Graver v. Foster Wheeler Corp.
96 A.3d 383
| Pa. Super. Ct. | 2014Background
- Plaintiff David Graver (now deceased) worked at PP&L’s Holtwood Steam Plant (1983–2010) and alleged asbestos exposure from a boiler designed/installed by Foster Wheeler; he and his wife sued for mesothelioma and loss of consortium.
- The boiler was completed (record dispute; latest date used 1955), was large, permanently affixed, and integral to plant operations.
- Foster Wheeler moved for summary judgment and JNOV/nonsuit arguing 42 Pa.C.S.A. § 5536 (statute of repose for improvements to real property) barred the action; trial court denied those motions and a jury awarded verdicts later reduced by settling defendants’ shares.
- On appeal, the central legal question was whether § 5536 bars asbestos personal-injury claims against entities that designed, planned, supervised, or constructed an improvement to real property.
- The Superior Court concluded Foster Wheeler participated in the boiler’s design/construction and that the boiler qualified as an “improvement” under controlling tests, so the 12‑year repose expired decades before suit.
- The court rejected the Gravers’ reliance on Abrams (which addressed the asbestos statute of limitations, not the repose statute) and refused to judicially create an asbestos exception to the repose statute, leaving any legislative change to the General Assembly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 5536’s 12‑year statute of repose applies to asbestos personal‑injury claims against designers/constructors of an improvement | Abrams bars a statutory right of repose in asbestos cases; repose should not extinguish asbestos claims | § 5536 applies to persons who design/construct improvements; it begins at completion and can extinguish claims even before injury accrues | Held: § 5536 applies; it barred the Gravers’ claims against Foster Wheeler |
| Whether Foster Wheeler was a designer/constructor (vs. mere supplier) covered by § 5536 | Foster Wheeler was only a manufacturer/supplier whose asbestos-containing products were integrated into the boiler; not a designer | Foster Wheeler designed the boiler, provided on-site erection consultants, and its work was integrated into plant construction | Held: Foster Wheeler participated in design/construction and is covered by § 5536 |
| Whether the boiler is an "improvement to real property" within § 5536 | Boiler/insulation are merely chattel/supplied components, not an improvement | Boiler was permanently affixed, essential to plant function, and meets fixture/improvement test | Held: Boiler qualifies as an improvement to real property |
| Whether § 5536 conflicts with asbestos‑specific statutes of limitation so the later asbestos statute controls | The asbestos statute of limitations (later enactment) governs asbestos cases and creates an exception to repose | The two statutes can coexist; asbestos limitations apply to product‑manufacturers while § 5536 governs claims against designers/constructors of improvements | Held: No irreconcilable conflict; both statutes can operate; repose stands as applied here |
Key Cases Cited
- Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009) (addressed asbestos statute of limitations and disease‑rule issues; dicta referenced repose)
- McConnaughey v. Building Components, Inc., 637 A.2d 1331 (Pa. 1994) (explains repose can bar suits before injury accrues)
- McCormick v. Columbus Conveyer Co., 564 A.2d 907 (Pa. 1989) (definition of "improvement" and fixture analysis)
- Noll by Noll v. Harrisburg Area YMCA, 648 A.2d 81 (Pa. 1994) (three‑part fixture test for converting personalty to real property)
- Program Administrative Services, Inc. v. Dauphin County General Authority, 928 A.2d 1013 (Pa. 2007) (respecting legislative role in setting public policy; courts should not rewrite statutes)