IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`ROSA L. BORRIELLO, an individual,
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` vs.
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`E. E. ZIMMERMAN COMPANY, et al.,
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`Plaintiff,
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`Defendants.
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`CIVIL DIVISION – ASBESTOS
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`GD 23-010269
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`BRIEF IN SUPPORT OF
`E.E. ZIMMERMAN COMPANY’S
`PRELIMINARY OBJECTIONS
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`Filed on Behalf of Defendant:
`E. E. Zimmerman Company
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`Counsel of Record For This Party:
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`Edward A. Smallwood, Esquire
`PA I.D. No. 80919
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`John W. Bruni, Esquire
`PA ID. 63892
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`Post & Schell, P.C.
`One Oxford Centre
`301 Grant Street
`Suite 3010
`Pittsburgh, PA 15219
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`JURY TRIAL DEMANDED
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`ROSA L. BORRIELLO, an individual,
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` vs.
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`E. E. ZIMMERMAN COMPANY, et al.,
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`Plaintiff,
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`Defendants.
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`CIVIL DIVISION – ASBESTOS
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`GD 23-010269
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`BRIEF IN SUPPORT OF
`E.E. ZIMMERMAN COMPANY’S
`PRELIMINARY OBJECTIONS
`
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`Filed on Behalf of Defendant:
`E. E. Zimmerman Company
`
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`Counsel of Record For This Party:
`
`Edward A. Smallwood, Esquire
`PA I.D. No. 80919
`
`John W. Bruni, Esquire
`PA ID. 63892
`
`Post & Schell, P.C.
`One Oxford Centre
`301 Grant Street
`Suite 3010
`Pittsburgh, PA 15219
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`JURY TRIAL DEMANDED
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`Plaintiff,
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`CIVIL DIVISION – ASBESTOS
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`GD 23-010269
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`ROSA L. BORRIELLO, an individual,
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`
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` vs.
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`E. E. ZIMMERMAN COMPANY, et al.,
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`
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`Defendants.
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`BRIEF IN SUPPORT OF E.E. ZIMMERMAN COMPANY’S
`PRELIMINARY OBJETIONS
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`AND NOW comes Defendant, E. E. Zimmerman Company (“E. E. Zimmerman” or
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`“Defendant”), by and through its counsel, Post & Schell, P.C., and files the within Brief in s
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`Support of its Preliminary Objections to Plaintiff’s Complaint and states as follows:
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`I.
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`INTRODUCTION
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`Plaintiff has filed an asbestos related product liability lawsuit against numerous
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`defendants including E.E. Zimmerman Company. E. E. Zimmerman was incorporated in
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`Pennsylvania in 1987 and filed articles of dissolution in February 2021. Pursuant to
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`Pennsylvania law, this Court lacks jurisdiction over E.E. Zimmerman since it is a dissolved
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`corporation and Plaintiff did not file this action within two years of its dissolution.
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`Accordingly, E. E. Zimmerman’s preliminary objections should be sustained.
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`II.
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`FACTS
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`Plaintiff, Rosa L. Borriello, filed a Complaint in the Court of Common Pleas of
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`Allegheny County, PA, on or about August 30, 2023. The Complaint alleges that Plaintiff
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`1
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`contracted mesothelioma as a result of her exposure to the work clothes of her late husband
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`who allegedly worked with or around the products of the defendants. Defendant, E.E.
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`Zimmerman, received service of this Complaint on or about September 1, 2023.
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`Defendant, E.E. Zimmerman, was originally incorporated in Pennsylvania on March
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`18, 1987. On January 13, 2021, E.E. Zimmerman Company issued Articles of Dissolution
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`pursuant to 15 Pa.C.S. §1974(a) and its corporate existence ceased to exist upon the filing of
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`the Articles of Dissolution with the Pennsylvania Department of State on February 24, 2021.
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`See Exhibit A to Defendant’s Preliminary Objections. Notice of E.E. Zimmerman’s dissolution
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`was published in the Pittsburgh Post-Gazette on December 11, 2022 and in the Pittsburgh
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`Legal Journal on Wednesday December 14, 2022. See Exhibit B to Defendant’s Preliminary
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`Objections.
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`III.
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`LAW AND ARGUMENT
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`A. Plaintiff[s] claim was not filed within two years of E.E. Zimmerman’s
`corporate dissolution.
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`Under Pennsylvania law, a corporation is not subject to suit unless the action is
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`brought within two years of the date of dissolution. In relevant part, 15 Pa.C.S. § 1979 sets
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`forth:
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`(a) General rule.--The dissolution of a business corporation, either under this
`subchapter or under Subchapter G (relating to involuntary liquidation and
`dissolution) or by expiration of its period of duration or otherwise, shall not
`eliminate nor impair any remedy available to or against the corporation or its
`directors, officers or shareholders for any right or claim existing, or liability
`incurred, prior to the dissolution, if an action or proceeding thereon is brought
`on behalf of:
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`2
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`(1) the corporation within the time otherwise limited by law; or
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`(2) any other person before or within two years after the date of the dissolution
`or within the time otherwise limited by this subpart or other provision of law,
`whichever is less. See sections 1987 (relating to proof of claims), 1993 (relating
`to acceptance or rejection of matured claims) and 1994 (relating to disposition
`of unmatured claims).
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`15 Pa.C.S. § 1979. Since more than two years have passed since the date of E.E. Zimmerman’s
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`dissolution and the filing of this case, Plaintiff’s claims are barred and this Court has no
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`jurisdiction over E.E. Zimmerman as it no longer exists as a corporation pursuant to
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`Pennsylvania law.
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`In Westinghouse Electric Corporation v. C.J. Goodwin Corporation, 432 Pa. 347; 247 A.2d
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`462 (Pa. 1968), the Supreme Court of Pennsylvania recognized that an action may not be
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`instituted against a dissolved corporation if made more than two years after the date of
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`dissolution. In that case, Westinghouse sought reimbursement from C.J. Goodwin Corp. for
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`a tort judgment paid by Westinghouse that had resulted from an accident at a construction
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`site. During the pendency of the underlying claim, C.J. Goodwin had been dissolved and
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`argued that Westinghouse could not recover since it was no longer a corporate entity.
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`Because Westinghouse brought suit within two years of C.J. Goodwin’s dissolution, the
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`Supreme Court affirmed the order dismissing C.J. Goodwin’s preliminary objections.1
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`1 Although the Pennsylvania Supreme Court in Westinghouse Electric interpreted the then
`dissolution statute cited 15 P.S. § 2111, the current dissolution statute 15 Pa.C.S. § 1979 does not
`change the two year limitation on actions.
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`3
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`In the present case, the record is clear that Plaintiff did not file her lawsuit against E.E.
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`Zimmerman within two years of E. E. Zimmerman’s corporate dissolution. E.E. Zimmerman
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`was formally dissolved on February 21, 2021 and this action was not filed until August 30,
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`2023. Accordingly, more than two years has passed prior to the commencement of this action
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`and this Court lacks jurisdiction over E.E. Zimmerman.
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`B.
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`Plaintiff’s Complaint Fail to Set Forth Claims Against E.E. Zimmerman
`Upon Which Relief Can Be Granted and Therefore Should be Stricken With
`Prejudice Pursuant to Pa.R.C.P. 1028(a)(4).
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`Pennsylvania Rule of Civil Procedure 1028 permits the filing of Preliminary
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`Objections for the "legal insufficiency of a pleading (demurrer)". Pa.R.C.P. 1028(a)(4).
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`Pursuant to Pennsylvania law, E.E. Zimmerman no longer exists as an entity that can be sued.
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`Quarture v. C. P. Mayer Brick Co., 363 Pa. 349 (Pa. 1949); In re Nicastro, 1993 U.S: Dist. LEXIS
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`3581 (E.D. Pa. 1993); Showers v. Cassiar Asbestos Corp., 574 F. Supp. 322 (E. D. Pa. 1983); see also,
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`Omer v. Allied Glove Corp., 2013 Pa. Dist. & Cnty. Dec. LEXIS 27215 (Allegheny County)
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`(Dissolved corporation does not exist as a legal entity for purposes of prosecuting or
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`defending a lawsuit in Pennsylvania.)
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`Accordingly, there is no justiciable controversy in this matter because E.E.
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`Zimmerman no longer exists. Suing a dissolved corporation is akin to bringing suit against
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`a deceased individual. "It is well established Pennsylvania law that a dead person cannot be
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`party to an action. In fact, an attempt to commence a lawsuit against a dead person is a
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`nullity." Sebek v. Pardini, 2010 Pa. Dist. & Cnty. Dec. LEXIS 268 at 4 (citing Valentin v. Cartegena,
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`375 Pa. Super 493 (1988).
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`4
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`A Preliminary Objection in the nature of a demurrer will be sustained where a
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`Complaint shows with certainty that, upon the facts averred, the law will not permit plaintiff
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`to recover. Cobst v. Cost, 677 A.2d 1250 (Pa. Super. 1966), alloc. denied, 689 A.2d 233 (pa. 1997).
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`Since Plaintiff is precluded from filing the instant suit against E.E. Zimmerman, she cannot
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`recover in the instant causes of action.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendant, E.E. Zimmerman Company, respectfully
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`requests that this Honorable Court sustain its preliminary objections and dismiss Plaintiff’s
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`Complaint against it with prejudice.
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`Respectfully submitted,
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`POST & SCHELL, P.C.
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`By: Edward A. Smallwood
`Edward A. Smallwood, Esquire
`John W. Bruni, Esquire
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`One Oxford Centre
`301 Grant Street
`Suite 3010
`Pittsburgh, PA 15219
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` Counsel for Defendant,
`E. E. Zimmerman Company
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`5
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`CERTIFICATE OF COMPLIANCE
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`I certify that this filing complies with the provisions of the Case Records Public Access
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`Policy of the Unified Judicial System of Pennsylvania that require filing confidential information
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`and documents differently than non-confidential information and documents.
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`Submitted by: Edward A. Smallwood, Esquire
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`Signature:
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`/s/ Edward A. Smallwood, Esquire
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`PA I.D. No.: 80919
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`6
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the foregoing Brief in
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`Support of Preliminary Objections to Plaintiff’s Complaint has been served on this 10th day
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`of September, 2023 via electronic mail, to the following Plaintiffs’ counsel and notice of same
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`to all known defense counsel via electronic mail:
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`Leif J. Ocheltree, Esquire
`GOLDBERG PERSKY & WHITE, PC
`11 Stanwix Street, Suite 1800
`Pittsburgh, PA 15222
`Counsel for Plaintiffs
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`POST & SCHELL, P.C.
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`By: Edward A. Smallwood
`Edward A. Smallwood, Esquire
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`One Oxford Centre
`301 Grant Street
`Suite 3010
`Pittsburgh, PA 15219
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` Counsel for Defendant,
`E. E. Zimmerman Company
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