Vanaman v. DAP, Inc.

CONCURRING AND DISSENTING OPINION BY

KLEIN, J.:

¶ 1 While I agree with the majority regarding the disposition of the DAP aspect of this matter, in accordance with my pre*611viously stated position regarding standing and the constitutionality of the Crown Cork and Seal Act, 15 Pa.C.S. § 1929.1, I must dissent.

¶ 2 Because I have extensively put forth my views on standing and the constitutionality of the Crown Cork and Seal Act in companion cases Johnson v. American Standard, 966 A.2d 573, 2009 WL 281177 (Pa.Super.2009) {en banc) and Burger v. Owens-Illinois, 966 A.2d 611, 2009 WL 325548 (Pa.Super.2009), I will not burden the reader with a complete reiteration. I refer interested parties to those decisions for a full discussion of my position.

¶ 3 Briefly, I believe the plaintiffs have standing to challenge the constitutionality of the statute because application of the statute prevents the Vanamans from seeking full satisfaction for their injuries as is guaranteed by the Pennsylvania Constitution, Art.l, § 11. The Vanamans are prevented from seeking their full remedy because the statute gives Crown Cork and Seal a favored economic status over any similarly situated foreign corporation. Thus, although not directly affected by the statute, their zone of interest is substantial enough to provide standing.

¶ 4 Related to the above, the statute violates the Commerce Clause of the United States Constitution, Art. 1, cl.3, because it represents a regulatory measure designed to benefit in-state economic interest by burdening out-of-state competitors. See Office of Disciplinary Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654, 666 (2004). Under the statute, out-of-state corporations are forced to bear the burden of successor liability as it relates to asbestos litigation while Pennsylvania corporations are exempt.

¶ 5 Further, I believe the statute violates equal protection as found at U.S. Const., Amend. 14 and Pa. Const., Art. 1, § 26, by carving out a sub-class of defendants, consisting of a single Pennsylvania corporation, which is subject to the payment of damages through successor liability. Further, it improperly carves out a sub-class of defendants who are subject to successor liability in asbestos cases from a general class of defendants which are subject to successor liability in general.

¶6 The statute also prevents plaintiffs from seeking redress from a defendant based upon the arbitrary date upon which symptoms of the disease manifest. A person who exhibited symptoms before a certain date is allowed to seek damages from Crown Cork while a person who showed delayed symptoms is not allowed to seek damages. A plaintiff may be prevented from his or her day in court simply because he or she had, what would otherwise seem to be, the good fortune to not get immediately sick.

¶ 7 For the above reasons, more fully set forth in my separate waitings in Johnson v. American Standard and Burger v. Owens-Illinois, I believe that the Vanamans have standing and that the Crown Cork Statute violates the requirements of equal protection under both the United States and Pennsylvania Constitutions and the Commerce Clause of the United States Constitution. Therefore, I must dissent.