IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`JOHN F. MONZO, and
`MARY LOUISE MONZO, his wife,
`
`CIVIL DIVISION - ASBESTOS
`
`No. GD-18-010828
`
`Plaintiff,
`
`v.
`
`MOTION FOR SUMMARY JUDGMENT
`
`ABRIOLA AUTO PARTS, INC., et. al.
`Defendants.
`
`Filed on behalf of:
`Genuine Parts Company
`
`Counsel of Record for this Party:
`
`Patrick A. Hewitt, Esq.
`PA 1.0. #39179
`
`Alba A. Romano, Esq.
`PA I.D.#51135
`
`RILEY, HEWITT, WITTE & ROMANO, P.C.
`650 Washington Road, Suite 300
`Pittsburgh, PA 15228
`
`(412) 341-9300
`
`Finn #987
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`CIVIL DIVISION - ASBESTOS
`
`No. GD-18-010828
`
`JOHN F. MONZO, and MARY LOUISE
`MONZO, his wife,
`
`Plaintiffs,
`
`v.
`
`ABRIOLA AUTO PARTS, INC., et. al.
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`MOTION FOR SUMMARY JUDGMENT
`
`AND NOW comes defendant, Genuine Parts Company, by its attorneys, Riley,
`
`Hewitt, Witte & Romano, P.C., and pursuant to Pa. R.C.P. Rule 1035, submits this Motion for
`
`Summary Judgment. In support hereof, this party states:
`
`1.
`
`Plaintiff alleges that John Monzo was exposed to products containing
`
`asbestos during his employment as a Steelworker at Mesta Machine in West Homestead, PA from
`
`1960-1961; Asko, Inc., in West Homestead from 1962-1970. He was also employed as a Mechanic
`
`at Leo's Auto Service in Munhall, PA 1966; Jack's Arco in West Mifflin, PA from 1970 -1976;
`
`and MAC Tools and MATCO Tool Corp in West Mifflin from 1976-1990. He additionally
`
`performed automotive work on his on personal automobiles, and on those of family and friends.
`
`2.
`
`In order for liability to attach in a products liability action, Plaintiff must
`
`establish that the injuries were caused by a product of a particular manufacturer or
`
`supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83,337 A.2d 893 (1975). Dornon v.
`
`Johnston, 421 Pa. 58,218 A.2d 808,809 (1966). See also Maliszewki v. Rendon, 374 Pa. Super.
`
`109, A.2d 170 ( 1988), al/oc. denied, 520 Pa. 617, 554 A.2d 510 ( 1989).
`
`3.
`
`For an asbestos personal injury plaintiff to defeat a summary judgment
`
`

`

`motion, he must present evidence to show that he inhaled asbestos fibers shed by the specific
`
`manufacturer's products. Eckenrod v. GAF Corporation, 375 Pa. Super. 187, 544 A.2d 50, 52
`
`( 1988), alloc. denied, 520 Pa. 605, 553 A.2d 968 ( 1988).
`
`4.
`
`5.
`
`There have been no depositions taken in this matter.
`
`Throughout the course of discovery, neither the Plaintiff, nor any other
`
`witness identified a specific occasion of an exposure to an asbestos-containing product(s)
`
`manufactured and/or supplied by this Defendant that would have contributed to Mr. Monzo's
`
`alleged asbestos-related injury, or otherwise provided evidence that would meet the criteria of
`
`regularity, frequency and proximity established by Eckenrod and its progeny.
`
`6.
`
`Under the law, it is plaintiff's burden to prove by admissible evidence
`
`exposure to and inhalation of the fibers released by a specific manufacturer's or seller's asbestos(cid:173)
`
`containing product.
`
`7.
`
`The admissible evidence of record shows that there is no genuine issue as
`
`to any material fact; as such, this Defendant is entitled to judgment as a matter oflaw.
`
`8.
`
`Incorporating and not waiving paragraphs 1 through 7, Genuine Parts
`
`Company reserves the right to raise a De Minimis exposure argument should further discovery
`
`warrant.
`
`WHEREFORE, this Defendant moves this Honorable Court to grant summary judgment
`
`in its favor as to all claims and crossclaims against it.
`
`Dated: March 14, 2019
`
`Respectfully submitted,
`
`By: /s/ Alba A. Romano
`Patrick A. Hewitt, Esquire
`Alba A. Romano, Esquire
`RILEY, HEWITT, WITTE & ROMANO, P.C.
`650 Washington Road, Suite 300
`Pittsburgh, PA 15228
`Attorneys for Genuine Parts Company
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`JOHN F. MONZO, and
`MARY LOUISE MONZO, his wife,
`Plaintiff,
`
`v.
`
`ABRIOLA AUTO PARTS, INC., et. al.
`Defendants.
`
`CIVIL DIVISION - ASBESTOS
`
`No. GD-18-010828
`
`)
`)
`)
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`ORDER OF COURT
`
`AND NOW, to-wit, this _ _ day of _ _ _ _ _ _ _ , 2019, upon consideration
`
`of the Motion for Summary Judgment, it is hereby ORDERED, ADJUDGED and DECREED that
`
`summary judgment on all claims and crossclaims is hereby _ _ _ _ _ _ _ _ _ _ _ _
`
`If granted, this Court Order hereby dismisses GENUINE PARTS COMPANY with prejudice.
`
`BY THE COURT:
`
`_ _ _ _ _ _ _ _ _ _ _ _, 1.
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing Motion for Summary Judgment
`
`was sent by first-class, United States mail, postage prepaid, this 14th day of March, 2019 to the
`
`following:
`
`Leif J. Ocheltree, Esquire
`GOLDBERG, PERSKY & WHITE, PC
`11 Stanwix Street, Suite 1800
`Pittsburgh, PA 15222
`
`ALL KNOWN DEFENSE COUNSEL OF RECORD SERVED VIA E-MAIL.
`
`Isl Alba A. Romano
`Alba A. Romano, Esquire
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`JOHN F. MONZO, and
`MARY LOUISE MONZO, his wife,
`Plaintiff,
`
`CIVIL DIVISION - ASBESTOS
`
`No. GD-18-0 I 0828
`
`v.
`
`ABRIOLA AUTO PARTS, INC., et. al.
`
`BRIEF IN SUPPORT OF MOTION FOR
`SUMMARY JUDGMENT
`
`Defendants.
`
`Filed on behalf of:
`Genuine Parts Company
`
`Counsel of Record for this Party:
`
`Patrick A. Hewitt, Esq.
`PA I.D. #39179
`
`Alba A. Romano, Esq.
`PA I.D.#51135
`
`RILEY, HEWITT, WITTE & ROMANO, P.C.
`650 Washington Road, Suite 300
`Pittsburgh, PA 15228
`.
`
`(412) 341-9300
`
`Finn #987
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`CIVIL DIVISION - ASBESTOS
`
`No. GD-18-0 l 0828
`
`JOHN F. MONZO, and MARY LOUISE
`MONZO, his wife,
`
`Plaintiffs,
`
`V.
`
`ABRIOLA AUTO PARTS, INC., et. al.
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`BRIEF IN SUPPORT OF
`MOTION FOR SUMMARY JUDGMENT
`
`AND NOW comes defendant, Genuine Parts Company, by its attorneys, Riley, Hewitt,
`
`Witte & Romano, P .C., and files its Brief in Support of Motion for Summary Judgment as follows:
`
`A. FACTS
`
`Plaintiff alleges that John Monzo was exposed to products containing asbestos during his
`
`employment as a Steelworker at Mesta Machine in West Homestead, PA from 1960-1961; Asko,
`
`Inc., in West Homestead from 1962-1970. He was also employed as a Mechanic at Leo's Auto
`
`Service in Munhall, PA 1966; Jack's Arco in West Mifflin, PA from 1970-1976; and MAC Tools
`
`and MATCO Tool Corp in West Mifflin from 1976-1990. He additionally performed automotive
`
`work on his own personal automobiles, and on those of family and fiiends. There have been no
`
`depositions taken in this matter.
`
`Throughout the course of discovery, neither the Plaintiff, nor any other witness has
`
`identified a specific occasion of an exposure to an asbestos-containing product(s) manufactured
`
`and/or supplied by this Defendant that would have contributed to Mr. Monzo's alleged asbestos-
`
`

`

`related injury, or otherwise provided evidence that would meet the criteria of regularity, frequency
`
`and proximity established by Eckenrod and its progeny; as such, there is no material issue of fact
`
`relative thereto. In light of the fact that Plaintiff has failed to produce any evidence of such an
`
`exposure, this Defendant is entitled to summary judgment as a matter oflaw.
`
`B.ARGUMENT
`
`Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories
`
`and admissions filed show there is no genuine issue of material fact and that the moving party is
`
`entitled to judgment as a matter of law. Hedlund Mamifacturing Co. v. Weiser, Stapler & Spivak,
`
`517 Pa. 522, 539 A.2d 357 ( 1988); Gabovitz v. State Auto Insurance Association, 362 Pa. Super.
`
`17,523 A.2d 403 (1987, alloc. denied, 516 Pa. 634,533 A.2d 92 (1987); Williams v. Pilgrim Life
`
`Insurance Co., 306 Pa. Super. 170,452 A.2d 269 (1982); Pa.R.Civ.P. Rule 1035(b), 42 Pa.C.S.
`
`The mere existence of some alleged factual dispute between the parties will not defeat an otherwise
`
`properly supported motion for summary judgment. The requirement is that there be no genuine
`
`issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91
`
`L.Ed. 2d 202 (1986). Only disputes over facts that might affect the outcome of the suit under
`
`governing law will properly preclude entry of summary judgment. Factual disputes that are
`
`irrelevant or unnecessary will not be counted. Id. 477 U.S. at 258. There is no issue for trial unless
`
`there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that
`
`party. If evidence is merely colorable or is not significantly probative, summary judgment may be
`
`granted. Id. 477 U.S. at 249-250.
`
`In order for liability to attach in a products liability action, plaintiff must establish that the
`
`injuries were caused by a product of a particular manufacturer or supplier. Berkebile v. Brantly
`
`Helicopter Corp., 462 Pa. 83,337 A.2d 893 (1975). Dornon v. Johnston, 421 Pa. 58, 218 A.2d
`
`

`

`808,809 (1966). See also Maliszewki v. Rendon, 374 Pa. Super. 109, A.2d 170 (1988), alloc.
`
`denied, 520 Pa. 617, 554 A.2d 510 (1989). For an asbestos personal injury plaintiff to defeat a
`
`summary judgment motion, he must present evidence to show that he inhaled asbestos fibers shed
`
`by the specific manufacturer's products. Eckenrod v. GAF Corporation, 375 Pa. Super. 187,544
`
`A.2d 50, 52 (1988), alloc. denied, 520 Pa. 605, 553 A.2d 968 ( I 988). The plaintiff must prove
`
`more than the presence of asbestos in the workplace. There must be proof that the worker worked
`
`in the vicinity of the product's use. Id. The exposure can be proven either by showing that the
`
`plaintiff worked with the asbestos-containing products himself or that he worked in the vicinity of
`
`them. Richard v. Raymark Industries, Inc., 660 F.Supp. 599,601 (E.D. Pa. 1987).
`
`The Court in Eckenrod, supra. stated:
`
`The mere fact that appellees' asbestos products came into the facility does
`not show that the decedent ever breathed these specific asbestos products or
`that he worked where these asbestos products were delivered. Pongrac,
`supra; see also Wible, supra. Whether direct or circumstantial evidence is
`relied upon, our inquiry, under a motion for summary judgment, must be
`whether plaintiff has pointed to sufficient material facts in the record to
`indicate that there is a genuine issue of material fact as to the causation of
`decedent's disease by the product of each particular defendant. Schmide v.
`Johns-Manville Corp., No. 80-3339 Slip op. (D.Md. November 30, 1982).
`Whether a plaintiff could successfully get to the jury or defeat a motion for
`summary judgment by showing circumstantial evidence depends upon the
`frequency of the use of the product and the regularity of plaintiff's
`employment in proximity thereto. Id. 544 A.2d at 53.
`
`The Eckenrod standard was applied in the 1989 Superior Court case of Samarin v. GAF
`
`Corp., 391 Pa. Super. 340,571 A.2d 398 (1989); alloc. denied, 524 Pa. 624 A.2d 66 (1990). In
`
`Samarin, the Superior Court ruled in favor of the defendant-manufacturers on three evidentiary
`
`issues. First, the court ruled that the appellant-workers' list of co-workers and asbestos products
`
`that they used were not sufficient to defeat the motion for summary judgment. Second, mere
`
`

`

`testimony by tradesmen that they believed the products contained asbestos based on its ability to
`
`withstand high temperatures was hearsay and ruled inadmissable. Third, the plaintiffs failed to
`
`provide sufficient evidence to show that the plaintiff had regular and frequent exposure to asbestos
`
`products. The mere presence of a product in a facility did not establish that any person breathed
`
`it. Samarin, 571 A.2d at 407.
`
`In meeting their burden, plaintiff may not rely on evidence which is conjectural in nature.
`
`Mere guesses and conjecture cannot be substituted for legal proof. Waldron v. Metropolitan Life
`
`Ins. Co., 347 Pa. 257, 31 A.2d 902,903 (1943). The burden of proof resting on plaintiffs in civil
`
`actions cannot be met by conjecture. Id. at 904. A party is not entitled to an inference of fact
`
`which amounts to merely a guess or conjecture. Farnese v. Southeastern Pennsylvania
`
`Transportation Authority, 338 Pa. Super. 130,487 A.2d 887, 890 (1985). Even where a party is
`
`entitled to the benefit of every reasonable inference of fact, he is not entitled to inferences which
`
`amount merely to a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83,231
`
`A.2d 179, 180 (1967); Bohnerv. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961).
`
`In the case of Wilson v. A.P. Green, 2002 Pa. Super. 294, 807 A.2d 922 (2002), the Superior
`
`Court of Pennsylvania affirmed the Court of Common Pleas of Philadelphia County granting a
`
`manufacturer's motion for summary judgment. Plaintiff's complaint had alleged that Flintkote
`
`products were used near the plaintiff while she worked at the Philadelphia Naval Shipyard during
`
`World War II and, to prove same, she provided testimony of a co-worker who allegedly worked
`
`with her for a brief period of time in the 1940s. The issues on appeal were: (1) whether the lower
`
`court abused its discretion by failing to interpret the evidence in a light most favorable to the
`
`plaintiff as a non-moving party; and (2) whether the lower court erred by requiring the plaintiff to
`
`prove regular, frequent, and proximate exposure to defendant's asbestos products in a
`
`

`

`Mesothelioma case. The court held the following:
`
`(I)
`
`(2)
`
`(3)
`
`(4)
`
`(5)
`
`(6)
`
`In order to succeed on a products liability action, a plaintiff must
`show that: (I) his/her injuries were caused by the product of a
`particular mfg. or supplier; and (2) the product was defective.
`(Citing Jobe v. W.P. Metz Refining, 445 Pa. Super. 187, 664 A.2d
`1015, 1017 (1995));
`
`A plaintiff must produce evidence that he or she inhaled asbestos
`fibers shed by the specific mfg's product. (Citing Eckenrod);
`
`Ideally, the plaintiff should have direct evidence of breathing in
`asbestos fibers from a specific product; otherwise, the plaintiff must
`rely on circumstantial evidence. It may not merely demonstrate the
`presence of asbestos in the workplace, but must show that the
`plaintiff worked in the vicinity of the product's use.
`(Citing
`Andoloro v. Armstrong World Indus., Inc., 799 A.2d 71, 86 (Pa.
`Super. 2002) and Eckenrod);
`
`The plaintiff's evidence must show regularity and physical
`proximity to raise a reasonable inference that he or she inhaled
`asbestos fibers that emanated from it. (Citing Coward v. Owens(cid:173)
`Corning Fiberglas Corp., 29 A.2d 614,622 (Pa. Super. 1999));
`
`Eckenrod principles do apply to a mesothelioma case, and the
`important aspect is that a plaintiff must actually inhale asbestos
`fibers from the specific manufacturer's product; and
`
`A co-worker's responses during his deposition to inappropriate
`leading questions that mischaracterized prior responses were not
`admissible as summary judgment evidence. (Citing Pa.R.E. 611 and
`Pascone v. Thomas Jefferson Univ., 357 Pa. Super. 524, 516 A.2d
`384, 387 (1986)).
`
`Finally, the Supreme Court of Pennsylvania in the case of Gregg v. V-J Auto Parts, Co.,
`
`596 Pa. 274, 943 A.2d 216 (2007), essentially instructs the courts in Pennsylvania to expand the
`
`application of the Eckenrod criteria to more than just circumstantial evidence. In other words,
`
`even where a plaintiff provides direct evidence of alleged exposures, that evidence is still required
`
`to meet the criteria of regularity, frequency and proximity established by Eckenrod.
`
`Through discovery to date, Plaintiff has not identified a specific occasion of an exposure
`
`

`

`to an asbestos-containing product(s) manufactured and/or supplied by this Defendant or otherwise
`
`provided evidence that would meet the criteria of regularity, frequency and proximity established
`
`by Eckenrod and its progeny.
`
`C. CONCLUSION
`
`Under Rule I 035 of the Pennsylvania Rules of Civil Procedure, summary judgment is
`
`proper when there are no genuine issues of material fact to be tried and, thus, the moving party is
`
`entitled to judgment as a matter oflaw. 42 Pa. C.S. 1035(b). Plaintiff has not produced sufficient
`
`evidence of his exposure to an asbestos-containing product(s) of this Defendant. Accordingly,
`
`there is no material issue of fact to be tried as to this Defendant and summary judgment must be
`
`granted. For the reasons above cited, this Defendant is entitled to summary judgment as to all
`
`claims and crossclaims asserted against it.
`
`Dated: March 14, 2019
`
`Respectfully submitted,
`
`By: Isl Alba A. Romano
`Patrick A. Hewitt, Esquire
`Alba A. Romano, Esquire
`
`RILEY, HEWITT, WITTE & ROMANO, P.C.
`650 Washington Road, Suite 300
`Pittsburgh, PA 15228
`(412) 341-9300
`Attorneys for Defendant, Genuine Parts Company
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing Brief in Support of Motion
`
`for Summary Judgment was sent by first-class, United States mail, postage prepaid, this 14th day
`
`of March, 2019 to plaintiffs counsel as follows:
`
`Leif J. Ocheltree, Esquire
`GOLDBERG, PERSKY & WHITE, PC
`11 Stanwix Street, Suite 1800
`Pittsburgh, PA 15222
`
`ALL KNOWN DEFENSE COUNSEL OF RECORD SERVED VIA E-MAIL.
`
`Isl Alba A. Romano
`Alba A. Romano, Esquire
`
`