge, however, Union Carbide was granted summary judgment.

Petrina appealed, arguing that the trial court erred in ruling that answers to interrogatories submitted in response to Union Carbide’s motion for summary judgment were inadmissible hearsay and thus did not constitute evidence of record showing a genuine issue of fact for trial.

The appellate panel, in its June 8 decision, ruled that the Allegheny Common Pleas Court judge did, in fact, commit an error of law.

It remanded the case back to trial court for further proceedings.

On appeal, Petrina contended that the trial court applied the wrong standard of review when deciding Union Carbide’s motion for summary judgment, as it viewed the evidence in the light most favorable to the moving party rather than the non-moving party.

Specifically, the plaintiff argued that the trial’s court’s focus on the hearsay nature of National Gypsum’s answers to interrogatories was inappropriate, as the evidence constituted a proper response in opposition to the summary judgment motion.

The appellate panel agreed, writing that the case involves no such use of third-party hearsay evidence.

“Accordingly, we conclude that National Gypsum’s answers to interrogatories constituted the firsthand knowledge of the corporation with respect to the questions posed as communicated through its chosen spokesperson,” the ruling states. “For these reasons, the trial court should not have excluded National Gypsum’s answers to interrogatories from the evidence of record for purposes of Union Carbide’s motion for summary judgment.”

The ruling notes that the trial court conceded that the answers to interrogatories “create a material fact from which a jury might infer that Union Carbide was an exclusive supplier of asbestos to National Gypsum for use in the Gold Bond joint compound products.”

“Having determined that the answers to interrogatories should have been included in the evidentiary record, we conclude that the entry of summary judgment in favor of Union Carbide was error.”

The ruling was written by Superior Court Judges Christine Donohue, Ann E. Lazarus and Paula Francisco Ott.