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Case Bulletin – Pennsylvania Supreme Court lets Superior Court Decision Stand Applying the Statute of Repose to an Asbestos Action.

On February 4, 2015, the Pennsylvania Supreme Court at No. 476 EAL 2014 denied a Petition for Allowance of Appeal in the matter of Graver v. Foster Wheeler Corporation (“Foster Wheeler”), a case involving an asbestos-related injury allegedly caused by an improvement to real property and in which Foster Wheeler raised the statute of repose as a defense. The Superior Court found in its June 26, 2014 decision that the Statute of Repose applies to asbestos claims.  The Supreme Court’s denial of Graver’s Petition for Allowance of Appeal lets the Superior Court’s decision, and the applicability of the Statute of Repose to asbestos actions, stand.

 

Graver had been employed at Pennsylvania Power and Light’s (“PP&L”) Holtwood Steam Plant from 1983 until 2010.  He ultimately developed mesothelioma and died, and his estate brought claims related to his asbestos exposure.  Following trial, the jury found for Graver, causing Foster Wheeler to file a Motion for Judgment Notwithstanding the Verdict based upon the assertion that the Statute of Repose barred Graver’s claims against it.  Despite finding that the boiler was an improvement to real property under the statute of repose, the trial Court denied the motion on the basis that the statute of repose does not apply to asbestos actions.  Foster Wheeler appealed to the Superior Court.

 

The PP&L plant contained a boiler designed by Foster Wheeler Corporation, and it was undisputed that it contained asbestos insulation.  It was 134 feet tall, weighed many, many tons, and was permanently affixed to the plant via a reinforced concrete foundation.  The installation of the boiler was completed in 1955.  It was an essential part of the operations of the plant, as it provided the steam that drove the turbines for the production of the electricity.  As such, the Superior Court agreed with the trial court that it qualified as an improvement to real property under the statute of repose.

 

Despite finding that the boiler was an improvement to real property, the trial court denied Foster Wheeler’s motion on the basis that it interpreted dicta in Abrams v. Pneumo Abex Corp., 602 Pa. 627, 981 A.2d 198 (2009) to indicate that no statutory right of repose exists in asbestos cases.  Upon review, the Superior Court determined that this interpretation was incorrect as Abrams did not address the statute of repose but, rather, “dealt solely with the interplay between the asbestos statute of limitations and the “one disease” and “two disease” rules.”

 

The Superior Court also rejected Graver’s position that the asbestos statute of limitations and the statute of repose were in irreconcilable conflict, and, as such, the more recently adopted asbestos statute of limitations should prevail.  The Superior Court recognized that while, for the most part, the statutes will operate independently of one another; there will be limited overlap where asbestos injury is caused by an improvement to real property.  The Court stated that “[i]t is not our function as the judiciary to construct an asbestos-related exception to the statute of repose in construction cases.”  Having determined that the boiler was an improvement to real property and that Graver’s claims were filed beyond the 12 year statute of repose, the Superior Court reversed judgment against Foster Wheeler.