Plaintiffs Stephen J. Kolar and his wife, Carol Kolar, appeal our orders granting
I. BACKGROUND
Plaintiffs commenced this asbestos mass tort action on April 6,2009. The complaint alleges plaintiff Stephen Kolar contracted mesothelioma from exposure to products manufactured or supplied by defendants. Complaint, ¶4. The complaint incorporates by reference the master long-form complaint filed at October term 1986, no. 0001, pleading counts of strict liability and negligence. Plaintiffs’ general master long-form complaint, ¶¶ 6-12.
From 1972 until 1975, Kolar was employed by Grand Forks, North Dakota, in part- and full-time positions at the Grand Forks water maintenance shop (until about 1974), wastewater plant (until about 1975), and water treatment plant (until 1995). Deposition of Stephen J. Kolar, 5/6/2009, 34-35. Kolar testified he performed maintenance work on Buffalo, Chicago, Gorman, and Ingersoll centrifugal and sludge pumps while employed by Grand Forks. Id. at 148. Chicago pumps were used for cold water pressurization. Id. at 92-93. Gorman-Rupp sludge and centrifugal pumps were used at the wastewater plant, as were Ingersoll-Rand centrifugal pumps. Id. at 148-49. The record is unclear about how Buffalo pumps were used at Grand Forks.
Kolar testified his maintenance work caused him to contact asbestos gaskets, or remnants thereof, on pump case housings and flanges. See e.g. Kolar deposition,
Plaintiffs submitted evidence Buffalo centrifugal pumps may have used asbestos gaskets in its “chem-rated pumps.” Plaintiffs’ response to defendant Buffalo Pumps Inc.’s motion for summary judgment, exhibit A (bulletin 803A), 27. Bulletin 803A, a sales brochure of unknown vintage, includes a table entitled “materials of construction.” Id. The entry for component number 65 states “asbestos standard/teflon optional.” Id. The entry for components 65 J and 65K states “asbestos (standard).” Id. The table entries apparently correspond to a parts diagram on the preceding page. Id. at 26. The parts diagram is wholly illegible. See id.
Plaintiffs also submitted Buffalo’s responses to plaintiff’s interrogatories and request for production of documents from Shaeffer v. A. W. Chesterton before the Honorable H. A. Hanna of the Cuyahoga County Court of Common Pleas in Ohio. Plaintiffs’ reponse to Buffalo’s motion for summary judgment, exhibit F. In relevant part, the admissions state:
“By way of further response, the Buffalo Pumps Division of the Buffalo Forge Co., since at least approximately 1955, manufactured, among other things, pumps. These pumps were made of metal alloys, and the pumps themselves contained no asbestos materials. The metal*42 components of certain of these pumps required packing and gaskets. Upon manufacture, the original pump was typically supplied to a customer with the appropriate packing and gaskets. Buffalo Pumps Inc. also believes that the Buffalo Pumps Division of the Buffalo Forge Company on some occasions provided small numbers of gaskets to certain customers along with replacement parts for pumps. From at least approximately 1955 to approximately 1985, gaskets and packing supplied in certain original centrifugal pumps may have contained asbestos.” Id. at 8.
Plaintiffs submitted no evidence Kolar worked on gaskets original to any Buffalo pump.
As to Chicago, Gorman, and Ingersoll, plaintiffs submitted no evidence those manufacturers’ pumps came with any original asbestos components at all or that Kolar worked on gaskets original to those pumps.
As to Yarway, Kolar testified steam trap maintenance caused him to contact asbestos insulation covering the traps, adjacent piping, or asbestos gaskets, or remnants thereof, on trap flanges. Kolar deposition, 139-40. Kolar identified Garlock as manufacturer of the flange gaskets. Id. at 139. Kolar testified there were no asbestos components inside the trap itself. Id. at 340. Kolar also testified Yarway did not supply “any insulation on the flanges or on the pipes leading to the steam trap.” Id. at 341.
In separate summary judgment motions, defendants argued for dismissal because plaintiffs failed to satisfy the product identification requirements of Eckenrod v. GAF Corp.,
Plaintiffs responded defendants were liable for “placing [products] into the stream of commerce that required, and specifically called for the use of asbestos gaskets, like the ones Mr. Kolar as exposed to.” See e.g. plaintiffs’ response to Buffalo’s motion for summary judgment, 6. Citing Chicano v. General Elec. Co., 2004 U.S. Dist. Lexis 20330 (turbine manufacturer liable for injury from third-party asbestos insulation), plaintiffs argued defendants were liable for failing to warn. Id. at 6-7. As to Buffalo alone, plaintiffs argued the product specifications called for asbestos gaskets. Id. at 4.
In separate replies, defendants argued once again plaintiffs failed to make product identification. See e.g. Buffalo’s reply to its motion for summary judgment, 1. Defendants also argued Chicano did not control, because unlike the Chicano, turbines, the pumps and traps here did not require asbestos and defendants never suggested using asbestos. Id. at 2.
On January 19, 2010, plaintiffs filed this appeal. On February 23, 2010, response to this court’s order, plaintiffs filed a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), which stated:
“The grounds upon which plaintiffs claim error are those raised in their responses to the summary judgment motions. These grounds are identified in general terms because, without a written opinion, plaintiffs cannot readily discern the basis for the court’s decision. By way of explanation and without waiving any other applicable grounds for appeal, plaintiffs claim error because, plaintiffs’evidence established that Stephen J. Kolar was exposed to asbestos fibers shed from products manufactured and/or supplied by [appellees]. Because genuine issues of material fact remained, defendants’ motions for summary judgement should have been denied.” Plaintiffs’ statement of matters complained of on appeal, 1-2.
II. DISCUSSION
a. Untimeliness of Appeal
As a threshold matter, we note plaintiffs filed the appeal untimely. An appeal may be taken as of right from
Here, we granted summary judgment as to less than all defendants by orders dated December 1, 2009 and docketed December 2,2009. The order marking the case settled, discontinued and ended was issued on December 10, 2009 and docketed on December 17, 2009. None of Pa.R.A.P. 903(b)’s exceptions to the 30-day time for appeal apply here, because this is not a criminal, election or public debt matter. Thus, plaintiffs had until January 16, 2010 to file notice of appeal and offer not a single excuse for their tardiness. Plaintiffs did not file this appeal until January 19,2010. Thus, the appeal is untimely.
An appellate court “may not enlarge the time for filing a notice of appeal,” absent fraud or administrative breakdown. Pa.R.A.P. 105(b). Since plaintiffs do not point to any extenuating circumstance preventing timely appeal after their December 10, 2009 settlement, the appeal should be quashed. However, we will also reach the substantive issues for a complete record.
b. Products Liability
We granted summary judgment because we found a manufacturer cannot be liable for injury caused by an asbestos part installed onto its product, where it does not make, supply Or sell said part, where product does not
In general, a manufacturer or seller of an allegedly defective product is liable for harm caused to the ultimate user, if it makes or sells such a product and said product reaches the user without substantial change in condition. Davis v. Berwind Corporation,
Here, plaintiffs presented insufficient evidence to determine whether defendants’ products contained original asbestos parts to which Kolar was exposed. “In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party.” Gilbert v. Monsey Products Company,
Plaintiffs’ claims may still have proceeded under the substantial change doctrine. Whether the manufacturer could have foreseen alteration of its product may be resolved by the fact-finder unless inferences are so clear a court can say as a matter of law a reasonable manufacturer could not have foreseen the change. D ’Antona v. Hampton Grinding Wheel Company Inc.,
No Pennsylvania authority addresses whether the addition of an asbestos gasket to a pump or steam trap should have been foreseeable. Generally, a component part manufacturer has no duty to warn of inherent dangers when it does not participate in design or construction of the finished product. Wenrick v. Schloemann-Siemag A.G.,
We find Chicano distinguishable from the instant case. Here, plaintiffs provided not a scintilla of evidence asbestos gaskets would inevitably be added to defendants’ pumps and traps. In addition, they presented no evidence the pumps or traps even required asbestos parts. To the contrary, Kola’s testimony suggests the pumps were used only in low heat applications. Plaintiffs also presented no evidence defendants’ manuals or product specifications required asbestos gaskets. As to Buffalo only, plaintiffs point to bulletin 803A. Plaintiffs’ response to defendant Buffalo Pumps Inc.’s motion for summary judgment, exhibit A (bulletin 803A), 27. However, bulletin 803A does not state asbestos gaskets should be used with Buffalo pumps and neither do Buffalo’s interrogatory answers from the Shaeffer case. Rather, the bulletin and the answers show only some of Buffalo’s pumps may have been supplied with asbestos parts. Thus, plaintiff-could not possibly prove by a preponderance of the evidence defendants should have foreseen asbestos gaskets would be added to their pumps and traps.
We find persuasive authority from other jurisdictions supports our analysis. In Simonetta v. Viad Corp., the Supreme Court of Washington held under section 402A of the Restatentent (Second) of Torts an evaporator manufacturer was not liable for asbestos injuiy where the evaporator was completed without asbestos insulation, which was eventually applied but not made, sold or selected by manufacturer.
Moreover, our decision to grant summary judgment reflects the social policy underlying Pennsylvania’s products liability law: personal injury losses should be allocated to those who can best mitigate and avoid such losses. The burden of personal injury is placed on the party best able to shoulder costs and administer risks. Walton v. Avco Corporation,
III. CONCLUSION
For the foregoing reasons, we correctly granted summary judgment and our orders should be affirmed.