J-A09025-15

2015 PA Super 119

TIMOTHY CRISWELL, EXECUTOR OF 

THE ESTATE OF EARL J. CRISWELL, 

DEC’D,

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

Appellant :

:

v. :

:

ATLANTIC RICHFIELD COMPANY AND 

SUNOCO, INC. (R&M),

:

:

:

Appellees : No. 2175 EDA 2014

Appeal from the Order entered May 27, 2014,

Court of Common Pleas, Philadelphia County,

Civil Division at No. 3789 April Term, 2012

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.: FILED MAY 18, 2015

Timothy Criswell (“Criswell”), as the executor of the estate of Earl J. 

Criswell (“Decedent”), appeals from the orders of court granting summary 

judgment in favor of appellees Atlantic Richfield Company (“Atlantic”) and 

Sunoco, Inc. (“Sunoco”) (collectively, “Appellees”). Following our review, we 

reverse. 

This case involves negligence claims brought by Criswell under the 

Jones Act, 46 U.S.C.A. § 30104,1against multiple defendants, claiming that 

 

1

“It is established that the courts of this Commonwealth have concurrent 

jurisdiction with federal courts to try actions brought under the Jones Act for 

injuries sustained, and for maintenance and cure[,] under traditional 

maritime law.” Richards v. Dravo Corp., 375 A.2d 750, 752 (Pa. Super. 

1977). Further, the Jones Act provides that the rules of liability established 
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exposure to asbestos during his time as a member of the Merchant Marine 

caused him to develop lung cancer. Specifically, Criswell alleges negligence 

on the part of Appellees because they required Decedent to work with 

asbestos aboard their vessels when they knew it was hazardous to his health 

and they did not warn him of this danger. Following the close of discovery, 

all defendants moved for summary judgment. Relevant to this appeal, 

Appellees sought summary judgment on the basis that Criswell could not 

prove exposure to asbestos on their ships. Atlantic’s Motion for Summary 

Judgment, 3/11/14, at 1; Sunoco’s Motion for Summary Judgment, 3/11/14, 

at 1. The trial court granted Atlantic’s and Sunoco’s motions for summary 

judgment only. The claims against the remaining defendants were settled 

prior to trial. Criswell then filed this timely appeal, in which he presents the 

following two issues for our review:2

1. Did the [trial] court err by disregarding evidence 

of [] Decedent’s extensive exposure to asbestos 

insulation while serving as a merchant seaman 

aboard [Appellees’] tankers?

2. Did the [trial] court err when it held that 

[Criswell] had failed to prove [Appellees] 

“negligent, however slight” under the Jones Act?

Criswell’s Brief at 4. 

 

under the Federal Employers’ Liability Act (“FELA”) will apply in a negligence 

action brought thereunder. Id. at 752 n.1. 

2 The trial court did not order Criswell to file a statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). 
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We begin with our standard of review:

[O]ur standard of review of an order granting 

summary judgment requires us to determine 

whether the trial court abused its discretion or 

committed an error of law. Our scope of review is 

plenary. In reviewing a trial court’s grant of 

summary judgment, we apply the same standard as 

the trial court, reviewing all the evidence of record to 

determine whether there exists a genuine issue of 

material fact. We view the record in the light most 

favorable to the non-moving party, and all doubts as 

to the existence of a genuine issue of material fact 

must be resolved against the moving party. Only 

where there is no genuine issue as to any material 

fact and it is clear that the moving party is entitled 

to a judgment as a matter of law will summary 

judgment be entered. All doubts as to the existence 

of a genuine issue of a material fact must be 

resolved against the moving party.

***

Upon appellate review, we are not bound by the trial 

court’s conclusions of law, but may reach our own 

conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-98 (Pa. Super. 2012) 

(internal citations omitted). 

Rule of Civil Procedure 1035 governs motions for summary judgment 

and provides, in relevant part, as follows:

After the relevant pleadings are closed, but within 

such time as not to unreasonably delay trial, any 

party may move for summary judgment in whole or 

in part as a matter of law

(1) whenever there is no genuine issue of any 

material fact as to a necessary element of the cause 

of action or defense which could be established by 

additional discovery or expert report, or
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(2) if, after the completion of discovery relevant to 

the motion, including the production of expert 

reports, an adverse party who will bear the burden 

of proof at trial has failed to produce evidence of 

facts essential to the cause of action or defense 

which in a jury trial would require the issues to be 

submitted to a jury.

Pa.R.C.P. 1035.2. This Court has explained the application of this rule as 

follows: 

Motions for summary judgment necessarily and 

directly implicate the plaintiff’s proof of the elements 

of a cause of action. Summary judgment is proper if, 

after the completion of discovery relevant to the 

motion, including the production of expert reports, 

an adverse party who will bear the burden of proof 

at trial has failed to produce evidence of facts 

essential to the cause of action or defense which in a 

jury trial would require the issues to be submitted to 

a jury. In other words, whenever there is no 

genuine issue of any material fact as to a necessary 

element of the cause of action or defense, which 

could be established by additional discovery or 

expert report and the moving party is entitled to 

judgment as a matter of law, summary judgment is 

appropriate. Thus, a record that supports summary 

judgment either (1) shows the material facts are 

undisputed or (2) contains insufficient evidence of 

facts to make out a prima facie cause of action or 

defense. 

Petrina, 46 A.3d at 798. 

Criswell first argues, essentially, that the trial court failed to view the 

evidence in the light most favorable to him when it determined that he failed 

to establish Decedent’s exposure to asbestos on Appellees’ ships. We agree. 

In granting Appellees’ motions for summary judgment, the trial court 

concluded that Criswell had failed to establish exposure to asbestos 
J-A09025-15

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“sufficient to cause the disease” by focusing solely on discrete portions of 

Decedent’s testimony.3 It reasoned as follows: 

[W]hen asked[,] [Decedent] admitted that he has no 

special training in identifying asbestos by sight. See

Dep at p 531. [Decedent] was also unable to look at 

dust and determine whether it contained asbestos. 

Id. Yet, when testifying in connection with exposure 

from [Atlantic], [Decedent] testified that he believed 

the steam lines he worked on were covered in 

asbestos “because it's a very serious thing to have 

pipes that are not covered with some type of 

asbestos, especially if it's high pressure or high 

temperature.” Id. at 590. 

When testifying in connection with [Sunoco], 

[Decedent] admitted he did not personally handle 

insulation material. Id. at 1132. He admitted he 

didn’t know if the insulation material contained 

asbestos. Id. at 1166. [Decedent] further admitted 

that he did not see any writing on the old material 

that were [sic] removed, and that his only basis for 

believing the replacement components contained 

asbestos was their high heat application. Id. at 

1170.

The [sic] type of testimony is precisely the type of 

testimony that is too speculative to be accepted by 

this court. In Samarin v. GAF Corp[.], [] 571 A.2d 

398 ([Pa. Super.] 1989), alloc. denied, [] 574 A.2d 

71 ([Pa.] 1990), the Superior Court held that 

evidence of a materials high heat application is 

insufficient to support the conclusion that the 

product contained asbestos. The Superior Court 

further held that “without more facts, it is not 

reasonable for the trial court to infer that the 

products must have contained asbestos because they 

were heat resistant.” Id. at 403[;] [s]ee also 

 

3 That the trial court couched its finding in terms of exposure “sufficient to 

cause the disease” is telling of its additional failure to apply the correct 

standard regarding causation, which we discuss infra. 
J-A09025-15

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Bushless v. GAF Corp., 585 A.2d 496 (Pa. Super. 

1990). Here, Plaintiff is relying on high heat 

application without further evidence just as in the 

aforementioned cases. Therefore [s]ummary 

[j]udgment is proper. 

Trial Court Opinion, 9/22/14, at 3. 

It is apparent that the trial court found that the only evidence Criswell 

produced to establish Decedent’s exposure to asbestos was Decedent’s 

testimony that he assumed the materials contained asbestos because they 

could withstand high temperatures, and the trial court concluded that this 

alone is an insufficient basis upon which to infer that the materials 

contained asbestos. This is an accurate statement of the law, in the 

abstract. See Samarin, 571 A.2d at 404 (“[W]ithout more facts, it is not 

reasonable for the trial court to infer that these products must have 

contained asbestos because they were heat resistant.”) (emphasis in the 

original). In this case, however, Criswell presented other evidence regarding 

Decedent’s exposure to asbestos. 

Decedent testified that he worked on Atlantic vessels for 

approximately five years; first as an oiler for about six months and then as a 

pump man. Response to Atlantic’s Motion for Summary Judgment, 3/27/14, 

Exhibit F at 72-73. As the pump man, Decedent was responsible for 

maintaining “all the main cargo pumps, all the valves in the tanks, steam 

smothering system, CO2 system.” Id. at 74. In that capacity, he worked 

with insulation that went around the steam lines and valves. Id. at 75. To 
J-A09025-15

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perform repairs on the insulation, Decedent had to cut molded insulation and 

mix a mortar to fill in holes. Id. at 79-80. Decedent used a bag of loose 

material labeled “asbestos” to make this mortar. Id. at 80, 718-19. 

Decedent testified that when using the loose asbestos, “you tried to be 

careful, stay out of the wind. ... The wind blowing up, you would try to be 

careful. ... [I]t was annoying to get on you. It was sticky and itchy ... .” Id. 

Decedent also stated that vibrations would cause dust from deteriorating 

insulation to fall off and that “seven days a week, twenty four hours a day it 

was in the air.” Id. at 586-89. These materials were kept in a designated 

asbestos locker, which served in part to prevent the loose asbestos from 

blowing around. Id. at 723-24. Inexplicably, the trial court ignored this 

clear evidence of exposure to asbestos. Viewing it in the light most 

favorable to Criswell, and resolving all doubts as to the existence of a 

genuine issue of material fact against Atlantic, we conclude that this is 

evidence of Decedent’s exposure to asbestos on Atlantic’s ships. 

Decedent also testified that he worked on Sunoco vessels following his 

discharge from the Navy in 1946 until 1953. Response to Sunoco’s Motion 

for Summary Judgment, 3/27/14, Exhibit D at 59; Exhibit F. Decedent 

testified that he would mix loose asbestos into a mortar to repair insulation 

of the steam lines on Sunoco ships. Id., Exhibit D at 69-70.4 He testified 

 

4 The trial court overlooked this testimony when it concluded that with 

regard to Sunoco, “[Decedent] admitted he did not personally handle 
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that he worked with pre-fabricated asbestos insulation that was molded into 

half-moon shapes, which he then placed on steam lines, bound with wire, 

coated and painted. This process created dust from the insulation, which he 

inhaled. Id. at 67-68. Decedent also testified that he would remove 

cracked and broken insulation and replace it with molded asbestos, which he 

would cut to the appropriate size. Id. at 826-28, 834-35. According to 

Decedent, the engine rooms were insulated with asbestos, and vibrations 

through the ship caused dust from the insulation to fall. Id. at 66. When he 

worked as a wiper on Sunoco vessels, he swept up the insulation that had 

been removed. Id. at 1164-65. 

Unlike on the Atlantic ships, Decedent did not testify that he worked 

with any item labeled “asbestos” on a Sunoco vessel. Nevertheless, he did 

testify that Sunoco ships had turbines manufactured by General Electric and 

that he worked with insulation for these turbines. Id. at 738-44. Decedent 

also produced documents from General Electric, dated November 1958, 

titled “General Specifications for Heat Retention Materials” and specifically 

indicated for its steam turbines. Response to Sunoco’s Motion for Summary 

Judgment, 3/27/14, Exhibit I. These documents state that asbestos was a 

 

insulation material. Trial Court Opinion, 9/22/14, at 3. The testimony the 

trial court cited in support of this conclusion actually indicates that Decedent 

did not install this material during the short period he held the position of 

wiper. N.T., 6/5/12, at 1132. Decedent testified that he was promoted from 

the position of wiper after approximately his first year or two with Sunoco. 

Id. at 1167-68. 
J-A09025-15

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component of the insulation materials referred to as “plastic insulating 

cement” and “pre-formed sectional pipe insulation” and also, obviously, a 

material referred to as “sprayed asbestos.” Id. Decedent testified that 

fixing or replacing the insulation materials that covered the turbines released 

particles therefrom into the air. Response to Sunoco’s Motion for Summary 

Judgment, 3/27/14, Exhibit D at 744. This evidence, when considered in the 

light most favorable to Criswell, is evidence of Criswell’s exposure to 

asbestos on Sunoco vessels.5

In his second issue, Criswell argues that the trial court applied the 

wrong standard for negligence when concluding that he failed to put forth 

evidence to establish causation. We agree. The trial court began from the 

premise that “[i]n order to establish causation in an asbestos claim under 

the Jones Act, a plaintiff must show that ... the product was a substantial 

 

5 Sunoco argues that Decedent’s basis for belief that he was exposed to 

asbestos aboard its ships was that the material he worked with could 

withstand high temperatures and that this is insufficient to overcome its 

summary judgment motion. Sunoco’s Brief at 17. There is no merit to this 

claim, as we have just established that Criswell produced other evidence of 

Decedent’s exposure to asbestos on its ships. Sunoco also argues that 

Decedent believed that he worked with asbestos because the ships’ 

engineers told him it was asbestos. Sunoco argues that this evidence is 

hearsay and therefore incompetent to overcome its motion for summary 

judgment. Id. at 19. The trial court did not address this evidentiary issue, 

and we need not consider it now. As our discussion indicates, the record 

contains additional evidence to support a finding of exposure to asbestos, 

and so we do not need to consider the competency of this particular 

testimony. That is to say, even if Sunoco’s argument is correct, there is 

other competent evidence that establishes exposure to asbestos on its 

vessels. 
J-A09025-15

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factor in causing the injury he suffered.” Trial Court Opinion, 9/22/14, at 2 

(citing Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488 (6th Cir. 

2005)).6 This is incorrect. To prove causation under the Jones Act, a 

plaintiff need only prove “whether the employer’s negligence played any 

part, however slight, in causing the injury.” Richards, 375 A.2d at 752 n.2; 

see also CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (U.S. 

2011) (“Under [FELA] the test of a jury case is simply whether the proofs 

justify with reason the conclusion that employer negligence played any part, 

even the slightest, in producing the injury or death for which damages are 

sought.”).7 As recounted above, Criswell established exposure to asbestos 

on Appellees’ vessels. Criswell has also produced an expert report by Arthur 

Frank, M.D., Ph.D., in which Dr. Frank opined that Decedent developed 

asbestos-related pleural disease, called by some 

pleural asbestosis, based upon the prior history of 

exposures [to asbestos] as well as the radiographic 

findings. Secondly, and more importantly, he 

developed and then died from lung carcinoma that 

was caused by his exposures in combination with his 

habit of cigarette smoking. The cumulative 

exposures he had to asbestos, from any and all 

 

6 As noted by Criswell, Lindstrom is a products liability case and does not 

involve a claim brought under the Jones Act. 

7 More specifically, this relaxed standard of causation means that under the 

Jones Act, a plaintiff does not have to prove that the defendant’s negligence 

was the proximate cause of its injury. The Jones Act plaintiff need only 

establish that negligence of the employer played any part at all in bringing 

about the injury. CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2638 

(U.S. 2011). 
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products, containing and [sic] any fiber type, would 

have given rise to these two conditions. 

Response to Atlantic’s Motion for Summary Judgment, 3/27/14, Exhibit O at 

2; Response to Sunoco’s Motion for Summary Judgment, 3/27/14, Exhibit M 

at 2. This evidence is sufficient to meet the relaxed causation standard 

employed under the Jones Act; that is, it is sufficient to “justify with reason 

the conclusion that employer negligence played any part, even the slightest, 

in producing the injury or death for which damages are sought.” CSX 

Transp., 131 S. Ct. at 2636. 

In sum, the trial court failed to view the evidence in the light most 

favorable to Criswell and applied the wrong standard for causation for a 

negligence claim under the Jones Act. In both respects, it misapplied the 

law. Our review of the record reveals that Appellees’ summary judgment 

motions should have been denied, and so we reverse the trial court’s 

determination. 

Orders reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2015