horst v. union carbide

Horst v. Union Carbide

Civil procedure — Asbestos claim — Summary judgment — Cumulative exposure theory — Punitive damages apportionment

Plaintiff in mesothelioma lawsuit survived summary judgment on most counts due to extensive experience and detailed testimony, matched with careful and extensive case law review on the part of the court. Defendants’ motions for summary judgment granted in part and denied in part.

Plaintiff Robert Horst Jr. worked in the electrical systems and HVAC industry when asbestos was used in furnace parts such as gaskets and insulation, joint compound and sealing mud. His work entailed both repairs and new installation of HVAC systems produced by several companies, where he wound up breathing dust from drywall sanding, as well as the processes used to remove and install new HVAC and electrical systems. He developed malignant mesothelioma in November 2014 from repeated past exposure to asbestos-containing products manufactured or sold by defendants. He brought suit in March 2015.

Defendants Union Carbide Corp., Trane US Inc., Burnham LLC, Carrier Corp., Georgia-Pacific LLC, Hajoco Corp., Kaiser Gypsum Company Inc., Lennox Industries Inc., The Marley-Wylain Co., Peerless Industries, Inc., Rheem Manufacturing Co. and York International Corp. filed motions for summary judgment. Defendants argued that plaintiffs (1) could not prove the asbestos content of the products, since defendants lacked knowledge and experience of workplace asbestos; (2) were unable to satisfy the “frequency-regularity-proximity” test; (3) could not prove asbestos-containing components existed on specific boilers or furnaces when they were sold by defendants; (4) medical expert had proffered an “any exposure” theory of causation that was legally insufficient in the state; (5) claims against three manufacturers were barred by the 12-year statute of repose; and (6) punitive damages claims were barred by the “most innocent defendant” or were not supported by the facts.

As to the first three items, the court found plaintiff’s experience from 43 years in the HVAC and electrical industries sufficient to recognize asbestos, and his detailed testimony sufficient to satisfy the frequency-regularity-proximity factors in a jury trial. Plaintiff identified the manufacturers of furnaces, the components used and cited installation instructions specifying use of asbestos products so that, even if they didn’t manufacture the appliances with the asbestos products, they knew they would be installed. Testimony from representatives of the companies also conceded the use of asbestos. Plaintiff also identified the methods of

Horst v. Union Carbide 1 (2016)1

2 Pa. D. & C.5th

installation/removal of the appliances and exposure to drywall sanding in new construction that caused asbestos dust to be released into the air.

Rather than an “any exposure” cause, the medical expert, a Harvard director of pulmonary immunology and molecular biology, instead indicated that plaintiff’s mesothelioma developed from repeated exposure to asbestos beyond the background level and included substantial documentation and references to published studies in support of that evaluation. Two additional expert witnesses had extensive credentials with NIOSH and public health and industrial hygiene. The testimony went far beyond the typical dosage discussions deemed insufficient in case law.

The court found the boiler and furnace manufacturers had not sufficiently established their case for statute of repose. While it was evident that more than 12 years had passed since manufacture and plaintiff’s diagnosis, the remaining criteria were not satisfied. The court noted that the law was also never intended to apply to manufacturers. The court also noted that the defense of the “most innocent defendant” rule had been obsolete or some time.

Finally, on the issue of punitive damages, the court found the evidence did not prove the four furnace/boiler manufacturers were aware of the risk of harm from exposure to their products, particularly to the extent of willful and reckless behavior required by law, and therefore insufficient to support punitive damages claim against all four. However, there was sufficient evidence that the joint compound manufacturers were aware of the dangers and warned their employees, if not their customers.

The motions for summary judgment by Trane, Carrier, Peerless and Rheem only on punitive damages were granted, while motions on punitive damages by Georgia-Pacific and Kiser Gypsum were denied. All other motions for summary judgment by other defendants, on other issues, were denied.

C.P. of Lackawanna County, No. 15 CV 1903

Benjamin Braly and Daniel W. Munley, for plaintiffs.Robert N. Spinelli, for defendant Union Carbide Corp.Daniel J. Ryan, Jr., for defendants Trane US, Inc. f/k/a

American Standard, Inc. and Kaiser Gypsum Co.Kevin J. Maginnis, for defendant Burnham, LLC.Joan P. Depfer and John T. McGrath, Jr., for defendant

Carrier Corp.

Horst v. Union Carbide

Kevin J. O’Brien, for defendant Georgia-Pacific, LLC.John C. McMeekin, II, for defendant Hajoca Corp.Barbara J. Buba and Michael J. Block, for defendant

Lennox Industries, Inc.Joseph Cagnoli, Jr. and Nicola F. Serianni, for defendant

The Marley-Wylain Co. d/b/a Weil McLain.Vincent F. Reilly, for defendant Peerless Industries, Inc.G. Daniel Bruch, Jr., for defendant Rheem

Manufacturing Co.Anne K. Seelaus, for defendant York International Corp.NEALON, J., April 27, 2016—Plaintiffs commenced

this tort action against twenty manufacturers or sellers of boilers, furnaces or joint compound which allegedly contained asbestos that caused the male plaintiff to develop malignant mesothelioma. After discovery was completed and plaintiffs had consented to the dismissal of eight defendants, the remaining defendants filed motions for summary judgment asserting the following grounds for their dismissal: (1) plaintiffs cannot prove the asbestos content of defendants’ products since the male plaintiff does not possess the necessary experience or knowledge to offer a technical lay opinion concerning the presence of asbestos in the workplace; (2) plaintiffs are unable to satisfy the “frequency-regularity-proximity” test governing asbestos exposure claims; (3) plaintiffs cannot prove that any asbestos-containing component parts existed on certain defendants’ boilers or furnaces when they were sold by those defendants; (4) plaintiffs’ medical causation expert has proffered an “any exposure” theory of causation which is legally insufficient in Pennsylvania; (5) plaintiffs’ claims against three manufacturers are barred by the twelve-year statute of repose; and (6) plaintiffs’ punitive damages claims either are precluded by the “most innocent defendant” rule or lack adequate factual support.

Based upon his 8 year HVAC and 35 year electrical


employment history, the male plaintiff has sufficient personal experience or specialized knowledge to be competent under Pa.R.E. 701 to identify the existence of asbestos at his job sites. His detailed testimony regarding his recurrent inhalation of asbestos dust that was allegedly created by products bearing defendants’ names, or was purchased from one defendant’s supply store, would entitle a jury to make the necessary inference of a sufficient causal connection between defendants’ products and plaintiff’s mesothelioma under the “frequency-regularity-proximity” standard. Plaintiffs have also produced evidence that defendants’ products contained original asbestos material when those products left their hands, or, at a minimum, that it was reasonably foreseeable to defendants that asbestos-containing component parts would be added to their products after they were manufactured.

The summary judgment record reflects that plaintiffs’ medical expert has not advanced an “any exposure” causation theory, and instead has opined that the male plaintiff’s mesothelioma was caused by cumulative exposures to asbestos from defendants’ products based upon his reasoned assessment of plaintiff’s asbestos inhalation history and published epidemiological studies concerning asbestos exposure and the development of mesothelioma. The boiler and furnace manufacturers seeking protection under the statute of repose have not established as a matter of law that their products were permanently affixed to real estate, or that those manufacturers performed acts of “individual expertise” as required by 42 Pa.C.S. § 5536. Additionally, the “most innocent defendant” rule has been rendered obsolete in Pennsylvania which now provides for the apportionment of punitive damages among tortfeasors based upon their respective culpability, and cannot serve to provide any defendant protection from an award of punitive damages. Last, although plaintiffs have presented sufficient evidence that managerial representatives of two joint compound manufacturers arguably had a subjective

4 Pa. D. & C.5thHorst v. Union Carbide

appreciation of the risk of harm caused by exposure to their asbestos-containing products, but consciously disregarded that risk, before the male plaintiff inhaled their asbestos dust, the evidence submitted is clearly insufficient to support a punitive damages claim against four manufacturers of boilers and furnaces. Accordingly, those four defendants’ motions for summary judgment will be granted as to plaintiffs’ punitive damages claims, but in all other respects, the twelve motions for summary judgment will be denied.

I. FACTUAL BACKGROUND

Plaintiffs commenced this asbestos action on March 4, 2015, and alleged that Plaintiff, I. Robert Horst, Jr. (“Horst”), developed malignant mesothelioma in November 2014 due to his past exposure to asbestos-containing products that were manufactured or sold by the defendants.1 See Horst v. Union Carbide Corporation, 2015 WL 5547619, at *1 (Lacka. Co. 2015). Plaintiffs assert that while Horst was working for his father’s heating, ventilation and air conditioning (“HVAC”) and plumbing business, Custom Comfort, from 1970 to 1978, he was exposed to the defendants’ asbestos materials when removing, installing or servicing boilers and furnaces, and working in close proximity to dust from joint compounds, in residential settings. Id.

According to the voluminous discovery materials submitted by the parties, defendants, Trane US, Inc. f/k/a American Standard Inc. (“Trane”), Burnham, LLC (“Burnham”), Carrier Corporation (“Carrier”), Lennox Industries, Inc. (“Lennox”), The Marley-Wylain Company

1. “Mesothelioma is a cancer of the mesothelial tissue surrounding the lung, which is a rare disease with the exception of those exposed to asbestos.” Vanaman v. DAP, Inc., 966 A.2d 603, 604 n.3 (Pa. Super. 2009) (en banc). “It is the most serious of the asbestos-related cancers and the most identifiable as having an asbestos exposure causation.” Gibson v. W.C.A.B. (Armco Stainless & Alloy Products). 580 Pa. 470, 484 n.9, 861 A.2d 938, 946 n.9 (2004).


d/b/a Weil-McLain (“Weil-McLain”), Peerless Industries, Inc. (“Peerless”), Rheem Manufacturing Company (“Rheem”), and York International Corporation (“York”), were manufacturers of boilers, furnaces and heating units. Horst contends that the heating equipment sold by those defendants included asbestos-containing insulation, gaskets, cement or panels. Defendants, Georgia-Pacific, LLC (“Georgia-Pacific”), and Kaiser Gypsum Company, Inc. (“Kaiser Gypsum”), manufactured and distributed joint compound that allegedly contained asbestos that had been supplied by Defendant, Union Carbide Corporation (“Union Carbide”), and which generated considerable workplace dust that Horst claims to have inhaled. Defendant, Hajoca Corporation (“Hajoca”), was a retail plumbing supply business from which Custom Comfort allegedly purchased asbestos-containing gaskets, cement and materials that were used by Horst while repairing heating units.

The parties have completed discovery and exchanged their expert reports in accordance with the scheduling Order dated June 1, 2015, (Docket Entry No. 48), and fifteen defendants filed motions for summary judgment, three of which were not opposed by Horst.2 (Docket Entry Nos. 59, 63, 65, 67, 69, 71, 73, 75, 77, 79, 83, 86, 88, 91, 95, 97-98). When the summary judgment record is viewed in the light most favorable to Horst as the non-moving party, see Gilbert v. Synagro Cent., LLC, 131 A.3d 1,10 (Pa. 2015) (in addressing a summary judgment motion, the court must view the record in the light most favorable to the nonmoving party), it reflects the following factual

2. By Order dated January 22, 2016, the motions for summary judgment of former defendants, A. O. Smith Corporation, Hanson Permanente Cement, Inc., and Pecora Corporation, were granted as unopposed. (Docket Entry No. 138). Plaintiffs also stipulated to the dismissal of original defendants, SPX Corporation, DeZurik, Inc., Copes-Vulcan, Inc., Marley Pump Co., and CompuDyne Corporation, and the voluntary discontinuance of those defendants was approved by the court pursuant to Pa.R.C.P. 229(b)(1). (Docket Entry Nos. 53-54, 58).


history.

During his eight years of employment with Custom Comfort, Horst devoted equal time to new home construction projects, which involved the installation of original boilers and furnaces, and work on existing homes where he would replace or repair residential heating units. (Deposition of I. Robert Horst, Jr., dated 4/16/15, 4/17/15 and 4/21/15 at pp. 19, 21-22). The boilers that Horst installed in new homes were smaller, pre-assembled models that could be transported down steps into basement areas. (Id. at pp. 52-53). As part of the installation, Horst was required to use “asbestos mud” to seal the gaps between the flue liners and the stove pipes connected to the boilers. (Id. at p. 53).

With respect to Horst’s removal and replacement of boilers in existing homes, the boilers consisted of jacketed and unjacketed versions. The jacketed boilers were comprised of four to five sections with asbestos gasketing and cement located between each section. (Id. at pp. 28, 40-42). The metal jackets on the boilers were incorporated with asbestos-containing insulation panels. (Id. at pp. 23, 39). As part of the removal process, the sections of the jacketed boilers were separated and dismantled with a sledge hammer, and the resulting disturbance of the asbestos gasketing, insulation panels and cement “created a heck of a lot” of dust which Horst inhaled since the boilers were located in enclosed basements without ventilation. (Id. at pp. 27-28, 42-44, 48).

The exteriors of the unjacketed boilers were coated with asbestos insulation that was approximately 2” thick. (Id. at pp. 23-25). That insulation had to be chipped away and removed with a claw hammer or screwdriver, and that process generated “tremendous amounts” of dust and debris which had to be swept and discarded. (Id. at pp. 24-26). It customarily required one full day to remove the boiler and a second day to install the replacement boiler.


(Id. at p. 30). When repairing, as opposed to replacing, existing boilers, Horst manually removed asbestos mud and insulation panels from the boilers, and resealed the boiler joints with new asbestos mud that was mixed by pouring bags of asbestos-containing powder into containers of water. (Id. at pp. 40, 48-51, 54).

Horst was also exposed to asbestos while replacing furnaces in residential homes. The asbestos-gaskets on those furnaces had to be manually abraded by Horst, as did the foil-backed, corrugated asbestos panels. (Id. at pp. 59-61, 65). The removal and replacement of those items created significant dust that was inhaled by Horst in poorly ventilated basement areas. (Id. at pp. 62-63, 67-68). The new furnaces that Horst installed had fiberglas insulation rather than asbestos insulation. (Id. at p. 66).

In addition, Horst was exposed to asbestos dust while working closely to sheetrock laborers in new home construction settings. (Id. at p. 74). Those workers used joint compound to seal the gaps between the sheetrock panels, and produced a “tremendous amount of dust” which covered Horst’s face, hair and clothes whenever the drywall finishers sanded that joint compound after it dried. (Id. at pp. 77, 80, 90). The joint compound dust was “like snow on the floor” and Horst inhaled that dust frequently. (Id. at pp. 84, 87-89). In fact, the filters on the new furnaces that Horst had installed would “get completely choked with drywall dust” during the sanding of the dried joint compound, and Horst was required to replace those filters. (Id. at pp. 82-84).

(A) MANUFACTURERS OF BOILERS AND FURNACES

Horst claims to have developed mesothelioma from his exposure to asbestos contained in boilers and furnaces manufactured by Trane, Burnham, Carrier, Lennox, Weil-McLain, Peerless, Rheem and York. Horst testified that jacketed, sectional boilers bearing the American


Standard (Trane) brand name were among the 20 to 30 such boilers that he replaced annually, and which caused him to inhale asbestos dust. (Id. at pp. 44-45, 293-295). He was similarly exposed to asbestos dust and particles when servicing and removing asbestos gaskets from Trane’s warm air furnaces. (Id. at pp. 63-64, 284-285, 292). The Trane factory supplied replacement gaskets that Horst installed on those furnaces likewise contained asbestos insulation. (Id. at pp. 287, 289-290, 292-293). In its discovery responses in other asbestos litigation and its product catalogues for the relevant time period, American Standard/Trane has acknowledged that its boilers and furnaces had asbestos gaskets and insulation. (Docket Entry No. 120, Exhibit Nos. 1-2).

Horst distinctly identified Burnham as one of the leading brands of unjacketed boilers that were coated with exterior insulation, which he removed from Burnham boilers on approximately 27 to 40 occasions. (Horst Depo. at pp. 31-32). His identification of the Burnham unjacketed boilers and their exterior asbestos insulation was corroborated by photographic proof. (Id. at p. 34-38). Horst also described his removal of braided rope asbestos gasketing and insulation from jacketed, sectional boilers with the Burnham name imprinted on them. (Id. at pp. 40, 44-45, 188-191, 202). In addition, Horst testified concerning his installation of new, pre-assembled Burnham boilers which required asbestos cement to seal the flues. (Id. at pp. 54, 155-156, 181, 183, 187, 192). Furthermore, he has produced testimony of Burnham’s corporate representative admitting Burnham’s use of exterior asbestos insulation on its unjacketed boilers, as well as asbestos cement and gasketing on its jacketed boilers. (Docket Entry No. 105, Exhibit No. 1). Finally, Burnham’s own boiler manuals and operating instructions specified the use of “asbestos rope ring” and “asbestos cement” on its boilers, and even made those asbestos component parts available for purchase. (Docket Entry No. 105, Exhibit Nos. 2, 3, 4).


Horst recalls removing original asbestos rope, insulation and cement from oil-fired, sectional, jacketed boilers with the Bryant (Carrier) brand name on them, and responded negatively to defense counsel’s suggestion that he did so on only five occasions. (Horst Depo. at pp. 44, 357-360). On a regular basis, he similarly removed asbestos gaskets and insulation panels from Bryant (Carrier) model furnaces that were equipped with one burner and clean out ports with front access. (Id. at pp. 63-66, 364, 366). After removing those items, Horst purchased Bryant (Carrier) brand asbestos gaskets as replacement parts on its furnaces. (Id. at pp. 367-368, 370). Carrier’s own discovery responses and product catalogues represent that its furnaces contained asbestos insulation, gaskets and cement. (Docket Entry No. 124, Exhibit Nos. 1, 2, 4).

The Lennox brand name appeared on oil-fired furnaces from which Horst removed asbestos gaskets and foil-backed asbestos insulation boards. (Horst Depo. at pp. 63-64, 66, 416, 424-426). Horst described the dimensions and appearance of those Lennox furnaces and the manner in which he replaced those asbestos parts. (Id. at pp. 414-415, 420-421). The Lennox furnaces were pre-assembled and so small in size that Horst was able to retrieve them single-handedly from the supplier. (Id. at pp. 411, 413). Horst testified that the replacement gaskets were contained in packaging bearing the Lennox name. (Id. at pp. 417, 420). In its discovery responses in other asbestos cases, Lennox attested that from 1937 to 1987, it manufactured residential furnaces with asbestos insulation and sealant to protect its component parts from extreme heat, and that the furnace models that it sold from the early 1960’s to the late 1980’s had asbestos gaskets, rope and corrugated boards. (Docket Entry No. 112, Exhibit Nos. 1, 3, 4). Moreover, Lennox’s own manuals and installment instructions prescribed the use of asbestos component parts. (Docket Entry No. 112, Exhibit No. 6).

As demonstrated by photographic evidence presented


to and identified by Horst, he annually removed exterior asbestos insulation from unjacketed boilers that were manufactured by Weil-McLain. (Horst Depo. at pp. 31-32, 34-38, 450). Weil-McLain was also one of the predominant manufacturers of jacketed, sectional boilers from which Horst removed original asbestos braided rope and cement during his servicing of those boilers. (Id. at pp. 40, 44-45, 190-191, 449, 456). During his deposition, Horst provided detailed descriptions of the appearance and dimensions of those boilers that were manufactured by Weil-McLain. (Id. at pp. 448, 451-452). Both in its product brochures and its corporate representatives’ testimony, Weil-McLain conceded that its boilers contained original asbestos-containing materials and that it sold asbestos cement, rope and millboard for use on its boilers. (Docket Entry No. 116, Exhibits 1, 2, 3, 4).

One-third of the 80 to 120 unjacketed boilers from which Horst removed exterior asbestos insulation had the Peerless brand name inscribed on them. (Horst Depo. at pp. 31-32, 485, 489-490). Horst identified those boilers and their external asbestos insulation in photographs that were shown to him during his deposition. (Id. at pp. 34-38). Horst also removed original asbestos sealing, gaskets and insulation panels from jacketed, sectional boilers that were manufactured by Peerless. (Id. at pp. 44-45, 485, 489-490, 494, 496). During his deposition in another asbestos matter, a corporate representative of Peerless confirmed that Peerless used asbestos cement to cover the asbestos rope that it installed between the sections of its boilers, and that the asbestos cement was applied at the factory before the boiler was distributed by Peerless. (Docket Entry No. 107, Exhibit No. 2). Furthermore, Peerless’ own installation instructions expressly referenced “the heavy asbestos rope seal applied in the groove cast in the section...when assembled,” and “recommended that the void between the burner blast tube and the combustion chamber opening at the inside be sealed with an acceptable


asbestos cement.” (Docket Entry No. 107, Exhibit No. 5).

Of the 70 to 80 asbestos gaskets on furnaces that Horst replaced on an annual basis, he remembers the brand name Rheem appearing on the surface of its pre-assembled, oil-fired furnace with asbestos gaskets and braided rope. (Horst Depo. at pp. 63-64, 213-215, 252-255, 257). Horst described the dimensions, color and appearance of the Rheem furnaces and gaskets. (Id. at pp. 216-217, 221-223). Those furnaces also had asbestos insulation with foil facing that was affixed to the sheet metal jacket on the furnace interior, and there were occasions that Horst had to replace that insulation material. (Id. at pp. 261-265). Rheem’s designated deponent has testified that Rheem manufactured furnaces from 1967 to 1976 which incorporated asbestos insulation, gaskets, and rope. (Docket Entry No. 114, Exhibit No. 1). The replacement asbestos gaskets that Horst utilized on Rheem’s furnaces were sold in Rheem packaging, (Horst Depo. at p. 224), and Rheem provided instructions in its manuals concerning the application of asbestos components on its furnaces. (Docket Entry No. 114, Exhibit No. 1).

Last, Horst recalls removing asbestos gaskets from oil-fired furnaces bearing the Borg Warner name, (Horst Depo. at pp. 64, 431-432, 434), and York has admitted that it sold such furnaces under the Borg Warner name. (Docket Entry No. 117, Exhibit Nos. 1-2). As with the other furnaces that he serviced, Horst described the size, color and characteristics of the Borg Warner furnaces and gaskets. (Horst Depo. at pp. 432-434). York’s gasket specifications for its furnaces required the use of gaskets consisting of 80% to 85% asbestos. (Docket Entry No. 117, Exhibit No. 5). York also sold replacement asbestos gaskets for its Borg Warner furnaces, (Docket Entry No. 117, Exhibit No. 3), and continued to do so through 1987. (Docket Entry No. 117, Exhibit No. 5).

(B) DISTRIBUTORS OF JOINT COMPOUND


Horst has a specific recollection of being exposed to Georgia Pacific and Kaiser Gypsum joint compound while working in close proximity to sheetrock workers on twenty (20) new home construction jobs per year. (Horst Depo. at pp. 81, 457, 459). The Georgia Pacific joint compound was packaged in 5-gallon metal buckets with white coloring and the Georgia Pacific name and triangular logo. (Id. at pp. 80-81, 471). The Kaiser Gypsum joint compound was contained in 5-gallon buckets with “some dark color and some amount of lighter white” and bearing Kaiser Gypsum’s name. (Id. at pp. 81, 305). Horst regularly inhaled the joint compound asbestos dust which would also collect on his hair, clothing and face. (Id. at pp. 85, 90). Moreover, Georgia Pacific’s discovery responses in other asbestos litigation attest that only its “Ready Mix” joint compound was sold in buckets during the pertinent time frame, and that its “Ready Mix” joint compound contained asbestos content until May 1977. (Docket Entry No. 122, Exhibit Nos. 1, 4, 5). Similarly, Kaiser has acknowledged in discovery responses that asbestos was contained in the joint compounds that it sold from the mid-1950’s through 1976. (Docket Entry No. 126, Exhibit No. 1).

Horst did not offer any testimony with respect to Union Carbide during his three day deposition. Nevertheless, attaching internal Union Carbide documents and market reports, as well as its discovery responses in other asbestos proceedings, Horst maintains that Union Carbide mined, processed and sold chrysotile asbestos fibers under the brand name “Calidria” for use as filler in joint compounds from 1968 to 1979. (Docket Entry No. 126, Exhibits 2, 3, 4, 5). Citing testimony by a Georgia-Pacific representative, whose testimony Union Carbide has relied upon in other asbestos litigation, see, e.g., Rich v. Kaiser Gypsum Company, 103 So. 3d 903, 905 (Fla. 4th DCA 2012), app. dismissed, 114 So. 3d 180 (Fla. 2013), Horst asserts that by September 1970, “virtually all Georgia-


Pacific Ready Mix contained Union Carbide Calidria asbestos.” (Docket Entry No. 126, Exhibit 1 at p. 192). Georgia-Pacific has further admitted that the Ready Mix joint compound, which was manufactured at its Akron, New York, plant from 1970 to May 1977, contained only Union Carbide Calidria asbestos, (Docket Entry No. 126, Exhibit 12), and according to Union Carbide, the Ready Mix joint compound to which Horst was exposed “most likely” came from Georgia-Pacific’s Akron plant. (Docket Entry No. 77 at p. 10).

(C) RETAIL PLUMBING SUPPLIER

Horst testified that he purchased asbestos cement and replacement asbestos gaskets from Hajoca at its Fruitville Pike location. (Horst Depo. at pp. 51, 53-54, 69, 378, 522). Although his father would occasionally travel to Hajoca to buy products for Custom Comfort, Horst “was usually the one to go” and would make purchases from Hajoca “a minimum of once every two weeks.” (Id. at pp. 379, 384). The asbestos products that Horst purchased from Hajoca were charged to Custom Comfort’s account with Hajoca. (Id. at p. 395). Horst was unable to provide a specific number of times that he purchased asbestos cement or gaskets from Hajoca. (Id. at p. 384).

(D) PLAINTIFFS’ EXPERT REPORTS

Horst has produced expert reports and affidavits authored by Richard L. Kradin, M.D., Richard A. Lemen, Ph.D., MSPH, and Steven Paskal, CIH. Dr. Kradin is board-certified in internal medicine, anatomic pathology and pulmonary medicine, and is a Professor of Pathology and Pulmonology at Harvard Medical School where he serves as the Director of Pulmonary Immunology and Molecular Biology. He is also a practicing pathologist and pulmonologist in the Pulmonary and Critical Care Unit and the Department of Pathology at Massachusetts General Hospital. (Affidavit of Richard L. Kradin, M.D., dated 11/4/15 at p. 1).


In his report dated August 31, 2015, Dr. Kradin states that Horst’s “pathology shows a biphasic malignant mesothelioma with epithelioid and predominantly sarcomatoid features” and that his “tumor cells stain positively for cytokeratins, calretinin, and CK5/6.” (Dr. Richard L. Kradin Report dated 8/31/15 at p. 2). Based upon his review of the discovery materials and medical records, Dr. Kradin has opined “to a reasonable degree of medical probability that [Horst’s] diffuse malignant mesothelioma was caused by cumulative exposures to asbestos above background levels created by Mr. Horst’s regular, proximate exposure to asbestos-containing insulation, gaskets and rope packing in connection with his work on boilers, furnaces and heat exchangers manufactured by Peerless, Borg-Warner, Weil-McLain, Burnham, American Standard, Bryant, Carrier, Lennox, and Rheem HVAC Systems, as well as Mr. Horst’s regular proximate exposures to asbestos-containing Georgia Pacific and Kaiser Gypsum joint compounds and ceiling spray.” (Id.).

Dr. Kradin later issued an eleven page, single spaced affidavit further expounding his opinions and providing citations to numerous studies and publications supporting his positions. He furnished eight distinct reasons and referenced forty-five separate studies and articles substantiating his conclusion that all types of asbestos, including chrysotile, can cause diffuse malignant mesothelioma. (Kradin Affidavit at pp. 2-5). Dr. Kradin similarly cites and discusses thirty-two studies and reports which endorse his opinion that brief or low level doses of asbestos exposure are sufficient to cause malignant mesothelioma. (Id. at pp. 5-9). He also reviews epidemiologic studies demonstrating that low levels of exposure to asbestos can cause malignant mesothelioma. (Id. at pp. 9-10). Finally, he renews his earlier opinions addressing a causal connection between the defendants’ products and Horst’s malignant mesothelioma, but


expands those opinions to include Trane brand furnaces. (Id. at pp. 10-11).

Dr. Richard A. Lemen is a practicing epidemiologist, former Assistant Surgeon General of the United States, and former Deputy and Acting Director of the National Institute for Occupational Health and Safety (“NIOSH”), who is also a Professor at Emory University. (Report of Richard A. Lemen, Ph.D., MSPH, dated 8/30/15 at pp. 1-2). During his extensive experience with the United States Public Health Service and NIOSH, he was involved with “the analysis of risks associated with occupational and environmental health, including asbestos,” and “published many articles in peer-reviewed world medical literature regarding asbestos in general and on chrysotile in particular, including articles reviewing medical issues related to occupational exposure to chrysotile asbestos and cancer risk.” (Id. at pp. 1, 3). In his sixteen page, single spaced report, Dr. Lemen discusses “the epidemiology of asbestos-related diseases; the ability of asbestos-containing materials to release asbestos fibers; the hazardous nature of asbestos-containing products and the ability of such products to increase the risk of disease in humans; the fact that all respirable asbestos fiber types can contribute to increase the risk of an asbestos-related disease (ADR) when released from products containing asbestos; the ability of asbestos fibers to increase the risk of asbestos-related diseases among persons not directly working with asbestos-containing products due to their bystander exposure; and the effectiveness of various methods to control exposures to asbestos.” (Id. at p. 4).

Dr. Lemen has concluded within “a reasonable degree of scientific certainty” that “all forms of asbestos causes asbestos-related diseases including mesothelioma” and “all exposures to respirable asbestos fibers contribute to increasing the risk of developing asbestos-related diseases.” (Id. at p. 16). He opines that “asbestos-containing materials can release asbestos particle fibers into the air


when manipulated, disturbed, through deterioration, or during removal, or maintenance,” and that “a safe exposure concentration has not been identified for exposure to asbestos for which cancer will be prevented.” (Id.). Dr. Lemen further states that “knowledge of asbestos’ harm to humans has been known for decades,” and that “prevention methods for reducing the risk of disease among asbestos exposed persons have been known and widely published and available since the 1930’s.” (Id.). In support of his opinions, he references fifty-two treatises or publications. (Id. at pp. 4-15 & n.2-53).

Mr. Paskal is a chemist, lawyer and industrial hygienist who is certified by the American Board of Industrial Hygiene. His report dated August 28, 2015, explains “industrial hygiene concepts implicated where a confirmed human carcinogenic dust such as asbestos is encountered” and the “obligation to warn of the hazards of asbestos... if foreseeable use (including maintenance) entails abrasion or other disturbance that would result in the release of fibrous aerosol.” (Steven Paskal Report dated 8/28/15 at pp. 1, 3). Referencing numerous published reports and federal studies, and based upon his review of Horst’s depositions and discovery materials, he concludes that “Horst repeatedly incurred asbestos exposures that ranged from hundreds to millions of times greater than (and in addition to) ambient pollution levels in even the most polluted areas,” and that “[e]ach of these exposures substantially increased his risk of contracting mesothelial cancer.” (Id. at pp. 4-5). Additionally, he expresses the opinion that “[e]ach product and activity that contributed to this risk should have borne a clear warning stating the risk of cancer and alerting him to the need to take appropriate steps to protect himself and others.” (Id. at p. 5).

(E) SUMMARY JUDGMENT ARGUMENTS

The motions for summary judgment filed by the


foregoing defendants raise six common arguments asserting that: (1) Horst’s proof of their products’ asbestos content, comprised primarily of Horst’s own identification testimony, is insufficient as a matter of law; (2) Horst is unable to satisfy the “frequency-regularity-proximity” test governing asbestos exposure cases; (3) Horst cannot prove that any asbestos-containing component part existed on a boiler or furnace that was manufactured or sold by Burnham, Weil-McLain, Peerless or York; (4) the causation opinions of Horst’s medical expert are legally insufficient; (5) Burnham, Lennox and York are entitled to judgment based upon the twelve-year statute of repose; and (6) Horst’s punitive damages claims lack sufficient factual support or are barred by the “most innocent defendant” rule. Consolidated oral argument on the twelve motions for summary judgment was conducted, at the conclusion of which those motions were submitted for a decision. The defense arguments will be addressed ad seriatim.

II. DISCUSSION

(A) STANDARD OF REVIEW

Summary judgment is appropriate where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bailets v. Pennsylvania Turnpike Com’n., 123 A.3d 300, 304 (Pa. 2015). The party moving for summary judgment bears the burden of proving the absence of a genuine issue of material fact and the entitlement to judgment as a matter of law. Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 554, 981 A.2d 145, 154 (2009). When considering a motion for summary judgment, the record must be viewed 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. Gilbert, supra.

However, “[w]here the non-moving party bears the burden of proof on an issue, he may not merely rely on


his pleadings or answers in order to survive summary judgment.” Moranko v. Downs Racing LP, 118 A.3d 1111, 1113 (Pa. Super. 2015) (en banc); Rockwell v. Knott, 32 Pa. D. & C. 5th 157, 166 (Lacka. Co. 2013). The moving party may establish the right to summary judgment “by pointing to materials which indicate that plaintiff is unable to satisfy an element of his cause of action.” Sass v. AmTrust Bank, 74 A.3d 1054, 1059 (Pa. Super. 2013), app. denied, 624 Pa. 675, 85 A.3d 484 (2014). The “failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.” Truax v Roulajc, 126 A.3d 991, 997 (Pa. Super. 2015) (en banc).

(B) PROOF OF ASBESTOS CONTENT (LAY TESTIMONY)

Trane, Burnham, Carrier, Hajoca, Lennox, Peerless, Rheem and York contend that Horst has failed to produce any competent evidence that their products, to which he was allegedly exposed in 1970 — 1978, contained any asbestos. They submit that Horst’s lay opinion testimony and circumstantial evidence in that regard are insufficient as a matter of law. (Docket Entry No. 81 at pp. 6-7; Docket Entry No. 60 at pp. 5-7; Docket Entry No. 84 at pp. 7-8; Docket Entry No. 98 at pp. 9-11; Docket Entry No. 65 at p. 5; Docket Entry No. 67 at pp. 6-7; Docket Entry No. 73 at pp. 6-7; Docket Entry No. 92 at pp. 6-7). Horst maintains that his own product identification testimony, coupled with the defense discovery responses, their corporate designees’ testimony, and the industrial hygiene conclusions of Mr. Pascal, create genuine issues of material fact relative to the asbestos content of the various products to which Horst was allegedly exposed. (Docket Entry No. 105 at pp. 12-17; Docket Entry No. 114 at pp. 20-21).

To prevail in a strict liability action, “the plaintiff


must prove that the product was defective, the defect existed when it left the defendant’s hands, and the defect caused the harm.” Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354 (Pa. Super. 2015). In asbestos cases, what renders the product defective “is the presence of asbestos in the product, or the dangers from inhalation of asbestos fibers.” Moore v. Ericsson, Inc., 7 A.3d 820, 826 (Pa. Super. 2010), app. denied, 610 Pa. 622, 21 A.3d 1194 (2011). For liability to attach in a products liability action involving asbestos-exposure harm, “plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier.” Krauss v. Trane U.S., Inc., 104 A.3d 556, 563 (Pa. Super. 2014) (quoting Eckenrod v. GAF Corp., 375 Pa. Super. 187, 190-191, 544 A.2d 50, 52 (1988), app. denied, 520 Pa. 605, 553 A.2d 968 (1988)); Fisher v. Sexauer, 53 A.3d 771, 775 (Pa. Super. 2012). “Therefore, ‘[i]n order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product.’” Sterling v. P & H Mining Equipment, Inc., 113 A.3d 1277, 1280-1281 (Pa. Super. 2015) (quoting Eckenrod, 375 Pa. Super. at 191, 544 A.2d at 52).

“The nexus between an asbestos product and plaintiff may be established by direct and circumstantial evidence.” Wright v. Allied Signal, Inc., 963 A.2d 511, 515 (Pa. Super. 2008), app. denied, 603 Pa. 696, 983 A.2d 730 (2009). “Ideally, a plaintiff or a witness will be able to directly testify that plaintiff breathed in asbestos fibers and that those fibers came from defendant’s product.” Bugosh v. Allen Refectories Co., 932 A.2d 901, 907 (Pa. Super. 2007), app. dismissed, 601 Pa. 277, 971 A.2d 1228 (2009); Wilson v. A. P. Green Industries, Inc., 807 A.2d 922, 924 (Pa. Super. 2002). The testimony of any witness with knowledge relating to the plaintiff’s workplace exposure to an asbestos-containing product is admissible when probative. Wright, supra; McNeal v. Eaton Corp., 806


A.2d 899, 903 (Pa. Super. 2002); Gutteridge v. A. P. Green Services, Inc., 804 A.2d 643, 652-653 (Pa. Super. 2002), app. denied, 574 Pa. 748, 829 A.2d 1159 (2003). “Without such direct evidence, plaintiff must rely on circumstantial evidence of exposure.” Bugosh, supra; Gilbert, supra; Wilson, supra.

In Gibson, supra, the Supreme Court of Pennsylvania held that lay witness testimony identifying the asbestos content of a particular product is subject to Pa.R.E. 701 governing lay witness opinions.3 “Rule 701 contemplates admission of lay opinions rationally based on personal knowledge that are helpful to the trier of fact.” Gibson, 580 Pa. at 481, 861 A.2d at 944. Where a plaintiff in an asbestos action “proffers a witness expressing an opinion on matters such as the presence of asbestos in the workplace, the trial court must be rigorous in assuring that the lay witness satisfies the strictures of Rule 701.” Id. at 481, 861 A.2d at 945. For that reason, “the proponent of technical lay opinion testimony must show that the testimony is based on sufficient personal experience or the specialized knowledge of the witness.” Id. A lay witness may “acquire this additional insight by either formal education or practical, experience,” and thereby be qualified under Rule 701 “to offer a technical opinion regarding the presence of asbestos in the workplace.” Id. at 486, 861 A.2d at 948.

In addressing the application of the “sufficient personal experience” or “specialized knowledge” test under Rule 701, the Gibson Court distinguished the competency of

3. Rule 701, entitled “Opinion Testimony by Lay Witnesses,” states:If a witness is not testifying as an expert, testimony in the form of an

opinion is limited to one that is:(a) rationally based on the witness’s perception;(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Pa.R.E. 701.


the asbestos identification evidence in Witco-Kendall Co. v. W.C.A.B. (Adams), 127 Pa. Cmwlth. 509, 562 A.2d 397 (1989), app. denied, 525 Pa. 652, 581 A.2d 577(1990), and remarked:

...the claimant there was testifying from first-hand knowledge of his working conditions that he was exposed to asbestos on a continuing basis; and also, significantly, the claimant there had been diagnosed with asbestosis. In the present matter, no witness with first-hand knowledge testified there was asbestos in the workplace. Mr. Grier simply testified that he saw Decedent near a dusty, cottony material that he was unable to identify. No witness with first-hand knowledge testified that Decedent had asbestos related disease, nor did any of Decedent’s records state that he had spoken of asbestos exposure to any treating physician.

Id. at 483-484, 861 A.2d at 946. Similarly, in Krauss, a co-worker’s claim that boilers, turbines and pumps “identified in his affidavit were insulated with asbestos products based on his ‘knowledge and belief” was deemed insufficient proof of asbestos in particular manufacturers’ products at specific work sites. See Krauss, 104 A.3d at 567-568.

As stated in Section I(A) above, Horst described his exposure to asbestos insulation and component parts on boilers bearing the names of Trane (American Standard), Burnham, Carrier (Bryant) and Peerless. (Horst Depo. at pp. 31-32, 34-38, 40, 44-45, 54, 63-64, 82-84, 87-89, 155-156, 181, 183, 187-192, 202, 284-285, 287, 289-290, 292-295, 357-360, 485, 489-490, 494, 496). Horst’s identification of those boilers and their accompanying asbestos was confirmed via photographic evidence. (Id. at pp. 34-38). He similarly described his inhalation of asbestos materials on furnaces with the names Carrier (Bryant), Lennox, Rheem and York (Borg Warner). (Id. at pp. 63-66, 213-215, 221-223, 252-255, 257, 261-265, 364,


366, 414-416, 420-421, 424-426, 431-434). Horst also testified concerning his purchase of asbestos cement and replacement gaskets from Hajoca for use while installing or servicing those boilers and furnaces. (Id. at pp. 51, 53-54, 69, 378-379, 384, 522).

Horst worked with his father’s HVAC business for eight years and was thereafter employed with Baldwin Electric during the ensuing thirty-five years. (Id. at pp. 19, 21-22, 97-98). When questioned concerning his ability to identify asbestos material, Horst testified that he “knew what asbestos products looked like from working with them,” and stated that “[a]sbestos is easy to recognize once you get experience with it.” (Id. at pp. 60, 283). He further indicated that he was able to identify certain material as asbestos based upon its appearance, color, texture and high heat application. (Id. at pp. 191-192, 194, 202, 360). Not only could Horst personally determine the existence of asbestos based upon its “look” and “feel,” his co-workers also informed him that the materials were asbestos. (Id. at pp. 24-25, 495). He even contrasted the texture of fiberglass and asbestos, and stated that fiberglass has “kind of like a cotton candy texture, as opposed to asbestos, which is a much more dense material.” (Id. at p. 66). Compare Kraus, 104 A.3d at 567 (co-worker, who submitted an affidavit stating that defendant’s products contained asbestos based on his “knowledge and belief,” provided “no specific evidence upon which he based his determination that these boilers, turbines, and pumps were insulated with asbestos products.”).

Like the claimant in Witco-Kendall Co., Horst “was testifying from first-hand knowledge of his working conditions that he was exposed to asbestos on a continuing basis,” and has in fact “been diagnosed with” an asbestos-related disease. While Horst’s identification of the presence of asbestos at his job sites arguably would be more compelling if he recalled seeing warning labels on the movants’ boilers, furnaces and joint compound


alerting him to the existence and dangers of asbestos contained therein, he testified that those products did not have any such warnings. (Id. at pp. 55-56, 70-71, 91, 166). Based upon his eight years of HVAC employment and thirty-five years of work with Baldwin Electric, he has sufficient familiarity with and recognition of asbestos so as to be competent under Pa.R.E. 701 to identify asbestos through his technical or specialized knowledge that was acquired by years of practical experience. Therefore, Horst possesses the requisite “personal experience” or “specialized knowledge” to offer a technical opinion concerning the presence of asbestos at his residential job sites.

“Whether or not this evidence would convince a jury is a question for the factfinder and not the trial court as an arbiter of the law.” Harhan v. AC&S, Inc., 816 A.2d 296, 299 (Pa. Super. 2003), app. denied, 573 Pa. 716, 828 A.2d 350 (2003). Since the weight and credibility of that evidence are matters for the jury to resolve, the credibility of Horst’s identification “is not a proper consideration at the summary judgment stage.” Gutteridge, 804 A.2d at 651-652. Accordingly, the motions for summary judgment of Trane, Burnham, Carrier, Hajoca, Lennox, Peerless, Rheem and York based upon Rule 701 and Gibson will be denied.

(C) FREQUENCY, REGULARITY, AND PROXIMITY TEST

Union Carbide, Trane, Carrier, Georgia-Pacific, Hajoca, Weil-McLain, Peerless and Rheem argue that Horst’s claims should be dismissed due to his inability to establish that he frequently, regularly, and proximately worked with their asbestos containing products during his employment with Custom Comfort. (Docket Entry No. 77 at pp. 8-13; Docket Entry No. 81 at p. 2; Docket Entry No. 84 at p. 7; Docket Entry No. 95 at pp. 6-7; Docket Entry No. 98 at p. 5; Docket Entry No. 69 at pp. 2-3; Docket


Entry No. 67 at pp. 3-6; Docket Entry No. 73 at pp. 4-8). Horst asserts that his deposition testimony, together with the testimony of his brother, Kenneth Horst, adequately demonstrate how frequently and commonly he worked in close proximity to the movants’ asbestos products from 1970 to 1978. (Docket Entry No. 114 at pp. 3-13, 15-16; Docket Entry No. 116 at pp. 5-10, 12).

“When evaluating the plaintiff’s evidence in an asbestos case at the summary judgment stage, Pennsylvania courts apply the ‘frequency, regularity, proximity’ standard derived from Eckenrod.” Sterling, 113 A.3d at 1281. In Eckenrod, the Superior Court first stated that the issue of “[w]hether 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.” Eckenrod, 375 Pa. Super. at 192, 544 A.2d at 53. Although the Eckenrod analysis “originally applied only to consideration of circumstantial, rather than direct, evidence..., our Supreme Court later extended the application of the Eckenrod factors to all evidence of asbestos exposure.” Krauss, 104 A.3d at 563 (emphasis in original). Specifically, the Supreme Court determined “that the bright-line distinction...between direct and circumstantial evidence cases is not warranted, because this distinction is unrelated to the strength of the evidence and is too difficult to apply, since most cases involve some combination of direct and circumstantial evidence.” Gregg v. V-J Auto Parts Co., 596 Pa. 274, 290, 943 A.2d 216, 226 (2007).

Gregg modified the Eckenrod criteria by adopting the approach utilized by the United States Court of Appeals for the Seventh Circuit in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992). The Gregg Court reasoned that the frequency, regularity and proximity factors “do not establish a rigid standard with an absolute threshold necessary to support liability.” Gregg, 596 Pa. at 290,


943 A.2d at 225; Fisher, 53 A.3d at 776. “Rather, they are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently significant likelihood that the defendant’s product caused his harm, from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant’s product.” Gregg, supra; Sterling, 113 A.3d at 1281; Fisher, supra.

In Gregg, the Supreme Court formulated “a new fact-specific sliding scale approach that includes two important considerations not part of the Eckenrod analysis.” Krauss, 104 A.3d at 564. First, application of the frequency, regularity and proximity criteria “should become ‘somewhat less critical’ where the plaintiff puts forth specific evidence of exposure to a defendant’s product.” Gregg, supra (citing Tragarz, 980 F.2d at 421); Krauss, supra. Second, “under Tragarz, the frequency and regularity prongs become ‘somewhat less cumbersome’ in cases involving diseases that the plaintiff’s competent medical evidence indicates can develop only after minor exposures to asbestos fibers.” Gregg, supra: Sterling, 113 A.3d at 1281.

While the plaintiff must demonstrate “that he worked in the vicinity of a specific manufacturer’s product,” [s]he need not “establish the specific role played by each individual asbestos fiber within the body.” Wright, 963 A.2d at 514-515; McNeal, 806 A.2d at 902-903; Gutteridge, 804 A.2d at 652. Nor must the plaintiff prove “the specific level or duration of his asbestos exposure.” Linster v. Allied Signal Inc., 21 A.3d 220, 223 (Pa. Super. 2011), app. denied, 614 Pa. 714, 38 A.3d 826 (2012). Instead, “it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s


product and the asserted injury.” Gregg, 596 Pa. at 292, 943 A.2d at 227.

Relying upon the affidavits of a thirty-four year employee of Union Carbide, John Myers, and a twenty-four year Union Carbide employee, John Walsh, Union Carbide avers that “the only years which the Georgia-Pacific Ready-Mix joint compound that [Horst] described could have conceivably contained Union Carbide’s asbestos was from 1973 to early 1975.” (Docket Entry No. 77 at ¶ 8, Exhibits C, D, J). Acknowledging that it “first supplied asbestos to Georgia-Pacific for use in its tape joint compounds in 1970,” Union Carbide contends that “the Georgia-Pacific plant most likely to have supplied the Lancaster and Ephrata, Pennsylvania areas where [Horst] was allegedly exposed to Georgia-Pacific Ready-Mix joint compound in the 1970 to 1973 time frame was its Akron, New York plants.” (Docket Entry No. 77 at pp. 8, 10). It posits that “[w]hile Union Carbide did supply asbestos to Georgia-Pacific’s Milford [Virginia] plant in 1973 and 1974, there is no evidence of record that [Horst] was exposed to Georgia-Pacific’s Ready-Mix joint compound during those specific years.” (Id. at p. 13).

Under the Nanty-Glo rule first established in Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A.523 (1932), the party moving for summary judgment may not rely upon the testimonial affidavits or depositions of its own witnesses, even if uncontroverted, to establish the non-existence of genuine issues of material fact. Shamis v. Moon, 81 A.3d 962, 965 (Pa. Super. 2013); LSF8 Master Participation Trust ex rel. Caliber Home Loans, Inc. v. Tanana, 37 Pa. D. & C. 5th 414, 422 (Lacka. Co. 2014). “Our Supreme Court recently cautioned that ‘the function of the summary judgment proceedings...is not, and cannot, be used to provide for trial by affidavits or trial by depositions.” Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502, 509 (Pa. Super. 2010) (quoting Stimmler, 602 Pa. at 554, 981 A.2d at 154), app. denied, 611 Pa.


638, 24 A.3d 361 (2011). The testimonial affidavits and depositions of a moving party’s witnesses cannot serve as the bases for summary judgment “because such items necessitate credibility determinations by the trier of fact.” HSBC Bank, N.A. v. Donaghy, 101 A.3d 129, 134 n.10 (Pa. Super. 2014). The same holds true as to any affidavits or depositions of Georgia-Pacific representatives since the interests of Union Carbide and Georgia-Pacific are not adverse on the issue of whether Georgia-Pacific’s joint compound, to which Horst was exposed, contained Union Carbide’s asbestos. See, Roseberry v. Evans, 48 A.3d 1255, 1260 (Pa. Super. 2012) (a co-defendant may be deemed an “adverse party” for purposes of the Nanty-Glo rule only if “there is actual adversity... so as to make any testimony by the co-defendant ‘unconditional surrender.’”); Johnson v. Johnson, 410 Pa. Super. 631, 640, 600 A.2d 965, 969 (1991) (finding that the requisite adversity did not exist to “overcome application of the Nanty-Glo rule” since “[n]o defendant has exculpated himself from liability by demonstrating that another defendant, in fact, maintained a duty to the decedent.”).

The jury, not the judge, must assess the credibility of the testimony of Union Carbide’s witnesses and the weight, if any, to be afforded to their testimony. See Gutteridge, 804 A.2d at 651-652 (“Credibility is a matter for the jury” and “is not a proper consideration at the summary judgment stage because the trial court may not summarily enter judgment when the evidence depends on oral testimony.”). As the finder of fact and the judge of credibility, the jury will be “free to believe all, part or none of the evidence presented” by Union Carbide’s witnesses. Dubose, 125 A.3d at 1244. Therefore, Union Carbide may not secure summary judgment based upon the testimonial affidavits of Mr. Myers, Mr. Walsh or any Georgia-Pacific representative. Moreover, Horst has testified regarding his exposure to Georgia-Pacific’s Ready-Mix joint compound during the 1970-1978 time frame when


Union Carbide admittedly supplied asbestos to Georgia-Pacific. Other Georgia-Pacific evidence, including the deposition testimony of C. William Lehnert which is referenced in Section I(B) above, supports the conclusion that its Ready-Mix to which Horst was exposed contained Union Carbide’s Calidria asbestos. See Robertson v. Doug Ashy Bldg. Materials, Inc., 2014 WL 7278259, at *8, 18 (La. App. 1 Cir. 2014) (relying upon deposition of C. William Lehnert and “find[ing] that plaintiffs have sufficiently demonstrated that there are genuine issues of fact as to whether Robertson had significant exposure to Union Carbide asbestos found in Georgia-Pacific...joint compound...to the extent that it was a substantial factor in bringing about Robertson’s mesothelioma.”). For all of the foregoing reasons, Union Carbide is not entitled to summary judgment based upon its frequency, regularity, proximity argument. See Bugosh, 932 A.2d at 909 (even if defendant submits evidence indicating that its product “no longer contained asbestos by the time” that plaintiff was allegedly exposed to asbestos, those “identification elements” are “for the jury to resolve.”) (citing Juliano v. John-Manville Corp., 416 Pa. Super. 321, 611 A.2d 238 (1992), app. denied, 533 Pa. 645, 622 A.2d 1376 (1993)).

With regard to Trane, Carrier, Weil-McLain and Peerless, Horst testified that he removed 20 to 30 boilers per year during his eight years with Custom Comfort, with half of those boilers being unjacketed boilers with exterior asbestos insulation and the remaining half consisting of jacketed, sectional boilers with asbestos cement, gaskets and interior insulation. (Horst Depo. at pp. 27, 44). He identified Weil-McLain, Peerless and Burnham as the equally proportionate manufacturers of the unjacketed boilers with external asbestos insulation that he removed ten to fifteen times per year. (Id. at pp. 31-32, 34-38, 180, 450, 485, 489-490). Horst also identified Trane (American Standard), Carrier (Bryant), Weil-McLain, Peerless and Burnham as the manufacturers of the jacketed boilers from


which he removed asbestos components approximately ten to fifteen times per year, and further described Weil-McLain, Peerless and Burnham as comprising “a greater portion of them.” (Id. at pp. 40, 44-45, 179, 190-192, 357-360, 448-449, 456, 485, 489-490, 494-496). He stated that he also performed repairs on those same brand name jacketed, sectional boilers five to six times per year, (Id. at pp. 48-52), and installed new boilers that were manufactured by Weil-McLain, Peerless and Burnham, whose installation instructions specified the use of asbestos cement. (Id. at p. 54).

Horst admittedly could not provide an exact number of each brand of boiler that he removed, repaired or installed during his eight years with Custom Comfort, (Id. at pp. 162, 179), and Trane, Carrier, Weil-McLain and Peerless argue that his failure to do so justifies the entry of summary judgment in their favor based upon the Eckenrod test. (Docket Entry No. 87 at pp. 5-6; Docket Entry No. 84 at p. 7; Docket Entry No. 69 at pp. 2-3; Docket Entry No. 67 at pp. 4-5). Such “[p]inpoint precision in the proofs may be desired but is not required.” Linster, 21 A.3d at 229 (quoting Weible v. Allied Signal Inc., 963 A.2d 521, 533 (Pa. Super. 2008)). Horst has furnished testimonial evidence that he removed 160 to 240 boilers in total, and repaired an additional 40 to 48 boilers, while employed with Custom Comfort, and has specifically identified each of the moving defendants as manufacturers of boilers whose asbestos he inhaled with regularity and frequency in unventilated basements. While “[t]he asbestos defendants may have a cogent argument as to why they should not be found liable by a jury,” their quantification argument “misses the point at the summary judgment stage.” Id. at 228-229. When examined in the light most favorable to Horst as the non-moving party, the evidence presented by Horst concerning the regularity, frequency and proximity of his asserted exposure to the asbestos-containing products of Trane, Carrier, Weil-McLain and Peerless


would enable a jury to make “the necessary inference of a sufficient causal connection” between those defendants’ boilers and Horst’s mesothelioma.

Horst’s evidence relating to the furnaces manufactured by Trane, Carrier and Rheem is likewise sufficient, if found to be credible by the jury, to satisfy the frequency, regularity and proximity criteria, as modified by Gregg. Horst testified that he performed approximately 160 furnace repairs during his tenure with Custom Comfort, which involved the removal and replacement of multiple asbestos gaskets on those furnaces, as well as the disturbance of asbestos foil-backed insulating panels in basements without ventilation. (Horst Depo. at pp. 62-64, 66-68). He distinctly identified Trane, Carrier and Rheem as the manufacturers of those furnaces with asbestos-containing materials, albeit without providing a specific itemization of how many of the 160 furnace repairs involved furnaces manufactured by each movant. (Id. at pp. 63-66, 213-215, 224, 252-257, 261-265, 284-285, 289-290, 292-293, 364-370). Notwithstanding that fact, Horst has submitted evidence of more than “only casual or minimal exposure” to the asbestos in the furnaces that were sold by Trane, Carrier and Rheem, so as to entitle the jury to make the necessary inference of a sufficient causal connection between those products and Horst’s mesothelioma.

Georgia-Pacific asserts that Horst’s testimony regarding his joint compound exposure “pales in comparison to Mr. Horst’s direct and substantial exposure to asbestos-containing components of furnaces and boilers, which were the primary subject of his work.” (Docket Entry No. 95 at p. 7). Horst testified that he was involved with the construction of 20 to 25 new homes per year with Custom Comfort, and that “virtually all of them” involved sheetrock work using joint compound. (Id. at pp. 73-74, 81, 85). Of those 160 to 200 total new home constructions during which he regularly inhaled asbestos-containing


joint compound dust, he only recalls seeing buckets of joint compound bearing the Georgia-Pacific and Kaiser Gypsum names. (Id. at pp. 80-81, 85, 90, 94-95, 305, 457, 459, 467, 471). Although Horst did not itemize with “pinpoint precision” the exact number of times that he inhaled Georgia-Pacific’s asbestos joint compound, “he need not demonstrate the specific level or duration of his exposure,” nor quantify “how many asbestos fibers are contained in the dust emissions from a particular asbestos-containing product.” Fisher, 53 A.3d at 775-776. If accepted as true by the jury, his testimony is adequate to enable the jury to make the necessary inference of a sufficient causal connection between Georgia-Pacific’s joint compound dust and Horst’s mesothelioma. Compare, Krauss, 104 A.3d at 577 (although witness indicated that Georgia-Pacific’s joint compound cans were present at job sites, he testified that decedent “always worked outside of a building” while the “sheetrock people worked on the inside.”).

Last, Hajoca also seeks summary judgment based upon Gregg and Horst’s inability to provide an exact number of occasions on which he purchased asbestos cement and gaskets from Hajoca while removing, repairing and installing residential boilers and furnaces. (Docket Entry No. 98 at pp. 5-6) (quoting Horst Depo. at p. 384). Horst stated that he purchased products from Hajoca’s Fruitville Pike location at least once every two weeks during his eight years of employment with Custom Comfort. (Horst Depo. at pp. 379, 384). During those more than 200 purchases from Hajoca, he bought asbestos cement and gaskets to use on existing jobs. (Id. at pp. 51, 53-54, 69, 378 522). His failure to specify an exact number of such purchases may furnish fodder for Hajoca during its arguments to the jury, but it does not constitute a basis for removing this issue from the jury’s consideration, particularly since “the frequency and regularity prongs become less cumbersome when dealing with cases involving diseases,


like mesothelioma, which can develop after only minor exposures to asbestos fibers.” Linster, 21 A.3d at 224. Since Horst’s testimony provides evidentiary grounds for a jury to make the necessary inference of a sufficient causal connection between Horst’s mesothelioma and asbestos-containing products that Hajoca sold to Custom Comfort, Hajoca’s motion for summary judgment based upon the frequency, regularity and proximity standard will be denied.

(D) THIRD PARTY INSTALLATION OF ASBESTOS CONTAINING COMPONENT MATERIALS

Relying primarily upon federal district court rulings and case law from other jurisdictions, Burnham, Weil-McLain, Peerless and York allege that they cannot be found liable to Horst since the asbestos-containing materials and component parts at issue were allegedly installed on their products by third parties after those products were placed in the stream of commerce by Burnham, Weil-McLain, Peerless and York.4 (Docket Entry No. 60 at pp. 7-9; Docket Entry No. 69 at pp. 2-5; Docket Entry No. 67 at pp. 7-9; Docket Entry No. 92 at pp. 5-6). Horst submits that the products in question were designed to be incorporated with asbestos components, or that the movants anticipated that their original component parts

4. In support of their contention that manufacturers have no duty to warn of the dangers of replacement or component parts that they did not design or sell, the moving defendants cite Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008), Lindstrom v. A-C Products Liability Trust, 424 F.3d 488 (6th Cir. 2005), Ford Motor Company v. Wood, 703 A.2d 1315 (Md. 1998), Frick v. Owens-Corning Fiberglas Corp., 618 So. 2d 473 (La. 1993), Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289 (N.Y. 1992), Walton v. Harnischfeger, 796 S.W.2d 225 (Tex. 19901. Sanders v. Ingram Equipment Inc., 531 So. 2d 879 (Ala. 1988). Baughman v. General Motors Corp., 780 F.2d 1131 (4th Cir. 1986), Mitchell v. Sky Climber, Inc., 487 N.E.2d 1374 (Mass. 1986), Spencer v. Ford Motor Co., 367 M.W.2d 393 (Mich. 1985), Schwartz v. Abex Corp., 106 F. Supp. 3d 626 (E.D. Pa. 2015) and Kealoha v. E.I. DuPont de Nemours & Co., 844 F. Supp. 590 (D. Haw. 1994). (Docket Entry No. 60 at pp. 8-9 & n.37; Docket Entry No. 69 at pp. 3-4; Docket Entry No. 92 at pp. 5-6 & n.25-26).


would need to be replaced with asbestos items due to their apparent friability. (Docket Entry No. 104 at pp. 42-54; Docket Entry No. 107 at pp. 40-50; Docket Entry No. 116 at pp. 36-54; Docket Entry No. 117 at pp. 42-53). Horst argues that in either event, it was foreseeable to Burnham, Weil-McLain, Peerless and York that asbestos materials would be incorporated into their products, such that they had a duty to warn of the resulting hazards. (Id.).

Horst testified that the unjacketed boilers manufactured by Burnham, Weil-McLain and Peerless had original exterior asbestos insulation, and that their jacketed sectional boilers had original asbestos gaskets or braided rope. (Horst Depo. at pp. 31-32, 34-38, 40, 44-45, 54, 155-156, 181, 183, 187-192, 202, 449, 456, 485, 489-490, 494, 496). He likewise testified that York’s furnaces had original asbestos gaskets. (Id. at pp. 64, 431-434). Additionally, the manuals and installation instructions accompanying the boilers sold by Burnham, Weil-McLain and Peerless specified the use of asbestos cement or rope. (Docket Entry No. 105, Exhibit Nos. 2-4; Docket Entry No. 107, Exhibit No. 5; Docket Entry No. 116, Exhibit Nos. 1-4). York’s instructional manuals also specified the use of gaskets containing 80 — 85% asbestos content, and York even sold those gaskets for use with its furnaces. (Docket Entry No. 117, Exhibit Nos. 3, 5).

There are three types of defective conditions which may give rise to strict liability: design defect, manufacturing defect, and failure to adequately warn defect. See Walton v. Avco Corp., 530 Pa. 568, 576-577, 610 A.2d 454, 458-459 (1992); Glodzik v. Whink Products Co., 61 Pa. D. & C. 4th 241, 247 (Lacka. Co. 2003). Under Section 402A of the Restatement (Second) of Torts, which was adopted in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) and remains the controlling authority in Pennsylvania, see Tincher v. Omega Flex, Inc., 104 A.3d 328, 399 (Pa. 2014), the plaintiff in a product liability case must prove that the defect in the product “existed when it left the


hands of the defendant.” Parr v. Ford Motor Company, 109 A.3d 682, 689 (Pa. Super. 2014). Our Commonwealth recognizes that “a person or entity engaged in the business of selling a product has a duty to make and/or market the product — which ‘is expected to and does reach the user or consumer without substantial change in the condition in which it is sold’ — free from ‘a defective condition unreasonably dangerous to the consumer.”’ Tincher, 104 A.3d at 383 (quoting Restatement (Second) of Torts § 402A(1)). Although a manufacturer or seller of a product generally cannot be strictly liable if its safe product is rendered unsafe by subsequent changes made by a third party, it may be liable if the manufacturer or seller “could have reasonably expected or foreseen such an alteration of its product.” Davis v. Berwind Corp., 547 Pa. 260, 267, 690 A.2d 186, 190 (1997); Sweitzer v. Dempster Systems, 372 Pa. Super. 449, 453, 539 A.2d 880, 882 (1988) (based upon evidence that container locks on an emptying mechanism attached to a garbage truck were bound to break down and foreseeably be removed, plaintiff was entitled to an instruction on manufacturer liability for foreseeable post-sale alteration to its product). Whether a post-manufacture or post-sale change was reasonably foreseeable is a question for the factfinder “unless the inferences are so clear that a court can say as a matter of law that a reasonable manufacturer could not have foreseen the change.” Eck v. Powermatic Houdaille, 364 Pa. Super. 178, 190, 527 A.2d 1012, 1018 (1987); D’Antona v. Hampton Grinding Wheel Co., 225 Pa. Super. 120, 125, 310 A.2d 307, 310 (1973); Gonzalez v. Thomas Built Buses, Inc., 934 F. Supp. 2d 747, 754 (M.D. Pa. 2013) (whether school district mechanic’s change to school bus’s electrical terminal was a foreseeable substantial change to a bus after it left the manufacturer’s control was a question of fact for the jury).

Citing Schwartz and Kolar v. Buffalo Pumps, Inc., 15 Pa. D. & C. 5th 38 (Phila. Co. 2010), Burnham, Weil-


McLain, Peerless and York advance what is referred to in asbestos litigation parlance as the “bare metal defense,” Schwartz, 106 F. Supp. 3d at 628 & n.2, and contend that Horst cannot state a cause of action against them since the asbestos-containing insulation, gaskets and cement were allegedly added to their boilers and furnaces by third parties after those boilers and furnaces were manufactured and sold by them. (Docket Entry No. 60 at pp. 8-9; Docket Entry No. 69 at p. 5; Docket Entry No. 67 at pp. 8-9; Docket Entry No. 92 at pp. 5-6). They further allege that Toth v. Economy Forms Corp., 391 Pa. Super. 383, 571 A.2d 420 (1990), app. denied, 527 Pa. 650, 593 A.2d 422 (1992) absolves them from liability in this case. (Docket Entry No. 60 at p. 8; Docket Entry No. 69 at p. 3; Docket Entry No. 67 at p. 8; Docket Entry No. 92 at p. 5). For the reasons outlined below, those three holdings are either inapposite since the movants’ boilers and furnaces arguably contained original asbestos material, or do not involve the well-established tenet that manufacturers may be liable for harm caused by reasonably foreseeable changes to their products.

In Toth, the manufacturer of a concrete forming/scaffolding system was sued after a construction worker fell to his death when a wooden plank attached to the system broke. Plaintiffs “concede[d] the wooden plank that broke and caused Mr. Toth to fall to his death was not supplied or manufactured by [defendant].” Toth, 391 Pa. Super. at 387-388, 571 A.2d at 422. Plaintiffs did not allege that the addition of the plank constituted a foreseeable alteration to the scaffolding system, and instead merely argued that “[defendant] should have supplied the lumber, and that its failure to do so constitute[d] a design defect in the scaffolding, which it did supply.” Id. at 388, 571 A.2d at 422 (emphasis in original). In affirming the grant of a compulsory nonsuit in favor of the scaffolding system manufacturer, the Superior Court “reject[ed] [plaintiffs’] assertion that the failure to provide wood planks constitutes


a design defect in the metal scaffolding.” Id. at 388, 571 A.2d at 423.

In contrast to the plaintiffs in Toth, Horst does not contend that Burnham, Weil-McLain, Peerless and York should have manufactured their boilers and furnaces with insulation, gaskets and cement, and that their failure to do so constituted a design defect in the boilers and furnaces. Rather, Horst primarily maintains that their boilers and furnaces were defective when they left their hands with original asbestos insulation, gaskets or cement. As an alternative theory of strict liability, and in the event that the jury concludes that the asbestos insulation, gaskets and cement were not applied at the time of manufacture, Horst argues that the incorporation of asbestos-containing materials was reasonably foreseeable to those boilers/furnace manufacturers since Burnham’s installation and operating instructions specifically prescribed the use of “asbestos cement” and “asbestos rope ring,” Weil-McLain sold asbestos rope, cement, and insulation for required use with their boilers, Peerless’ boiler installation instructions recommended sealing “with an acceptable asbestos cement,” and York’s specifications required the use of gaskets with 80-85% asbestos content. Thus, the facts and liability theories in this case are clearly distinct from those at issue in Toth.

The federal district court in Schwartz attempted to predict Pennsylvania products liability law in the wake of Tincher, and opined that “a manufacturer or supplier of a product is not liable in strict liability for injury arising from replacement component parts and/or aftermarket insulation used in connection with its product, but which it did not manufacture or supply.” Schwartz, 106 F. Supp. 3d at 653. While Tincher did not overrule or even address the Supreme Court precedent in Davis and the Superior Court holdings in Eck and D’Antona confirming that manufacturers may be found strictly liable for reasonably foreseeable changes or additions to their products that


render them defective, Schwartz predicted “that, when applying Section 402A, Pennsylvania law would construe the term ‘product’ such that an aftermarket component part is not the manufacturer’s ‘product.’” Id. Nevertheless, in further concluding that a product manufacturer may be “liable in negligence for failing to warn about asbestos hazards of component parts used with its product which it neither manufactured nor supplied,” the Schwartz court stated that “a product manufacturer has a common law duty to warn about the asbestos hazards of a component part later used with its product, which it neither manufactured nor supplied (i.e., an aftermarket component), if the manufacturer knew its product would be used with that type of asbestos-containing component and knew when it placed the product into the stream of commerce that asbestos was hazardous.” Id. at 654-655.

Besides producing evidence that Burnham, Weil-McLain, Peerless and York manufactured their boilers and furnaces with original asbestos-containing materials, Horst has also adduced evidence demonstrating that those manufacturers knew or should have known that their products would be fitted with asbestos component parts after they left their hands. The installation instructions and specifications authored by those manufacturers expressly provided for the use of such asbestos items. Therefore, assuming arguendo that the prediction in Schwartz is correct and that the Supreme Court ultimately abrogates Davis and its progeny, Burnham, Weil-McLain, Peerless and York remain liable to Horst in negligence under the rationale in Schwartz, which reasoning we decline to adopt to the extent that it does not recognize strict liability for foreseeable changes to manufactured products. See Pa. SSJI (Civ) No. 16.120 (4th ed.) (“If you do find that defective conditions were created by substantial changes in the product after it was sold, that finding would not, in itself, relieve the seller of liability. Rather, the seller would still be liable, in that circumstance, unless you also


find that the changes were ones that could not reasonably have been foreseen or expected by the seller. That is because a seller’s responsibility, under our law, extends to all dangers that result from foreseeable changes to the product.”).

The common pleas court in Kolar granted summary judgment based upon its finding that “a manufacturer cannot be liable for injury caused by an asbestos part installed on its product, where it does not make, supply or sell said part, where the product does not require the asbestos part to function properly, and where the manufacturer does not call for the use of said part.” Kolar, 15 Pa. D & C. 5th at 45-46. Unlike Toth and Schwartz, Kolar considered the prospect of manufacturer liability for a reasonably foreseeable alteration of its product, but held as a matter of law that “plaintiff could not possibly prove by a preponderance of the evidence [that] defendants should have foreseen asbestos gaskets would be added to their pumps and traps.” Id. at 48. To that end, the Kolar court stated that plaintiffs “presented no evidence [that] defendants’ manuals or product specifications required asbestos gaskets,” and “provided not a scintilla of evidence [that] asbestos gaskets would inevitably be added to defendants’ pumps and traps” which “were used only in low heat applications.” Id.

As noted above, Horst has testified that the asbestos insulation, gaskets or cement were present on the boilers and furnaces at the time that they were sold by Burnham, Weil-McLain, Peerless and York, and as such, those boilers were defective when their manufacturers placed them into the stream of commerce. In the alternative, Horst has presented considerable evidence that Burnham, Weil-McLain, Peerless and York knew or should have known that asbestos component parts would be added to their boilers and furnaces. That evidence includes those manufacturers’ own installation manuals and operating instructions calling for the use of asbestos gaskets, cement


or insulation. Genuine issues of fact exist as to whether those defendants should have foreseen that asbestos component parts would be incorporated into their products after they were sold by them. As a result, Kolar is readily distinguishable and does not support the entry of summary judgment in favor of the movants.

The sound reasoning and holding of U. S. District Judge Thomas N. O’Neill, Jr., in Chicano v. General Elec. Co., 2004 WL 2250990 (E.D. Pa. 2004), are instructive and persuasive. In that case, a naval shipyard employee sued General Electric (“GE”) for asbestos exposure allegedly attributable to insulation that was added to GE’s marine steam turbines after they were manufactured by GE and sold to the Navy. Although the turbines “required thermal insulation to operate properly and safely,” it was undisputed that “GE did not include any insulation materials, asbestos or otherwise, with its turbines when they were shipped to the Navy.” Id. at *2. Nor did GE “specify any insulation material to be used to insulate its turbines.” Id. However, GE arguably knew or should have known “that its turbines would be insulated with asbestos-containing materials” since the “Navy’s specifications called for asbestos insulation to be used on the turbines.” Id.

Like the boiler and furnace manufacturers in this case, GE argued that it did “not have a duty to warn regarding products it did not produce.” Id. at *3. In denying GE’s motion for summary judgment, Judge O’Neill noted that “GE’s marine steam turbines by themselves were not dangerous products,” that “GE supplied ample warnings of the hazards involved with installing and operating the turbines,” and that “GE did not control what form of insulation would cover its turbines.” Id. at *6. He nonetheless found a triable issue of fact as to “whether GE could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate


warnings of the dangers of asbestos.” Id. In so finding, he concluded:

Although Chicano’s mesothelioma allegedly was caused by the asbestos-containing insulation, which was manufactured by an entirely different company and assembled into completed products by the Navy, there is at least a genuine issue of material fact as to whether it was reasonably foreseeable to GE that a failure to include a warning regarding the use of asbestos-containing products to insulate its turbines would lead to asbestos-relating illness.

Id. at *8. Accord Urian v. Ford Motor Company, 2010 WL 3005539, at *2 (Del. Super. 2010) (applying Pennsylvania law, following Chicano and finding “a genuine issue of material fact as to whether Ford knew of the dangers of asbestos, whether Ford knew that an asbestos product was necessary to operate its vehicles safely, and whether Ford knew that an asbestos-containing product would have to be used in the repair and replacement of its brake linings.”).

Based upon the foregoing, triable issues of fact exist as to whether the boilers and furnaces sold by Burnham, Weil-McLain, Peerless and York contained original asbestos insulation, gaskets or cement when those products left their hands. In the event that Horst does not establish to the satisfaction of the jury that those boilers and furnaces were distributed with original asbestos components, there are genuine issues of fact as to whether Burnham, Weil-McLain, Peerless and York should have foreseen that asbestos-containing parts would be added to their boilers and furnaces. As a consequence, those manufacturers are not entitled to summary judgment on the ground that asbestos-containing materials were incorporated into their products by third parties after those products were manufactured.

(E) SUFFICIENCY OF CAUSATION OPINIONS


Union Carbide, Trane, Burnham, Carrier, Georgia-Pacific, Hajoca, Kaiser Gypsum, Lennox, Weil-McLain, Rheem and York seek summary judgment based upon the alleged insufficiency of the causation opinions proffered by Horst’s causation expert, Dr. Richard L. Kradin. They contend that Dr. Kradin has advanced a “cumulative exposure” opinion which is tantamount to an “any exposure” theory and lacks the necessary empirical basis inasmuch as it does not provide an individualized assessment of the specific degree of exposure to each defendant’s product, nor is it supported by any published research or studies. (Docket Entry No. 77 at pp. 13-14; Docket Entry No. 87 at pp. 7-10; Docket Entry No. 60 at pp. 12-14; Docket Entry No. 84 at pp. 8-10; Docket Entry No. 95 at pp. 8-11, Docket Entry No. 98 at pp. 11-12; Docket Entry No. 81 at pp. 5-7; Docket Entry No. 65 at pp. 9-11; Docket Entry No. 69 at pp. 5-6; Docket Entry No. 71 at p. 5; Docket Entry No. 92 at pp. 11-13). Horst submits that Pennsylvania law does not require an expert to undertake such a singularized evaluation of the relative contribution of each defendant’s product to his development of mesothelioma, and that the relevant scientific community overwhelming supports the opinion of Dr. Kradin that Horst’s cumulative exposures to asbestos above background levels contributed substantially to his development of mesothelioma. (Docket Entry No. 104 at pp. 32-42; Docket Entry No. 16 at pp. 13-24).

Regardless of whether an asbestos claim is predicated upon strict liability or negligence concepts, “the requirements of proving substantial-factor causation remain the same,” although “we now instruct juries on the very idea of competing issues of factual causation.” Summers v. Certainteed Corp., 606 Pa. 294, 316 & n. 18, 997 A.2d 1152, 1164-65 & n.18 (2010) (citing Pa. SSJI (Civ) §§ Nos. 3.15, 8.04B (3d ed.), now Pa. SSJI (Civ) Nos. 13.20, 16.80 (4th ed.)). See also Gorman v. Costello, 929 A.2d 1208, 1213 (Pa. Super. 2007) (trial court committed


reversible error by failing to give the complete “factual cause” instruction set forth in the Pennsylvania Suggested Standard Civil Jury Instructions); Irey v. Com. v. Dept. of Transp., 72 A.3d 762, 771-772 (Pa. Cmwlth. 2013) (en banc) (quoting Gorman and approving the “complete definition of factual cause” in Pennsylvania Suggested Standard Civil Jury Instructions). In Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27 (2012), the Supreme Court of Pennsylvania rejected the “any exposure” theory of legal causation, also referred to as the “any breath” or “any fiber” theory, as “fundamentally inconsistent with both science and the governing standard for legal causation.” Id. at 552, 44 A.3d at 57. Prior to Betz, the Superior Court had approved the use of expert causation testimony based upon the any-exposure theory. See Donoughe v. Lincoln Elec. Co., 936 A.2d 52, 64 (Pa. Super. 2007) (upholding verdict for plaintiff where plaintiff’s expert “testified that each and every inhalation of asbestos from any asbestos product, including welding rods, substantially contributes to asbestos-related diseases such as Donoughe’s lung cancer.”). Presently, for asbestos-related diseases that are dose-responsive, an expert’s “theory that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial-factor causation.” Howard ex rel. Estate of Ravert v. A. W. Chesterton Co., 621 Pa. 343, 348, 78 A.3d 605, 608 (2013).5

In finding that an “any-exposure opinion is in irreconcilable conflict with itself,” the Betz Court reasoned that “one cannot simultaneously maintain that a single fiber among millions is substantially causative, while

5. Five members of the Supreme Court joined in the per curiam order in Howard, with one Justice concurring and another Justice not participating in the consideration of the case. Id. at 351, 73 A.3d at 609. An en banc panel of the Superior Court later declined to rely upon Howard, stating that “its precedential value is questionable.” Nelson v. Airco Welders Supply, 107 A.3d 146, 154 n.11 (Pa. Super. 2014) (en banc).


also conceding that a disease is dose-responsive.” Betz, 615 Pa. at 550, 44 A.3d at 56. Hence, “in cases involving dose-responsive diseases, expert witnesses may not ignore or refuse to consider dose as a factor in their opinions.” Howard, supra (citing Betz, 615 Pa. at 549-554, 44 A.3d at 55-58). Instead, “some reasoned, individualized assessment of a plaintiff’s or decedent’s exposure history is necessary.” Id. at 348-349, 78 A.3d at 608; Krauss, 104 A.3d at 565.

The Superior Court has appeared to reach conflicting interpretations of Betz. In Nelson, the decedent’s expert opined “that there are no innocent respirable asbestos fibers,” that “inhalation of fibers above the negligible amount already contained in the environment is the type of exposure that causes” mesothelioma, and that “each individual exposure” that the decedent experienced “above the negligible amount present in ambient air” was “a substantial factor in developing mesothelioma.” Nelson, 107 A.3d at 156-157. In vacating the verdict for the decedent’s estate and remanding the matter for a new trial on liability, the Superior Court deemed the expert’s testimony to be “congruous with the expert opinion offered in Betz” and, therefore, improperly premised upon an any-exposure theory of causation. Id. at 157-158.

In Rost v. Ford Motor Company, 2014 WL 2178528 (Pa. Super. 2014), app. granted, 628 Pa. 56, 102 A.3d 1251 (2014), the plaintiff’s expert “testified that there are case studies which indicate that individuals who were exposed to asbestos for a single day have developed mesothelioma,” and “opined that the only safe level of exposure to asbestos is ‘zero.’” Id. at *2. Another expert for plaintiff described the cellular “process by which asbestos causes mesothelioma,” and “testified that due to the nature of the process, it is impossible to devise a scientifically valid method to attribute a causal relationship to any single exposure.” Id. at *9. “After being presented with a hypothetical that paralleled Rost’s history” of


working with asbestos-containing break linings “at a Ford dealership for several months in 1950,” Rost’s expert “opined that the exposure was a significant contributing cause of Rost’s mesothelioma.” Id. at *1-2. Following a jury verdict in favor of Rost, Ford filed an appeal arguing “that it is entitled to judgment as a matter of law, or a new trial, pursuant to the Supreme Court of Pennsylvania’s decision in Betz.” Id. at *6.

On appeal, the Superior Court noted that “Betz involved the review of the trial court’s decision pursuant to a Frye hearing” and that “the Betz Court explicitly refused to address the issue of whether other evidence of record was sufficient to meet the plaintiff’s burden pursuant to a motion for summary judgment.” Id. at *7-8 (citing Betz, 615 Pa. at 549 n.34, 43 A.3d at 55 n.34). Rost reasoned that neither Betz nor Gregg “required the dismissal of the plaintiff’s cause of action merely due to the problems with the plaintiff’s expert’s opinion on causation,” and declared that “the Betz Court did not mandate that every judge, no matter what the record, reject the expert opinion of any expert that testifies there is no known threshold for a safe exposure to asbestos.” Id. at *8. The Superior Court also deemed it noteworthy that “[u]nlike the expert witness in Betz, [Rost’s experts] were familiar with epidemiological studies, and testified that their opinions were based in part on such studies.” Id. at *9. In unanimously affirming the judgment in favor of plaintiff, it held:

We conclude that this record is nearly the mirror image of that described in Betz. The Rosts’ experts provided detailed testimony about the nature of mesothelioma and its causes, backed up by published research on the subject..... Accordingly, while it is true that the “every exposure” theory does not, by itself, meet the standard for establishing substantial causation in a legal sense, this record is more than sufficient to establish its general scientific legitimacy. As we have already determined that the rest of the certified record is sufficient to


establish a triable issue on whether Richard Rost’s exposure at the garage was a substantial cause of his mesothelioma, this defect in the “every exposure” theory is not sufficient to warrant reversal in this case.

Id. at *10. The Supreme Court granted allocatur in Rost on the issue of whether “a plaintiff in an asbestos action may satisfy the burden of establishing substantial-factor causation by an expert’s ‘cumulative-exposure’ theory that the expert concedes is simply an ‘any-exposure’ theory by a different name.” Rost v. Ford Motor Company, 102 A.3d 1251 (Pa. 2014).6

Horst’s board-certified expert in internal medicine, anatomic pathology and pulmonary medicine, Dr. Kradin, has opined that Horst’s “malignant mesothelioma was caused by cumulative exposures to asbestos above background” traceable to the boilers, furnaces and joint compound sold by the moving defendants. His affidavit indicates that his conclusions regarding a causal connection between mesothelioma and low level doses of asbestos are based upon “the generally accepted attribution criteria” contained within the 1997 “Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution” that was published following an international meeting of asbestos-related disease experts.7 (Kradin Affidavit at p. 5). Dr. Kradin states that “[i]t has been demonstrated that the presence of visible dust with respect to the manipulation of asbestos-

6. On April 6, 2016, the Supreme Court of Pennsylvania conducted oral argument in Rost v. Ford Motor Company, No. 56 EAP 2014 (Pa.). See The Legal Intelligencer, Vol. 253, No. 67 at pp. 1, 9 (April 7, 2016).

7. The Helsinki, Finland “meeting was held to discuss and achieve, if possible, a consensus and conclusion on state-of-the-art criteria for the diagnosis and attribution of asbestos-related diseases,” and “was attended by 19 participants from around the world, comprised of pathologists, radiologists, occupational and pulmonary physicians, epidemiologists, toxicologists, industrial hygienists and clinical and laboratory scientists specializing in tissue fiber analysis” who “had published over 1000 papers on asbestos and asbestos-related diseases.” (Richard L. Kradin, M.D., Affidavit dated 11/4/15 at p. 7 n.1).


containing materials contains large numbers of asbestos fibers that greatly exceed background ambient levels.” (Id. at p. 11). After reviewing Horst’s testimony concerning his exposure to asbestos material contained in boilers and furnaces manufactured by Trane, Burnham, Carrier, Lennox, Weil-McLain, Peerless, Rheem and York, and joint compound sold by Hajoca, Kaiser Gypsum and Georgia-Pacific, the latter of which allegedly included Union Carbide’s Calidria asbestos, he opines that “[n]one of the exposures noted above were de minimis.” Id. More importantly, he unequivocally represents:

It is my opinion to a reasonable degree of medical probability that Mr. Horst’s malignant mesothelioma was caused by cumulative exposure to asbestos. I do not believe that exposure to a single asbestos fiber can cause mesothelioma or any other asbestos-related disease. Furthermore, my opinions in this case are not based on the so-called “any fiber” or “every fiber” theories, or any variation thereof.

(Id. at p. 2).

In support of his opinions relating to a causal connection between Horst’s asbestos exposure and his development of malignant mesothelioma, Dr. Kradin cites and discusses two published epidemiological studies which appeared in the American Journal of Epidemiology in 1998 and the American Journal of Industrial Medicine in 2001. (Id. at pp. 9-10). He also references dozens of other published research and studies from 1964 to 2015 which further provide medical support for the causation opinions he has proffered. (Id. at pp. 2-9). The plain language of his affidavit makes it unmistakably clear that he is not espousing an “any exposure,” “single breath” or “each and every fiber” theory of causation, nor is he opining that any of Horst’s exposures was de minimis. (Id. at pp. 2, 11).

Contrary to the movants’ assertion, Dr. Kradin has not run afoul of Betz and Howard by offering an “any exposure”


theory of causation. Rather, based upon his reasoned and individualized assessment of Horst’s asbestos exposure history as set forth in his deposition, and the numerous published studies and research on asbestos exposure and mesothelioma, he attests that Horst’s malignant mesothelioma was caused by cumulative exposures to asbestos above background levels that were created by his regular and proximate work with or near the moving defendants’ products. Dr. Kradin has not ignored or refused to consider dose as a factor, and like the causation expert in Rost, he has discussed relevant epidemiological studies and their support for the opinions that he has reached. Other jurisdictions with causation laws comparable to Pennsylvania’s have found Dr. Kradin’s opinions to be sufficient to withstand pre-trial efforts by asbestos manufacturers to dismiss asbestos-related disease claims. See, e.g., Hernandez v. Amcord, Inc., 215 Cal. App. 4th 659, 674-675, 156 Cal. Rptr. 3d 90, 101 (Cal. App. 2013); Sparkman v. A. W. Chesteron Co., 2014 WL 7369499, at *1, 5 (D. S. C. 2014). Since Dr. Kradin’s report and affidavit confirm that he is not advancing an “any-exposure” theory of causation, the motions for summary judgment of Union Carbide, Trane, Burnham, Carrier, Georgia-Pacific, Hajoca, Kaiser Gypsum, Lennox, Weil-McLain, Rheem and York challenging the legal and medical sufficiency of his causation opinions will be denied. See Summers, 606 Pa. at 309, 997 A.2d at 1161 (“It has long been Pennsylvania law that, while conclusions recorded by experts may be disputed, the credibility and weight attributed to those conclusions are not proper considerations at summary judgment; rather, such determinations reside in the sole province of the trier of fact, here, a jury.”).

(F) STATUTE OF REPOSE

Burnham also argues that Horst’s claims are barred by the 12 year statute of repose in 42 Pa.C.S. § 5536 since its boilers were “permanently-affixed pieces of equipment” that were essential to the use of the residences in which


they were installed, and more than 12 years elapsed from the date of their manufacture to the time of Horst’s mesothelioma diagnosis. (Docket Entry No. 60 at pp. 11-12). Lennox and York advance identical arguments with respect to their furnaces that Horst installed in the 1970’s. (Docket Entry No. 65 at pp. 6-8; Docket Entry No. 92 at p. 9). Horst maintains that the statute of repose is inapplicable inasmuch as Burnham, Lennox and York were not actively involved with the on-site construction and installation of their boilers and furnaces, and those products were not permanently secured to the residences. (Docket Entry No. 104 at pp. 55-58).

With respect to civil actions asserting personal injury resulting from a “deficiency in the design, planning, supervision or observation” of construction of any improvement to real property, Section 5536 of the Judicial Code states that any such action “brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement.” 42 Pa.C.S. § 5536(a). Unlike a statute of limitations which begins to run when the cause of action accrues upon the plaintiff suffering harm, a statute of repose commences upon the completion of certain conduct by a defendant, “regardless of whether a cause of action has accrued or whether any injury has resulted.” Gilbert, 131 A.3d at 15. While a statute of limitations is a procedural law that time-bars a party’s right to a remedy, “statutes of repose operate as substantive law by extinguishing a cause of action outright and precluding its revival.” Graver v. Foster Wheeler Corp., 96 A.2d 383, 387 (Pa. Super. 2014), app. denied, 113 A.2d 280 (Pa. 2015).

The party moving for protection under the statute of repose must show: “(1) what is supplied is an improvement to real property; (2) more than twelve years have elapsed


between the completion of the improvements to the real estate and the injuries; and (3) the activity of the moving party must be within the class which is protected by the statute.”8 Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 281, 643 A.2d 81, 84 (1994); McKenzie v. Dematic Corp., 2015 WL 3866633, at *8 (W.D. Pa. 2015). There is no dispute in the case sub judice that more than 12 years have elapsed between the manufacture of the boilers and furnaces and the date that Horst suffered malignant mesothelioma in 2014. Hence, the parties’ dispute centers upon whether (a) the boilers or furnaces were improvements to real property and (b) the movants’ activity is within the class that is protected by 42 Pa.C.S. § 5536.

With regard to the first element, “[a] fixture is by definition an improvement to real property.” Noll, 537 Pa. at 286, 643 A.2d at 87. Pennsylvania employs a three-part test to determine whether personalty constitutes a fixture: “(1) the relative permanence of attachment to realty; (2) the extent to which the chattel is necessary or essential to the use of the realty; and (3) the intention of the parties to make a permanent addition to the realty.” Id. at 286-287, 643 A.2d at 87; Graver, 96 A.2d at 388; McKenzie, supra, at *9. By way of illustration, although a door machine attached to a coke oven was very large and not easily removed from the coke works,” it was not deemed to be a fixture under 42 Pa.C.S. § 5536 since it was “not

8. In Abrams v. Pneumo Abex Corp., 602 Pa. 627, 981 A.2d 198 (2009), the Supreme Court stated that “[w]hile the Superior Court and Crane assert that Crane has a right to repose, no statutory right of repose exists with respect to asbestos cases.” Id. at 649, 981 A.2d at 212. Abrams also declined to recognize the application of “a common law theory of repose” to asbestos cases, and “reject[ed] the Superior Court’s summary conclusion that allowing [plaintiffs] to proceed with their cause of action against Crane would violate Crane’s right to repose.” Id. at 649-650, 981 A.2d at 212. However, in Graver, a three judge panel of the Superior Court characterized the above-quoted language from Abrams as dicta, and held that “the trial court erred by relying on Abrams for the proposition that there is no statute of repose in asbestos cases.” Graver, 96 A.3d at 389.


attached to the real property in any way.” Vargo v. Koppers Co., Inc., 552 Pa. 371, 377, 715 A.2d 423, 426 (1998). In contrast, a boiler that “was 11 to 13 stories tall,” “weighed ‘many, many tons,’” and “was permanently affixed to the plant via a reinforced concrete foundation” satisfied “the requirements of an improvement to real property.” Graver, 96 A.3d at 384-385, 388.

Burnham’s jacketed, sectional boilers were not permanently affixed to the residences, and, to the contrary, were capable of being dismantled manually with a sledgehammer. (Horst Depo. at pp. 44-45, 188-191, 202). The new, pre-assembled Burnham boilers were three and one-half feet high and eighteen inches wide, and were able to be transported manually down basement steps. (Id. at pp. 52-53). All of the furnaces, including those manufactured by Lennox and York (Borg Warner), were the same size and did not need to be delivered since one person could retrieve them from the supply house and transport them to the work site. (Id. at pp. 411, 413-414, 430). Thus, the summary judgment record does not establish as a matter of law that Burnham’s boilers and the furnaces manufactured by Lennox and York (Borg Warner) were so large and permanently attached to realty as to constitute “improvements to real property” under the statute of repose. See McKenzie, supra, at *10 (denying summary judgment motion asserting that trash conveyer system was an “improvement to real property” under the statute of repose, and holding that although “the trash conveyer system is 146 feet long and weighs approximately 17 tons,...the ease of removing the conveyer and the length of time it would take to do so present a dispute of material fact that must be resolved by the factfinder at trial.”).

As for the third criterion relating to the type of activity protected by 42 Pa.C.S. § 5536, although manufacturers are not excluded as a matter of law from the protection afforded by the statute of repose, “as a general rule, manufacturers are not included in the class protected by


the statute.” Noll, 537 Pa. at 284, 643 A.2d at 86; Kephart v. ABB, Inc., 2015 WL 1245825, at *11 (W.D. Pa. 2015). “The Pennsylvania statute of repose was not intended to apply to manufacturers and suppliers of products, but only to the kinds of economic actors who perform acts of ‘individual expertise’ akin to those commonly thought to be performed by builders.” Noll, 537 Pa. at 283, 643 A.2d at 85; McConnaughey v. Building Components, Inc., 536 Pa. 95, 101, 637 A.2d 1331, 1334 (1994). Therefore, “a manufacturer who does nothing more than supply a defective product which later is incorporated into an improvement to real property by others is not within the purview of the statute.” Noll, 537 Pa. at 282, 643 A.2d at 85 (citing McConnaughey, supra). Our Supreme Court and the U.S. Court of Appeals for the Third Circuit have reasoned that “[a]pplication of § 5536 to manufacturers would cut the heart out of Pennsylvania product liability law by immunizing any manufacturing company fortunate enough to have its product turned into an improvement to real property.” Noll, 537 Pa. at 283, 643 A.2d at 86; Luzadder v. Despatch Oven Co., 834 F.2d 355, 359 (3d Cir. 1987), cert. denied, 485 U.S. 1035 (1988). As a consequence, “the proper focus in interpreting the statute is the activity performed, i.e., whether the party claiming the protection of the statute was involved in the design, planning, supervision, construction or observation of the construction of an improvement to real property.” Noll, 537 Pa. at 282-283, 643 A.2d at 85 (citing McConnaughey, 536 Pa. at 101 n.3, 637 A.2d at 1334 n.3).

For example, in Graver, the general contractor for the construction of Pennsylvania Power & Light’s (“PP&L”) Holtwood Steam Plant “contracted with Foster Wheeler to design the boiler used at the Holtwood Plant.” Graver, 96 A.3d at 387. “In doing so, [the general contractor] relied on Foster Wheeler’s specialized expertise in designing such boilers.” Id. Moreover, “[d]uring construction, Foster Wheeler provided an on-site erection consultant


who interpreted the plans provided by Foster Wheeler and answered any questions that [the general contractor] had regarding the assembly of the boiler’s components.” Id. As a result of that active involvement in the design of that particular boiler, its integration into the plans for the construction of the steam plant, and the on-site erection of the boiler and assembly of its components, Graver concluded that the record supported the trial court’s finding “that Foster Wheeler was involved in the overall design and construction of the boiler in question.” Id.

The summary judgment record is devoid of any indication that Burnham, Lennox or York were in any way involved with the on-site design and construction of their boilers or furnaces, as was the boiler manufacturer in Graver. Rather, they did nothing more than manufacture a product which was later incorporated into homes without any input or oversight by them. Since Burnham, Lennox and York did not perform the acts of “individual expertise” required by Noll and McConnaughey, they have not satisfied the third component of the tripartite test under 42 Pa.C.S. § 5536 by demonstrating that their activity is within the class that is protected by that statute. Due to the failure of Burnham, Lennox and York to establish two of the three criteria under Section 5536, they are not entitled to immunity based upon the statute of repose.

(G) PUNITIVE DAMAGES CLAIMS

Citing McCarthy v. DeArmit, 1 Pennypacker 297, 99 Pa. 63 (1881), Rheem contends that punitive damages may not be awarded against it unless they are also assessed against the least culpable defendant in a case involving multiple defendants. (Docket Entry No. 75 at pp. 6-7). Trane, Carrier, Georgia-Pacific, Kaiser Gypsum, Peerless and Rheem also request judgment in their favor with respect to Horst’s punitive damages claims, and allege that the evidence fails to demonstrate any outrageous conduct on their part so as to warrant the recovery of


punitive damages. (Docket Entry No. 87 at p. 9; Docket Entry No. 84 at p. 10; Docket Entry No. 95 at p. 11; Docket Entry No. 81 at pp. 7-8; Docket Entry No. 66 at pp. 9-10). In reply, Horst references evidence in the record which ostensibly reflects that Trane, Carrier, Georgia Pacific, Kaiser Gypsum, Peerless and Rheem engaged in willful, wanton, or reckless conduct. (Docket Entry No. 120 at pp. 45-46; Docket Entry No. 124 at pp. 51-52; Docket Entry No. 122 at pp. 34-35; Docket Entry No. 126 at pp. 33-38; Docket Entry No. 107 at pp. 51-54). He further submits that Rheem’s “least culpable defendant” argument is inapplicable at the summary judgment stage since no determination has been made by the jury as to which defendant is the least culpable. (Docket Entry No. 115 at p. 51).

(1) “Most Innocent Defendant” Rule

Rheem bases its first summary judgment challenge to Horst’s punitive damages claim upon the 1881 decision of the Supreme Court in McCarthy, which involved compensatory and punitive damages awards against police officers for false arrest and imprisonment. Long before the adoption of the Comparative Negligence Act, 42 Pa.C.S. § 7102, and the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321 et seq., McCarthy stated that “[i]n trespass all the defendants are alike guilty, each is liable for the damages sustained without regard to the different degrees or shades of guilt; the damages are not divisible, and the verdict should be for one amount against all the defendants, for such sum as the most culpable ought to pay.”9 McCarthy, 99 Pa. at 72. After observing that the evidence indicated that one police officer “was acting

9. A tort claim was originally characterized as a “trespass” action, whereas a claim founded upon a contract was referred to as an action “in assumpsit.” See, e.g., Cowan v. Nagel, 89 Pa. Super. 122, 124 (1925). Following the 1984 amendments to Pa.R.C.P. 1001, all claims for relief formerly asserted in an “action of assumpsit” and “action of trespass” were relabeled as a “civil action.” See Pa.R.C.P. 1001(b)(1)-(2).


in good faith and the other maliciously,” the McCarthy Court reasoned that “[u]nder the evidence in this case, the jury should have been instructed, as respects exemplary damages beyond compensation for the injury to the plaintiff, to assess them according to the acts of the most innocent of the defendants, and if any defendant was not liable for exemplary damages, none should be included in the verdict, for the question was as to the motives of the defendants.” Id.

The last favorable citations to the McCarthy rule, also known as the “most innocent defendant” rule, appear in Randall v. Fenton Storage Co., 121 Pa. Super. 62, 65, 182 A. 767, 768 (1936) and Bausewine v. Strassburger, 50 Pa. D. & C. 525, 531-532 (Montg. Co. 1943), aff’d, 351 Pa. 634, 41 A.2d 736 (1945), cert. denied, 326 U.S. 724 (1945). Subsequent to the adoption of the Pennsylvania Comparative Negligence Act in 1978, see West Perm Administration, Inc. v. Pittsburgh Nat. Bank, 289 Pa. Super. 460, 470 n. 12, 433 A.2d 896, 901 n.12 (1981), the first reported discussion of the McCarthy rule is found in an asbestos action where a manufacturer invoked McCarthy and argued that the trial court “erred in failing to instruct the jury that punitive damages are to be assessed according to the acts of the most innocent defendants.” Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357, 388 (E.D. Pa. 1982), aff’d, 760 F.2d 481 (3d Cir. 1985). In declining to recognize the continuing viability of the McCarthy rule, the Neal court concluded:

The McCarthy rule was premised on the old common law doctrine that in a suit against joint tortfeasors the plaintiff was entitled to only one verdict and one judgment against all the defendants found to be liable to plaintiff. [citation omitted]. The “most innocent” rule served to protect a joint tortfeasor from the imposition of punitive damages against that defendant based upon the conduct of another defendant against whom the evidence of outrageous conduct had been


presented at trial. However, a plaintiff can now proceed separately against joint tortfeasors in Pennsylvania, [citation omitted]. Moreover, punitive damages could be secured in a multiplicity of actions by proceeding separately against each defendant notwithstanding the rule announced in McCarthy.

Id. at 388-389.

A few years later, another federal district court rejected the McCarthy rule argument advanced by asbestos manufacturers, and held that “[t]his doctrine, whatever its contemporary validity, has no application in asbestos cases, where jury instructions assure that each defendant’s liability for punitive damages depends only on that defendant’s conduct where defendants are tried together to further judicial economy.” Paulson v. Celotex Corp., 1986 WL 12027, at *3 (E.D. Pa. 1986). More recently, the court in Hayfield v. Home Depot U.S.A., Inc., 168 F. Supp. 2d 436 (E.D. Pa. 2001) relied upon the Pennsylvania Suggested Standard Civil Jury Instructions and their Subcommittee Note in renouncing the McCarthy rule. Noting that the standard instructions expressly provide for the apportionment of punitive damages, that court held that “we do not follow the teetering nineteenth-century Pennsylvania rule, known as the McCarthy rule or the ‘most innocent defendant’ rule, that punitive damages could only be assessed if the ‘most innocent of the defendants’ were liable for them.” Id. at 453. In opting to instead “follow the path of the Civil Jury Instructions Subcommittee of the Pennsylvania Supreme Court discussing the dubiousness of the ‘most innocent defendant’ rule,” the Hayfield court remarked that “[t]hough this [McCarthy] standard has been dead for all practical purposes for some time, it has remained standing, an old snag waiting for the wind of decision to completely knock it down.” Id. at 453-454.

The standard jury instruction entitled “Punitive Damages — Amount of Award” distinctly addresses the


apportionment of punitive damages among defendants, and provides:

You must decide whether punitive damages are to be assessed against each defendant by the defendant’s conduct alone, and the amount of any punitive damages assessed must be measured by your consideration of the factors I have listed as they apply to each particular defendant. While you will return your award of compensatory damages, if any, in one lump sum amount as to all defendants, you must return a separate verdict as to punitive damages, if any, against each of the defendants.

Pa. SSJI (Civ) § 8.20 (4th ed.). The accompanying Subcommittee Note indicates that the McCarthy rule has become outdated following the adoption of the Comparative Negligence Act. Id., Subcommittee Note at p. 2 of 5. Quoting from the Pennsylvania Trial Guide (3d rev. ed. 1999), the Subcommittee Note states:

But this McCarthy rule, which is lacking in logic, appears to have died an unheralded, natural death. It has not been discussed in the cases since the early 1960s and has not been applied since the early 1930s. In negligence cases, the rule is inconsistent with and most likely has been superseded by the Comparative Negligence Act, which requires an apportionment of damages according to fault.

Id. at p. 3 of 5.

Pennsylvania law clearly provides for the apportionment of punitive damages among defendants based upon their respective culpability. See Shiner v. Moriarty, 706 A.2d 1228, 1234 (Pa. Super. 1998) (“The jury also assessed punitive damages of $1,000,000 to each of the Moriartys, $750,000 to Maurice Nernberg, and $250,000 to Nernberg & Laffey. Punitive damages were not imposed on James Cooney.”), app. denied, 556 Pa. 711, 729 A.2d 1130


(1998); Bannar v. Miller, 701 A.2d 232, 237 (Pa. Super. 1997) (“Each appellee was awarded punitive damages as follows: $2,000 each against Harry Miller, Jr.; $2,000 each against Jean Miller; $100 each against the Brownstone Inn, Inc.; and $10,000 each against Harry Miller III”), app. denied, 555 Pa. 706, 723 A.2d 1024 (1998); Butterfield v. Giuntoli, 448 Pa. Super. 1, 7, 670 A.2d 646, 648 (1995) (“In addition, the jury awarded $3.5 million in punitive damages apportioned between defendants HUP and the four physicians according to the jury’s assessment of negligence.”), app. denied, 546 Pa. 635, 683 A.2d 875 (1996). Since the “most innocent defendant” rule was adopted and enforced at a time when damages could not be apportioned among joint tortfeasors, and maintained validity only in an era when such apportionment was not permitted, it has been rendered obsolete and no longer possesses precedential value in this Commonwealth. Hence, Rheem’s request to dismiss Horst’s punitive damages claim based upon McCarthy will be denied.

(2) Sufficiency of the Evidence

“Punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.” Dubose v. Quinlan, 125 A.3d 1231, 1240 (Pa. Super. 2015); Rockwell, 32 Pa. D. & C. 5th at 167. Wanton or reckless conduct “means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probably that harm would follow.” Lomas v. Kravitz, 130 A.3d 107, 128-129 (Pa. Super. 2015) (en banc); Dean v. Community Medical Center, 46 Pa. D. & C. 4th 334, 345 (Lacka. Co. 2000). “Thus, in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) [s]he acted, or failed to act as the case may be, in conscious


disregard of that risk.” Hutchison v. Luddy, 582 Pa. 114, 124, 870 A.2d 766, 772 (2005); Lasavage v. Smith, 23 Pa. D. & C. 5th 334, 340 (Lacka. Co. 2011).

With regard to the boiler and furnace manufacturers, Horst’s expert epidemiologist, Dr. Richard A. Lemen, states that “[b]y 1930 with the publication and dissemination of the Merewether Report [footnote omitted], the basic characteristics of asbestos and how it causes disease, disability and death were known within the medical, scientific and industrial communities.” (Dr. Lemen Report dated 8/30/15 at p. 15). Horst notes that in October 1935, the Journal of Industrial Medicine published an article entitled, “Dusty Death,” which identified asbestosis as a potentially fatal “dusted lung” disease. (Docket Entry No. 120 at p. 46 (citing Master Exhibit No. 72); Docket Entry No. 124 at p. 52; Docket Entry No. 106 at p. 53; Docket Entry No. 114 at p. 50). Horst contends that Trane and Carrier were members of the American Society of Mechanical Engineers (“ASME”) in the 1930s when ASME’s journal, Mechanical Engineering, published articles stating that asbestos dust caused “a varying degree of fibrosis” and that a “preponderance of medical opinion” had concluded that asbestos dust was “harmful in the sense and to the extent of causing specific disabling diseases of the lungs.” (Docket Entry No. 120 at pp. 48-49 (quoting J. M. Dallavalle, “The Control of Industrial Dust: The Problem of Local Exhaust and General Ventilation,” Mechanical Engineering, at p. 621 (Oct. 1933) and F.Robertson Jones, “Occupational Diseases: The Problems of Their Practicable Prevention in Industry,” Mechanical Engineering, at p. 90 (Feb. 1935)); Docket Entry No. 124 at p. 53 (same)).

Horst asserts that Trane was also a member of the National Safety Council (“NSC’) and the Industrial Hygiene Foundation (“IHF”) in the 1930s and 1940s, and that in October 1937, the NSC reported that “[a]sbestos dust seems to be unique...in the prevalence and


severity of diseases it causes.” (Docket Entry No. 120 at pp. 47-48 (quoting R. R. Sayres, “What Industrial Dusts are Harmful?” National Safety Congress (Oct. 1937))). In the Industrial Hygiene Digest that the IHF published in August 1949, it reportedly included an article entitled “Asbestos and Cancer of the Lung,” which stated that the records of American, English and German physicians demonstrated “that the occurrence of cancer of the lung is related to pulmonary asbestosis.” (Docket Entry No. 120 at p. 47 (quoting Industrial Hygiene Foundation, Industrial Hygiene Digest, Vol. 13, No. 8, at p. 1 (Aug. 1949))). Horst further maintains that Peerless was a member of the American Society of Heating and Ventilating Engineers in 1944 when it published an article discussing the toxic properties of asbestos. (Docket Entry No. 106 at p. 53). As for Rheem, the only specific evidence cited by Horst is that, as a government contractor during World War II, Rheem should have been familiar with the Walsh-Healey Public Contracts Act of 1951 which established a threshold limit value for asbestos exposure. (Docket Entry No. 114 at pp. 50-51).

According to Dr. Lemen, “it was well established...by the early 1960s that asbestos was proven to cause mesothelioma.” (Dr. Lemen Report at p. 15) (citation omitted). He claims that “[b]y 1964, there were more than 700 articles in the worldwide medical literature dealing with health effects associated with asbestos exposure and its toxic nature.” (Id. at p. 6) (citations omitted). Horst notes that on June 7, 1972, the Occupational Safety and Hazard Administration (“OSHA”) published regulations in the Federal Register which imposed restrictions upon asbestos exposures. (Docket Entry No. 120 at p. 145; Docket Entry No. 124 at p. 51). Finally, Horst cites a federal appellate ruling, Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1092-93 (5th Cir. 1973), and a Louisiana decision, Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1087 (La. 2009), which concluded that articles appearing in medical


journals and trade publications evinced knowledge in the asbestos industry of respiratory hazards related to asbestos exposure. (Docket Entry No. 120 at p. 46; Docket Entry No. 124 at p. 52; Docket Entry No. 106 at p. 52; Docket Entry No. 114 at pp. 49-50). However, Horst does not reference any Pennsylvania precedent standing for the same conclusion articulated in Borel and Rando, nor has Horst produced any evidence indicating that Trane, Carrier, Peerless or Rheem knew or had reason to know of the articles and medical research quoted and relied upon by Horst and Dr. Lemen.

Horst’s documentary evidence with regard to Georgia-Pacific and Kaiser Gypsum is far more particularized as it relates to their alleged appreciation of the risk of asbestos harm and their purported failure to act in conscious disregard of that risk. As per Georgia-Pacific’s discovery responses and document productions in other asbestos cases, on September 16, 1967, Georgia-Pacific’s Safety Director, M. F. Fink, attended the Gypsum Association Safety Committee meeting during which there was discussion about “a number of lung carcinoma cases that had been reported by inhabitants of the neighborhood surrounding an asbestos plant.” (Docket Entry No. 122 at p. 32). On June 3, 1970, Mr. Fink forwarded a letter to another Georgia-Pacific representative addressing research which had been conducted at Mt. Sinai Hospital Medical School indicating that asbestos could be causing lung diseases in drywall joint finishers/sanders. (Id. at p. 33). On September 24, 1971, the National Gypsum Company forwarded a memorandum to Georgia-Pacific’s President, W. H. Hunt, stating that “[o]ur tests indicate that sanding of joint treatment products and particularly the spraying of wall finishes offer some substantial potential hazards.” (Id.).

An internal Georgia-Pacific memorandum dated April 4, 1974, confirms that a Georgia-Pacific representative met with an asbestos expert, Dr. Irving Selikoff, concerning


his research involving hazards presented by the sanding of asbestos joint compounds, and indicates that Georgia-Pacific ostensibly knew that such sanding should not be performed without adequate respiratory protection. (Id.). Approximately one month later, two Georgia-Pacific representatives exchanged an intra-company memorandum referencing a Wall and Ceilings magazine article that reported pulmonary complications experienced by New York City painters who had worked with joint compound and drywall finishing. (Id.). In 1974, OSHA cited Georgia-Pacific for failing to provide a warning that properly advised users of the dangers posed by its asbestos-containing joint compound. (Id. at p. 34). Despite its foregoing knowledge, Georgia-Pacific’s General Sales Manager of its Gypsum Division forwarded a letter to a customer, Mr. Craig Burmingham, on January 21, 1977, stating that “[t]o our knowledge, there is no known case of harm from Joint Cement containing asbestos fiber, even after prolonged exposure, numbered in many years.” (Id. at p. 35).

Kaiser Gypsum’s Director of Research, George Kirk, has testified in other asbestos litigation that in 1965, Kaiser Gypsum circulated a memorandum to members of its upper management which attached a report from the Gypsum Association and an Associated Press article identifying asbestos dust as a possible cause of mesothelioma. (Docket Entry No. 126 at p. 34). That 1965 memorandum stated that “in connection with protection against asbestos dust, it is advised to use a respirator with a filter designed for asbestos dust,” and in that same year, Kaiser Gypsum began requiring its own employees to wear respirators when working near asbestos. (Id.). On March 29, 1966, Kaiser Gypsum circulated a memorandum to its supervisors informing them of recent medical studies suggesting a connection between the inhalation of asbestos dust and cancer. (Id. at pp. 34-35).

In 1968, Union Carbide furnished Kaiser Gypsum with a


publication entitled “Calidria Asbestos,” which referenced the toxological properties of asbestos and recommended the use of respirators by individuals sanding taped joints. (Id. at p. 35). Mr. Kirk conceded during his deposition in another asbestos matter that by the end of 1971, he “was impressed with the amount of information that was coming in about possible health hazards with products containing asbestos.” (Id.). In February 1972, Union Carbide provided Kaiser Gypsum with a copy of a National Academy of Sciences publication that referenced 170 articles discussing health hazards associated with asbestos. (Id. at p. 36). Carey-Canadian Asbestos advised Kaiser Gypsum in March 1972 that an approved mask should be worn by all individuals in the vicinity of joint compound sanding. (Id.). One month later, Pacific Asbestos Corporation informed Kaiser Gypsum that asbestos dust could cause mesothelioma, and recommended the use of respirators for activity involving dust from joint compounds. (Id.). Nevertheless, Kaiser Gypsum decided on September 28, 1972, that its product labels would not include language advising users to wear approved respirators when dumping bags of joint compound, mixing the joint compound, or sanding that material after it dried. (Id. at p. 37).

In Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985) (Hutchinson, J, with one Justice concurring, and four other Justices concurring in the result), Martin argued that an Industrial Hygiene Foundation (“IHF”) article, which is also cited by Horst, an epidemiological study and article authored by Walter Fleischer, and numerous medical articles established an awareness by asbestos manufacturers of the dangers associated with the inhalation of asbestos prior to the 1960s.10 Id. at 166-169, 494 A.2d at 1095-96. Like Horst, Martin asserted

10. The court in Borel, which is cited by Horst, referenced the Fleischer report as support for the conclusion that it “was widely recognized” prior to 1950 that “high concentrations of asbestos dust could cause asbestosis.” Borel, 493 F.2d at 1092-93.


that several of the asbestos defendants were members of the IHF, “and, during periods of membership, had access to, and received information concerning various health risks associated with asbestos exposure.” Id. at 169, 494 A.2d at 1096. Martin claimed that the asbestos suppliers “had access to certain literature which discusses generally the risks in question and are subject to punitive damages because they, nevertheless, failed to provide adequate warning labels on their products.” Id. at 176, 494 A.2d at 1100. In rejecting Martin’s contention that the jury should “resolve the social equation of whether such inactivity in view of the medical state of the art constitutes such outrageous conduct to justify the imposition of exemplary damages,” the Martin Court held:

The conduct described by [Martin] might establish the liability of some or all of the defendants for negligence. It does not demonstrate the culpable mental state necessary, under existing Pennsylvania law, to prove the recklessly indifferent conduct which would permit a jury to award punitive damages.

Id. at 177, 494 A.2d at 1100.

Quoting Martin with approval, the United States Court of Appeals for the Third Circuit similarly dismissed a punitive damages claim in an asbestos action on the ground that the plaintiff had failed to produce “evidence to establish that [defendants] knew that their products posed a danger to those who were indirectly exposed to asbestos through contact with persons who had worked with finished asbestos products.” Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 86 (3d Cir. 1987). On at least two occasions, the Superior Court has relied upon Martin in concluding that medical articles and trade journal publications alone are insufficient to support a punitive damages claim absent proof that the asbestos defendant knew or had reason to know of the content of that literature. In Smith v. Celotex Corp., 387 Pa. Super. 340,


564 A.2d 209 (1989), the plaintiff introduced testimony of a physician “regarding a historical survey of medical articles concerning the risks of exposure to asbestos beginning in the early part of the century.” Id. at 346, 564 A.2d at 212. Finding that evidence insufficient as a matter of law, the Superior Court reasoned:

An analysis of the evidence adduced by plaintiff in the instant case forces us to the same conclusion as was reached in Martin. Here, the evidence submitted equally did not establish either that the management of [defendant] knew or had reason to know of facts indicating that [defendant’s] conduct posed a substantial risk of physical harm to an applier of finished products like plaintiff.

Id. An en banc panel of the Superior Court reached an identical conclusion in Moran v. G. & W. H. Corson, Inc., 402 Pa. Super. 101, 586 A.2d 416 (1991) (en banc), and in deeming the evidence insufficient to warrant submission of a punitive damages claim to the jury, held:

While [plaintiff] presented testimony by Barry Castleman concerning articles published in medical and trade journals in Europe and the United States from the early nineteen hundreds through the nineteen seventies, there was no evidence that any one at Corson knew or had reason to know of these articles or any medical research studies on the risks involved in the use of insulation materials containing asbestos.

Id. at 119, 586 A.2d at 425. Accord Sealover v. Carey Canada, 793 F. Supp. 569, 572-575 (M.D. Pa. 1992).

The punitive damages proof that Horst has submitted with respect to Trane, Carrier, Peerless and Rheem is comparable, if not virtually identical, to the evidence which was found to be insufficient as a matter of law in Martin, Moran and Smith. The record presented by Horst in this case is devoid of any indication that the management


of Trane, Carrier, or Peerless knew or had reason to know of the articles or studies cited by Horst and Dr. Lemen. The rationale in Borel and Rando, that published literature may establish subjective knowledge of the dangers of asbestos, simply has not been adopted in Pennsylvania. Based upon the appellate precedent quoted above, and absent some proof that representatives of Trane, Carrier, Peerless or Rheem were aware of the medical or trade literature referenced by Horst and Dr. Lemen, Horst has not produced any evidence that is sufficient to establish that Trane, Carrier, Peerless or Rheem had a subjective appreciation of the risk of asbestos-related harm during the pertinent time period, and acted, or failed to act, in conscious disregard of that risk.

However, Horst has presented evidence that, prior to and during Horst’s initial exposure to their joint compounds, executive and managerial representatives of Georgia-Pacific and Kaiser Gypsum arguably had a subjective appreciation of the risk of harm presented by exposure to their asbestos-containing products, but consciously disregarded that risk. The evidence adduced by Horst as to those joint compound manufacturers creates genuine issues of fact relative to the recovery of punitive damages against them. See Neal, 548 F. Supp. at 375-376 (deposition testimony that Johns-Manville management representatives attended trade meetings discussing asbestos dangers, or were familiar with medical studies addressing pulmonary diseases from inhalation of asbestos dust, sufficiently indicated “that high ranking corporate officials were fully aware of the dangers of asbestos exposure during the mid-1940s and through the early 1960s and that they continually refused to act despite their ready knowledge of these dangers.”); Casey v. Kaiser Gypsum Company, Inc., 2016 WL 258670, at *21 (Cal. App. 1 Dist. 2016) (“We conclude that the evidence was sufficient to show malice, that is, despicable conduct coupled with a conscious disregard for the safety of


others. In view of Kaiser Gypsum’s compliance with the OSHA regulations regarding its own workplace, Kaiser Gypsum fully understood that asbestos dust endangered workers, but it did not issue warnings to its customers, notwithstanding its knowledge that they used the products in ways that generated asbestos dust. Indeed, although Kaiser Gypsum informed its employees that breathing in asbestos dusts was hazardous to their health, customers were unaware of such risks.”). Consequently, based upon the evidentiary record submitted and in accordance with Pennsylvania appellate precedent, the motions for summary judgment of Trane, Carrier, Peerless and Rheem will be granted with respect to Horst’s punitive damages claim, whereas the motions for summary judgment filed by Georgia-Pacific and Kaiser Gypsum will be denied.

ORDER

AND NOW, this 27th day of April, 2016, upon consideration of the motions for summary judgment of Defendants, Union Carbide Corporation, Trane US, Inc. f/k/a American Standard, Inc., Burnham, LLC, Carrier Corporation, Georgia-Pacific, LLC, Hajoca Corporation, Kaiser Gypsum Company, Inc., Lennox Industries, Inc., The Marley-Wylain Company d/b/a Weil-McLain, Peerless Industries, Inc., Rheem Manufacturing Company, and York International Corporation, the record and memoranda of law submitted by the parties, and the consolidated oral argument of counsel, and based upon the reasoning set forth in the foregoing Memorandum, it is hereby ORDERED and DECREED that:

1. The motions for summary judgment of defendants, Trane US, Inc. f/k/a American Standard, Inc., Carrier Corporation, Peerless Industries, Inc., and Rheem Manufacturing Co., are GRANTED only with respect to plaintiffs’ claims for punitive damages against those particular defendants; and

2. In all other respects, the motions for summary


judgment of Defendants, Union Carbide Corporation, Trane US, Inc. f/k/a American Standard, Inc., Burnham, LLC, Carrier Corporation, Georgia-Pacific, LLC, Hajoca Corporation, Kaiser Gypsum Company, Inc., Lennox Industries, Inc., The Marley-Wylain Company d/b/a Weil-McLain, Peerless Industries, Inc., Rheem Manufacturing Company, and York International Corporation, are DENIED.

Commonwealth v. Schulze

Criminal law — Off-duty officer — Use of deadly force — Capital offense — Eligibility for bail — Prima facie case

Off-duty police officer’s use of lethal force to handle an incident outside his apartment resulted in criminal homicide. Emergency petition to set bail and/or modify bail denied.

Around 8 p.m. on Feb. 2, 2016, decedent Joseph Molinaro and his girlfriend were talking loudly in the street in front of defendant Francis Schulze’s apartment. Defendant, a school resource officer with the Carbondale Police Department, was off-duty at the time and had consumed several alcoholic drinks. On hearing what sounded like screaming, he took his loaded Glock pistol from the locked gun safe instead of his duty belt with baton and OC spray. Defendant confronted the pair in the street after identifying himself as a police officer. Decedent initially complied by raising his empty hands, but the confrontation became a chase, with the girlfriend following. Surveillance tape showed decedent running with his hands up in the air and defendant running with the firearm extended and pointed at decedent. Turning down an alley, defendant called 911 to report the chase and gave as cause that the pair had been screaming outside his house. A second 911 call by a witness to the shooting reported the decedent stopped and walked toward defendant with his hands in the air and saying “whoa, wait.” Defendant fired three times at a range of 7 to 15 feet, hitting decedent’s abdomen and left thigh.

The commonwealth charged defendant with criminal homicide, aggravated assault, simple assault, and reckless endangerment. Defendant filed a petition for bail on grounds of self-defense and argued his actions justified the use of deadly force. Under state law, defendant would not be eligible for bail if the state established a prima facie case

68 Pa. D. & C.5thCommonwealth v. Schulze

for murder in the first degree. The commonwealth asserted that it had sufficiently demonstrated its case and that neither the justification defenses in the Crimes Code nor the Municipal Police Jurisdiction Act applied to defendant’s actions.

In the wake of a 1998 revision to the constitution concerning capital offenses, an exception to the right of bail was created for sentences “for which the maximum sentence is life imprisonment.” Subsequent Supreme Court rulings showed a continued adherence to the denial of bail eligibility if sufficient proof or presumption indicated that the offender had committed the offense. Despite interpretations of Commonwealth ex rel. Alberti v. Boyle, which sought to introduce a higher level of proof, court cited Commonwealth v. Pal, which found in Alberti a “clear directive” that included both evidence “together with all reasonable inferences therefrom” and therefore supported the prima facie standard rather than the “clear and convincing evidence” standard.

In its evaluation of the commonwealth’s evidence, the court found that decedent and his girlfriend had not committed a criminal offense. Defendant had “no lawful reason to pursue [decedent] or to attempt to effectuate an arrest.” Defendant overlooked the tools on his duty belt in favor of a locked, loaded gun. After decedent left the scene, defendant pursued him despite the lack of basis for arrest or pursuit and eventually fired the gun at a short distance on the unarmed suspect who was facing him with raised hands. The fatal shots exemplified the “vital part of the victim’s body” that constituted circumstantial evidence of both intent and malice and satisfied the prima facie standard for a conviction of first-degree murder.

The Municipal Police Jurisdiction Act invoked by defendant did not address use of deadly force. The Crimes Code statute addresses use of such force only in the context of making a lawful arrest, to “prevent death or serious bodily injury.” Decedent did not possess a deadly weapon or attempt to escape when he was shot by defendant; nor was he committing any crime that risked death or injury. Those statutes were inapplicable to the present case.

C.P. of Lackawanna County, No. 15 CV 1903

John H. (Shane) Scanlon, Gene Riccardo and Ruth Lenahan, for Commonwealth.

Christopher J. Szewczyk, for defendant.

NEALON, J., July 8, 2016—Defendant, who has been

Commonwealth v. Schulze 69 (2016)68

charged with murder in the first degree and is facing a maximum sentence of life imprisonment, has filed an emergency petition for pre-trial release on bail. Under Article I, § 14 of the Pennsylvania Constitution and 42 Pa.C.S. § 5701, defendant is ineligible for bail if the Commonwealth presents evidence establishing a prima facie case of murder in the first degree. In determining whether a prima facie case of first-degree murder has been established, the evidence must be viewed in the light most favorable to the prosecution which also must be afforded the benefit of all inferences reasonably drawn from such evidence that would support a guilty verdict.

Examining the Commonwealth’s evidence in that manner, it reflects that although the decedent and his girlfriend were making loud noise while walking on a public roadway and sidewalk, they did not commit any criminal offense justifying their attempted arrest or pursuit by defendant, who was an off-duty police officer located in his apartment. Although defendant had immediate access to his duty belt containing a baton, OC spray, flashlight and handcuffs for his use to detain or arrest a criminal offender, he retrieved his loaded gun from a locked safe upon hearing the decedent and his girlfriend in the roadway in front of defendant’s apartment. After defendant pointed his firearm at the decedent and activated the gun’s mounted flashlight, the decedent ran and defendant chose to pursue him for 743 feet with defendant’s loaded pistol pointed at the decedent even though defendant had no lawful basis to arrest or pursue the decedent. Despite the fact that the decedent was clearly unarmed when he faced defendant and raised his hands as he stated “whoa, whoa, whoa, wait,” defendant fired his gun three consecutive times at decedent while they were separated by seven to fifteen feet, killing the decedent in the process.

Based upon the circumstances established by the Commonwealth’s evidence, defendant’s use of a deadly


weapon on a vital part of the decedent’s body provides circumstantial proof under Pennsylvania law that defendant acted with malice and a specific intent to kill when he shot the decedent. The Commonwealth has demonstrated a prima facie case of first-degree murder against defendant, thereby rendering him constitutionally and statutorily ineligible for bail. Therefore, defendant’s emergency petition for pre-trial relief on bail will be denied.

I. FACTUAL BACKGROUND

This homicide prosecution arises from a sequence of events involving Defendant, Francis Schulze (“Schulze”), the decedent, Joseph Molinaro (“Molinaro”), and Molinaro’s girlfriend, Laticia Moncrief (“Moncrief’), that occurred at approximately 8:00 PM on February 2, 2016. (Transcript of Proceedings (“T.P.”) on 4/5/16 at pp. 27-29, 52; Defendant’s Exhibit No. 1 at pp. 4, 11; Defendant’s Exhibit No. 3 at pp. 3, 6). On that evening, an encounter between Schulze and Molinaro began in front of Schulze’s apartment on Belmont Street, and following Schulze’s chase of Molinaro for 743 feet, culminated with Schulze shooting Molinaro with Schulze’s Glock 40 caliber pistol. (T.P. 4/5/16 at pp. 21-22, 56, 67, 101, 138-139; Defendant’s Exhibit No. 3 at pp. 4-5, 49-50). Molinaro died from “multiple gun shot wounds” and his manner of death was determined to be criminal homicide. (T.P. 4/5/16 at pp. 9-10; Commonwealth’s Exhibit No. 1).

Moncrief informed the Pennsylvania State Police (“PSP”) that she and Molinaro were walking along Belmont Street at 8:00 PM and were admittedly talking “a little bit too loud,” when they were suddenly confronted by an individual who pointed a flashlight at them.1 (Defendant’s Exhibit No. 3 at p. 3, 12-14, 21-22, 29-30, 46). The person

1. The flashlight identified by Moncrief was actually a tactical mounted flashlight that was attached to Schulze’s Glock pistol and had been activated by Schulze. (T.P. 4/5/16 at p. 46).


holding the apparent flashlight moved “aggressively towards” Moncrief and Molinaro, and Moncrief assumed it was “somebody crazy.” (Id. at pp. 3-4, 17, 23-24, 41-42, 44). For that reason, Moncrief and Molinaro decided “to keep moving” along Belmont Street, but “it became like a chase from there” with Molinaro being pursued by “some weirdo” and Moncrief trailing them. (Id. at pp. 4, 18, 24).

Schulze contends that as he was talking on the telephone in his apartment, he “heard screaming coming from the street” and a woman, who later proved to be Moncrief, “being loud and obnoxious and animated.” (Defendant’s Exhibit No. 1 at pp. 4, 11, 42-43, 56-57). Although Schulze was employed on a part-time basis by the Carbondale Police Department as a school resource officer, he was “off duty” at that time. (T.P. 4/5/16 at p. 90; Defendant’s Exhibit No. 1 at pp. 37-38, 45). Individuals who were present in Schulze’s apartment that evening observed Schulze consume three bourbon and coke drinks. (T.P. 4/5/16 at pp. 64-65).

Contrary to Moncrief’s version of events, Schulze claims that he also heard Moncrief shouting “come on...as if she was enticing a fight, which seems to be normal with these two particular individuals.”2 (Defendant’s Exhibit

2. Prior to the night of the shooting, Schulze had two previous interactions with Molinaro and Moncrief while employed with the Carbondale Police Department. The first instance concerned a domestic dispute in which Molinaro and Moncrief were both taken into custody by the responding officers, including Schulze, without incident. (T.P. 4/5/16 at pp. 62-63, 101; Defendant’s Exhibit No. 1 at pp. 9-10, 39-42). The second encounter occurred during the early morning hours of New Years Day when Schulze reportedly “observed [Molinaro] walking down Main Street in Simpson staggering” because “he was obviously intoxicated.” Once Schulze stopped Molinaro, Schulze “asked him to remove his hands” from “the pockets of his jacket,” and Molinaro replied “fuck you, make me.” Moncrief intervened at that point and allegedly “started yelling ‘we’re a block away from our house, are you really going to arrest us?’” Schulze stated that since Molinaro and Moncrief were so close to their home, he allowed them to proceed along Main Street without taking any further action. (T.P. 4/5/16 at pp. 63-64, 101-102, 127; Defendant’s


No. 1 at pp. 5, 11, 13). Schulze alleges that when he exited his apartment to investigate, he observed Moncrief “standing across the street screaming” and he “yelled ‘Yo’ to her,” but “she did not acknowledge [him].” (Id. at p. 5). At that point, Schulze re-entered his apartment and retrieved his loaded Glock pistol from a locked safe in his bedroom, even though his duty belt was lying on his dresser and contained a flashlight, baton, handcuffs and OC spray for his use. (T.P. 4/5/16 at pp. 52-53, 58-59, 93; Defendant’s Exhibit No. 1 at pp. 5, 14-15, 24, 57). When later asked by the PSP why he retrieved his gun rather than his duty belt items, Schulze replied that “any time that I encounter somebody and it’s not ‘hey, how are you doing,’ I prefer to be armed,” and that “[i]t’s common practice for me to have my firearm with me 99 percent of the time.” (Defendant’s Exhibit No. 1 at pp. 12, 58).

Schulze exited his apartment and returned to the front of his residence, and while wearing shorts, a tee shirt and skull cap, allegedly shouted “what’s the problem,” to which Molinaro replied “you don’t want a fucking problem, go back in your fucking house and call 911.” (T.P. 4/5/16 at pp. 24, 53, 97-98, 135-136; Defendant’s Exhibit No. 1 at pp. 5, 18). Schulze informed the PSP that “[a]t the point where [Molinaro] told me to go back inside and call 911, I recognized him” from their earlier encounters. (Defendant’s Exhibit No. 1 at p. 18). Schulze maintains that Molinaro then “took a step towards [Schulze],” and Schulze drew his gun, activated its mounted flashlight, pointed his gun at Molinaro, identified himself as a police officer, and shouted “show me your hands.”3 (T.P. 4/5/16 at pp. 54, 99-100; Defendant’s Exhibit No. 1 at pp. 5, 15-

Exhibit No. 1 at pp. 9-10, 40).3. At another point during his PSP interview, Schulze stated that he

first recognized Molinaro when Schulze “shined the light in his face,” as opposed to his earlier representation that he initially recognized Molinaro when Molinaro told him to go back into his apartment and call 911. (Defendant’s Exhibit No. 1 at p. 19).


16, 18, 53, 60).

Schulze asserts that Molinaro originally raised his empty hands for Schulze to see, but then began jumping up and down in the road and repeatedly raised and lowered his hands “like it was a game.” (T.P. 4/5/16 at pp. 54, 60, 103-105; Defendant’s Exhibit No. 1 at pp. 5-6, 20, 22). “[A]t that point, [Schulze] was advancing toward [Molinaro] screaming over and over again...’put your hands up,’” and Molinaro suddenly turned away from Schulze and ran down Belmont Street as Schulze pursued him on foot with Moncrief trailing behind Schulze. (T.P. 4/5/16 at pp. 55, 105; Defendant’s Exhibit No. 1 at pp. 6, 19-20, 22-23). When later asked by the PSP why he chased Molinaro for 743 feet, Schulze stated “[b]ecause he was already disobeying me to put his hands up...and he’s usually not sober.” (Defendant’s Exhibit No. 1 at p. 23). At the time of the chase, Molinaro was six feet, two inches tall and weighed 225 pounds, whereas Schulze was five feet, six inches tall and weighed 155 pounds. (T.P. 7/1/16 at pp. 29-30, 48).

As Schulze pursued Molinaro along Belmont Street to Richmond Street, their actions were videotaped by a home security surveillance system in that neighborhood. (Commonwealth’s Exhibit No. 3). The surveillance videotape depicts Molinaro running with his hands raised and Schulze chasing Molinaro with his loaded firearm extended and pointed at Molinaro. Molinaro stopped briefly and while there was a “significant distance” of “more than ten feet” separating them, Molinaro “gave the middle finger gesture” to Schulze and then proceeded to walk down an adjacent alley with Schulze continuing in pursuit. (Id; T.P. 4/5/16 at pp. 39-42, 44-47, 122-123).

While Schulze was chasing Molinaro in the alley, Schulze used his cell phone to contact the Lackawanna County Emergency Communications (911) Center, and advised the operator that he was an off-duty police officer


who was “following a gentlemen screaming and cursing outside my house.” (T.P. 4/5/16 at p. 56; Commonwealth’s Exhibit No. 4; Defendant’s Exhibit No. 1 at pp. 23, 25). Upon being asked by the operator whether the individual being chased was “doing criminal mischief,” Schulze merely replied that “they were outside of my house, they were screaming.” (Commonwealth’s Exhibit No. 4). As Schulze pursued Molinaro through the alley into Chestnut Street, a Chestnut Street resident, Michael Dietz, heard “clapping of feet coming down Chestnut Street” and looked out his living room window and observed Schulze chasing Molinaro. (T.P. 4/5/16 at p. 21). In his recorded telephone call to the 911 Center, Mr. Dietz stated that he witnessed Molinaro stop, turn and walk towards Schulze, “and from what [Mr. Dietz] saw, [Molinaro] had his hands up and said ‘whoa, whoa, whoa, wait.’” (Commonwealth Exhibit No. 4B). Mr. Dietz has testified that when Schulze and Molinaro were approximately seven to fifteen feet apart and Molinaro’s hands were raised as Schulze’s Glock pistol was pointed at him, Schulze fired three consecutive shots and Molinaro fell to the ground. (T.P. 4/5/16 at pp. 22, 138-139). During his ensuing 911 call, Mr. Dietz advised the operator that “there was undiscernable yelling and then all I heard was the guy who got shot turn around and yell ‘whoa, whoa, whoa, wait,’ and then like he was coming towards the other guy and he shot him as he was coming towards him.” (Commonwealth’s Exhibit No. 4B).

Within moments of the shooting, Moncrief arrived at the scene and Mr. Dietz heard her scream “you shot him, I can’t believe you shot him, you shot my dude.” (T.P. 4/5/16 at p. 140). As Moncrief knelt and attempted to provide assistance to Molinaro, Schulze pointed his gun at her and told her “to get the fuck away from him because [Schulze] was a cop.” (Defendant’s Exhibit No. 3 at p. 7). Mr. Dietz also observed Schulze point his Glock pistol at Moncrief and heard Schulze tell “her not to move” and say “what part of stop don’t you understand?” (T.P. 4/5/16 at p. 140).


Molinaro was transported to Geisinger Commonwealth Medical Center where he was pronounced dead at 9:31 PM on February 2, 2016. (Docket Entry No. 4 at p. 13). Postmortem testing revealed that Molinaro’s blood alcohol content was .253%. (T.P. 7/1/16 at p. 32).

During Schulze’s interview with the PSP several hours after the shooting, Schulze claimed that Molinaro had “lunged” at him, was “right on top of Schulze, and was “close enough to grab [Schulze’s] weapon” when Schulze shot him “at point blank range,” directly contrary to Mr. Dietz’s eyewitness account. (Defendant’s Exhibit No. 1 at pp. 7, 26, 35-36). It is noteworthy that, on the recording of his 911 call, Schulze is heard shouting “get on the ground, get on the fucking ground” and “show me your fucking hands,” and immediately thereafter informs the operator “I just shot him.” In reply to the operator’s inquiry regarding the events leading up to the shooting, Schulze did not state that Molinaro was “right on top” of him or “close enough to grab [his] weapon,” and instead responded that Molinaro and Moncrief “were arguing in the middle of the road,” that Schulze “came outside and told them to go,” that Molinaro “started throwing his hands all over the place, and then I followed him and then I said get on the ground” seconds before he shot him. (Id.). Moreover, no gun residue was present on Molinaro’s clothing, thereby negating forensic support for a shooting “at point blank range” as claimed by Schulze. (T.P. 4/5/16 at p. 69).

The Commonwealth charged Schulze with criminal homicide, 18 Pa.C.S.A. § 2501(a), two counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1) and (4), simple assault, 18 Pa.C.S.A. § 2701(a)(1), and two counts of recklessly endangering another person, 18 Pa.C.S.A. § 2705. (Docket Entry No. 11). At the conclusion of a preliminary hearing on April 5, 2016, Magisterial District Judge Paul Ware dismissed the charge of recklessly endangering another person as it related to Moncrief, but


bound all other charges for trial. (T.P. 4/5/16 at p. 155). On May 17, 2016, the undersigned was appointed to preside over this homicide prosecution, and following a status conference with counsel on May 23, 2016, this case was scheduled for trial on January 17, 2017. (Docket Entry Nos. 17, 21).

In the interim, Schulze has filed a petition for bail, and argues “that he was acting purely in self-defense during the evening in question and that his actions were justified use of deadly force.” (Docket Entry No. 26 at p. 8). Citing the Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8952, he contends that he “was duty bound to pursue Molinaro in order to determine the reason and extent of his threatening behavior.” (Id. at pp. 11, 15). He posits that “the analysis of his actions in using deadly force fall under the legal and scientific doctrines governing use of force by a law enforcement officer, and do not encompass the legal authority governing self-defense by a civilian.” (Id. at p. 17). Asserting that the Commonwealth’s evidence does not “even remotely suggest that the requisite actions and/or criminal intent required for first-degree murder [are] present,” Schulze alleges that he is entitled to the grant of bail in this case. (Id. at pp. 5, 18).

The Commonwealth counters that Schulze cannot secure bail if the preliminary hearing testimony and exhibits demonstrate a prima facie case of first-degree murder. (Docket Entry No. 28 at pp. 5-6, 8, 22). It submits that its evidence supports a finding of a killing with malice and the specific intent to kill since: (1) when responding to loud noise, Schulze retrieved a locked, loaded gun, rather than his duty belt containing a flashlight, cell phone, baton, OC spray and handcuffs; (2) Schulze consumed three bourbon and coke drinks shortly before the shooting; (3) Schulze chased Molinaro with a loaded firearm drawn on Molinaro for a distance of 734 feet even though Molinaro had not committed any criminal offense;


(4) Schulze pursued Molinaro with a loaded Glock pistol pointed at Molinaro despite the fact that Molinaro was clearly unarmed and repeatedly displayed his open and empty hands to Schulze; (5) Schulze harbored a personal animus towards Molinaro due to their prior encounter during which Molinaro was openly disrespectful to Schulze; and (6) although an independent eyewitness observed Molinaro with his hands raised as he was stating “whoa” and “wait” to Schulze while they were separated by 7 to 15 feet, Schulze fired his weapon three times at an unarmed person.4 (Id. at pp. 15-18). Arguing that neither the justification defenses set forth in the Crimes Code, nor the provisions of the Municipal Police Jurisdiction Act, apply to Schulze’s actions, the Commonwealth maintains that its evidence establishes a prima facie case of first-degree murder, thereby rendering Schulze ineligible for bail under Pennsylvania law. (Id. at pp. 18-22). Following the completion of a bail hearing on July 1, 2016, Schulze’s petition for bail became ripe for disposition.

II. DISCUSSION

(A) CONSTITUTIONAL AND STATUTORY ELIGIBILITY FOR BAIL

Schulze seeks to be released on bail pursuant to Pa.R.Crim.P. 520 which governs “Bail Before Verdict.” Rule 520(A) states that “[b]ail before verdict shall be set in all cases as permitted by law.” Pa.R.Crim.P. 520(A) (emphasis added). Therefore, a threshold determination must be made as to whether the law permits a defendant, who is charged with first-degree murder and facing life

4. During cross-examination by defense counsel, Trooper Edward McCarthy testified at the preliminary hearing that if he was confronted by the scenario on Belmont Street as described by Schulze, he never would retrieve his firearm and would be more comfortable addressing the situation without a gun. (T.P. 4/5/16 at pp. 95, 124-125). Trooper McCarthy further testified that even based upon the factual circumstances as alleged by Schulze, there was no reason for a police officer to arrest Molinaro or even attempt to pursue him. (Id. at pp. 125-126).


imprisonment, to pre-trial release on bail.

Schulze’s eligibility for bail prior to trial is controlled by Article I, § 14 of the Pennsylvania Constitution and Section 5701 of the Judicial Code, 42 Pa.C.S.A. § 5701. Prior to 1998, Article I, § 14 provided:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.

Grimaud v. Com., 581 Pa. 398, 404, 865 A.2d 835, 839 (2005). Before the 1998 amendment to Article I, Section 14 of the Constitution, 42 Pa.C.S.A. § 5701 similarly stated:

All prisoners shall be bailable by sufficient sureties, unless for capital offense when the proof is evident or presumption great. Excessive bail shall not be required.

Com. v. Heiser, 330 Pa. Super. 70, 72, 478 A.2d 1355, 1356 (1984); U.S. v. Leonetti, 1988 WL 61738, at * 8 n. 3 (E.D. Pa. 1988). A “capital offense” under the pre-1998 versions of these constitutional and statutory provisions referred to a crime such as first-degree murder for which the death penalty could be imposed. See Com. v. Soltis, 455 Pa. Super. 218, 227, 687 A.2d 1139, 1143 (1996), app. denied, 548 Pa. 647, 695 A.2d 786 (1997).

Com. ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963) first addressed whether a defendant charged with a capital offense could be released on bail under Article I, § 14 of the Pennsylvania Constitution. In construing the phrase “when the proof is evident or presumption great,” the Supreme Court of Pennsylvania held:

In other words, a capital offense is a crime for which the


death penalty may, but need not, be inflicted, [citation omitted]. We are likewise convinced that the words in Section 14 “when the proof is evident or presumption great” mean that if the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom, is sufficient in law to sustain a verdict of murder in the first degree, bail should be refused. It follows that in the absence of such evidence, the prisoner is entitled to bail.

Id. at 400-401, 195 A.2d at 98. Accord Com. ex rel. Castanaro v. Manley, 60 Pa. D. & C. 194, 195 (Lacka. Co. 1947) (interpreting Article I, § 14 and holding “that if on the evidence submitted at the preliminary examination the court would not be justified in sustaining a verdict of murder in the first degree found by a jury upon such evidence, then defendant ought to be admitted to bail.”). Nine years after Alberti, the Supreme Court again stated that “[t]he Constitution makes it clear that unless the ‘proof is evident or presumption great’ that a capital offense has been committed, the defendant prior to trial is entitled to bail.” Com. v. Caye, 447 Pa. 213, 215, 290 A.2d 244, 245 (1972) (holding that where defendant was convicted of the non-capital offense of second-degree murder, he had an absolute right to bail).

After Pennsylvania’s earlier death penalty scheme was invalidated in Scoleri v. Pennsylvania, 408 U.S. 934 (1972) and Com. v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), the Pennsylvania Supreme Court had occasion to revisit the phrase “capital offense” in Article I, § 14 in the context of a bail request by a defendant who was charged with first-degree murder. Relying upon Alberti and Caye, the Court in Com. v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972) determined “that ‘capital offense’ refers to the punishment or penalty which may be imposed upon the person found guilty of a crime, rather than a definition of a particular crime.” Id. at 331, 296 A.2d at 832. Since there were


no longer any “criminal offense in the Commonwealth for which the death penalty may be imposed” in 1972, Truesdale concluded that “there are no ‘capital offenses’; hence, by mandate of our Constitution, all offenses are bailable prior to trial.” Id. at 331-332, 296 A.2d at 832. In support of its conclusion that the defendant who was charged with first-degree murder was entitled to pre-trial bail, the Supreme Court reasoned:

Prior to the invalidation of the death penalty, there was a strong flight urge because of the possibility of an accused forfeiting his life, and the framers of our Constitution must have felt that if a person were accused of a crime and had to risk the possibility of receiving the death penalty or forfeiting bail, he would obviously choose the latter. However, they did not feel the urge to flee was as great where the maximum penalty was life imprisonment, as indicated by the failure to draft the Constitution to read, bail may be denied in cases of “capital offenses or life imprisonment.”

Id. at 336-337, 296 A.2d at 835.

Once Pennsylvania’s death penalty statute was revised and withstood constitutional challenges in Com. v. Zettlemover, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970 (1983), Com. v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070 (1987), and Com. v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992), the General Assembly passed Joint Resolutions proposing an amendment to Article I, § 14 of the Pennsylvania Constitution to change the first clause to read:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or


presumption great;....

Grimaud, 581 Pa. at 405, 865 A.2d at 839 (quoting Joint Resolution No. 1, 1998, P.L. 1327, H. B. No. 1520). Pursuant to Section 201.1 of the Pennsylvania Election Code, the Attorney General of Pennsylvania prepared a “plain English statement” identifying “the purpose, limitations and effects of the ballot question” to be submitted to the electorate to amend Article I, § 14 of the Constitution. See 25 P.S. § 2621.1. In that “plain English statement,” the Attorney General explained:

The purpose of the ballot question is to amend the Pennsylvania Constitution to add two additional categories of criminal cases in which a person accused of a crime must be denied bail. Presently, the Constitution allows any person accused of a crime to be released on bail unless the proof is evident or presumption great that the person committed a capital offense. A capital offense is an offense punishable by death. The Pennsylvania Supreme Court has ruled that a person accused of a crime that is not a capital offense may be denied bail only if no amount or condition of bail will assure the accused’s presence at trial.

The ballot question would amend the Constitution to disallow bail also in cases in which the accused is charged with an offense punishable by life imprisonment or in which no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community. The ballot question would extend to these two new categories of cases in which bail must be denied the same limitation that the Constitution currently applies to capital cases. It would require that the proof be evident or presumption great that the accused committed the crime or that imprisonment of the accused is necessary to assure the safety of any person and the community.


The proposed amendment would have two effects. First, it would require a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by death or life imprisonment. Second, it would require a court deciding whether or not to allow bail in a case in which the accused is charged with a crime not punishable by death or life imprisonment to consider not only the risk that the accused will fail to appear for trial, but also the danger that release of the accused would pose to any person and the community.

Grimaud, 581 Pa. at 410- 411, 865 A.2d at 842-843 (emphasis added).

A majority of the electorate approved the amendment to Article I, § 14 during the 1998 general election, Id. at 403, 865 A.2d at 838, and that provision now reads, in pertinent part:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great;....

Pa. Const. art. I, § 14. The effect of the 1998 amendment was to create two additional “exceptions to the right to bail” for (1) any offenses “for which the maximum sentence is life imprisonment,” and (2) cases where no conditions “other than imprisonment will reasonably assure the safety of any person and the community.”5 Com. v. Jones, 899

5. In an apparent effort to comport with that amendment, Section 5701 of the Judicial Code was amended in 2009, and now states:

All prisoners shall be bailable by sufficient sureties, unless:(1) for capital offenses or for offenses for which the maximum sentence is life imprisonment; or


A.2d 353, 355 (Pa. Super. 2006).

Prior to 1998, the Supreme Court consistently construed Article I, § 14 as making a defendant who was charged with a capital offense eligible for bail unless the proof was evident or presumption great that [s]he committed that capital offense. See Com. v. Martorano, 535 Pa. 178, 185, 634 A.2d 1063, 1066 (1993) (stating that “a criminal defendant is not entitled to bail in a capital case when the proof is evident or the presumption great.”); Caye, 447 Pa. at 215, 290 A.2d at 245 (“The Constitution makes it clear that unless the ‘proof is evident or presumption great’ that

(2) no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.

42 Pa.C.S.A. § 5701. Unlike Article I, § 14 of the Constitution, Section 5701 as amended includes the phrase “when the proof is evident or presumption great” only in subsection (2) relating to situations where no condition[s] “other than imprisonment will reasonably assure the safety of any person and the community.” Cf. In re Paulmier, 594 Pa. 433, 448, 937 A.2d 364, 373 (2007) (holding that the use of the word “or” is disjunctive and “means one or the other of two or more alternatives.”).

As worded, Section 5701 of the Judicial Code arguably appears to limit the “proof is evident or presumption great” requirement to instances where “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community.” See 42 Pa.C.S.A. § 5701(2). Since the “proof is evident or presumption great” language does not appear in subsection (1) addressing capital offenses and life imprisonment offenses, see 42 Pa.C.S.A. §5701(1), an interpretive argument could conceivably be made that it is inapplicable to bail eligibility “for capital offenses or for offenses for which the maximum sentence is life imprisonment.” However, where the Supreme Court has interpreted a constitutional provision, as it has done in Grimaud, Martorano, Caye and Alberti. it is presumed that when the legislature subsequently enacts a statute dealing with the same subject matter, the legislature intended the same construction to be provided to the language of the subsequent enactment. See Com. v. Dickson, 591 Pa. 364, 384, 918 A.2d 95, 107 (2007); L.A.L. v. V.D. 72 A.3d 690, 692 (Pa. Super. 2013). Since “[c]ourts are obligated to avoid constitutional difficulties and construe statutes in a constitutional manner if possible,” Com. v. Mohamud, 15 A.3d 80, 85 (Pa. Super. 2010), the 2009 amendment to Section 5701 will be interpreted in conformity with Article 1, § 14 of the Constitution, as interpreted by our Supreme Court, so as to apply the “proof is evident or presumption great” requirement to bail requests by defendants charged with a crime that is punishable by life imprisonment.


a capital offense has been committed, the defendant prior to trial is entitled to bail.”); Alberti, 412 Pa. at 400-401, 195 A.2d at 98 (holding that in the absence of evidence “sufficient in law to sustain a verdict of murder in the first degree..., the prisoner is entitled to bail.”). Even following the 1998 amendment to Article I, § 14, the Supreme Court acknowledged that the amended constitutional provision obligates “a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by...life imprisonment.” Grimaud, 581 Pa. at 411, 865 A.2d at 843.

Based upon the 1998 amendment to Article I, § 14 and the foregoing rulings by the Pennsylvania Supreme Court, a defendant who is charged with an offense for which the maximum sentence is life imprisonment may be eligible for bail unless “the proof is evident or presumption great” that [s]he committed that offense. Murder in the first degree is an offense that is punishable by a sentence of life imprisonment. See 18 Pa.C.S.A. § 1102(a). The question of whether “the proof is evident or presumption great” that Schulze committed that offense must be determined based upon “the Commonwealth’s evidence which is presented at the bail hearing.” Alberti, 412 Pa. at 400, 195 A.2d at 98. A trial judge considering such a bail request is not bound by the magisterial district judge’s preliminary hearing determination, and must instead conduct an independent review of the Commonwealth’s evidence. Com. v. Pal, 34 Pa. D. & C. 5th 524, 547 (Lacka. Co. 2013).

(B) COMMONWEALTH’S BURDEN OF PROOF

At a bail hearing, the Commonwealth bears the burden of proving that a defendant’s application for bail should be denied. See Truesdale, 449 Pa. at 337-338, 296 A.2d at 836; Heiser, 330 Pa. Super. at 72, 478 A.2d at 1356. Neither Article I, § 14 of the Constitution, nor 42 Pa.C.S.A. § 5701 identifies the evidentiary burden governing the determination of “when the proof is evident or presumption


great.” Other states which have addressed that standard of proof have generally adopted one of three approaches: (1) a variation of a probable cause test; (2) a clear and convincing evidence standard; or (3) a requirement of evidence beyond a reasonable doubt.6 See State v. Furgal, 161 N.H. 206, 216, 13 A.3d 272, 280 (2010); Simpson v. Owens, 207 Ariz. 261, 271, 85 P.3d 478, 488 (2004). Citing Alberti, the Supreme Court of the Virgin Islands has identified Pennsylvania as a jurisdiction which employs a “clear and convincing evidence” standard in deciding whether “proof is evident or the presumption is great.” See Browne v. People of Virgin Islands, 2008 WL 4132233, at * 11 n. 24 (V.I. 2008).

As noted above, the Supreme Court in Alberti stated “that the words in Section 14 ‘when the proof is evident or presumption great’ mean that if the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom, is sufficient in law to sustain a verdict of murder in the first degree, bail should be refused.” Alberti, 412 Pa. at 400-401, 195 A.2d at 98. Eight years later, the Supreme Court considered the bail eligibility of a minor who had been charged with

6. In Pennsylvania, “[p]robable cause to arrest exists when the facts and circumstances within the police officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Com. v. Salter, 121 A.3d 987, 996-997 (Pa. Super. 2015). The clear and convincing evidence standard is more demanding than the preponderance of the evidence standard which “is defined as the greater weight of the evidence, i.e., to tip a scale slightly,” Ferko-Fox v. Fox, 68 A.3d 917, 927 (Pa. Super. 2013), and requires evidence “that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” In re D.A.T, 91 A.3d 197, 203 (Pa. Super. 2014), app. denied, 626 Pa. 685, 95 A.3d 278 (2014). Under the “beyond a reasonable doubt” standard governing criminal prosecutions, a reasonable doubt “is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs.” Com. v. Simpson, 620 Pa. 60, 95, 66 A.3d 253,274 (2013).


first-degree murder. In Com. v. Farris, 443 Pa. 251, 271 A.2d 906 (1971), a delinquency petition was presented to a Family Court Division judge who conducted a hearing and received evidence “that Farris fatally stabbed another youth in the back without provocation during a street gang fight.” Id. at 252, 278 A.2d at 907. After the Family Court judge held the matter for further proceedings and the juvenile was subsequently indicted by a grand jury for murder, the defendant filed a petition for pre-trial bail which was denied by a trial judge in the Criminal Section of the Common Pleas Court. In affirming the denial of bail, the Supreme Court held:

Since evidence offered at the preliminary hearing in the Family Court Division established a prima facie case of murder in the first degree, the court below did not err in refusing to release Farris on bail pending trial, and its order to this effect will be affirmed.

Id. at 253, 278 A.2d at 907.

Thirteen years after Farris, the Superior Court of Pennsylvania also applied a prima facie standard in determining a defendant’s eligibility for bail under Article I, § 14 and 42 Pa.C.S.A. § 5701. In Heiser, supra, the Superior Court cited Farris and Alberti as controlling authority and expressly held that the Commonwealth “can satisfy its burden to prove that a defendant is not entitled to bail by establishing a prima facie case of murder in the first degree.” Heiser, 330 Pa. Super. at 72-73, 478 A.2d at 1356.

No appellate court in Pennsylvania has considered the Commonwealth’s burden of proof under Article I, § 14 and 42 Pa.C.S.A. § 5701 since the 1984 decision in Heiser. During that thirty-two year period, several common pleas courts have reached conflicting conclusions regarding the appropriate standard of proof. In Com. v. Scarfo, 43 Pa. D. & C. 3d 339 (Phila. Co. 1987), the Philadelphia County


court applied the prima facie standard in denying the petition for bail that was filed by a capital case defendant. Id. at 341-342. Other trial courts have held, albeit without reference to Alberti and its progeny, that defendants charged with first-degree murder are automatically ineligible for bail. See, e.g., Com. v. Levanduski, 2003 WL 25600033, at * 9 (Monroe Co. 2003) (“Defendant has been charged with criminal homicide, a felony of the first degree, an offense for which the maximum sentence is life imprisonment. Thus, Article I, § 14 of the Pennsylvania Constitution does not provide for bail.”); Com. v. Quinn, 2002 WL 34400888, at * 8 (Del. Co. 2002) (“Defendant was charged with murder under 18 Pa.C.S.A. § 2502(a), (b) and (c) and faced a potential life sentence. Under the 1998 amendments to Article I, Section 14 of the Pennsylvania Constitution, Defendant was not eligible for bail.”).

However, in Com. v. Hamborsky, 75 Pa. D. & C. 4th 505 (Fayette Co. 2005), the court concluded that an automatic denial of bail under Article I, § 14, based solely on the potential penalty, was “irrational, unreasonable, and discriminatory” and violative of the Eighth Amendment to the United States Constitution. Id. at 513-515. The Fayette County court rejected the prima facie standard as too low of a level of proof, Id. at 515-516 & n. 1, and reasoned that the trial judge must instead conduct a bail hearing and decide whether the evidence presented demonstrates the “likelihood of a conviction, and how that bears on the likelihood of flight.” Id. at 517. In support of its conclusion, the Hamborsky court cited two unpublished common pleas court decisions, Com. v. Ebersole, No. 106 C 2003 (Bedford Co. 2003), and Com. v. Long, No. 4201 C 1999 (Westmoreland Co. 2002), which reportedly rejected the prima facie analysis as the appropriate standard of review for bail requests under Article I, § 14. Id. at 515-516 & n.1.

Hamborsky also declared that “potential defenses must


be considered at a bail hearing.” Id. at 517. Observing that “[o]nce self-defense has been raised, the Commonwealth must prove beyond a reasonable doubt that the defendant was not acting in justifiable self-defense,” it concluded that “[d]isproving self-defense becomes an additional element of the offense” of first-degree murder. Id. (emphasis in original). Based upon the evidence that was submitted by the prosecution in that case, the Hamborsky court found that “the Commonwealth has not shown that the ‘proof is evident or presumption great’ that Hamborsky did not act in self-defense,” and, therefore, it held that “the defendant is bailable under Article I, Section 14 of the Pennsylvania Constitution.” Id. at 520.

Several years later, the trial court in Com. v. O’Shea-Woomer, 8 Pa. D. & C. 5th 178 (Lanc. Co. 2009) analyzed “when the proof is evident or presumption great” in connection with a request for bail by a defendant who was charged with first-degree murder. The Lancaster County court construed Alberti as making “a distinction between the Commonwealth’s burden of proof at a preliminary hearing and at a bail hearing.” Id. at 219. In finding that the Commonwealth was obligated to establish more than a prima facie case, the court observed “that the language ‘proof is evident or presumption great’ means something more than prima facie evidence, for to read it in this manner would do nothing to advance the constitutional rights of the accused, since a suspect may not be held without a showing of prima facie evidence in any case.” Id. at 222. Citing Hamborsky, it opined that “the plain language of the evident proof standard in Article I, Section 14 suggests a ‘clear and convincing’ standard,” which “requires evidence that is ‘so clear, direct, weighty, and convincing that the trier of fact could come to a clear conviction, without hesitating, concerning the facts at issue.’” Id. at 223. The trial court in O’Shea-Woomer stated that “[t]his heightened standard of proof provides significant protection to the accused before bail is denied.” Id.


In Pal, supra, we addressed the applicable burden of proof governing applications for bail under Article I, § 14 of the Pennsylvania Constitution, and concluded:

The trial courts in Hamborsky and O’Shea-Woomer articulate thoughtful policy arguments why bail requests under Article I, § 14 of the Constitution should be decided based upon a standard of review other than the prima facie test. However, the only appellate authority directly addressing the controlling standard has identified a prima facie case of first degree murder as the Commonwealth’s appropriate burden of proof. See Farris, supra; Heiser, supra. Unlike the courts in Hamborsky and O’Shea-Woomer, we do not interpret Alberti as requiring clear and convincing evidence of guilt, rather than a prima facie case. In describing the governing standard of proof, Alberti references “the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom,” as being “sufficient in law to sustain a verdict in the first degree.” Alberti, 412 Pa. at 400-401, 195 A.2d at 98 (emphasis added). A trial court is obligated “to consider all reasonable inferences based on [the Commonwealth’s] evidence which could support a guilty verdict” when deciding whether a prima facie case has been established. See Com. v. Winger, 957 A.2d 325, 328 (Pa. Super. 2008). Thus, the clear directive in Alberti that the reviewing court should consider the Commonwealth’s evidence “together with all reasonable inferences therefrom” reflects that the prima facie standard, as opposed to a more demanding “clear and convincing evidence” requirement, is the appropriate standard of review in determining “when the proof is evident or presumption great.”

Pal, 34 Pa. D. & C. 5th at 551-552. As a result, and in compliance with Farris and Heiser, the evidentiary record that has been submitted by the Commonwealth in this case


will be examined to determine whether it establishes a prima facie case of first-degree murder against Schulze.

(C) PRIMA FACIE PROOF OF FIRST-DEGREE MURDER

A prima facie case consists of evidence which, when read in the light most favorable to the Commonwealth, sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Com. v. Black, 108 A.3d 70, 77 (Pa. Super. 2015). The prima facie standard does not require the Commonwealth to prove the elements of the crime beyond a reasonable doubt. Com. v. Lees, 1135 A.3d 185, 190 (Pa. Super. 2016); Com. v. Serge, 102 Lacka. Jur. 715, 718 (2001). Rather, a prima facie case in support of an accused’s guilt consists of evidence that, if accepted as true, would justify submission of the case to a jury. Com. v. Huggins, 575 Pa. 395, 402, 836 A.2d 862, 866 (2003), cert. denied, 541 U.S. 1012 (2004); Com. v. Roupp, 101 Lacka. Jur. 182, 186 (1999). In determining the presence or absence of a prima facie case, the prosecution must be afforded the benefit of all inferences reasonably drawn from the evidence which would support a guilty verdict. Com. v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012); Pal, 34 Pa. D. &C. 5th at 553.

The elements of first-degree murder are that: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. Com. v. Woodard, 129 A.3d 480, 490 (Pa. 2015). Section 2502 of the Crimes Code identifies murder of the first degree as an “intentional killing,” which, in turn, is defined as a “willful, deliberate and premeditated killing.” 18 Pa. C.S. § 2502(a), (d). “’Premeditation and deliberation exist whenever the assailant possesses the conscious purpose to bring about death’ and ‘can be formulated in a fraction of a second.’” Com. v. Cash, 2016 WL 3002910, at *4 (Pa. 2016) (quoting Com. v. Jordan, 619 Pa. 513, 522, 65


A.3d 318, 323 (2013), cert. denied, 134 S.Ct. 1275 (U.S. 2014)).

The specific intent to kill does not require “previous thought or any particular length of time” and “can occur quickly.” Com. v. Eichinger, 108 A.3d 821, 844 (Pa. 2014); Com. v. Gibson, 597 Pa. 402, 454, 951 A.2d 1110, 1141 (2008). “The Commonwealth may prove specific intent through purely circumstantial evidence.” Com. v. Haney, 131 A.3d 24, 36 (Pa. 2015). “It is well-settled that specific intent to kill can be established through circumstantial evidence such as the use of a deadly weapon on a vital part of the victim’s body.” Com. v. Johnson, 107 A.3d 52, 66 (Pa. 2014), cert. denied, 136 S.Ct. 43 (U.S. 2015); Com. v. Burno, 626 Pa. 30, 52, 94 A.3d 956, 969 (2014), cert. denied, 135 S.Ct. 1493 (U.S. 2015).

Malice exists if “the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury.” Com. v. Packer, 2016 WL 3613038, at *3 (Pa. Super. 2016). “Malice may be inferred by considering the totality of the circumstances.” Com. v. Thompson, 106 A.3d 742, 757 (Pa. Super. 2014), app. denied, 134 A.3d 56 (Pa. 2016). Like the specific intent to kill, “[m]alice may be inferred from the use of a deadly weapon on a vital part of the victim’s body.” Com. v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (quoting Com. v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (en banc), app. denied, 618 Pa. 688, 57 A.3d 70 (2012)).

The Commonwealth’s evidence, as presented through Moncrief, Mr. Dietz, the videotaped surveillance, the audio recordings of the 911 calls, the autopsy findings, and the testimony by Troopers Edward McCarthy and Carl Ives, indicates that although Moncrief and Molinaro were, at most, loud and noisy on a public roadway and sidewalk, they did not engage in any conduct that constituted a criminal offense or otherwise provided probable cause to


believe that a criminal offense was committed by them. Assuming arguendo that Schulze had the authority to perform police functions within Carbondale even though he was off-duty, see Com. v. Schwenk, 777 A.2d 1149, 1153-1154 (Pa. Super. 2001), he had no lawful reason to pursue Molinaro or to attempt to effectuate an arrest. (See n.4, supra). Furthermore, rather than utilize his readily available duty belt equipment to subdue or arrest Molinaro if Schulze subjectively believed, albeit erroneously, that Molinaro had committed a chargeable offense, Schulze willingly opted to retrieve his loaded gun from a locked safe since it was his practice to be armed “any time that I encounter somebody and it’s not ‘hey, how are you doing’....”

The evidence submitted by the Commonwealth established that after Molinaro departed the vicinity of Schulze’s apartment, Schulze did not permit Molinaro to proceed unabated as Schulze had done on New Years Day morning when their unpleasant interaction concluded safely and without incident. Instead, Schulze chose to pursue Molinaro for 743 feet with a loaded Glock pistol pointed at Molinaro despite the fact that Schulze had no basis to arrest or pursue him. (See n.4, supra). Additionally, even though Molinaro was unquestionably unarmed and had his hands raised as he stated “whoa, whoa, whoa, wait,” Schulze fired his weapon three times at Molinaro while they were separated by 7 to 15 feet. Under the circumstances as presented by the Commonwealth, Schulze’s use of a deadly weapon on a vital part of Molinaro’s body provides circumstantial proof of the elements of malice and the specific intent to kill that are necessary to sustain a conviction for first-degree murder.

The Commonwealth’s evidence, if accepted as true pursuant to the prima facie standard, also negates the applicability of any statutory grounds for the justifiable use of deadly force, as alleged by Schulze. The provision of the


Municipal Police Jurisdiction Act cited by Schulze does not address the use of deadly force, and merely concerns the jurisdictional authority of a “duly employed municipal police officer...to enforce the laws of this Common wealth...anywhere within his primary jurisdiction” if the officer observes the commission of a crime or other event requiring police action to protect people or property. 42 Pa.C.S.A. § 8952. See also Mover v. Com., Department of Transp., Bureau of Driver Licensing, 28 A.3d 943, 945-946 (Pa. Cmwlth. 2011). Nothing contained in that statute furnished a basis for Schulze’s use of deadly force against Molinaro based upon the evidence proffered by the Commonwealth.

Section 508 of the Crimes Code concerns a police officer’s justifiable use of deadly force, but only in connection with making “a lawful arrest.” 18 Pa.C.S.A. § 508(a)(1). The Commonwealth’s proof demonstrates that Schulze lacked any grounds to pursue Molinaro or attempt to arrest him for any unidentified offense, let alone “make a lawful arrest.” In addition, an officer effectuating a lawful arrest is justified in using deadly force under Section 508 only where “such force is necessary to prevent death or serious bodily injury,” or “to prevent the arrest from being defeated by resistance of escape” and “the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.” 18 Pa.C.S.A. § 508(a)(l)(i)-(ii). As per the evidence introduced by the Commonwealth, no such circumstances existed in this case.

Equally inapplicable are subsections (c) and (d) of Section 508 relating to the “[u]se of force regarding escape” and “[u]se of force to prevent suicide or the commission of crime.” Section 508 authorizes a police officer’s use of deadly force to prevent the escape of a person in custody,


under the extenuating circumstances identified in Section 508(a), supra, but only if the police officer “has an arrested or convicted person in his custody.” 18 Pa.C.S.A. § 508(c)(1). Schulze never had custody of an arrested or convicted person on February 2, 2016. The relevant language in Section 508(d) references justifiable use of deadly force to prevent “the commission of a crime” if there is a substantial risk that the criminal offender will otherwise cause death or serious bodily injury or it “is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disburse and warned.” 18 Pa.C.S.A. § 508(d)(1). Once again, inasmuch as the Commonwealth’s evidence does not support “the commission of a crime” by Molinaro and any of the aggravating factors described in Section 508(d)(l)(ii)(A)-(B), that statutory provision is likewise inapplicable.7

Examining the evidence in the light most favorable to the Commonwealth and affording it the benefit of all supporting inferences to be drawn from that evidence, it establishes that Schulze unlawfully killed Molinaro with malice and the specific intent to kill, as evidenced by his use of a Glock pistol to fire three shots at Molinaro, with one bullet entering Molinaro’s abdomen and a second bullet entering the front of his upper left thigh and exiting the rear of his thigh. (T.P. 4/15/16 at pp. 69-70). Consequently, the Commonwealth has established a prima facie case of first-degree murder against Schulze.

7. While not raised by Schulze in his submission or argument, Section 505 of the Crimes Code similarly has no application. The Supreme Court has held that 18 Pa.C.S.A. § 505, addressing the “[u]se of force in self-protection,” does not apply if the shooting victim was not carrying a weapon and the shooter could have avoided the confrontation by not pursuing the victim down the street and ultimately shooting him. See Com. v. Busanet, 618 Pa. 1, 51, 54 A.3d 35, 28 (2012), cert. denied, 134 S. Ct. 178 (U.S. 2013). Nor is that statute applicable if the evidence demonstrates that the shooting victim “raised his arms and backed away” after being the initial aggressor or the shooter could have retreated safely without the use of deadly force. See Com. v. Mouzon, 617 Pa. 527, 541, 53 A.3d 728, 746 (2012).


As a result, Schulze is ineligible for bail under Article I, Section 14 of the Pennsylvania Constitution and 42 Pa.C.S. § 5701. Accordingly, his petition to set bail will be denied.

ORDER

AND NOW, this 8th day of July, 2016, upon consideration of defendant’s “Emergency Petition to Set Bail and/or Modify Bail,” the Commonwealth’s response thereto, the memoranda of law submitted by counsel, and the evidence presented during the bail hearing, and based upon the reasoning set forth in the foregoing Memorandum, it is hereby ORDERED and DECREED that the “Emergency Petition to Set Bail and/or Modify Bail” filed by Defendant, Francis Schulze, is DENIED.


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