Vitcavich, M. v. Owens Corning ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
MARILYN VITCAVICH, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF FRANK PINARDO, : PENNSYLVANIA
DECEASED :
:
Appellant :
:
:
v. :
: No. 2645 EDA 2022
:
OWENS CORNING/FIBREBOARD :
ASBESTOS PERSONAL INJURY TRUST :
Appeal from the Order Entered August 31, 2022
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2018-08537
KATHLEEN FOY, ADMINISTRATRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF TERRANCE SARRA, : PENNSYLVANIA
DECEASED :
:
Appellant :
:
:
v. :
: No. 2646 EDA 2022
:
OWENS CORNING/FIBREBOARD :
ASBESTOS PERSONAL INJURY TRUST :
DEAN M. TRAFELET, TRUSTEE OF :
OWENS CORNING/FIREBOARD :
ASBESTOS PERSONAL INJURY TRUST :
Appeal from the Order Entered August 31, 2022
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2018-13625
FLORENCE FISK, EXECUTRIX OF THE : IN THE SUPERIOR COURT OF
ESTATE OF W. RUSSELL FISK, : PENNSYLVANIA
DECEASED AMBROSE LAURIE, CO :
ADMINISTRATRIX OF THE ESTATE OF :
TERENCE SARRA, DECEASED :
BARBARA HUBER, ADMINISTRATRIX :
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OF THE ESTATE OF ERNEST :
KAPPENBERGER, DECEASED :
CAMPANELL KARIN, EXECUTRIX OF : No. 2649 EDA 2022
THE ESTATE OF GUSTAV ANDERSON, :
DECEASED DEBORAH BURNS, :
ADMINISTRATRIX OF THE ESTATE OF :
EDWARD BURNS, DECEASED :
DOROTHY BABIOWSKI, EXECUTRIX :
OF THE ESTATE OF JOSEPH :
SERPENTE, DECEASED KATHLEEN :
FOX, CO ADMINISTRATRIX OF THE :
ESTATE OF TERENCE SARRA, :
DECEASED MARILYN VITCAVICH, :
ADMINISTRATRIX OF THE ESTATE OF :
FRANK PINARDO, DECEASED ROBERT :
J. MURPHY, ESQ., ADMINISTRATOR :
OF THE ESTATE OF BRUCE GESSLER, :
DECEASED ROBERT J. MURPHY, ESQ., :
ADMINISTRATOR OF THE ESTATE OF :
THOMAS COBBS, DECEASED :
:
:
v. :
:
:
OWENS CORNING/FIBREBOARD :
ASBESTOS PERSONAL INJURY TRUST :
CAMPBELL AND LEVINE, LLC D. :
LEANNE JACKSON TRUSTEE OF THE :
OWENS CORNING/FIBREBOARD :
ASBESTOS PERSONAL INJURY TRUST :
HARRY HUGE, TRUSTEE OF THE :
OWENS CORNING/FIBREBOARD :
ASBESTOS PERSONAL INJURY TRUST :
THEODORE HUGE KELLEY JASONS :
MCGOWAN SPINELLI HANNA AND :
REBER, LLP OWENS :
CORNING/FIREBOARD ASBESTOS :
PERSONAL INJURY TRUST :
:
:
APPEAL OF: FLORENCE FISK :
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Appeal from the Order Entered August 31, 2022
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2018-14431
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 22, 2023
Florence Fisk (Fisk), executrix of the estate of W. Russell Fisk, deceased;
Marilyn Vitcavich (Vitcavich), executrix of the estate of Frank Pinardo,
deceased; and Kathleen Foy (Foy), executrix of the estate of Terrance Sarra,
deceased, (collectively, Appellants)1 appeal from the August 31, 2022 order
of the Court of Common Pleas of Montgomery County (trial court) granting
summary judgment in favor of the Owens Corning/Fibreboard (OC/FB)
Asbestos Personal Injury Trust (the Trust); the Honorable Dean M. Trafelet,
trustee; D. LeAnne Jackson, trustee; and Theodore Huge, personal
representative of the estate of Harry Huge, trustee (collectively, Appellees).
We affirm.
I.
We glean the following facts from the certified record. Fisk initiated the
instant action in the trial court by filing her complaint on April 5, 2018, while
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* Retired Senior Judge assigned to the Superior Court.
1 We previously consolidated the appeals filed by Vitcavich and Foy. As the
Fisk appeal presents the same legal issues, we have further consolidated the
three cases sua sponte. See Pa. R.A.P. 513.
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Vitcavich’s initial complaint was filed on May 1, 2018, and Foy’s was filed on
May 22, 2018.2, 3 Each complaint pled claims for breach of trust/fiduciary
duty, equitable relief and unjust enrichment. The trial court consolidated the
cases as they were proceeding against Appellees on the same legal theories.
Appellants each pled that their decedents had died from mesothelioma
and/or pulmonary asbestosis after extended exposure to asbestos products
manufactured by OC/FB. They had previously filed civil suits for personal
injury and wrongful death against OC/FB.4 In 2000, because of the numerous
similar claims that had been filed against them, OC/FB initiated bankruptcy
proceedings in federal court. As a result of the bankruptcy proceedings, the
Trust was created and funded with approximately $7.2 billion for the purposes
of satisfying any asbestos-related personal injury and death claims against
OC/FB. The bankruptcy court issued a Channeling Injunction that directed all
asbestos personal injury claims to the Trust and it assumed all of OC/FB’s
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2 The operative complaint is the Fourth Amended Consolidated Complaint, filed
July 22, 2022, which was filed after several rounds of preliminary objections
by Appellees. For simplicity, we refer to it as the complaint.
3 The complaint was consolidated as to all Appellants and included additional
plaintiffs who are not parties to this appeal.
4 Fisk proceeded to a trial in which OC/FB was found liable and damages were
awarded. Fisk appealed and was granted a new trial on the issue of damages
but OC/FB underwent bankruptcy before the new trial could take place.
Vitcavich and Foy did not obtain judgments prior to the bankruptcy
proceedings.
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previous liabilities for these claims. The Trustees were appointed as fiduciaries
to administer the Trust. The Trust established maximum claim amounts of
$650,000 at a 40% rate from the OC subaccount and $450,000 at a 25% rate
from the FB subaccount.
Under the Trust Distribution Procedures (TDP), claimants were required
to first submit a proof of claim form to the Trust, which would then determine
whether the claimant was entitled to damages and the liquidated value of the
claim. The Trust would extend settlement offers to claimants where
appropriate. Claimants who disputed the Trust’s valuation of their claims were
entitled to first proceed to mediation or non-binding arbitration, and then, if
they rejected the arbitration award, to file suit “in the tort system” against the
Trust. If a claimant rejected an arbitral award, the Trust would issue an
authorization letter that would allow them to proceed with litigation. Fisk
received authorization letters on June 4 and June 11, 2014; Vitcavich received
letters on June 19 and November 24, 2014; and Foy on June 5, 2014. They
commenced their civil suits on April 5, 2018, May 1, 2018, and May 22, 2018,
respectively, and the cases were consolidated under the lead docket number
of Fisk’s complaint.
In the complaint, Appellants pled claims of breach of trust/fiduciary
duty, arguing that they were beneficiaries of the Trust and entitled to the
maximum award from each of the subaccounts. They contended that they
had complied with the TDP and that the Appellees violated their fiduciary
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duties by failing to timely pay Appellants’ claims. For the claim for equitable
relief, Appellants contended that as beneficiaries of the Trust, they were
entitled to an accounting of the administration of the Trust as well as all
records related to their claims. They further sought specific performance or
an injunction ordering the Trust to pay the maximum award from each of the
subaccounts and claimed that they were without adequate remedy at law.
Finally, in support of the unjust enrichment claims, Appellants argued that
they conferred a benefit on the Appellees by approving and accepting the
reorganization plan in the bankruptcy proceedings, which absolved OC/FB of
all liability for their personal injury and death claims. They contended that
the Appellees benefitted from their approval of the plan and then wrongfully
denied their claims. They sought compensatory and punitive damages, as
well as attorney’s fees, costs, interest and any other equitable relief.
Appellees5 filed answers and new matter arguing that the Trust
Agreement and TDP created a process to adjudicate all asbestos-related
claims and that all litigation other than that specifically authorized by those
documents was enjoined. They contended that the TDP did not authorize the
type of claims that the Appellants had raised. Additionally, they pled that
Appellants had not timely filed their claims, as the applicable statute of
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5 The Trustees collectively filed one answer and new matter and the Trust filed
a separate one. The two pleadings raise the same arguments and defenses.
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limitations for tort claims was two years following the issuance of the
authorization letters. Appellants had initiated their suits approximately four
years after receiving their letters.
Appellants moved to disqualify Appellees’ counsel based on a conflict of
interest in 2019.6 They alleged that Appellees’ counsel had violated Rules of
Professional Conduct by representing the Appellants as individual creditors in
the OC/FB bankruptcy proceedings and then representing the Trust in the
instant proceedings. The trial court denied the motion, holding that no conflict
of interest existed because the subject law firms had represented the Official
Committee of Asbestos Claimants in the bankruptcy proceedings, which was
a separate entity and not equivalent to representing any plaintiff in an
individual capacity. See Order, 6/29/20, at 1-2 n.1.
Following discovery, Appellees filed a motion for summary judgment
again arguing that Appellants’ breach of fiduciary duty claims were barred by
Pennsylvania’s two-year statute of limitations. They further argued that the
claims for equitable relief and unjust enrichment were enjoined by the
Channeling Injunction and the doctrine of laches and that the Trustees were
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6 As we discuss in more detail infra, Part II.B, the exact nature of the
disqualification motion and subsequent proceedings is difficult to discern from
the record.
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entitled to judgment as a matter of law based on Appellants’ violation of the
Barton7 doctrine.
In their response, Appellants contended that summary judgment was
inappropriate because Appellees had failed to provide necessary discovery and
had based their arguments on revised versions of the Trust Agreement and
TDP rather than those that were adopted at the time of the bankruptcy
proceedings. They again contended that Appellees’ counsel had a conflict of
interest. They argued that the Trust was created to compensate claimants for
all asbestos personal injury claims without limitation or laches and that they
were beneficiaries of the Trust. They also argued that the Trust Agreement
and TDP were not the sole remedy available to them and that they retained
all other rights under law and equity to pursue their claims. Finally, they
concluded that they retain a “right of payment” from the Trust and that the
Appellees had manipulated the bankruptcy proceedings and TDP to avoid
paying the fair value of their claims.
Following argument, the trial court found that the claims were time-
barred and granted the motion for summary judgment. Appellants timely
appealed and they and the trial court have complied with Pa. R.A.P. 1925.
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7 Barton v. Barbour, 104 U.S. 126 (1881) (holding that a plaintiff may not
sue a bankruptcy trustee without first obtaining leave from the Bankruptcy
Court that appointed the trustee).
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II.
On appeal, Appellants contend that the trial court erred in granting
Appellees’ motion for summary judgment.8 They argue that their claims were
not time-barred, as no statute of limitations applies to claims brought by
beneficiaries of a trust to enforce their right of payment from the trust under
Pennsylvania law. They contend that the two-year statute of limitations for
tort claims is inappropriate because they did not plead tort claims and were
barred from doing so under the Channeling Injunction. In the alternative,
they submit that their claims are governed by either a four- or six-year statute
of limitations rather than the two-year statute of limitations. Fisk additionally
argues that summary judgment was inappropriate because there were
procedural defects in Appellees’ motion and there were outstanding issues
related to discovery and conflicts of interest that should have been addressed
prior to the ruling on the motion.
[S]ummary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.” Atcovitz
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8 This Court’s scope of review of a trial court’s order granting summary
judgment is plenary and we apply the same standard for summary judgment
as does the trial court. [A]n appellate court may reverse a grant of summary
judgment if there has been an error of law or an abuse of discretion.” Weaver
v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal
citations omitted). A de novo standard of review applies as to whether there
exists an issue of material fact, as this presents a pure question of law. Id.-9-
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v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa.
R.C.P. No. 1035.2. When considering a motion for summary judgment, the
trial court must construe all facts of record and make all reasonable inferences
in the light that most favors the non-moving party. See Toy v. Metro. Life
Ins. Co., 928 A.2d 186, 195 (Pa. 2007). Any question as to whether there
exists a genuine issue of material fact must be resolved against the moving
party. Id.A.
We begin with Appellants’ arguments related to the statute of
limitations. “In Pennsylvania, a cause of action accrues when the plaintiff
could have first maintained the action to a successful conclusion.” Fine v.
Checcio, 870 A.2d 850, 857 (Pa. 2005) (citation omitted); 42 Pa.C.S.
§ 5502(a) (“The time within which a matter must be commenced under this
chapter shall be computed ... from the time the cause of action accrued. ...”).
Once a plaintiff has discovered the injury, he has an affirmative duty to protect
his own interests and pursue his remedy within the statute of limitations. Toy
v. Metro. Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. 2004), aff’d, 928 A.2d 186(Pa. 2007). “Mistake, misunderstanding, or lack of knowledge in themselves
do not toll the running of the statute.” Drelles v. Manufacturers Life Ins.
Co., 881 A.2d 822, 831 (Pa. Super. 2005) (citation omitted).
A brief background on the formation of the Trust is necessary to our
analysis. The Trust was created during the OC/FB bankruptcy reorganization
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proceedings and assumed all liability for the companies’ asbestos-related
claims, allowing the companies to continue to operate in the wake of the
thousands of claims it could not have satisfied on an individual basis. Under
Section 524(g) of the Bankruptcy Code, an injunction was put into effect that
channeled all asbestos personal injury and death claims to the Trust rather
than to the companies, and the claims were resolved in accordance with the
TDP. See 11 U.S.C. § 524(g)(1)(B), (2)(B). Such an injunction
enjoin[s] entities from taking legal action for the purpose of
directly or indirectly collecting, recovering, or receiving payment
or recovery with respect to any claim or demand that, under a
plan of reorganization, is to be paid in whole or in part by a trust
described in paragraph (2)(B)(i), except such legal actions as are
expressly allowed by the injunction, the confirmation order, or the
plan of reorganization.
11 U.S.C. § 524(g)(1)(B) (emphasis added). The Third Circuit has explained
what constitutes a “claim or demand” that must proceed against a trust in
accordance with a Section 524(g) channeling injunction:
That brings us to the question of what constitutes a “claim or
demand.” The Bankruptcy Code defines a “claim” using the
“broadest available definition,” FCC v. NextWave Pers.
Commc'ns Inc., 537 U.S. 293, 302 [] (2003) (internal quotation
marks omitted), which provides that a “claim” is a “right to
payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, legal, equitable, secured, or unsecured,” 11 U.S.C.
§ 101(5)(A). Section 524(g) takes that definition and expands it
even further, including within the sweep of the channeling
injunction not only “claims” but also “demands.” Id.§ 524(g)(1)(B). A “demand” is then defined as a “demand for
payment, present or future” that “was not a claim during the
proceedings leading to the confirmation of a plan of
reorganization” but “arises out of the same or similar conduct or
events that gave rise to the claims addressed by the injunction.”
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Id. § 524(g)(5). A § 524(g) channeling injunction can therefore
include any right to or demand for payment that arises from the
debtor’s underlying asbestos liabilities, regardless of when that
right or demand arises, whether it was raised during the
bankruptcy proceeding or is contingent on a future event.
In re W.R. Grace & Co., 729 F.3d 311, 321 (3d Cir. 2013).9
The issues on appeal depend on the specific language of the Trust
Agreement, TDP and Alternative Dispute Resolution Procedures (ADRP).10 The
Trust Agreement begins by defining the purpose of the Trust as to assume the
asbestos liabilities of OC/FB and to resolve all Trust claims “fairly, equitably
and reasonably in light of the limited assets available to satisfy such claims.”
Trust Agreement, § 1.2, R.R. 926a. While the Trust and Trustees assumed
the asbestos liabilities,
Except as otherwise provided in this PI Trust Agreement and the
TDP, the PI Trust shall have all defenses, cross-claims, offsets,
and recoupments, as well as rights of indemnification,
contribution, subrogation, and similar rights, regarding such
claims that OC and Reorganized OC have or would have had under
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9 This Court has provided that:
absent a United States Supreme Court pronouncement, the
decisions of federal courts are not binding on Pennsylvania state
courts, even when a federal question is involved. When
considering a given issue, however, we prefer Third Circuit
decisions to those of other federal circuits, to discourage litigants
from ‘crossing the street’ to obtain a different result in federal
court than they would in Pennsylvania court.
Graziani v. Randolph, 856 A.2d 1212, 1218 (Pa. Super. 2004) (quoting
Werner v. Plater–Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002)).
10 For ease of reference, we cite to the documents in the reproduced record.
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applicable law. Regardless of the foregoing, however, a claimant
must meet otherwise applicable federal, state and foreign statutes
of limitations and repose, except as otherwise provided in Section
5.1(a)(2) of the TDP.[11]
Trust Agreement, § 1.4(b) (emphasis added), R.R. 927a. Additionally, the
Trust Agreement includes a choice of law provision specifying that it must be
governed by and construed in accordance with Delaware law. Trust
Agreement, § 7.10, R.R. 969a.
The TDPs govern the processing of all asbestos personal injury claims
submitted to the Trust. “Except as may otherwise be provided [in the TDP],
nothing in [the] TDP shall be deemed to create a substantive right for any
claimant.” TDP § 1.2, R.R. 199a-200a. Accordingly, claimants are limited in
their rights to pursue relief for asbestos personal injury claims by the express
language of the TDP and all claims against the Trust must be presented in the
form required by the TDP. The TDP outlines a process by which claims are
first subject to individual or expedited review for an initial settlement offer,
after which the claimant may proceed to mediation and then non-binding
arbitration if he or she is dissatisfied with the offer.
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11 Section 5.1(a)(2) sets forth statutes of limitations and repose for the initial
filing of a claim with the Trust, varying depending on whether a claimant
asserted his or her claim in tort before or after OC/FB filed for bankruptcy.
See TDP § 5.1(a)(2), R.R. 221a. There is no dispute here that Appellants filed
suit against OC/FB prior to the bankruptcy proceedings.
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As relevant here, a claimant who rejects an award from non-binding
arbitration may then proceed to litigate the claim in “the tort system.” TDP
§ 2.2, R.R. 203a; TDP § 5.11, R.R. 254a (“Claimants who elect non-binding
arbitration and then reject their arbitral awards retain the right to institute a
lawsuit in the tort system against the PI Trust pursuant to Section 7.6 below.”)
(emphasis added). Specifically:
If the holder of a disputed claim disagrees with the PI Trust’s
determination regarding the Disease Level of the claim, the
claimant’s exposure or medical history, the validity of the claim
under the provisions of this TDP or the liquidated value of the
claim, and if the holder has first submitted the claim to non-
binding arbitration as provided in Section 5.10 above, the holder
may file a lawsuit in the Claimant’s Jurisdiction as defined in
Section 5.3(b)(2)[12] above. Any such lawsuit must be filed by the
claimant in his or her own right and name as not as a member or
representative of a class, and no such lawsuit may be consolidated
with any other lawsuit. All defenses (including, with respect to
the PI Trust, all defenses which could have been asserted by
[OC/FB]) shall be available to both sides at trial; however, the PI
Trust may waive any defense and/or concede any issue of fact or
law. . . .
TDP § 7.6, R.R. 261a (emphasis added). The TDP contains a choice of law
provision stating that the law governing any litigation in the tort system shall
be the law of the Claimant’s Jurisdiction. TDP § 8.3, R.R. 264a.
Finally, the ADRP sets forth the process if a party to non-binding
arbitration rejects the arbitral award. Upon rejection of the award, a claimant
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12 Section 5.3(b)(2) defines “Claimant’s Jurisdiction” as “the jurisdiction in
which the claim was filed (if at all) against [OC/FB] in the tort system prior to
the Petition Date.” TDP § 5.3(b)(2), R.R. 237a.
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may proceed to binding arbitration or litigation by notifying the Trust of his or
her decision. ADRP IV.Q.2, R.R. 282a. Upon receipt of timely notification that
the claimant wishes to proceed to litigation, the Trust must send the Claimant
an authorization letter to do so. Id. Here, the record reveals that Appellants
all received authorization letters after rejecting arbitral awards that contained
the following language:
[P]ursuant to Section IV.Q of the [ADRP], the Trust grants
Claimant authorization to commence litigation against the Trust
pursuant to Section 7.6 of the TDP. Such litigation shall be limited
to determination of the liquidated value of the Claimant’s Trust
Claim in accordance with the TDP.
The Trust, in issuing this authorization to commence litigation,
does not waive, and hereby expressly preserves, any and all
claims and defenses available to the Trust pursuant to the Plan.
Authorization Letters, R.R. 289a, 291a, 305a, 307a & 310a.
Based on these provisions, we agree with the trial court that Appellants
were only expressly authorized under the TDP to raise tort claims against the
Trust and were bound by Pennsylvania’s statute of limitations in pursuing
those claims. Under the Channeling Injunction, Appellants were barred from
litigating any claims against the Trust until they had complied with the TDPs
by undergoing individual review of the claims, arbitrating the claim and
receiving the authorization letter from the Trust allowing them to commence
suit in the tort system. Accordingly, for the purposes of the statute of
limitations, their causes of action accrued when they received the
authorization letters, as that was the date “when [they] could have first
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maintained the action to a successful conclusion.” Fine, supra. Prior to that
date, any claim in the trial court was barred by the Channeling Injunction.
Thus, we agree with the trial court’s determination that the limitations period
commenced when Appellants received their authorization letters.
Further, it is beyond cavil that tort claims in Pennsylvania are subject to
a two-year statute of limitations, as are claims for breach of fiduciary duty.
42 Pa.C.S. § 5524(7); see also Mariner Chestnut Partners, L.P. v.
Lenfest, 152 A.3d 265 (Pa. Super. 2016). As described supra, Appellants
received their respective authorization letters in 2014 and did not file suit in
the trial court until 2018. Thus, claims lying in tort or breach of fiduciary duty
were patently untimely.
In an attempt to circumvent these timeliness concerns, Appellants
characterize their claims as equitable in nature and argue that no statute of
limitations applies. They ascribe no significance to the TDP’s use of the phrase
“in the tort system” and argue that any tort claims were forever enjoined by
the Channeling Injunction, even when a claimant complies with the TDP. TDP
§ 7.6, R.R. 261a (emphasis added). Relying on Pennsylvania case law related
to beneficiaries of estates, they argue that they held a “right of payment” as
beneficiaries and owners of the Trust’s corpus that entitled them to payment
without regard to any statute of limitations. This argument is belied by the
language of the Trust Agreement and TDP.
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The dual purpose of a Section 524(g) bankruptcy trust “is to give ‘full
consideration’ to the interests of future claimants by ensuring their claims
would be compensated comparably to present claims, while simultaneously
enabling corporations saddled with asbestos liability to obtain the ‘fresh start’
promised by bankruptcy.” In re Fed.-Mogul Glob. Inc., 684 F.3d 355, 359
(3d Cir. 2012) (quoting H.R. Rep. No. 103-835, at 46-48). To that end,
claimants are expressly limited in the relief they may pursue for asbestos-
related personal injury or death claims. While Appellants may submit a claim
for adjudication by the Trust in accordance with the TDP, including through
non-binding arbitration and subsequent litigation “in the tort system,” the TDP
does not “create a substantive right for any claimant” beyond what is
expressly authorized in that document. TDP § 7.6, R.R. 261a; TDP § 1.2, R.R.
199a-200a. By limiting the types of claims that can be litigated against the
Trust, the Channeling Injunction, Trust Agreement and TDP balance the
interests of thousands of claimants with the limited funds available to
compensate them and OC/FB’s interest in continuing their business.
Moreover, Appellants’ argument does not account for Section 1.4(b) of
the Trust Agreement, which requires all claimants to comply with otherwise
applicable statutes of limitation and reserves all defenses to the Trust that
could have been asserted by OC/FB. Section 7.6 of the TDP similarly reiterates
that all defenses are reserved to the Trust when a claimant elects to proceed
to litigation in the tort system. Finally, the Bankruptcy Code does not preclude
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all tort litigation under these circumstances, as even under a general bar to
litigation a channeling injunction may still “expressly allow[]” for specific legal
actions. 11 U.S.C. § 524(g)(1)(B). Here, those legal actions include tort
claims following rejection of an arbitral award.
Appellants argue that equitable claims against the Trust and Trustees
are not governed by the TDP or Trust Agreement. However, the broad
definition of “claim or demand” under Section 524(g) of the Bankruptcy Code
undercuts this argument. W.R. Grace & Co., supra. The Channeling
Injunction applies to “any right to or demand for payment that arises from the
debtor’s underlying asbestos liabilities, regardless of when that right or
demand arises,” including any claim for equitable relief or unjust enrichment
asserted by Appellants. Id. The foregoing provisions of the Trust Agreement,
Channeling Injunction and TDP expressly limit a claimant’s potential avenues
to relief to tort claims in litigation, precluding claimants from pursuing
equitable claims against the Trust in litigation.13 While Appellants attempt to
argue that the language “in the tort system” should be read as a generalized
authorization to pursue relief through litigation, this reading would require us
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13 Additionally, we agree with the trial court and Appellees that Appellants are
precluded from seeking remedy in equity when they had an adequate remedy
at law, in the form of monetary damages, available to them. Trial Court
Opinion, 12/12/22 at 8 (citing Stuyvesant Ins. Co. v. Keystone Ins.
Agency, Inc., 218 A.2d 294, 296 (Pa. 1996); Appellees’ Brief at 34-35 (Fisk
Appeal); Appellees’ Brief at 28-29 (Vitcavich/Foy Appeal).
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to disregard the plain meaning of “the tort system.” We cannot rewrite the
Trust Agreement and TDP to authorize all possible litigation “in the court
system” when it does not do so.14
Finally, Appellants’ reliance on In re Schulz Estate, 98 A.2d 176 (Pa.
1953) and Trust Under Will of Ashton, 260 A.3d 81 (Pa. 2021), for the
proposition that they have a right of payment from the Trust that is not subject
to laches or limitation is unavailing. Appellants are claimants who are entitled
to payment from the Trust only to the extent that they comply with the TDP
for proving, valuing and liquidating their claims. By its own terms, the TDP
does not create any substantive right for any claimant. TDP § 1.2, R.R. 199a.
Case law related to vested beneficiaries who have an already-established
interest in a trust’s corpus has no bearing on whether any claimants to the
Trust here have sufficiently established their claims. Indeed, a claimant who
fails to establish exposure or medical criteria required for recovery under the
TDP would not be entitled to recover as a beneficiary of the Trust’s corpus.
Based on the foregoing, the trial court did not err in granting Appellees’ motion
for summary judgment based on the statute of limitations.
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14 Because we have determined that the TDP only allows tort claims in
litigation, we reject Appellants’ argument that the four- or six-year statutes of
limitation for other types of claims could apply here.
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B.
Next, Fisk argues that the trial court should not have reached the merits
of the summary judgment motion based on procedural defects.15 She points
out that Appellees did not append an affidavit in support of the motion and
contends that summary judgment was premature because discovery was
incomplete. She does not specifically identify any discovery materials that
remained outstanding which would have aided in disposition of the timeliness
issue. Finally, she argues that the trial court erred in denying her motion to
disqualify Appellees’ counsel based on a substantial conflict of interest.16
These claims are meritless.
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15 Vitcavich and Foy raised similar claims of error in their concise statements
pursuant to Pa. R.A.P. 1925(b), but did not include them in their brief on
appeal. Accordingly, they have abandoned those arguments. In re K.K., 957
A.2d 298, 303 (Pa. Super. 2008).
16 Appellees contend that the conflict-of-interest issue is waived because Fisk
did not file an immediate collateral appeal under Pa. R.A.P. 313 of the trial
court’s denial of that motion. Appellees’ Brief at 31-32 (citing Rudalavage
v. PPL Elec. Utilities Corp., 268 A.3d 470, 478 (Pa. Super. 2022)). “There
is no rule, however, that a collateral order must be appealed within thirty days
after its entry; Rule 313(a) only provides that an appeal ‘may’ be taken from
a collateral order.” Cabot Oil & Gas Corp. v. Speer, 241 A.3d 1191, 1198
(Pa. Super. 2020). As Fisk points out, under Pennsylvania’s merger rule, “a
notice of appeal filed from the entry of judgment will be viewed as drawing
into question any prior non-final orders that produced the judgment.” McNeil
v. Jordan, 894 A.2d 1260, 1266 (Pa. 2006) (emphasis and citation omitted).
Accordingly, Fisk is not precluded from challenging the trial court’s order on
her disqualification motion on appeal from the final order disposing of her
claims.
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We begin with Fisk’s challenge to the lack of affidavit supporting
Appellees’ motion. Summary judgment is appropriate, inter alia, “whenever
there is no genuine issue of any material fact as to a necessary element of the
cause of action or defense which could be established by additional discovery
or expert report.” Pa. R. Civ. P. 1035.2(1). For the purposes of summary
judgment, the record includes pleadings, depositions, answers to
interrogatories, admissions, affidavits and expert reports. Pa. R. Civ. P.
1035.1, 1035.4.
Neither the lack of affidavit in support of the motion nor any outstanding
discovery impeded the trial court’s ability to decide the summary judgment
motion in this case. As the trial court observed during the oral argument on
the motion, the case management order had imposed a discovery deadline of
June 11, 2020, and neither Fisk not the other plaintiffs sought an extension of
the deadline or moved for additional discovery after that time. N.T. 8/3/22,
at 7-9. Additionally, Fisk conceded that the relevant dates established by
documentary evidence, the dates of the authorization letters and the filing of
the complaints, were correct. Id. at 11-12. Those dates were controlling for
the question before the trial court on summary judgment: whether Fisk had
filed her complaint within the statute of limitations. As Fisk has not identified
any discovery that she was denied and which would have been relevant to
timeliness, and no affidavit from any of the Appellees would have affected her
own concession as to the relevant dates, the trial court did not err in
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considering the merits of the summary judgment motion without requiring
further discovery or affidavit.
Finally, Fisk asserts that the trial court erred by declining to disqualify
Appellees’ counsel from their representation in this matter.17 Fisk did not
include the motion for disqualification in the reproduced record, identify its
location in the certified record or even cite the motion in her argument, which
has hampered our review of this issue. See Pa. R.A.P. 2119(c) (“If reference
is made to the pleadings, evidence, charge, opinion or order, or any other
matter appearing in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the place in the
record where the matter referred to appears.”); Commonwealth v. Koehler,
914 A.2d 427, 438 (Pa. Super. 2006) (“[I]t is not this Court’s duty to become
an advocate for an appellant and comb through the record to assure the
absence of trial court error.”). The certified record in this matter spans over
6,000 pages and is not easily indexed into its constituent parts. While Fisk
____________________________________________
17
When reviewing a trial court’s order on disqualification of counsel,
we employ a plenary standard of review. Courts may disqualify
attorneys for violating ethical rules. On the other hand, courts
should not lightly interfere with the right to counsel of one’s
choice. Thus, disqualification is appropriate only when both
another remedy for the violation is not available and it is essential
to ensure that the party seeking disqualification receives the fair
trial that due process requires.
Rudalavage, supra, at 478 (citation omitted).
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baldly asserts in her brief that certain of Appellees’ counsel had represented
her and other plaintiffs as creditors in the bankruptcy proceedings, she cites
no evidence of record to establish that such a conflict of interest actually
existed.18 Because she has not sufficiently developed this claim and we are
unable to review the merits on the record before us, this issue is waived.
Order affirmed.
____________________________________________
18 As explained supra, the trial court found that Appellees’ counsel had
represented the Official Committee of Asbestos Claimants in the bankruptcy
proceedings. See Order, 6/29/20, at 1-2 n.1; R.R. 696a-97a. The Appellants
were granted leave to conduct depositions of up to three plaintiffs in the lower
court to establish a factual basis for disqualification. Rather than conducting
those depositions, Appellants submitted a deposition of Foy taken in a related
case. The trial court found that the deposition did not establish that Foy had
been personally represented by Appellees’ counsel, but rather that she may
have relied on recommendations they made in their capacity as Asbestos
Committee counsel when she voted to approve the creation of the Trust. Id.
at 2 n.1. Thus, while the trial court acknowledged that disqualification “is
appropriate ‘where the attorney has represented the opposing party in the
past and may use confidential information gained in the course of that
employment,’” it concluded that “[t]he Law Firms’ prior representation of the
Asbestos Committee in the bankruptcy case is not equivalent to a
representation of the individual Plaintiffs.” Id. (quoting Vertical Res., Inc.
v. Bramlett, 837 A.2d 1193, 1201 (Pa. Super. 2003)). Further, “Bankruptcy
Courts and Federal Appellate Courts have consistently held that counsel to a
bankruptcy creditors committee represents the committee itself, not the
individual creditors.” Id. (collecting cases). We discern no error in this
reasoning.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2023
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