|August 22, 2014|
Previously published on August 1, 2014
In Graver v. Foster Wheeler, 2014 PA Super 132, the court held that Pennsylvania's statute of repose for improvements to real property, 42 PA. Cons. Stat. Ann § 5536, is available as a defense to asbestos personal injury claims.
The case was brought forth by Plaintiff David Graver, who alleged that his mesothelioma was caused by exposure to asbestos from a Foster Wheeler boiler which was present at his workplace when he worked for Pennsylvania Power & Light's (PP&L) Holtwood steam plant from 1983 until 2010. The Foster Wheeler boiler was 11-13 stories tall and was constructed in 1955. Foster Wheeler designed and constructed the boiler, including the asbestos insulation contained in the boiler.
Pennsylvania's statute of repose provides that suits resulting in personal injury as a result of deficiencies in the design, planning, supervision or observation of construction of any improvement to real property must be commenced within 12 years of the completion of the construction of such improvement. Foster Wheeler argued that its boiler was an improvement to real estate contemplated by the statute, while the Plaintiff argued that the statute did not apply to asbestos cases based on Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009).
In considering whether the Foster Wheeler boiler was an improvement to real estate that qualified as a fixture, the court applied the three-prong test set forth in Noll by Noll v. Harrisburg YMCA, 643 A.2d 81, 87 (Pa. 1994), which considers "(1) the relative permanence of the attachment to realty; (2) the extent to which the chattel is necessary or essential to the use of the property; and (3) the intention of the parties to make a permanent addition to the property." The court found that that the boiler constituted an improvement to real estate that was essential to the function of the plant.
The court further rejected the Plaintiff's assertions that Abrams barred a statutory right to repose in asbestos cases by finding that the Abrams case dealt with the interplay between the statute of limitations and the "two disease" rule in asbestos cases rather than the statute of repose.
At the trial level, the court denied Foster Wheeler's motion for summary judgment and motion for non-suit in the statute of repose issue. The case was a cross appeal from a trial court verdict against Foster Wheeler in the amount of $750,000.
The Plaintiff has petitioned for reargument of the appeal, which is ending with the court. We will continue to follow this case to see if reargument is granted or if the plaintiff appeals to the PA Supreme Court.