IN THE COURT OF COMMONPLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`RAYMOND SCHNEIDER,an individual
`
`CIVIL DIVISION
`
`No. GD 99-16557 °
`
`Plaintiff,
`
`VS.
`
`ALLIED GLOVE CORPORATION,et al.,
`
`Defendants.
`
`- PLAINTIFF’S RESPONSE
`TO ALL DFENDANTS’
`MOTIONS FOR SUMMARY
`JUDGMENT
`
`Filed on Behalf of Plaintiff:
`
`J C
`
`ounsel of Record for this Party:
`
`Kenneth J. Fryncko, Esquire
`PA ID# 87300
`
`GOLDBERG, PERSKY &
`WHITE,P.C.
`Firm #744
`1030 Fifth Avenue, Third Floor
`Pittsburgh, PA 15219
`
`Telephone:
`Facsimile:
`
`(412) 471-3980
`(412) 471-8308
`
`

`

`IN THE COURT OF COMMONPLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`RAYMONDSCHNEIDER,an individual
`
`CIVIL DIVISION
`
`No. GD 99-16557
`
`Plamtiff,
`
`VS.
`
`ALLIED GLOVE CORPORATION, et al.,
`
`Defendants.
`
`PLAINTIFF’S RESPONSE TO ALL DEFENDANTS’
`MOTIONS FOR SUMMARY JUDGMENT
`
`The defendants filed Motions for Summary Judgment
`
`in the above-captioned case
`
`alleging that the plaintiff failed to establish in Answers to Interrogatories and/or plaintiff's
`
`depositions that plaintiff was exposed to asbestos-containing products manufactured, supplied
`
`and/or distributed by the defendant.
`
`The standard the trial court must apply in ruling on a motion for summary judgmentis
`
`contained in Rule 1035 of the Pennsylvania Rules of Civil Procedure.
`
`“Judgment shall be
`
`rendered if the pleadings, depositions, answers to interrogatories, and admission on file, together
`
`with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
`
`moving party is entitled to judgment as a matter of law.”
`
`In determining whether or not a genuine issue of material fact exists, “the court must take
`
`that view of the evidence most favorable to the party against whom the motionis directed, giving
`
`to that party the benefits of all favorable inferences that might reasonably be drawn from the
`
`

`

`evidence, thereby placing the burden of proving the absence of any factual issue on the movant.”
`
`Michigan Bank y. Stenson, 211 Pa. Super. 405, 406 (1967).
`
`A Court should be slow in disposing of a case of any complexity on a motion for
`
`summary judgment. Certainly summary judgment wisely used is a time-saving device, yet such
`
`prompt dispatch of judicial business is not the primary purpose for which courts have been
`
`established. Richland Mall Corp. v. Kasco Const. Co., Inc., 337 Pa. Super. 204, 486 A.2d 976
`
`(1984).
`
`It is well settled that summary judgment is properly granted only in the clearest of cases,
`
`after examining the record in the light most favorable to the non-moving party. Richland, supra.
`
`Summary judgment should not be granted where it requires acceptance of testimony. The
`
`issue of credibility is for the fact finder. Pennsylvania Gas & Water Co. v. Nenna & Frain, 320
`
`Pa, Super. 291, 467 A.2d 330 (1983).
`
`In responding to the Defendants’ Motions for Summary Judgmentthe plaintiff relies on the
`
`following affidavits, deposition testimony and Answers to Interrogatories filed by the defendants in
`
`other asbestos cases:
`
`Raymond Schneider will testify that he worked at USX Homestead from 1955 until 1986.
`Throughout his career he worked throughout the entire mill including the Heat Treating
`Department and the Forge Department. He will testify that the Forge Department and the Open
`Hearth were under the same roofand right next to each other. He will testify that he was exposed
`to dust that was created by the use of all asbestos-containing products in the Open Hearth as well
`as the Forge Department and the Heat Treating Department.
`
`Hewill testify that during lay offs he was bumped around and during that time period he worked
`in just about every departmentof the mill.
`
`He was exposed to dust from asbestos-containing products that were used by outside contactors
`and other tradesmen, including but notlimited to asbestos pipecovering, gaskets, packing,
`cement, clothing, gloves and products used in the steel pouring process. He will testify that these
`products created dust which he was forced to breathe on a continuous basis. (See Exhibit 1)
`
`ALLIED GLOVE
`The deposition testimony of Charles Gutshall establishes that he worked in the Open Hearth and
`100’ Mill at U.S. Steel Homestead from 1965 to 1984. During this time he worked with or
`
`

`

`around other tradesman using asbestos-containing gloves/mittens, jackets, pants and hoods
`manufactured by Allied. (See Exhibit 2)
`
`Defendant Allied Glove’s Answers to Interrogatories from other asbestos cases establish that the
`defendant, sold, supplied and/or used asbestos-containing gloves, coats, and leggings from the
`1940s to 1984. (See Exhibit 3)
`
`ARGO PACKING
`The affidavit of Thomas Conway establishes that he and others were exposed to asbestos-
`containing gaskets and packing in the Open Hearth Department of USX Homestead during the
`following time periods: 8/1965-11/1965, 8/1967, 5/1972 and 10/72. He saw the words “Argo”
`and “asbestos” on the spools. The removal, cutting and installation of this packing created dust
`which he and others breathed were forced to breathe. (See Exhibit 4)
`
`The affidavit of Charles McCann establishes that he worked in the Open Hearth at U.S. Steel
`Homestead from 1946 to 1982. Steam lines and waterlines, to which valves and pumps were
`attached, were located overhead,at floor level, vertically from floorto ceiling, and along the
`sidewalls, throughout the Open Hearth. At least once each week during this time period, he and
`other workers cut, installed, and removed asbestos-containing Argo packing, the use of which
`created visible dust which he and others were forced to breathe. The dust persisted in the
`department for hours before settling, and even after settling would be redistributed byactivity.
`(See Exhibit 5 )
`
`The affidavit of Jessie Sellers establishes that he was employed by U.S. Steel Homestead Plant.
`From 1953 until the late 1970s, he used Argo asbestos containing rope packing once a week
`throughout the mill including but not limited to the Open Hearth Rolling Mill and Power and
`Fuel Department. He recalls seeing the name “Argo Packing”printed on the boxes. This use of
`Argo, asbestos packing, created dust which he and others breathed. (See Exhibit 6 )
`
`The affidavit of Jack Butler establishes that he was employed by U.S. Steel Homestead Plant.
`From 1963 until 1975, he used Argo asbestos containing rope packing once a week throughout
`the mill including but not limited to the Open Hearth, Rolling Mill and Power and Fuel
`Department. He recalls seeing the name “Argo Packing” printed on the boxes. This use of Argo,
`asbestos packing, created dust which he and others were forced to breathe. (See Exhibit 7 }
`
`Argo has answered interrogatories in another asbestos case. Said answers establish that Argo did
`indeed sell asbestos-containing gaskets and packing throughout the 1960s, 70s and 80s. (See
`Exhibit 8 )
`
`Furthermore, Thomas Hemphill, former owner and corporate representative of Argo testified that
`all of the products which were sold from the 1950s into the mid-70s were asbestos-containing
`with the exception of a rubber gasket. (See Exhibit 9)
`
`CRANE
`The affidavit of Thomas Conwayestablishes that he was employed at U.S. Steel Homestead
`Worksat various times in the 1960s, 1970s and 1980s throughout the plant including the Open
`
`

`

`Hearth, Structural Mil land Forge Division. Herecalls that throughoutsaid time period,in all
`departments he used asbestos containing gaskets and packing on Crane valves. He recalls seeing
`the name “Crane” etched onthe valves. This process created dust which he and others would
`breathe. (See Exhibit 10)
`
`The affidavit of Jessie Sellers establishes that he was employed by U.S. Steel Homestead Plant.
`From the 1950s until the early 1980s he used asbestos containing gaskets and rope pacing on the
`Crane Valves throughout the mill including but not limited to the Open Hearth, Rolling Mill and
`Power and Fuel Department. He recalls seeing the name “Crane” etched on the valves. The use
`of the asbestos gaskets and rope packing on the Crane valves created dust which he and others
`were forced to breathe. (See Exhibit 11)
`
`Defendant answered Interrogatories in other asbestos cases whereinit admits that its valves
`contained asbestos and that it sold asbestos-containing packing, gaskets and discs.
`(See Exhibit 12)
`
`Bill McClean, corporate representative of Crane Co was deposed on February 9, 1995. Mr.
`McCleantestified that asbestos packing and gaskets were specified for use in Crane valve. (See
`Exhibit 13 }
`
`DURABLA
`The affidavit of John Korotko establishes that he and others were exposed to asbestos-containing
`Durabla gaskets throughout USX Homestead Works from 1965 to 1986. He knowsthat the
`Durabla gaskets that he and other workers were exposed to asbestos-containing because he
`recalls seeing the word “asbestos” printed on the boxes of Durabla gaskets. (See Exhibit 14)
`
`In Answers to Interrogatories, Defendant Durabla admits that it distributed Durabla gaskets
`which were asbestos-containing. Durabla admits that the only non-asbestos Durabla brand
`gaskets that itmanufactured prior to 1983 were “red rubberring gaskets” which were suitable
`only for low temperature, low pressure applications. (See Exhibit 15)
`
`David Moser, President of Durabla, testified in his deposition taken on September 3, 1992 that
`the only non asbestos Durabla brand gaskets made by Durabla priorto at least the 1970s were
`rubber. Mr. Mosertestified that these gaskets would be useful only at temperatures below 250
`degrees. In addition, Mr. Moserstates that it would be very easy to distinguish a rubber gaskets
`from and asbestos gasket on sight. (See Exhibit 16)
`
`EICHLEAY
`The affidavit and deposition testimony of Charles Gutshall established that he workedas a utility
`analyst from 1965 to 1984 at USX Homestead Works. He worked in various departments
`including the Open Hearth Department. Mr. Gutshall testified that he and other workers in the
`Open Hearth Department were exposed to asbestos-containing products being installed by
`outside contractors including Eichleay. (See Exhibit 17)
`
`

`

`The affidavit and deposition testimony of Raymond Proud, a bricklayer, employed at USX
`Homestead Plant in various departments which included the Open Hearth Department. Mr. Proud
`testified that Eichleay was present as an outside contractor in the Open Hearth Department.
`(See Exhibit 18 )
`
`Defendant Eichleay Corporation has answered discovery. Within said discovery response,
`Eichleay Corporation admits that it secured contacts to complete work at USX Homestead Plant
`(between 1953 and 1984). In addition, Eichleay Corporation’s search of it records revealed that
`Eichleay purchased asbestos-containing gaskets in connection with work that Eichleay
`performed at USX Homestead. (See Exhibit 19 )
`
`FOSECO
`Theaffidavit of Raymond Proudestablishes that he and others were exposed to asbestos-
`containing Foseco hot tops while employed in the Open Hearth Department of USX Homestead
`Plant from 1969 to 1975. He knowsthat the hot top liners were Foseco because he saw the name
`on the packaging. (See Exhibit 20 )
`
`The affidavit of Charles McCannstates that he and others were exposed to asbestos-containing
`hot tops in the Open Hearth Department of USX Homestead from the 1060s until the late 1970s.
`Foseco was one of the manufacturers of the asbestos-containing hot tops. (see Exhibit 21 }
`
`The affidavit of Robert Clark states that he and others were exposed to asbestos-containing hot
`tops on the Open Hearth Department of USX Homestead from 1972 to 1983. Foseco was one of
`the manufacturers of the asbestos containing hot tops. (See Exhibit 22 )
`
`Defendant answered Interrogatories wherein they admit to the manufacture and sales of asbestos-
`containing hot tops during the relevant time period. (See Exhibt 23 }
`
`GEORGE V. HAMILTON / OWENS ILLINOIS / HINCHKLIFFE & KEENER
`The Affidavit of Jessie Sellers, Jack Korotko and Eugene Sausestablish that Kaylo asbestos-
`containing pipecovering was used throughout the Open Hearth of USX Homestead from the late
`1950s to the late 1970s. (See Exhibit 24 )
`
`Defendant George V. Hamilton, Inc., responded to discovery requests in Korotko V. George V.
`Hamilton, Inc. In said discovery response, George V. Hamilton made reference to the deposition
`testimony of former president Paul Haysthat establishes that George V. Hamilton,Inc.,
`performed work at USX Homestead in the 1960s and 1970s. (See Exhibit 25 )
`
`Interestingly, the discovery response of Pittsburgh Coming Corporation in Sersen v. Eagle
`Picher, et al, establishes through invoices that George V. Hamilton, Inc., sold Unibestos
`asbestos-containing pipecovering to USX Homestead in 1969. (See Exhibit 26)
`
`In
`Neil Reddington, was employed by the Defendant during the relevant time period.
`the past, Mr. Reddington was listed as a witness of the Defendant in Pre-Trial Statements. Mr.
`Reddington testified that his employer used asbestos products while at Homestead Works. Mr.
`Reddington previously testified as follows:
`
`

`

`PrOFOF
`
`What years were you in the Marine Corps?
`January ‘54 to August ‘59
`Following discharge from the Marines, did you take any additional course
`of any type?
`Pardon?
`When you were discharged from the marine Corps, did you take any
`additional courses orgo take any college credits?
`No, no.
`I went to apprenticeship in the4 Local #2, Pittsburgh Bricklayers
`Union, apprenticeship to Hinchcliffe & Kenner, Indentured to Hinchcliffe
`& Keener,
`I was indentured to Hinchcliffe & Keener for the apprenticeship.
`fe Ae fe He af af ake oe aft fe ae oie afc fe of Bh ape fe His oft nhc fe fe ne abe aco of aie oe ae fe a oe he he ake oe ae ofc fe fe of fe oe oe fe ah oft abe afc of ae oft ake ale of se ofe ale ode at oe ft He ae ee ae
`
`0.
`
`A,
`
`Okay. Now why you worked as a bricklayer of superintendent fo Hinchcliffe & Keener, did you
`always work for them, or at ant point in time did you leave their employment and work for
`somebody else.
`I never worked from anybody in mylife, in my whole life, except my dad,
`my brother, my uncle, or else I was the boss. And that was Hinchcliffe & Keener, all the way
`until 75,
`
`Mr. Reddington was employed as a bricklayer, job foreman, job superintendent at
`various commercial and industrial sites. Mr. Reddington’s work history establishes that
`throughout the 1960’s and 1970’s he wasat various US Steel sites including the Homestead
`Works completing furnace repair. He states the following in Answers to Interrogatories in his
`own case,
`
`Job Date:
`
`1960’s-1970's
`
`Job Site:
`
`USSteel Plants including Carrie Furnace, Rankin, PA, Clairton
`Works, Clairton, PA; Duquesne Works, Duquesne, PA; Homestead
`Works, Homestead, PA; National Tube Plant, McKeesport, PA
`
`Employer:
`
`Hinchliffe & Keener
`
`(See Exhibit 27)
`
`Paul Hayes, the former president of George V. Hamilton,Inc. testified that George V. Hamilton
`was the exclusive distributor of Owens Corning Kaylo during the 1950s and 1960s in Western
`Pennsylvania. Beginning in 1970, however, there were other distributors of Kaylo asbestos-
`containing insulation. (See Exhibit 28 }
`
`Plaintiffs incorporated by reference the post-1969 Kaylo products identification set forth above,
`in response to the Motion for Summary Judgmentfield on behalf of George V, Hamilton, Inc.,
`Defendant Hinchcliffe & Keener, Inc. answered discovery in the case of Ciotti v. Hinchcliffe &
`Keener, Inc., et al. and admitted during securing a contract to complete work at USX Homestead
`between 1950 and 1983. (See Exhibit 29 )
`
`HEDMAN MINES / UNIVERSAL
`The affidavit of Eugene Saus and Raymond Proudestablish that asbestos containing Universal
`hot tops were used in the Open Hearth Department of U.S. Steel Homestead from 1969 until
`1982. (See Exhibit 30 }
`
`

`

`Theaffidavit of Eugene Mesaros establishes that he and others were exposed to asbestos-
`containing Universal hot tops while employed in the Open Hearth Department of USX
`Homestead Plant during the entire summer of 1966 and several months in the late 1960s.
`(See Exhibit 31 )
`
`Defendant Universal, a division of Thiem, answered Interrogatories in another asbestos case
`wherein Defendant admitsthat its hot top products contained asbestos from 1969 to 1975. (See
`Exhibit 32 )
`
`Defendant later amended its answers to Interrogatories and state that its hot top products
`contained asbestos until 1979, and to identify Hedman Minesas the supplier of asbestos from
`1974 to 1979. (See Exhibit 33)
`
`INSUL
`The affidavit of Raymond Proud establishes that he and others were exposed to asbestos-
`containing Insul hot tops while employed in the Open Hearth Department of USX Steel
`Homestead Plant from 1969 to 1975. (See Exhibit 34 )
`
`The affidavit of James Hull establishes that he and others were exposed to asbestos-containing
`Insul hot tops while employed in the Open Hearth Department of USX Homestead Plant from
`the 1960s to mid 1970s. (See Exhibit 35 )
`
`The deposition testimony of Michael Labate II, and employee of Insul Company,Inc, establishes
`that Insul Company manufactured hot tops which contained asbestos during the period of 1964 to
`1971. The only time hot tops were used was in the Open Hearth/Steel pouring process. (See
`Exhibit 36)
`
`Defendant Insul Company, Inc. has produced invoices to plaintiff's counsel. The invoice of Insul
`Company in 1968, 1969 and 1979, show thatits asbestos-containing hot top liners were shipped
`to USX Homestead for use in the steel pouring process. (See Exhibit 37)
`
`ITT FABRI-VALVE / DEZURIK / MS JACOBS
`The affidavit of Thomas Conwayestablishes that he was employed at USX Homestead Plant at
`various times in the 1960s, 1970s and 1980s throughout the plant including the Open Hearth,
`Structural Mill and Forge Division. He recalls that throughout said time period, in all the
`departments he used asbestos containing gaskets and packing on Fabri-Valve valves and DeZurik
`valves. He recalls seeing the name ‘‘Fabri-Valve” and “DeZurik” etched on the valves. This
`process created dust which he and others would breathe. (See Exhibit 38)
`
`Swormdeposition testimony of David Hartigan, sales representative, conceded that MS Jacobs
`supplied two different types of asbestos-containing valves to industrial worksites. Additionally,
`there were contractors, including power piping, who purchased products from MS Jacobs. (See
`Exhibit 39)
`
`

`

`Sworn deposition testimony of Patricia Chalmers, expediter and salesperson for MS Jacobs,
`beginning in 1980, illustrated that the company continued to place and fill orders for asbestos
`gaskets and packing for the company’s valves. (See Exhibit 40)
`
`Sworn deposition testimony of Joan Goebler, establishes that asbestos-containing products were
`being distributed to a variety of clients, even into the 1990s. Indeed, the deponent completed a
`sale for MS Jacobs in the mid 1990s for a replacement asbestos-containing gasket for one ofthe
`company’s valves, (See Exhibit 41}
`
`SAFETY FIRST
`Theaffidavit of Jesse Sellers establishes that he was employed in the Open Hearth, Rolling Mill,
`Power and Fuel Department and Central Maintenance Department at USX Homestead Plant from
`1951 to 1985. He knows that Safety First-was the manufacturer of the asbestos containing gloves
`and clothing used in these departments. The Safety First clothing and gloves frayed creating dust
`he and other workers would breathe. (See Exhibit 42 )
`
`The Defendant conceded in Answersto Interrogatories in another asbestos case that they
`manufactured, distributed and/or supplied asbestos containing gloves and clothing during the
`relevant time frame. The Defendant attached a catalog of the various asbestos containing gloves
`and clothing that it manufactured and sold to in said Answers to Interrogatories.
`(See Exhibit 43 )
`
`STOCKHAM / SVI
`The affidavit of Thomas Conwayestablishes that he was employed at USX Homestead Plant at
`various times in the 1960s, 1970s and 1980s throughout the plant including the Open Hearth,
`Structural Mill and Forge Division. He recalls that throughout said time period, in all the
`departments he used asbestos containing gaskets and packing on Stockham valves. Herecalls
`seeing “Stockham”etched on the valves. This process created dust which he and others would
`breathe. (See Exhibit 44)
`
`TAYLORED INDUSTRIES
`Plaintiff's counsel took the deposition of Taylored Industries, Inc. President James Jams on
`January 19, 1998. The deposition was noticed underthe “In re all pending asbestos cases”
`caption. Mr. lamstestified that Taylored Industries, Inc. was a distributor of Johns-Manville
`asbestos-containing products. However, counsel for Taylored Industries, Inc. would not allow
`Mr. Iams to answer any questions pertaining to jobsites other than J&L Steel Pittsburgh Plant.
`(See Exhibit 45)
`
`In Answers to Interrogatories filed by John-Manville, said entity conceded that it manufactured,
`“transite” and the product contained asbestos. (See Exhibit 46)
`
`Taylored Industries answered Interrogatories in another asbestos case and concededthatit
`supplied, Johns-Manville transite to USX Homestead in 1973 and 1975. (See Exhibit 47)
`
`Plaintiff does not oppose the Motions for Summary Judgment of the following defendant. Plaintiff
`
`

`

`understands that these defendants will be dismissed from this case at their owncosts. Plaintiff, does
`however, reserve the right to supplernental this response should new evidence cometo light as to
`these defendants priorto that date of oral argument.
`
`Beazer East
`Stockham Valve
`Industrial Rubber
`Unifrax Corporation
`Eaton Corporation
`
`Current Case Law
`
`Hunter Sales
`Dravo Corporation
`Minnotte Contracting
`CashcoInc.
`Atlas Industries
`
`McCarl’s Ine.
`Dick Corporation
`Peterson Canvas
`Richard KlingerInc,
`
`Under Pennsylvania law, once an asbestos defendant has claimed that there is an absence
`
`of evidence to support a plaintiff's case, the burdenshifts to the plaintiff on the issue of product
`
`identification. The trial court then must determine 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
`
`presence ofthe product of each particular defendant. A plaintiff can successfully get to the jury
`
`or defeat a motion for summary judgment by showing circumstantial evidence of the use of the
`
`product and plaintiffs employment in proximity thereto. Eckenrod v. GAF Corp., 375 Pa. Super.
`
`187, 544 A.2d 50 (1988); Samarin v. GAF Corporation, 391 PaSuper. 340, 571 A.2d 398
`
`(1989): Bushless v. GAF Corp., et al., 401 Pa.Super. 351, 585 A.2d 496 (1990). With regard to
`
`cases involving claims for mesothelioma, the Pennsylvania Superior Court recently recognized
`
`that a plaintiff's burden of proving exposure to asbestosis less than cases involving claims for
`
`lung cancer because mesothelioma is “a disease which is medically attributable specifically to
`
`exposure to asbestos or asbestine products.” Gutteridge v. A.P. Green Services, et_al., 2002
`
`Pa. Super. LEXIS 1208, **12 (emphasis added).
`
`Furthermore,
`
`in order
`
`to overcome an asbestos defendant’s motion for summary
`
`judgment, the plaintiff is not require to personally know the witness who identifies that asbestos-
`
`containing products.
`
`It would be illogical to require an asbestos-harmed plaintiff to personally
`
`

`

`know the witness who identifies the asbestos containing products. The Pennsylvania Superior
`
`Court in Eckenrod, supra, never discussed such a requirement. Oftentimes an injured plaintiff
`
`was a member of a trade in which his job duties did not involve hands-on use of asbestos
`
`containing products, but rather he worked in the same immediate area as products handlers who
`
`were members of a different trade. See Roehling v. National Gypsum Company Gold Bond
`
`Building Products, 786 F.2d 1225 (4th Cir. 1986).
`
`The Court of Appeals for the Fourth Circuit in Roehling, supra, held that the district court
`
`erroneously required direct testimony of exposure and that the district court failed to draw
`
`reasonable inferences from the plaintiffs circumstantial evidence. The Court noted that the
`
`plaintiff testified that when he would install pipe and test the boiler piping system at a specific
`
`powerhouse, asbestos insulators would follow behind him installing asbestos pipe covering. The
`
`plaintiff recalled that the asbestos insulators created dust while applying insulation which he was
`
`forced to breathe. An insulator who worked at the same powerstation as the injured plaintiff,
`
`but did not know the plaintiff, testified that pipe fitters and insulators worked adjacent to one
`
`another in the same area at the same time. Hetestified that ninety (90) percent of the products
`
`that he used in the power plant were manufactured by National Gypsum.
`
`The court rejected National Gypsum's allegation that the evidence was not enough to
`
`place the injured plaintiff in close proximity to identifiable asbestos products. The court stated
`
`that "the evidence .... need only establish that the plaintiff was in the same vicinity as witnesses
`
`who can identify the products causing the asbestos dust that all people in the area, not just the
`
`product handler, inhaled." Roehling at 1228 (emphasis added).
`
`To require the plaintiff
`
`to personally know the tradesman who identifies
`
`the
`
`
`manufacturers of the asbestos-containing products or vice versa could well destroy an injured
`
`

`

`bystander's cause of action for asbestos exposure. A[W]itnesses should not be required to know
`
`the [injured plaintiff] .. .
`
`. [b]ystanders often go unrecognized, but still receive injuries",
`
`Roehling at 1228.
`
`A Plaintiff and/or his Product Identification Witness are Competent to Assert that
`the Products they used were Asbestos-containing.
`
`Defendant filed no evidence of record establishing that tradesmen do not know what asbestosis,
`nor could it. Defendant has not filed any evidence of record showing that anything other than
`asbestos was used in the 1950s, 60s and early 70s for high temperature insulation.
`
`The Court, despite the lack of defense evidence, may question how a tradesman would
`
`know that the product he was personally handling or being exposed to contained asbestos. The
`
`answer is that only asbestos-containing products could withstand the high temperatures. The
`
`tradesmen would apply the insulation that was called for in the insulation specification. The
`
`tradesmen would make specific references to the products that contained asbestos. Certainly the
`
`experience of a tradesman in a specific trade would qualify him to testify to the content of the
`
`material that he was exposed to day after day, year after year. The absence of any defense
`
`evidence showing that it was not asbestos-containing confirms the accuracy of the tradesman's
`
`identification. Since the Defendant's product was identified and said to be made of asbestos,
`
`obviously a counter affidavit would have been filed if Defendant possessed evidence to the
`
`contrary.
`
`In Pennsylvania, the identification of asbestos by a tradesman is accepted. Courts also
`
`accept statements by a tradesmanthat the product he was exposed to contained asbestos without
`
`requiring any elaborate explanation as to the basis of his knowledge concerning the chemical
`
`composition of the product.
`
`In the case of Wilbur E. Broadus, et al. v. GAF Corp.. et al. (Court
`
`

`

`of Common Pleas of Allegheny County, No. 86-5806), the plaintiff relied solely on his affidavit
`
`in responding to Garlock's motion for summary judgment. Theaffidavit states, in relevantpart:
`
`Further Affiant states he knows that
`
`the gasket material he was exposed to was
`
`manufactured by "Garlock". Affiant states he recalls seeing the name "Garlock" printed on the
`
`gasket sheet material. Affiant states he knows the Garlock gasket material contained
`
`asbestos because of his experience as a steelworker for 35 years. Affiant states that in
`
`addition he knows the said gasket material contained asbestos because the gasket sheet
`
`material could withstand the high temperature of the steam lines.
`
`(emphasis added). The Honorable I. Martin Wekselman denied Garlock's motion for summary
`
`judgment.
`
`In addition, the plaintiff in the case of Harry Ullom, etal. v. GAF Corp., et al. (Court of
`
`Common Pleas of Washington County, No. 88-793), relied on his own affidavit in responding to
`
`Owens-Corning's motion for summary judgment. The plaintiff stated why he knew the Owens-
`
`Corning pipe covering contained asbestos:
`
`Further affiant states that he knows the Owens Corning Kaylo
`pipe covering contained asbestos because of his more than
`twenty (20) years experience as a tradesman and because the
`Owens Corning Kaylo pipe covering could withstand the high
`heat of the steam lines and waterlines.
`
`The Honorable Samuel Rodgers denied Owens-Corning's motion for summary judgment.
`
`Attrial, lay witnesses are permitted to testify as to the contents of a substance without
`
`performing a chemical analysis on the substance. Commonwealth v. Glover, 265 Pa. Super. 19,
`
`1401 A.2d 779 (1979).
`
`
`In Glover, supra, the court stated that a lay witness maytestify that a
`
`substance appeared to be blood without performing a chemical analysis of the substance.
`
`In
`
`

`

`Commonwealth v. Miranda, 35 Leh. L.J. 338 (1973), the court concluded that a drug addict who
`
`was familiar with the properties and effect of heroin, was competentto identify the substance.
`
`In the Fumea Liquor License Case, 186 Pa. Super. 609, 142 A.2d 326 (1958), and Secrist
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`Liquor License Case, 195 Pa. Super. 73, 169 A.2d 314 (1961), liquor licenses were revoked for
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`sales to minors. The licensees challenged the qualifications of the witnesses, who were minors,
`
`and who had identified the beverage in question as beer, because a chemical analysis was not
`
`completed. The court found the minors competentto testify.
`
`if no chemical analysis is required before a lay witness can testify as to the composition
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`of a blood-like substance, heroin, or alcohol, certainly no chemical analysis can be required
`
`before a tradesman of many years can defeat a motion for summary judgmentas to the content of
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`pipe covering, packing, block, brick, hot tops, gaskets and cloth which has been utilized in his
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`work place during his entire working career. Defendants’ Motions for Summary Judgment
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`should be denied.
`
`Respectfully submitted,
`
`
`
`Attorney for Plaintiff
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`RAYMOND SCHNEIDER,an individual
`
`CIVIL DIVISION
`
`No. GD 99-16557
`
`Plaintiff,
`
`VS.
`
`ALLIED GLOVE CORPORATION,et al.,
`
`Defendants.
`
`CERTIFICATE OF SERVICE
`
`I, Kenneth J. Fryncko, Esquire, hereby certify that a true and correct copy of
`
`PLAINTIFF’S RESPONSE TO ALL DEFENDANTS’ MOTIONS FOR SUMMARY
`
`JUDGMENT was served upon all counsel of record listed on the attached sheets on this
`
`4{
`
`dayof“\ly
`
`2007,electronic filingto Prothonotaryandvia GPW’sextranet.
`
`Respectfully submitted,
`
`GOLDBERG, PERSKY & WHITE,P.C.
`
`
`
`

`

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`Atfias Industries, Inc.
`
`Beazer East, inc.
`
`
`
`Cashco,inc
`
`| Chicago Firebrick Co.
`
`Chicago Firebrick Co.
`
`Crane Valve Group
`
`Crane Valve Group
`
`Crown Cork & Seal
`
`Dezurik, Inc.
`
`Dick Corporation
`
`
`
`Raymond Schneider
`preee ceee
`
`Allied Glove Corporation
`
`Steve Miinac, Esq.
`Swartz, Campbell
`600 Grant Street, Suite 4750
`Pittsburgh, PA 752719
`
`Jamie Zurasky, Esq.
`Wimer Law Offices, P.C.
`
`6565 Allegheny Ave.
`Oakmont, PA 15139
`
`Edmund Olszewski, Esq.
`Dickie, McCamey& Chiicote, PC
`Two PPG Place, Suite 400
`
`Pittsburgh, PA 16222
`
`Michael Magee, Esq.
`Pietragalio, Bosick & Gordon
`301 Grant Street, 38th Floor
`
`Pittsburgh, PA 75219
`
`
`
`Michael A. Karaffa, Esq.
`Marshall, Dennehey, Warner, Coleman & Goggin
`600 Grant St., Suite 2900
`Pittsburgh, PA 18219
`
`Christopher W. Cahillane, Esa.
`Tucker Arensberg, PC
`1506 One PPG Place
`
`Pittsburgh, PA 16222
`James F, Ryan, Esq.
`Schwabenland & Ryan, PC
`995 Old Eagle School Road, Suiie 306
`Wayne, PA 19086
`
`Martha Mary O'Day, Esq.
`Kirkpatrick & Lockhart Preston Gates Ellis LLP
`535 Smithfield Street, 14th Ficor
`Pittsburgh, PA 15222
`
`Nicholas Vari, Esq.
`Kirkpatrick & Lockhart Preston Gates Ellis LLP
`535 Smithfield Street, 14th Ficor
`
`Pittsburgh, PA 15222
`
`Richard E. Rush, Esq.
`Thomson Rhodes & Cowie
`Two Chatham Center, 10th Floor
`
`Pittsburgh, PA 15219
`
`John M. Schollaert, Esq.
`Marks, O'Neill, O'Brien & Courtney, PC
`2600 Gulf Tower, 707 Grant Street
`
`Pittsburgh, PA 15219
`
`
`
`:
`
`
`
`a
`
`Leonard Forneila, Esq.
`Babst, Calland, Clements & Zormnir, PC
`2 Gateway Center, 8th Floor
`caertenantcan paneaa
`Pittsburgh, PA 15222-7458
`
`

`

`Raymond Schneider
`
`—
`
`Dravo Corporation
`
`
`
`Hilary C. Bonenberger, Esq.
`Swartz, Campbell
`600 Grant Street, Suite 4750
`Pittsburgh, PA 15219
`
` =||
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`
`David Rosenberg, Esq.
`
`Weber Gallagher Simpson Stapleton Fires & Newby, LLP
`603 Stanwix St., Suite 1456
`_Piltsourgh, PA 15222
`Jason Rubin, Esq.
`Goldberg, Miller & Rubin, P.C.
`121 South Broad Street, Suite 1500
`
`Philadelphia