Burger v. Owens-Illinois, Inc.

CONCURRING AND DISSENTING OPINION BY

KLEIN, J.:

¶ 11 begin by noting my agreement with the majority on the issues of product identification. I agree that there is insufficient evidence to establish liability on the part of DAP, Owens and Pneumo Abex. However, just as I dissented in Johnson v. American Standard, 966 A.2d 573, 2009 WL 281177 (Pa.Super.2009)(ew banc). I must dissent here. I believe that the Burgers have standing to challenge the constitutionality of the Crown Cork Statute, 15 Pa.C.S. § 1929.1. I also believe that the Crown Cork Statute both violates the Commerce Clause of the United States Constitution1 and its application represents a denial of equal protection.2 Thus, I would hold the law unenforceable, and so I must dissent.

Standing

¶ 2 Here, the majority relied on the recently decided Johnson v. American Standard to find that the Burgers have no standing to challenge the constitutionality of the law. I disagreed with that determination in Johnson and continue to disagree here.

The core concept in any standing analysis is that a person who is not adversely affected in any way by the matter he *627seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge.

Soc’y Hill Civic Ass’n v. Pa. Gaming Control Bd., 593 Pa. 1, 928 A.2d 175, 184 (2007).3

¶ 3 I believe there are two aspects to consider when determining whether a plaintiff has standing to complain of a constitutional violation. First, was a right violated? Second, was the person adversely affected by the violation?

¶ 4 Here, I start with the premise that the statute does violate the Commerce Clause because it gives an advantage to a Pennsylvania corporation (Crown Cork and any hypothetical Pennsylvania corporation that might have acquired asbestos liability through successor liability) over other similarly situated foreign corporations.

¶ 5 The majority in Johnson recognized that a consumer or another who is not directly affected by the regulation may still assert a challenge if that person falls within the zone of interest. Oxford Assocs. v. Waste Sys. Auth. 271 F.3d 140 (3d Cir.2001). Generally, the interest must be substantial, Commonwealth v. Rose, 960 A.2d 149 (Pa.Super.2008), and the controversy real and concrete. City of Phila. v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 569 (2003).

¶ 6 In Johnson, the majority found that there was no substantial interest in that there were still joint tortfeasors from whom damages might be collected. I disagreed because there was the clear possibility that Crown Cork/Mundet would be the only defendant found liable. If that proved to be the case, then Johnson would be unable to recover damages to which he is constitutionally entitled.

¶ 7 Here, that hypothetical situation is the reality, which, I believe, makes the argument even stronger. DAP, Owens-Illinois and Pneumo Abex, the last remaining co-defendants with Crown Cork, are absolved of liability. Crown Cork is the only remaining defendant against which Burger can collect his damages.

¶ 8 The Pennsylvania Constitution states:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

Pa. Const., Art. 1, § 11.

¶ 9 Yet application of the Crown Cork Statute would deny the Burgers their full remedy. I would have a difficult time finding a more substantial interest in a law.

¶ 10 Based on the above, I must disagree with the majority. I believe the Burgers have standing to raise the constitutional claims.

¶ 111 believe that the Crown Cork Statute violates both the principles of equal protection as well as the Commerce Clause. I have stated those reasons in my dissent in Johnson. Nonetheless, because this is an important issue, I reiterate my reasoning.

Equal protection

¶ 12 I agree with the general proposition that the Pennsylvania legislature has the right to enact statutes which control the fate of Pennsylvania corporations. What the Pennsylvania legislature cannot do is enact a statute that improperly grants favor to a Pennsylvania corporation while putting foreign corporations at a disadvan*628tage such that the due process rights of a plaintiff are adversely affected.

¶ 13 In Ieropoli v. AC&S. Corp., 577 Pa. 138, 842 A.2d 919 (2004), our Supreme Court held the statute now at issue unconstitutional because it denied the due process rights of individuals whose cause of action had vested prior to the enactment of the law. This is a classic violation of due process. Our Supreme Court left open, however, the question of the constitutionality of the statute as applied to those causes of action that accrued after December 17, 2001 (such as the instant case). That question is now before us.

¶ 14 The essence of equal protection is simply that persons of a class cannot be denied the protection of the laws that other persons of the same class enjoy. See U.S. Const., Amend. 14; Pa. Const., Art. 1, § 26.

¶ 15 Here, defendants in asbestos litigation are the main class of persons involved. However, § 1929.1 carves out a sub-class of defendants currently consisting of a single Pennsylvania corporation which is subject to the payment of damages through the legal concept of successor liability. One might also find the main class consists of corporations which are subject to the payment of damages through successor liability and the sub-class to be corporations subject to the payment of asbestos damages through successor liability.

¶ 16 In either event, there is no clear showing why a foreign corporation that is subject to the payment of damages for asbestos-related harm through successor liability should be denied a similar protection. In this manner, I believe that WHYY, Inc. v. Borough of Glassboro, 393 U.S. 117, 89 S.Ct. 286, 21 L.Ed.2d 242 (1968), is instructive. In WHYY, the United States Supreme Court found it to be a violation of equal protection for New Jersey to deny a foreign corporation the benefit of certain tax exemptions that were allowed to New Jersey registered nonprofit corporations. The Supreme Court stated:

This Court has consistently held that while a State may impose conditions on the entry of foreign corporations to do business in the State, once it has permitted them to enter, ‘the adopted corporations are entitled to equal protection with the state’s own corporate progency, at least to the extent that their property is entitled to an equally favorable ad valorum tax basis.’

Id. at 119, 89 S.Ct. 286 (citations omitted).

¶ 17 While the matter before us is not a tax issue, I can see no reason why the logic of the WHYY decision would not be applicable here. Once the Commonwealth of Pennsylvania allowed corporations that had asbestos liability into the Commonwealth to do business, it must treat those adoptive corporations the same as it treats Pennsylvania corporations. Or, once the Commonwealth allows any corporation which has accepted liability through purchase or merger of another corporation into Pennsylvania, it must offer similar protection to that foreign corporation.4 By *629allowing this benefit to a Pennsylvania corporation, foreign corporations would have to pay more than their proportional share of damages and would be unable to seek contribution from a protected Pennsylvania corporation.

¶ 18 While it appears that the statute in question treats similar corporations dis-similarly, in violation of equal protection of laws, it is more important under the facts of this case, how that dissimilar treatment affects the rights of plaintiffs.5

¶ 19 Here, the Burgers are forbidden from seeking redress from the sole source liability simply because that source, a Pennsylvania corporation, acquired the liability through the purchase of another corporation and by dint of the fact that their claims were unknown until after December 17, 1993. Thus, if Jon Burger had been exposed to any other asbestos manufacturer or supplier other than Mundet/Crown Cork, he would be entitled to seek full redress from all those responsible. Similarly, if Burger had known of his illness prior to December 17, 1993 he would also be entitled to seek redress from Mun-det/Crown Cork.

¶ 20 It is admitted that Burger was exposed to asbestos from a Mundet product, and if we suppose that the exposure can be linked to his fatal disease, then the simple fact that the disease may have taken a bit longer to manifest itself in Burger than in another now prevents him from seeking compensation from the sole admitted responsible party.6 Thus, Burger has been denied equal protection of the law due to the operation of 15 Pa.C.S. § 1929.1. Not only has equal protection been violated as regarding the Fourteenth Amendment and Article 1, section 26 of the Pennsylvania Constitution, but, as noted earlier, the application of section 1929.1 also offends equal protection under Article 1, section 11, which provides:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

Pa. Const., Art. 1, § 11.

¶21 Burger is entitled to seek the full measure of remedy against those who may have caused him harm. Section 1929.1 prevents that from happening by arbitrarily disallowing Burger from seeking a constitutionally guaranteed remedy on the basis of the date he knew of his injury and because the legislature has opted to treat a single Pennsylvania corporation differently from any and every other foreign corporation.

Commerce Clause

¶ 22 I also believe that the Crown Cork and Seal Act violates the Commerce Clause of the United States Constitution, Art. 1, cl. 3. As the majority notes, “the dormant Commerce Clause prohibits economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” Office of Disciplinary Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654, 666 (2004). It is hard to dispute that the Crown Cork and Seal Act gives an *630advantage to those Pennsylvania Corporations that acquired asbestos companies while not giving such protection to out-of-state corporations who made similar acquisitions.

¶ 23 In Granholm v. Heald, 544 U.S. 460, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005), the United States Supreme Court used the dormant commerce clause to strike down provisions in Michigan and New York that allowed in-state but not out-of-state wineries to make direct sales to consumers. In that case, the United States Supreme Court, citing Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13, (1994), said:

This Court has long held that, in all but the narrowest circumstances, state laws violate the Commerce Clause if they mandate “differential treatment of instate and out-of-state economic interests that benefits the former and burdens the latter." Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). Laws such as those at issue contradict the principles underlying this rule by depriving citizens of their right to have access to other States’ markets on equal terms.

544 U.S. at 461, 125 S.Ct. 1885.

¶ 24 In Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996), the United States Supreme Court struck down a North Carolina “intangibles tax” that taxed the value of corporate stock owned by state residents in inverse proportion to the corporation’s exposure to the state’s income tax, holding it discriminated against interstate commerce.

¶ 25 Following Fulton, the Pennsylvania Supreme Court in Annenberg v. Commonwealth I, 562 Pa. 570, 757 A.2d 333, and Annenberg v. Commonwealth II, 562 Pa. 581, 757 A.2d 338 (2000), struck down a provision imposing personal property tax on the value of stock held by out-of-state corporations but not in-state corporations. Here it was the taxpayer that objected to the tax, not one of the corporations that might have been harmed by the tax that impaired commerce.

¶26 It seems abundantly clear to me that 15 Pa.C.S.A. § 1929.1 provides the “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter” that is constitutionally forbidden.

¶ 27 For these reasons, I would reverse the lower court determination and allow these plaintiffs to pursue them claims. Accordingly, I dissent.

. U.S. Const., Art. I, § 8, cl. 3.

. U.S. Const., Amend. 14; Pa. Const., Art. 1, §§ 11, 26.

. The majority opinion in Johnson cited this passage at page 577.

. I am aware that the WHYY decision has been distinguished by Feniello v. University of Pennsylvania Hospital, 558 F.Supp. 1365 (D.C.N.J.1983), which stated, regarding WHYY: “There is no indication in the opinion that the same ruling would apply to the state's power to grant a corporation limited immunity from tort liability.” I believe Feniello is inapplicable for a number of reasons. First, this is merely dicta from the federal district court and is not binding upon us. Second, and most importantly, in Feniello, the hospital did no business in New Jersey yet sought the protection of New Jersey charitable laws, the denial of which was not unconstitutional. Here, all other defendants are doing business in Pennsylvania, thus would be subject to Pennsylvania law.

. The dissimilar treatment of corporations may not be properly before us because no other defendant corporation has complained of unequal protection. However, the analysis is still important because of the way the dissimilar treatment of corporations' impacts upon the treatment of plaintiffs. Thus, we do not believe this analysis is uncalled for dicta.

. Other aspects of this case have settled. However, we have no knowledge of the details of the settlements with any other defendants. We do not know what damages, if any, have been collected from any other defendant.