J-A05008-15

2015 PA Super 82

NORMAN J. STERLING AND LAURA M. 

STERLING, H/W

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

P&H MINING EQUIPMENT, INC. A/K/A 

JOY GLOBAL SURFACE MINING, INC.

Appellee No. 1006 EDA 2014

Appeal from the Order Entered February 24, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): October Term, 2012 No. 3461

BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.

OPINION BY GANTMAN, P.J.: FILED APRIL 17, 2015

Appellants, Norman J. Sterling and Laura M. Sterling, H/W, appeal 

from the order entered in the Philadelphia County Court of Common Pleas, 

which entered summary judgment in favor of Appellee, P&H Mining 

Equipment, Inc. (“P&H”). We affirm. 

In its opinion, the trial court set forth the relevant facts and procedural 

history of this appeal as follows:

On October 24, 2012, [Appellants] commenced this suit 

against fifty-eight (58) defendants, alleging [Appellant] Mr. 

Sterling developed lung cancer [and asbestos-related lung 

diseases] from his exposure to various asbestos-containing 

products while employed by Bethlehem Steel Corporation 

from roughly 1952 to 1979. With respect to P&H, 

[Appellants] claimed [Appellant] Mr. Sterling was exposed 

to asbestos-containing component parts of P&H cranes 

used in Bethlehem Steel’s “beam yard” (shipping yard). At 
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his October 22-23, 2014 deposition, [Appellant] Mr. 

Sterling described his work loading, unloading, and 

operating cranes, including some P&H cranes, in the beam 

yard from approximately 1969 to 1978. 

On December 23, [2013], P&H filed its Motion for 

Summary Judgment, arguing [Appellants] could not show 

[Appellant] Mr. Sterling was exposed to asbestos from its 

cranes. In their Answer, [Appellants] claimed [Appellant] 

Mr. Sterling’s testimony, and the prior testimony of other 

Bethlehem Steel employees, showed [Appellant] Mr. 

Sterling inhaled dust from brakes and wiring on P&H 

cranes, and P&H had previously admitted said brakes and 

wiring contained asbestos. 

On February 24, 2014, the [c]ourt granted P&H’s Motion, 

finding [Appellants] failed to produce sufficient evidence 

[Appellant] Mr. Sterling inhaled asbestos fibers from 

component parts of P&H cranes. On February 26, 2014, 

this matter settled as to all remaining defendants. 

(Trial Court Opinion, filed August 18, 2014, at 1-2) (internal citations to the 

record omitted). Appellants filed a timely notice of appeal on March 18, 

2014. On April 2, 2014, Appellants filed a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellants raise a single issue for our review:

DID THE [TRIAL] COURT ERR IN FAILING TO RESOLVE ALL 

CONTESTED ISSUES IN FAVOR OF THE NON-MOVING 

PARTY INCLUDING ALL REASONABLE INFERENCES, WHEN 

EVIDENCE OF [APPELLANT MR. STERLING] WORKING ON, 

UNDER, AND IN P&H OVERHEAD CRANES AT BETHLEHEM 

STEEL WAS DISREGARDED?

(Appellants’ Brief at 1). 

In their sole issue, Appellants argue that during his tenure at 

Bethlehem Steel, Appellant Mr. Sterling worked on, under, and inside P&H 
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cranes. Appellants contend that by P&H’s own admission, its cranes 

contained parts made with asbestos, including the brakes and wiring. 

Appellants assert Appellant Mr. Sterling’s job duties constantly put him in 

the direct vicinity of P&H cranes, and he and his coworkers frequently saw 

dust produced by the cranes’ asbestos-containing brakes. For example, 

Appellants claim that Appellant Mr. Sterling’s duties as a crane man required 

him to assist the repairmen who regularly performed dust-producing 

maintenance on the brakes. Appellants suggest this brake dust continuously 

“filled the air surrounding [Appellant] Mr. Sterling at Bethlehem Steel.” 

(Appellant’s Brief at 5). Appellants aver that Appellant Mr. Sterling 

subsequently developed lung cancer due to asbestos inhalation. Appellants 

conclude they produced sufficient evidence for a jury to consider whether 

Appellants proved a causal connection between P&H cranes and Appellant 

Mr. Sterling’s lung cancer, and this Court should reverse summary judgment 

in favor of P&H. We disagree. 

Our standard of review of an order granting summary judgment 

requires us to determine whether the trial court abused its discretion or 

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 

347 (Pa.Super. 2006). In reviewing a trial court’s grant of summary 

judgment:

[W]e apply the same standard as the trial court, reviewing 

all the evidence of record to determine whether there 

exists a genuine issue of material fact. We view the record 

in the light most favorable to the non-moving party, and 
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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. 

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [a] cause 

of action. Summary judgment is proper if, after the 

completion of discovery relevant to the motion, including 

the production of expert reports, an adverse party who will 

bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or 

defense which in a jury trial would require the issues to be 

submitted to a jury. In other words, whenever there is no 

genuine issue of any material fact as to a necessary 

element of the cause of action or defense, which could be 

established by additional discovery or expert report and 

the moving party is entitled to judgment as a matter of 

law, summary judgment is appropriate. Thus, a record 

that supports summary judgment either (1) shows the 

material facts are undisputed or (2) contains insufficient 

evidence of facts to make out a prima facie cause of action 

or defense. 

Upon appellate review, we are not bound by the trial 

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

conclusions. 

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) 

(internal citations and quotation marks omitted). 

Additionally, in an asbestos case:

[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. Therefore, a plaintiff must 

establish more than the presence of asbestos in the 

workplace; he must prove that he worked in the vicinity of 
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the product’s use. Summary judgment is proper when the 

plaintiff has failed to establish that the defendants’ 

products were the cause of plaintiff’s injury.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa.Super. 2014). See also 

Vanaman v. DAP, Inc., 966 A.2d 603, 607 (Pa.Super. 2009) (en banc) 

(stating plaintiff must establish in asbestos case that injuries were caused by 

product of particular manufacturer or supplier). 

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 v. GAF Corp., 544 

A.2d 50 (Pa.Super. 1988), appeal denied, 520 Pa. 605, 553 A.2d 968 (1988) 

(stating whether plaintiff can defeat summary judgment motion depends on 

frequency of use of asbestos product and regularity of plaintiff’s employment 

in proximity to product). “[I]t 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 v. V-J Auto Parts, 

Co., 596 Pa. 274, 292, 943 A.2d 216, 227 (2007). Nevertheless, the criteria 

of frequency, regularity, and proximity “do not establish a rigid standard 

with an absolute threshold necessary to support liability.” Id. at 290, 943 

A.2d at 225. 
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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. [A]pplication of the test should be tailored to the 

facts and circumstances of the case, such that, for 

example, its application should become somewhat less 

critical where the plaintiff puts forth specific evidence of 

exposure to a defendant’s product. Similarly, ...the 

frequency and regularity prongs become somewhat less 

cumbersome in cases involving diseases that the plaintiff’s 

competent medical evidence indicates can develop after 

only minor exposures to asbestos fibers.

Id. (internal citations and quotation marks omitted). 

Instantly, the trial court reasoned as follows:

In this case, P&H was entitled to summary judgment. 

Even assuming the P&H cranes at Bethlehem Steel 

contained asbestos brakes and wiring, there was 

insufficient evidence from which to infer [Appellant] Mr. 

Sterling inhaled asbestos fibers from said brakes and 

wiring. 

* * *

[Appellant] Mr. Sterling’s deposition testimony regarding 

his work with and around P&H cranes was insufficient to 

show he inhaled asbestos dust from the cranes’ wiring or 

brakes. [Appellant] Mr. Sterling testified his work on 

cranes, including P&H cranes, consisted of loading and 

unloading steel from the cranes as a “chain man” and 

operating the cranes from cabs as a “crane man.” He 

testified he was in a cab and the brakes were “out on the 

four wheels outside the cab.” He testified the brakes were 

repaired by millwrights and electricians. He testified he 

saw dust while working [in] the steel beam yard when 

cranes were operating and the dust came from the wheels 

of the cranes. He guessed he was exposed to dust from 

crane brakes merely because he saw some type of dust 

emanating from the wheels of operating cranes. There 
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was no factual basis to support any inference he breathed 

the dust or the dust contained asbestos. Absent any 

additional evidence regarding the nature of [Appellant] Mr. 

Sterling’s contact with crane brakes or wiring, his 

testimony would not support a reasonable inference he 

inhaled asbestos dust from wiring or brakes on P&H 

cranes. 

The cited testimony of other Bethlehem Steel employees in 

other cases did nothing to show [Appellant] Mr. Sterling 

inhaled dust from component parts of P&H cranes. 

[Appellants] offered (1) Brian Gaugler’s testimony, from 

Mr. Gaugler’s own trial, that Mr. Gaugler helped change 

crane brakes as a chain man, crane man, marker, bar

turner, and forklift operator; (2) Michael Carl’s testimony, 

from Mr. Carl’s own trial, that Mr. Carl saw the brakes on 

cranes while oiling and greasing the cranes as a chain man 

and crane man; (3) John D. Wagner’s testimony, from Mr. 

Wagner’s own trial, that Mr. Wagner worked with crane 

wiring and brakes as a motor inspector; and (4) John G. 

Weiss’ testimony, from Mr. Weiss’ own trial, that Mr. Weiss 

inhaled dust from crane brakes and wiring while tearing 

out crane trolleys. [Appellants] did not draw any

connection between any of the foregoing testimony and 

[Appellant] Mr. Sterling’s purported exposure. Indeed, 

[Appellant] Mr. Sterling’s name was never mentioned by 

the four (4) witnesses. Even assuming these other 

Bethlehem Steel employees were exposed to asbestos dust 

from crane brakes and wiring, there was still no basis to 

infer [Appellant] Mr. Sterling was similarly exposed. In 

fact, [Appellant] Mr. Sterling never placed himself working 

with any wiring or brakes as did the other four (4) 

Bethlehem Steel employees. 

In summary, the totality of [Appellant] Mr. Sterling’s 

testimony as to P&H is as follows:

[Appellant] Mr. Sterling worked as a chain man and crane 

man at Bethlehem Steel. His job consisted of chaining up 

big piles of steel and putting them in a run and piling 

them. In doing so, he operated cranes, including P&H 

cranes. As a chain man, he would observe dust coming 

from the wheels of the cranes. 
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[Appellant] Mr. Sterling did not testify to any information 

as to the nature of the dust, how far he was from the dust, 

whether he inhaled the dust, or whether the dust he 

observed contained asbestos. 

(Trial Court Opinion at 2-4) (internal citations to the record omitted). The 

record supports the court’s analysis. In answers to interrogatories, P&H 

conceded in general terms that it had sold some equipment and replacement 

component parts containing small amounts of asbestos. These admissions, 

however, were insufficient to establish Appellant Mr. Sterling used or worked 

on that equipment at Bethlehem Steel. Appellant Mr. Sterling also admitted 

he worked mostly on cranes supplied by other companies. Although 

Appellant Mr. Sterling testified he saw dust emanate from the wheel area of 

the cranes when the brakes were applied, he conceded there were multiple 

sources of dust in the beam yard. See Krauss, supra (stating plaintiff’s 

speculative personal belief that product contained asbestos fails to create 

genuine issue of fact as to existence of asbestos in product). 

Moreover, the testimony of other former Bethlehem Steel employees 

provided no information regarding the frequency, regularity, or proximity of 

Appellant Mr. Sterling’s own alleged exposure to asbestos in P&H products. 

Appellants thus failed to adduce evidence sufficient to support an inference 

that Appellant Mr. Sterling inhaled asbestos from component parts of P&H 

cranes. Therefore, the court properly entered summary judgment in favor of 

P&H. See Gregg, supra; Eckenrod, supra. Accordingly, we affirm. 

Order affirmed. 
J-A05008-15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015