Kardos, J. v. Armstrong Pumps, Inc. ( 2019 )

J-A05006-19
2019 Pa. Super. 324
JOYCE E. KARDOS, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF NICHOLAS J. : PENNSYLVANIA
KARDOS, DECEASED, AND JOYCE E. :
KARDOS, IN HER OWN RIGHT :
:
Appellant :
:
v. :
:
ARMSTRONG PUMPS, INC.; ATLAS :
INDUSTRIES, INC.; BADGER METER, :
INC.; BALTIMORE & OHIO :
RAILROAD, CHESAPEAKE & OHIO :
RAILROAD, THE CHESSIE SYSTEM :
RAILROAD, AND CSX :
TRANSPORTATION, INC. AS :
SUCCESSOR IN INTEREST TO ALL :
THE FOREGOING; BLUE M; CARRIER :
CORPORATION; CASHCO, INC.; CBS :
CORPORATION, A DELAWARE :
CORPORATION, F/K/A VIACOM INC., :
SUCCESSOR BY MERGER TO CBS :
CORPORATION, A PENNSYLVANIA :
CORPORATION, F/K/A :
WESTINGHOUSE ELECTRIC :
CORPORATION; CHEVRON U.S.A. :
PRODUCTS COMPANY, NOW KNOWN :
AS CHEVRON PRODUCTS COMPANY; :
COOPER INDUSTRIES, LLC IN ITS :
OWN RIGHT AND AS SUCCESSOR- :
IN-INTEREST TO CROUSE HINDS :
COMPANY AND AS SUCCESSOR-IN- :
INTEREST TO MCGRAW-EDISON :
COMPANY; CRANE CO.; DEZURIK, :
INC.; THE FAIRBANKS COMPANY; :
FLOWSERVE US, INC., SOLEY AND :
AS SUCCESSOR TO ROCKWELL :
MANUFACTURING COMPANY, :
ROCKWELL VALVES, INC., EDWARD :
VOGT VALVE COMPANY, AND HILLS- :
MCCANNA; FORT KENT HOLDINGS, :
INC., IN ITS OWN RIGHT AND AS :
SUCCESSOR-IN-INTEREST TO :
DUNHAM BUSH, INC. AND WARREN :
J-A05006-19
WEBSTER & CO.; GOULDS PUMPS, :
INC.; GRINNELL LLC; HAMMOND :
VALVE COMPANY; HEXAGON :
MANUFACTURING INTELLIGENCE, IN :
ITS OWN RIGHT AND AS :
SUCCESSOR IN INTEREST TO :
BROWN & SHARPE; HONEYWELL, :
INC.; I.U. NORTH AMERICA, INC., AS :
SUCCESSOR BY MERGER TO THE :
GARP COMPANY, FORMERLY KNOWN :
AS THE GAGE AND SUPPLY :
COMPANY; IMO INDUSTRIES, INC., :
F/K/A IMO DELAVAL TURBINE, INC., :
DELAVAL TURBINE, INC., DELAVLCO :
CORPORATION; INDUSTRIAL :
HOLDINGS CORPORATION F/K/A :
CARBORUNDUM COMPANY; :
INGERSOLL-RAND; INVENSYS; ITT :
CORPORATION, F/K/A ITT :
INDUSTRIES; JENDOCO :
CONSTRUCTION; LEEDS & :
NORTHRUP COMPANY; LIMBACH :
COMPANY; M.S. JACOBS & :
ASSOCIATES, INC.; METROPOLITAN :
LIFE INSURANCE COMPANY, A/K/A :
METROPOLITAN INSURANCE :
COMPANY; MILTON ROY COMPANY; :
MINE SAFETY APPLIANCE COMPANY; :
OWENS-ILLINOIS, INC.; PATTERSON :
KELLY CORPORATION, A/K/A :
HARSCO CORPORATION; ROCKWELL :
AUTOMATION, INC., IN ITS OWN :
RIGHT AND AS SUCCESSOR-IN- :
INTEREST TO ALLEN BRADLEY; :
SAFETY FIRST INDUSTRIES, INC., IN :
ITS OWN RIGHT AND AS :
SUCCESSOR-IN-INTEREST TO :
SAFETY FIRST SUPPLY, INC.; SPIRAX :
SARCO, INC.; SQUARE D. COMPANY; :
THE CLARK CONTROLLER COMPANY; :
TRANE U.S. INC. F/K/A AMERICAN :
STANDARD, INC. :
:
Appellees No. 62 WDA 2018
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Appeal from the Final Order Entered December 6, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): No. G.D. 16-003521,
No. G.D. 16-003523
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
OPINION BY GANTMAN, P.J.E.: FILED OCTOBER 28, 2019
Appellant, Joyce E. Kardos, Executrix of the Estate of Nicholas J. Kardos,
Deceased, and Joyce E. Kardos, in her own right, appeals from the final order
entered in the Allegheny County Court of Common Pleas that disposed of the
remaining claims against the remaining defendants in these cases
consolidated at Docket No. G.D. 16-003521. Specifically, Appellant challenges
the trial court’s preclusion order of December 12, 2016, and the summary
judgments entered on August 9, 2017, and August 18, 2017, in favor of
Appellees, Armstrong Pumps, Inc., The Fairbanks Company (“Fairbanks”),
Flowserve US, Inc. (“Flowserve”), Hammond Valve Company, Ingersoll-Rand,
Patterson Kelly Corporation, a/k/a Harsco Corporation (“Patterson Kelly”),
Rockwell Automation, Inc., in its own right and as successor-in-interest to
Allen Bradley (“Rockwell Automation”), and Square D. Company (“Square
D”).1 We vacate the orders entering summary judgment in favor of Appellees,
reverse the order precluding Mr. Kardos’ affidavit and deposition testimony
____________________________________________
1Upon Appellant’s praecipe, this Court issued a per curiam order on February
20, 2019, directing the Prothonotary to mark the case settled, discontinued,
and ended as to Appellees Armstrong Pumps, Inc., and Hammond Valve
Corporation, and to remove these Appellees as parties from this appeal.
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from consideration at the summary judgment stage, and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows. In
January 2016, doctors diagnosed Mr. Kardos with mesothelioma, a type of
cancer caused by exposure to asbestos. On March 10, 2016, Mr. Kardos and
Appellant filed a complaint against numerous manufacturers, suppliers, and
users of asbestos products. Between July 11, 2016 and July 15, 2016,
Appellees Armstrong Pumps, Flowserve, Ingersoll-Rand, Patterson Kelly,
Rockwell Automation, and Square D filed motions for summary judgment
based on lack of product identification. Further discovery ensued, including a
jobsite inspection at Mr. Kardos’ former place of employment, Gulf Research.
On September 12, 2016, Mr. Kardos executed an affidavit regarding his
work at Gulf Research and his exposures to asbestos while employed there.
On September 28, 2016 and September 30, 2016, Defendant Mahoning Valley
Supply Co. noticed Mr. Kardos for two separate days of deposition.
Defendants and Appellees deposed Mr. Kardos on October 17, 2016 and
October 24, 2016; at the end of the second day, Defendants and Appellees
noticed a third day of deposition, which occurred on October 26, 2016. The
depositions consisted solely of cross-examination regarding Mr. Kardos’ work
history and his exposure to asbestos-containing products. During the three
days of deposition, Appellees Armstrong Pumps, Inc., Flowserve, Ingersoll-
Rand, Rockwell Automation, and Square D all began and finished their cross-
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examinations; Appellees Fairbanks, Hammond Valve Company, and Patterson
Kelly attended the deposition but did not question Mr. Kardos. Appellees and
Defendants did not notice a fourth day of deposition. Mr. Kardos died on
November 3, 2016. On November 14, 2016, Appellant was appointed as
executrix of Mr. Kardos’ estate and substituted as Plaintiff.
On December 5, 2016, Appellee Fairbanks filed a motion for summary
judgment based on a lack of product identification; Appellee Fairbanks further
argued the court should not consider Mr. Kardos’ affidavit and deposition
testimony because these documents were inadmissible hearsay. On
December 5, 2016 and December 6, 2016, Appellees Square D and Rockwell
Automation filed motions for summary judgment based on Mr. Kardos’ lack of
regular and frequent exposure to their products and failure to isolate the
presence of asbestos in their products. On December 6, 2016, Appellee
Hammond Valve Company filed a motion for summary judgment based on lack
of product identification and also argued for the preclusion of Mr. Kardos’
affidavit and deposition testimony. Appellant filed a response on December
7, 2016, which argued in part that the court should consider Mr. Kardos’
affidavit and deposition testimony at the summary judgment stage, and that
these documents could be admissible at trial under the Rules of Evidence and
Civil Procedure.
On December 9, 2016, Defendant Jendoco Construction and Appellee
Rockwell Automation each filed a motion to preclude Mr. Kardos’ affidavit and
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deposition testimony. That same day, Appellee Patterson Kelly filed a motion
for summary judgment, which requested preclusion of Mr. Kardos’ affidavit
and deposition testimony, and further argued that Mr. Kardos failed to meet
his burden of product identification. On December 12, 2016, Appellee
Armstrong Pumps, Inc., filed a motion to join all preclusion motions filed by
other Defendants regarding Mr. Kardos’ affidavit and deposition testimony.
That same day, the court entered an order that precluded Appellant from using
Mr. Kardos’ affidavit and deposition testimony in response and opposition to
any party’s motion for summary judgment.
On August 9, 2017, the court granted summary judgment in favor of
Appellees Armstrong Pumps, Inc., Fairbanks, Flowserve, Hammond Valve
Company, Ingersoll-Rand, and Patterson Kelly. The court granted summary
judgment in favor of Appellees Rockwell Automation and Square D on August
18, 2017. The case proceeded to trial against the remaining Defendants, all
of whom eventually settled. The final orders to settle, discontinue, and end
were entered on December 6, 2017, which effectively resolved all the
remaining claims against the remaining parties. On January 2, 2018,
Appellant timely filed a notice of appeal challenging the earlier preclusion and
summary judgment orders. The court ordered Appellant, on January 9, 2018,
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on
January 29, 2018.
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Appellant raises the following issues for our review:
WAS THE AFFIDAVIT AND DEPOSITION OF NICHOLAS
KARDOS PROPER EVIDENCE TO BE CONSIDERED BY THE
TRIAL COURT IN RESPONSE TO DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT?
WAS THE DEPOSITION OF NICHOLAS KARDOS ADMISSIBLE
AT TRIAL PURSUANT TO PENNSYLVANIA RULE OF
EVIDENCE 804(B)(1) AND PENNSYLVANIA RULE OF CIVIL
PROCEDURE 4020(A)(3)?
DID THE TRIAL COURT’S RULING OF EXCLUDING THE
THREE-DAY DEPOSITION OF A PLAINTIFF DYING FROM
MESOTHELIOMA VIOLATE THE OPEN COURT AND
REMEDIES CLAUSE OF PA. CONST. ART. I, § [11] AND THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
PENNSYLVANIA CONSTITUTION AND PUBLIC POLICY?
(Appellant’s Brief at 7).
In her first issue, Appellant argues the Rules of Civil Procedure allow the
court to consider depositions and affidavits during summary judgment
proceedings, even when these documents would be inadmissible hearsay at
trial. Appellant contends the use of Mr. Kardos’ deposition, where he testified
consistently with his affidavit, was proper in this context and expected under
the Rules of Civil Procedure. Appellant submits Mr. Kardos was the most
appropriate person to speak about his work and asbestos exposure because
he had direct and independent knowledge, and this first-hand knowledge
weighed in favor of consideration at the summary judgment stage.
In her second issue, Appellant argues Mr. Kardos’ deposition falls under
the Rule 804(b)(1) exception to hearsay, as Mr. Kardos is unavailable due to
his death, he testified during a lawful deposition, and Appellees had the
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opportunity to cross-examine Mr. Kardos, even though they might not be fully
satisfied with their cross-examination. Appellant posits not all parties must
be present at a deposition to qualify under Rule 804(b)(1), only that the
parties had an opportunity to attend. Appellant continues Appellees’ counsel
were all present at Mr. Kardos’ deposition, and the decision of some attorneys
to refrain from asking questions of Mr. Kardos does not call for the exclusion
of his deposition testimony. Appellant insists the civil standard under Rule
804(b)(1) is plainly an opportunity to cross-examine, while the criminal
standard under Rule 804(b)(1) provides for a full and fair opportunity to cross-
examine. Appellant asserts Mr. Kardos attended three full days of deposition
and was available to all Appellees’ counsel.
Appellant further argues Mr. Kardos’ deposition is admissible at trial
under Rule 4020(a)(3), which allows for the admission of depositions if the
court finds it is in the interests of justice and exceptional circumstances exist.
Appellant maintains Mr. Kardos gave substantially complete testimony on his
exposure to asbestos from which a jury could rule in Appellant’s favor.
Appellant contends at the very least, the court should have permitted the use
of the deposition against those Appellees who had concluded their cross-
examination of Mr. Kardos.
In her final issue, Appellant argues the preclusion of Mr. Kardos’ affidavit
and deposition violates the Open Court and Remedies Clause of the
Pennsylvania Constitution as well as public policy, because the court denied
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Mr. Kardos and Appellant a remedy and set a precedent that could allow future
defendants to delay or manipulate depositions to their ultimate advantage.
Appellant concludes this Court should reverse the court’s entry of summary
judgment, remand for the court to consider Mr. Kardos’ affidavit and
deposition testimony at the summary judgment stage, and declare his
deposition testimony admissible at trial. We agree in part.
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations and quotation marks omitted). Our scope of review is
plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001),
cert. denied, 536 U.S. 938, 122 S. Ct. 2618, 153 L. Ed. 2d 802 (2002). In
reviewing a trial court’s grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view 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. Only where there is
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no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary element
of the cause of action or defense, which could be established
by additional discovery or expert report and the moving
party is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted) (emphasis added).
In an asbestos case, the plaintiff must present sufficient evidence
establishing product identification to survive a summary judgment motion.
Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa.Super. 1988), appeal denied,
520 Pa. 605, 553 A.2d 968 (1988). That is, “[the] plaintiff must establish that
the injuries were caused by a product of a particular manufacturer or
supplier.” Vanaman v. DAP, Inc., 966 A.2d 603, 607 (Pa.Super. 2009) (en
banc). In other words, the plaintiff must present some evidence that he
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inhaled asbestos fibers shed by the specific manufacturer’s product.
Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 652 (Pa.Super.
2002), appeal denied, 574 Pa. 748, 829 A.2d 1158 (2003). As a result, the
plaintiff must do more than just show the mere presence of asbestos in the
workplace. Lonasco v. A-Best Products Co., 757 A.2d 367, 376 (Pa.Super.
2000), appeal denied, 566 Pa. 645, 781 A.2d 145 (2001). Instead, the
plaintiff must prove he worked in the vicinity of a specific manufacturer’s
product. Id.
When evaluating the plaintiff’s evidence in asbestos cases at the
summary judgment stage, Pennsylvania courts use the “frequency, regularity,
and proximity” test established in Eckenrod. Gregg v. V-J Auto Parts, Co.,
596 Pa. 274, 292, 943 A.2d 216, 227 (2007). In Gregg, our Supreme Court
adopted the Eckenrod standard and held that courts should make a reasoned
assessment of whether, in light of the evidence on the frequency, regularity,
and proximity of a plaintiff’s alleged exposure, a jury could draw a sufficient
causal connection between the defendant’s product and the asserted injury.
Id. at 290, 942 A.2d at 227. Therefore, the relevant inquiry under a
manufacturer’s motion for summary judgment is “whether [a] 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.” Vanaman, supra at 607. See also
Rost v. Ford Company, 637 Pa. 625, 151 A.3d 1032 (2016) (emphasizing
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that “frequent, regular, and proximate” test in this context requires evidence
of exposure sufficient to allow jury to infer causal connection between
exposure to asbestos-containing products and development of
mesothelioma).
Eckenrod, however, is not a rigid test that sets an absolute threshold
required to support liability. Gregg, supra at 290, 943 A.2d at 225. Rather,
courts should apply Eckenrod in an evaluative fashion, in a way tailored to
the facts and circumstances of the case. Linster v. Allied Signal, Inc., 21
A.3d 220, 224 (Pa.Super. 2011), appeal denied, 614 Pa. 714, 38 A.3d 826
(2012). Application of the test becomes less stringent where the plaintiff
produces specific evidence of exposure to a defendant’s product. Id.
Similarly, in cases involving mesothelioma, the frequency and regularity
requirements should become “less cumbersome.” Id. A plaintiff cannot
survive summary judgment, however, if a jury would need to speculate to find
in plaintiff’s favor. Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa.Super.
2014).
Regarding summary judgment, the Pennsylvania Rules of Civil
Procedure provide:
Rule 1035.1. Motion for Summary Judgment.
Definition
As used in Rule 1035.1 et seq., “record” includes any
(1) pleadings,
(2) depositions, answers to interrogatories, admissions and
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affidavits, and
Note: See Definition Rule 76 for the definition of
“affidavit.” See Rule 1035.4 governing affidavits
supporting or defending a motion for summary
judgment.
(3) reports signed by an expert witness that would, if filed,
comply with Rule 4003.5(a)(1), whether or not the reports
have been produced in response to interrogatories.
Pa.R.C.P. 1035.1.
Rule 1035.2. Motion
After the relevant pleadings are closed, but within such time
as not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action or
defense which could be established by additional
discovery or expert report, or
(2) if, after completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
Note: Rule 1035.2 sets forth the general principle that
a motion for summary judgment is based on an
evidentiary record which entitles the moving party to
judgment as a matter of law.
* * *
Pa.R.C.P. 1035.2.
Rule 1035.3. Response. Judgment for Failure to
Respond
(a) Except as provided in subdivision (e), the adverse party
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may not rest upon the mere allegations or denials of the
pleadings but must file a response within thirty days after
service of the motion identifying
(1) one or more issues of fact arising from evidence in
the record controverting the evidence cited in support of
the motion or from a challenge to the credibility of one
or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts
essential to the cause of action or defense which the
motion cites as not having been produced.
* * *
(c) The court may rule upon the motion for judgment or
permit affidavits to be obtained, depositions to be taken or
other discovery to be had or make such other order as is
just.
Pa.R.C.P. 1035.3(a), (c).
Rule 1035.4. Affidavits
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
signer is competent to testify to the matters stated therein.
Verified or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to
interrogatories, or further affidavits.
Pa.R.C.P. 1035.4. An affidavit is defined as “a statement in writing of a fact
or facts, signed by the person making it, that either (1) is sworn to or affirmed
before an officer authorized by law to administer oaths, or before a particular
officer or individual designated by law as one before whom it may be taken,
and officially certified to in the case of an officer under seal of office, or (2) is
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unsworn and contains a statement that it is made subject to the penalties of
18 Pa.C.S. § 4904 relating to unsworn falsification to authorities[.]” Pa.R.C.P.
76.
Supporting affidavits in response to a motion for summary judgment are
acceptable as proof of facts. Phaff v. Gerner, 451 Pa. 146, 150, 303 A.2d
826, 829 (1973) (discussing expired Pa.R.C.P. 1035(d), which contains
substantially similar language as in current Rule 1035.4). Cf. Welsh v.
National Railroad Passenger Corporation, 154 A.3d 386 (Pa.Super.
2017), appeal denied, 641 Pa. 514, 168 A.3d 1283 (2017) (holding trial court
properly refused to consider, at summary judgment stage, signed but unsworn
statements, which plaintiffs asserted were affidavits, because they did not
conform to definition of “affidavit” in Rule 76).
A nonmoving party can, however, respond to a motion for summary
judgment by relying solely on a proper affidavit to create a genuine issue of
material fact, i.e., a credibility question for the jury. Burger v. Owens
Illinois, Inc., 966 A.2d 611, 620 (Pa.Super. 2009) (holding trial court erred
in refusing to consider non-movant’s affidavit where affidavit was consistent
with deposition testimony). A party can file a proper affidavit to supplement
the record in order to oppose summary judgment, but the trial court may
disregard the affidavit if the affidavit contradicts the party’s prior testimony,
which makes the affidavit inherently unreliable. Id.
“The admissibility of evidence is a matter addressed to the sound
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discretion of the trial court and should not be overturned absent an abuse of
discretion.” Education Resources Institute, Inc. v. Cole, 827 A.2d 493,
499 (Pa.Super. 2003), appeal denied, 577 Pa. 721, 847 A.2d 1286 (2004)
(quoting Delpopolo v. Nemetz, 710 A.2d 92, 94 (Pa.Super. 1998)).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person's oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made the statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801. Generally, hearsay is inadmissible. Pa.R.E. 802.
Rule 804 provides in relevant part as follows:
Rule 804. Exceptions to the Rule Against
Hearsay─When the Declarant is Unavailable as a
Witness
(a) Criteria for Being Unavailable. A declarant is
considered to be unavailable as a witness if the declarant:
* * *
(4) cannot be present or testify at the trial or hearing
because of death…[.]
* * *
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(b) The Exceptions. The following are not excluded
by the rule against hearsay if the declarant is unavailable as
a witness:
(1) Former testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or
lawful deposition, whether given during the current
proceeding or a different one; and
(B) is now offered against a party who
had─or, in a civil case, whose predecessor in
interest had─an opportunity and similar motive to
develop it by direct, cross-, or redirect
examination.
Pa.R.E. 804(a)(4), (b) (emphasis added).
The Pennsylvania Rules of Civil Procedure allow a non-movant to use
hearsay in opposition to a motion for summary judgment. Petrina v. Allied
Glove Corp., 46 A.3d 795, 799 (Pa.Super. 2012). See also Pa.R.C.P. 1035.1,
1035.3. A trial court should consider purported hearsay presented by a non-
movant at the summary judgment stage if the non-movant can provide a
plausible avenue for the admission at trial of the hearsay. Petrina, supra at
799.
The Rules of Civil Procedure allow the use of deposition testimony at
trial:
Rule 4020. Use of Depositions at Trial
(a) At the trial, any part or all of a deposition, so far as
admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of
the deposition or who had notice thereof if required, in
accordance with any one of the following provisions:
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* * *
(3) The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court
finds
(a) that the witness is dead[.]
Pa.R.C.P. 4020(a)(3)(a). Depositions are generally admissible when
otherwise permitted under the rules of evidence. DeArmitt v. New York
Life Ins. Co., 73 A.3d 578, 591 (Pa.Super. 2013). Depositions are sufficient
lawful proceedings, which warrant admission at trial when the deponent is
unavailable and cannot testify. Collura v. L & E Concrete Pumping, Inc.,
686 A.2d 392, 396 n.3 (Pa.Super. 1996). Persuasive cases from other
jurisdictions demonstrate depositions, which are unfinished due to the
deponent’s illness or death, are admissible at the summary judgment and trial
stages. See Derewecki v. Pennsylvania R.R. Co., 353 F.2d 436 (3d Cir.
1965) (holding court properly admitted deceased employee’s deposition
testimony at trial, although second day of deposition was unfinished due to
employee’s illness, where defendant previously had opportunity to cross-
examine employee and exclusion of deposition testimony would have severely
prejudiced plaintiff); Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y.
1989) (holding deposition of deceased plaintiffs’ witness is allowable at trial,
where exclusion of testimony at trial would substantially harm plaintiffs’ case;
although defendants did not cross-examine witness, defendants could
mitigate prejudice by stipulating to certain facts at trial); Bank of Montreal
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v. Estate of Antoine, 86 So. 3d 1262 (Fla. Dist. Ct. App. 2012) (citing to
Derewecki, supra) (holding trial court erred in excluding unfinished
deposition testimony of deceased co-defendant at trial even though living co-
defendant did not have opportunity to cross-examine, because prejudice to
living co-defendant was not substantial); Farmer v. Nostrand Ave. Meat
and Poultry, 831 N.Y.S.2d 443 (N.Y. App. Div. 2007) (holding trial court
erred in excluding decedent’s deposition at summary judgment stage, where
defendant had ample opportunity to test facts and veracity of decedent; while
defendant could have asked more questions, this assertion alone did not
warrant preclusion of entire deposition testimony).
Instantly, doctors diagnosed Mr. Kardos with mesothelioma in January
2016; and Appellant and Mr. Kardos filed a complaint against numerous
manufacturers. Appellees filed motions for summary judgment based on lack
of product identification. After a jobsite inspection, Mr. Kardos executed an
affidavit, and Defendants noticed him for deposition. Defendants and
Appellees cross-examined Mr. Kardos for three days; Appellees Fairbanks,
Hammond Valve Company, and Patterson Kelly attended the deposition but
did not question Mr. Kardos. No party noticed Mr. Kardos for a fourth day of
deposition. Mr. Kardos died eight days after the last day of deposition.
Defendant Jendoco Construction and Appellees Rockwell Automation,
Patterson Kelly, and Armstrong Pumps, Inc., all filed motions to preclude the
use of Mr. Kardos’ affidavit and deposition testimony, which the court granted
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globally. The court subsequently granted summary judgment in favor of
Appellees.
Here, the Rules of Civil Procedure explicitly allow Mr. Kardos’ affidavit
and deposition testimony to be part of a record for summary judgment
proceedings. See Pa.R.C.P. 1035.1(2); Burger, supra. Regarding the
affidavit, Paragraph 9 contains a statement that Mr. Kardos signed the
document subject to the penalties of Section 4904, as required for
consideration during summary judgment. See Pa.R.C.P. 76, 1035.1, 1035.4.
Mr. Kardos had direct personal knowledge of the statement of facts contained
within the affidavit. See Pa.R.C.P. 1035.4. Further, Mr. Kardos’ affidavit was
consistent with his deposition testimony, so the court had no reason to reject
the affidavit as inherently unreliable. See Burger, supra. Therefore, Mr.
Kardos’ affidavit conformed to the Rules of Civil Procedure and was an
acceptable proof of fact for purposes of summary judgment. We conclude the
court improperly precluded the use of the affidavit during summary judgment
proceedings. See Pa.R.C.P. 1035.1-1035.4; Phaff, supra; Burger, supra;
Education Resources Institute, Inc., supra.
Mr. Kardos’ deposition consisted solely of three days of cross-
examination by Defendants and Appellees. Even if the deposition testimony
is hearsay, Appellant as a non-movant is entitled to use hearsay in opposition
to Appellees’ motions for summary judgment. See Petrina, supra.
Moreover, Appellant provided a plausible avenue for admission of the
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deposition testimony at trial, through Rule 804. See id.; Pa.R.E. 804(b)(1)(B)
(allowing for use of deposition testimony of unavailable witness if “offered
against a party who had−or, in a civil case, whose predecessor in interest
had−an opportunity and similar motive to develop it by direct, cross-, or
redirect examination”). Rule 804(b)(1)(B) merely required Appellees to have
the opportunity to develop the testimony. See id.
Further, we reject Appellees’ attempts to analogize the current case to
Sutch v. Roxborough Memorial Hospital, 142 A.3d 38 (Pa.Super. 2016),
appeal denied, 640 Pa. 378, 163 A.3d 399 (2016). In Sutch, we held a
defense expert’s trial testimony, which violated a court order against
discussing the decedent’s smoking history, could not be used against the
defense attorney at a subsequent civil contempt hearing. Id. at 77. We
stated the expert’s trial testimony was hearsay without an exception under
the Rules of Evidence, because the defense attorney, against whom the
testimony would be used, was not given any opportunity to cross-examine her
expert when his testimony was first challenged. Id. The contempt hearing
occurred two years later, and the trial court had not given the defense
attorney any opportunity during trial to expose her expert’s potential bias and
reasons for the evasive testimony he gave when the trial court questioned the
expert about the violation during trial. Id.
Here, Defendants and Appellees cross-examined Mr. Kardos for three
solid days of deposition. Importantly, after the second day of deposition,
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Defendants and Appellees noticed Mr. Kardos for a third day of deposition,
which occurred two days later. From the end of the third day of deposition
until Mr. Kardos’ death over a week later, no party noticed a fourth day of
deposition or indicated any unfinished business. Defendants and Appellees
deposed Mr. Kardos for the specific purpose of the current litigation and
focused their questioning on product identification. Unlike Sutch, Appellees
had the opportunity to cross-examine Mr. Kardos for three days and could
have noticed Mr. Kardos for a fourth day of deposition if necessary. They did
not do so before his death. Therefore, Mr. Kardos’ deposition testimony
arguably meets the hearsay exception under Rule 804(b)(1)(B). See Pa.R.E.
804(b)(1)(B).
Appellees all attended Mr. Kardos’ deposition with an opportunity to
question him; Mr. Kardos’ death and the hearsay exception combined
reasonably to allow the admission of the deposition testimony at trial. See
Pa.R.C.P. 4020(a)(3)(a); DeArmitt, supra; Collura, supra. Because Mr.
Kardos’ deposition testimony arguably falls under a hearsay exception and
could be allowable at trial, the court should have consider the testimony at
the summary judgment stage. See Petrina, supra. Therefore, we conclude
the court erred when it precluded the use of Mr. Kardos’ deposition testimony
during summary judgment proceedings. See Education Resources
Institute, Inc., supra. The preclusion of Mr. Kardos’ testimony resulted in
significant prejudice to Appellant, as she needed this testimony to oppose
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summary judgment on the ground of lack of product identification. See
Eckenrod, supra. See also Derewecki, supra; Farmer, supra.
Based on the foregoing, we hold Appellant as non-movant can use Mr.
Kardos’ properly executed affidavit, signed subject to the penalties of Section
4904, as part of the record in opposition to Appellees’ motions for summary
judgment, because it is not inherently unreliable. We further hold Appellant
can use Mr. Kardos’ deposition testimony to oppose Appellees’ summary
judgment motions, where Appellees had the opportunity to cross-examine Mr.
Kardos, who later became unavailable due to his death, and the deposition
testimony meets a hearsay exception. Accordingly, we vacate the orders
entering summary judgment in favor of Appellees, reverse the order
precluding the use of Mr. Kardos’ affidavit and deposition testimony in
opposition to Appellees’ summary judgment motions, and remand for further
proceedings.2
Orders entering summary judgment vacated; preclusion order reversed;
case remanded for further proceedings. Jurisdiction is relinquished.
____________________________________________
2 Due to our disposition, we decline to address Appellant’s third issue on
appeal, referring to constitutional violations, where Pennsylvania law provides
“a restraining principle that counsels against reaching a constitutional
question if a non-constitutional ground for [a] decision is available.” See
Com., Dept. of Transp. v. Taylor, 576 Pa. 622, 633, 841 A.2d 108, 114
(2004); Commonwealth v. Farabaugh, 136 A.3d 995, 1001 (Pa.Super.
2016), appeal denied, 643 Pa. 140, 172 A.3d 1115 (2017).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2019
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