Vitcavich, M. v. Owens Corning

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37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.

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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.

____________________________________________

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.

____________________________________________

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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