No Special Exception to PA Statute of Repose for Asbestos Exposure

September 1, 2011

Pennsylvania – Environmental & Toxic Torts

Key Points:

Defendants in asbestos cases in Pennsylvania may invoke the provisions of the statute of repose, 42 Pa.C.S.A. §5536, as a defense to liability for harms that occur later than 12 years after the original construction that caused the harm.
The statute of repose is applicable to defendants who make improvements to real property which was defined in Rabatin as "exceedingly large, permanent fixtures, meaningfully connected, and essential to the operation and use of, the industrial facilities to which they are installed."

The Pennsylvania Superior Court was asked to carve out a special exception to Pennsylvania's statute of repose, 42 Pa. C.S.A. Sec. 5536, for plaintiffs who claim exposure to asbestos as a result of improvements to real property protected by the statute. The court refused to allow such an exception in the case of Rabatin v. GE, 2011 Pa. Super. 118 (June 2011).

In Rabatin, the plaintiff alleged exposure to asbestos-containing insulation and component parts from turbines manufactured by GE and located in the U.S. Steel facility where the plaintiff worked. GE designed and constructed the turbines located in the plant where the plaintiff worked. Following the construction of the turbines, GE periodically inspected and repaired the turbines. In his deposition, the plaintiff testified that he participated in the repair and replacement of asbestos-containing block insulation in the turbines.

At the conclusion of discovery, the defendant GE moved for summary judgment. The trial court denied the plaintiff's motion on the issue of whether a question of fact existed regarding his exposure to asbestos from the turbine, but granted GE's subsequent motion raising a defense under the statute of repose because the turbines were manufactured and installed more than 12 years before the plaintiff's alleged exposure to turbines. The plaintiff appealed the summary judgment ruling.

In Pennsylvania, the statute of repose imposes limitations on liability by requiring that any civil action against a person "performing or furnishing the design, planning, supervision, or observation of construction, or construction of such improvement" be commenced within 12 years of the completion of the construction.

The plaintiff made several arguments in an attempt to overturn the summary judgment ruling. First, he argued that the Legislature never intended for the statute to apply to asbestos cases and that GE in any event maintained control over the turbines by performing repairs and overhauls, thereby triggering an exception to the statute. While the court found that the issue was not properly preserved for appeal, the court went on to state that the facts of the case did not prove that GE was in actual control of the turbines because periodic repairs at issue in the case did not constitute "control." However, the court stated that in certain circumstances repairs may be sufficient to prove "control" over the improvement and may amount to an exception to the statute of repose.

The plaintiff also argued that the asbestos-containing component parts in the turbine caused his harm and that the components were not improvement to real property afforded protection by the statute. The court rejected this argument and held that the component parts were part of the overall design and construction of the finished product. The court also concluded that the plaintiff failed to provide evidence that GE designed, manufactured or supplied any of the asbestos-containing component parts and therefore could not be liable for that reason.

Another issue raised by the plaintiff was that the manufacturing of the turbine constituted the manufacturing and selling of a mass-produced product rather than an improvement to real property. Citing Noll by Noll v. Harrisburg Area YMCA, 643 A.2d 81 (Pa. 1994), the court held that manufacturers are not excluded from the protections of Section 5536 unless the component product "was merely fortuitously included in the manufacture of an improvement to real property by another."

Lastly, the plaintiff argued that Section 5536 violates the "Open Courts" clause (Art. I, Sec.11) of the Pennsylvania Constitution because it deprives a plaintiff from a remedy for injuries caused by asbestos. Although the plaintiff argued that Section 5536 is "repugnant to the fundamental ideals of American jurisprudence," the court held that Section 5536 was not unconstitutional because the Pennsylvania Supreme Court had previously held that the predecessor statute was not unconstitutional in Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715 (Pa. 1978). In Freezer, the Supreme Court held that the "Open Courts" clause did not prohibit the Legislature from abolishing a common law right without enacting a substitute means of redress.

Viewing Rabatin as a whole, it is good news for defendants who manufacture and install what can truly be characterized as improvements to real property, and the decision should lead to wider use of (or at least attempts to use) the statute of repose. However, certain factors will limit its broader application. For instance, courts have traditionally been strict in defining a machine as an improvement to real property, and few of the products generally involved in asbestos litigation can meet that strict definition.

*Tim is a shareholder in our Philadelphia, Pennsylvania, office. He can be reached at 215.575.2623 or tdrau@mdwcg.com.

Defense Digest, Vol. 17, No. 3, September 2011