2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-11-2008

Jesensky v. A Best Products

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3102

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Recommended Citation

"Jesensky v. A Best Products" (2008). 2008 Decisions. Paper 854.

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-3102

KAREN JESENSKY and ANTHONY JESENSKY her husband,

 Appellants

v.

A-BEST PRODUCTS, in its own right and as

successor-in-interest to Asbestos Products Company;

NICHIAS CO.; SAFETY-FIRST INDUSTRIES, INC.

in its own right and as successor-in-interest to Safety First Supply, Inc.;

ALLIED GLOVE CORP.; NORTH AMERICAN REFRACTORIES;

GENERAL REFRACTORIES COMPANY;

DRESSER INDUSTRIES, INC. and its division Harbison-Walker Refractories;

CHICAGO FIREBRICK COMPANY; PLIBRICO COMPANY;

*THIEM CORPORATION and its division, Universal Refractories;

OGLEBAY NORTON COMPANY and its division, Ferro Engineering;

FOSECO, INC.; SEEGOTT, INC.; HEDMAN MINES, LTD;

INSUL COMPANY, INC; PITTSBURGH METALS PURIFYING COMPANY;

PETERSON CANVAS PRODUCTS; ANCHOR PACKING; GARLOCK, INC.;

ARGO PACKING COMPANY; DURAMETALLIC CORP.;

DURABLA MANUFACTURING COMPANY in its own right

and as successor to Durabla Canada, Ltd.;

GOODYEAR TIRE & RUBBER COMPANY, INC.;

UNIROYAL, INC. also known as

THE UNIROYAL GOODRICH TIRE COMPANY;

BIGELOW-LIPTAK CORPORATION;

BEAZER EAST, INC. in its own right and as successor to

Koppers Co., Inc., and other related companies including

Thiem Corp., Beazer USA, Inc., and Beazer, PLC;

GRANT WILSON, INC; PITTSBURGH CORNING CORPORATION;

OWENS-CORNING FIBERGLAS CORPORATION;

THE ROCKWOOL MANFACTURING COMPANY;

ADIENCE, INC. sucessor-in-interest to

Adience Company, LP, as successor to BMI, Inc.;
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THE MARMON GROUP, INC. in its own right and successor-in-interest to

the Cerro-Marmon Corp., Cerro Corp., Cerro Wire & Cable Co., Inc.,

The Rockbestos Co. and The Rockbestos Products Corp.;

*GATEWAY INDUSTRIAL SUPPLY; F.B. WRIGHT COMPANY, INC.;

RAPID-AMERICAN CORP. in its own right and as successor-in-interest to

The Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs

Manufacturing Company, Panacon Company and Glen Alden Corporation;

GEORGE V. HAMILTON, INC.; TOWNSEND & BOTTUM, INC.;

AC&S, INC.; SAUER, INC.; HINCHLIFFE & KEENER, INC.;

ROBERTSON CECO CORPORATION,

formerly known as H.H. ROBERTSON COMPANY;

H.B. FULLER COMPANY in its own right

and its division Foster Products Corporation;

ASBESTOSPRAY CORPORATION;

UNITED STATES MINERAL PRODUCTS COMPANY;

W.R. GRACE COMPANY in its own right

and as successor to Zonolite Company;

ATLAS INDUSTRIES, INC.;

EARL B. BEACH COMPANY also known as

THE EARL B. BEACH CO. OF PHILADELPHIA also known as

THE EARL B. BEACH CO. OF PHILADELPHIA, PLC;

FLINTKOTE COMPANY; GENERAL MOTORS CORPORATION;

GENERAL ELECTRIC COMPANY and its Wire & Cable Division;

WESTINGHOUSE ELECTRIC CORPORATION;

GREENE TWEED & COMPANY; INGERSOLL-RAND;

M.H. DETRICK COMPANY subsidiary of Detrick Companies, Inc.;

QUAKER STATE CORPORATION; RILEY STOKER CORPORATION;

UNION BOILER COMPANY; FOSTER WHEELER CORPORATION;

SEPCO CORPORATION; McCARLS, INC.;

PENNSYLVANIA ELECRIC COMPANY;

INDUSTRIAL INSULATION SALES, INC.;

CONGOLEUM CORPORATION a subsidiary of American Biltrite, Inc.;

THE CARBORUNDUM COMPANY; DUQUESNE LIGHT COMPANY;

FAIRMONT SUPPLY COMPANY; RUTLAND FIRE CLAY SUPPLY COMPANY;

COOPER INDUSTRIES, INC. in its own right and as successor-in-interest to

McGraw-Edison, Co., Wagner Electric Corp., Studebaker Worthington, Inc.,

Edison International, Inc., and Tung Sol Electric, Inc.;

PENNSYLVANIA INDUSTRIAL SUPPLIES COMPANY;

J.H. FRANCE REFRACTORIES COMPANY
3

*Per Clerk's Order of 1/5/07

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Civil Action No. 96-cv-0680

(Honorable Ila Jeanne Sensenich)

Argued April 17, 2008

Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.

(Filed July 11, 2008 )

David B. Rodes, Esquire (Argued)

Jason T. Shipp, Esquire

Goldberg, Persky & White

1030 Fifth Avenue, Third Floor

Pittsburgh, Pennsylvania 15219

Attorneys for Appellants

David P. Helwig, Esquire (Argued)

Marks, O'Neill, O'Brien & Courtney

2600 Gulf Tower

707 Grant Street

Pittsburgh, Pennsylvania 15219

Attorney for Appellee McCarl’s, Inc.

Cathy R. Gordon, Esquire (Argued)

Swartz Campbell, LLC

4750 U.S. Steel Tower

600 Grant Street

Pittsburgh, Pennsylvania 15219

Attorney for Appellee Duquesne Light Company

Mark A. Behrens, Esquire

Shook, Hardy & Bacon

600 14th Street, N.W., Suite 800

Washington, D.C. 20005

Attorney for Amici Curiae-Appellee
 Jesensky’s husband also asserts claims relating to the injuries sustained by Karen 1

Jesensky.

4

The Coalition for Litigation Justice, Inc.,

Chamber of Commerce of the United States of America,

National Association of Manufactures,

American Insurance Association,

Property Casualty Insurers Association of America,

American Chemistry Council

OPINION OF THE COURT

SCIRICA, Chief Judge.

Appellant Karen Jesensky asserts claims for injuries allegedly suffered as a result 1

of exposure to asbestos fibers her father inadvertently carried home from his workplace. 

The District Court granted summary judgment in favor of defendants McCarl’s, Inc. and

Duquesne Light Company. We will affirm.

Eugene Schirra, a union steam fitter and pipe fitter for nearly thirty years, worked

as a contractor at several industrial sites. During that time period, his daughter, Karen

Jesensky, regularly loaned her car to him for a work carpool, picked him up from his bus

stop after work, and washed his work clothes. In late 1994 or early 1995, Jesensky was

diagnosed with mesothelioma, seriously impairing her health.

Jesensky filed claims against sixty-nine defendants in the Pennsylvania Court of

Common Pleas. She alleged her mesothelioma was caused by secondhand exposure to
 Jesensky’s claims against most of these defendants were either settled or dismissed in 2

state court for Jesensky’s failure to proffer evidence showing that her father was in

contact with particular products. See Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa.

Super. Ct. 1988) (to survive a motion for summary judgment in an asbestos case, a

plaintiff must establish that injuries were caused by the product of a particular

manufacturer or supplier and must present evidence to show that he/she inhaled asbestos

fibers shed by the specific product).

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asbestos products present at her father’s workplaces. Most of the defendants were

manufacturers or suppliers of asbestos products.2

 Two defendants – McCarl’s and Duquesne Light – were neither manufacturers

nor suppliers of asbestos products. Jesensky’s claims against McCarl’s allegedly arise out

of a four-month period during which McCarl’s employed Schirra at Babcock & Wilcox’s

steel mill in Koppel, Pennsylvania. Jesensky’s claims against Duquesne Light Company

arise out of a four-year period in which Schirra worked at the Shippingport Atomic Power

Station. The Shippingport power plant, which used a nuclear reactor as a source for

generating commercial electricity, was overseen by the Atomic Energy Commission

(“AEC”) in exercise of its authority under the Atomic Energy Act of 1954, as amended,

42 U.S.C. § 2011 et seq. Duquesne Light Company contracted with the AEC to

participate in the construction and operation of the power plant. Schirra worked at the

Shippingport power plant as an independent contractor of Duquesne Light Company.

Jesensky’s complaint, originally filed in the Pennsylvania Court of Common Pleas,

was removed by Duquesne Light under the federal officer removal statute, 28 U.S.C. §
 Removal under 28 U.S.C. § 1442(a)(1) is proper if the moving party: (1) demonstrates 3

that it acted under the direction of an officer of the United States; (2) demonstrates a

causal nexus between Plaintiffs’ claims and the acts it performed under color of federal

office; and (3) raises a colorable federal defense. See Mesa v. California, 489 U.S. 121,

124-35 (1989). Duquesne Light Company contends removal was proper here because, in

constructing and operating the Shippingport power plant, it: (1) acted under the

supervision and specific direction of Rear Admiral H.G. Rickover, Director of the

Division of Naval Reactors of the AEC and his assigned officers; (2) followed Admiral

Rickover’s express orders in designing, constructing and operating the plant; and (3)

indicated its intent to pursue the “government contractor defense” articulated in Boyle v.

United Techs. Corp., 487 U.S. 500 (1988). Jesensky contends removal was improper and

seeks remand to state court.

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1442(a)(1). In District Court, Duquesne Light moved for summary judgment, 3

contending that Jesensky’s complaint failed to properly plead a claim, and if a claim had

been properly pleaded, that it owed no duty to Jesensky under Pennsylvania law. The

Magistrate Judge interpreted Jesensky’s complaint as asserting a claim of negligence,

predicated on a premises liability theory, without discussing the sufficiency of the

pleadings. Reaching the merits, the Magistrate Judge recommended granting Duquesne

Light’s motion, finding the company owed Jesensky no duty under Pennsylvania law. 

The District Court, adopting the Magistrate Judge’s Report and Recommendation, granted

summary judgment in favor of Duquesne Light Company without further comment. 

McCarl’s also moved for summary judgment in District Court, contending that it

had not been identified as a source of any asbestos exposure that allegedly injured

Jesensky. The Magistrate Judge, finding that Jesensky had not alleged any facts to

support a negligence claim against McCarl’s and indicating that no such claim could be
 The Magistrate Judge issued a Supplemental Report and Recommendation on the 4

motion by McCarl’s following Jesensky’s filing of objections to the Magistrate Judge’s

initial Report and Recommendation.

 The complaint alleges, in part: 5

[¶] 7. Defendants, at all times relevant and pertinent hereto, were

engaged in the business of mining and/or milling and/or

(continued...)

7

found in the pleadings, recommended granting McCarl’s summary judgment motion.4

The District Court granted summary judgment in favor of McCarl’s without further

comment.

The District Court was correct to dismiss Jesensky’s claims against McCarl’s

based on the insufficiency of the pleadings, and the same reasoning is dispositive as to the

claims against Duquesne Light. In the briefs, Jesensky characterizes the complaint as

asserting a claim for negligence based on the company’s “failure to warn” of the dangers

of the asbestos products used at its facility. See, e.g., Jesensky Br. at 11 (“Although the

Complaint in the present action is couched in terms principally applicable to product

defendants, the essential claim against Duquesne Light is predicated on its failure to warn

or otherwise protect Mr. Schirra, and thus derivatively Ms. Jesensky, against off-premises

transportation of asbestos fibers.”). At oral argument, Jesensky noted “the essence of our

theory was that it was a negligence premises liability case.”

These state law claims are absent from Jesensky’s complaint. On its face, the

complaint is void of any reference to a premises liability claim or “failure to warn”

theory. At oral argument, Jesensky conceded the complaint’s deficiency, stating: “it’s

5
 (...continued) 5

manufacturing and/or fabricating and/or supplying and/or

selling asbestos-containing products to which plaintiff was

exposed. Specifically, in the case of defendant Foster

Wheeler Corporation, this includes the utilization of asbestoscontaining products in the construction and/or reconstruction

and/or repair of boilers in powerhouses, industrial facilities

and elsewhere.

. . .

[¶] 10. Plaintiff’s diseases [sic] as set forth herein with associated

complications was [sic] directly and proximately caused by

the acts of the defendants acting through their agents, servants

and employees and the defendants are liable therefore, jointly

and severally, to the plaintiff for their negligence, breach of

warranty and as a result of the strict duty and liability imposed

under Section 402A of the Restatement (Second) of Torts.

[¶] 11. The defendants mined and/or milled and/or manufactured

and/or fabricated and/or supplied and/or sold products which

they knew were defective and/or unreasonably dangerous to

the user or consumer, such as plaintiff, and acted in such a

manner which was willful, wanton, gross and in total

disregard for the health and safety of the user or consumer,

i.e., plaintiff.

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true that that’s not how we pled it; it was an inartful pleading.” Moreover, Jesensky

admitted at oral argument that the complaint “should have been amended . . . .”

Even so, Jesensky has not submitted a proposed amended complaint on this appeal. 

And there is no record of her having ever prepared or submitted a proposed amended

complaint in the past. In a lawsuit that now dates back twelve years, we decline to permit
9

amendment of the pleadings where the plaintiff has never moved to amend her complaint

nor offered any explanation for her failure to do so.

For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment in favor of Duquesne Light Company and McCarl’s. Accordingly, the

Jesenskys’ claims against both defendants are dismissed without leave to amend.