JUNE DIANE DUFFY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES F. PIPER
CBS CORPORATION JUNE DIANE DUFFY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES F. PIPER
Woodward, C.J., Kehoe, Leahy, JJ.
complex, multi-party asbestos case brought by James F. Piper,
appellant,  in the Circuit Court for
Baltimore City, CBS Corporation ("CBS"), appellee,
filed a motion for summary judgment, contending that the
statute of repose barred Piper's cause of action against
it. See Md. Code (1974, 2013 Repl. Vol.), §
5-108 of the Courts and Judicial Proceedings Article
("CJP"). Following a hearing, the court granted
CBS's motion. Piper noted this appeal, presenting three
issues, for our review, which we have consolidated into the
Did the circuit court err in granting CBS's motion for
reasons stated below, we answer this question in the negative
and affirm the judgment of the circuit court.
a Delaware corporation that is the successor by merger to a
Pennsylvania corporation bearing the same name, which was
formerly known as Westinghouse Electric Corporation
("Westinghouse"). In early 1970, Westinghouse
entered into a contract with the Potomac Electric Power
Company ("Pepco") to sell a turbine generator for
Pepco's Morgantown Generating Station
("Morgantown") in Woodzell, Maryland. Pepco signed
a separate contract with Westinghouse for the installation of
the turbine generator at the site. The specifications in that
installation contract called for the use of insulation
worked as a steamfitter at Morgantown. Although he did not
work directly on the installation of the turbine generator,
he worked in the vicinity of the workers installing the
turbine generator's insulation. The last day workers
installed such insulation was June 28, 1970, and the turbine
generator was operational by July of 1970.
December 26, 2013, Piper was diagnosed with
mesothelioma. According to
Piper, his mesothelioma was caused by inhalation of asbestos
fibers during his career as a steamfitter, which included the
time that he worked at Morgantown. On March 26, 2014, Piper filed a complaint
in the circuit court for damages caused by his exposure to
asbestos.On January 9, 2015, CBS filed
a motion for summary judgment, alleging that Piper's
cause of action against it was barred by the statute of
repose. Following a hearing, the court entered an order
granting CBS's motion on March 9, 2015. Piper thereafter
noted this appeal.
outset of this case, CBS contends that we should dismiss
Piper's appeal because he appealed from a non-appealable
order, and thus we lack jurisdiction. We deny CBS's
motion and determine that we do have jurisdiction to hear
The Court of Appeals has explained:
A fundamental principle of the statute that defines the
jurisdiction of the appellate courts is that, as a general
rule, a party may appeal only from "a final judgment
entered in a civil or criminal case by a circuit court."
CJ § 12-301[.]
[A] ruling must ordinarily have the following three
attributes to be a final judgment: (1) it must be intended by
the court as an unqualified, final disposition of the matter
in controversy[;] (2) unless the court acts pursuant to
Maryland Rule 2-602(b) to direct the entry of a final
judgment as to less than all of the claims or all of the
parties, it must adjudicate or complete the adjudication of
all claims against all parties;[and] (3) it must be set forth
and recorded in accordance with Rule 2-601.
Metro Maint. Sys. S., Inc. v. Milburn, 442 Md. 289,
297-98 (2015). There are three exceptions to the final
judgment requirement: "(1) appeals from interlocutory
orders specifically allowed by statute; (2) immediate appeals
permitted under Maryland Rule 2-602; and (3) appeals from
interlocutory rulings allowed under the common law collateral
order doctrine." Md. Bd. of Physicians v.
Geier, 451 Md. 526, 546 (2017).
order granting CBS's motion for summary judgment was not
final when it was entered, because it did not resolve all
claims as to all parties in the instant case. Neither did the
order fall into one of the three exceptions listed above.
Accordingly, at the time Piper noted his appeal, it was
noting the appeal, however, Piper dismissed from the case the
sole remaining defendant, Walter E. Campbell Co., Inc., and
asked the circuit court for an order entering a final
judgment. On February 8, 2016, the court granted the
dismissal and issued the requested order.
Maryland Rule 8-602(e) states, in relevant part:
(1) If the appellate court determines that the order from
which the appeal is taken was not a final judgment when the
notice of appeal was filed but that the lower court had
discretion to direct the entry of a final judgment pursuant
to Rule 2-602(b), [ the appellate
court, as it finds appropriate, may . . . (D) if a final
judgment was entered by the lower court after the notice of
appeal was filed, treat the notice of appeal as if filed on
the same day as, but after, the entry of the judgment.
(Emphasis added). Because a final judgment was entered by the
trial court after Piper noted his appeal, Rule 8-602(e)(1)(D)
authorizes us to treat his notice of appeal as if it was
filed on the same day as the final judgment, but after the
entry thereof. See McCormick v. Medtronic, Inc., 219
Md.App. 485, 506 n. 5 (2014) (finding "[a]lternatively,
because the circuit court's order effectively became
final when the [appellants] dismissed their claims against
Dr. Rosner with prejudice, we may treat their 'notice of
appeal as if filed on the same day as, but after, the entry
of the judgment.' Md. Rule 8-602(e)(1)(D).").
Accordingly, we have jurisdiction to address the merits of
the instant appeal.
Maryland appellate courts have explained:
"On review of an order granting summary judgment, our
analysis 'begins with the determination [of] whether a
genuine dispute of material fact exists; only in the absence
of such a dispute will we review questions of law.'
D'Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d
941, 955 (2012) (quoting Appiah v. Hall, 416 Md.
533, 546, 7 A.3d 536, 544 (2010)); O'Connor v. Balt.
Cnty., 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004). If
no genuine dispute of material fact exists, this Court
determines 'whether the Circuit Court correctly entered
summary judgment as a matter of law.' Anderson v.
Council of Unit Owners of the Gables on Tuckerman
Condo., 404 Md. 560, 571, 948 A.2d 11, 18 (2008)
(citations omitted). Thus, '[t]he standard of review of a
trial court's grant of a motion for summary judgment on
the law is de novo, that is, whether the trial court's
legal conclusions were legally correct.'
D'Aoust, 424 Md. at 574, 36 A.3d at 955."
James G. Davis Constr. Corp. v. Erie Ins. Exch., 226
Md.App. 25, 34-35 (2015) (quoting Koste v. Town of
Oxford, 431 Md. 14, 24-25 (2013)), cert.
denied, 446 Md. 705 (2016).
case, sub judice, the parties do not claim that
there is a genuine dispute as to any material fact. It is
undisputed that (1) the last date of Piper's exposure to
asbestos dust generated by the installation of insulation to
Unit 1 turbine generator at Morgantown was June 28, 1970; (2)
Morgantown's Unit 1 turbine generator, which was
fabricated and installed by Westinghouse, was substantially
completed no later than July 1970; and (3) Piper was
diagnosed with mesothelioma on December 26, 2013. The primary
issue in the instant case is whether Piper's cause of
action against CBS is barred by the statute of repose, CJP
§ 5-108, which is an issue of law. Resolution of that
issue will require us to engage in statutory construction of
The statute of repose, as codified in Section 5-108,
provides, in relevant part:
(a) Injury occurring more than 20 years later. -
Except as provided by this section, no cause of action for
damages accrues and a person may not seek contribution or
indemnity for damages incurred when wrongful death, personal
injury, or injury to real or personal property resulting from
the defective and unsafe condition of an improvement to real
property occurs more ...