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JELD-WEN, Inc. v. Van Brunt (In re Grossman's Inc.)

United States Court of Appeals for the Third Circuit

February 10, 2010, Submitted Under Third Circuit LAR 34.1(a); April 27, 2010, Resubmitted En Banc; June 2, 2010, Filed

No. 09-1563



SLOVITER, Circuit Judge.

] This Court's Internal Operating Procedure provides:

It is the tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.

 [*117]  Third Circuit I.O.P. 9.1. We  [**2] adhere strictly to that tradition. It is only on a rare occasion that we overrule a prior precedential opinion. We assemble en banc to consider whether this is such an occasion.

In the appeal before us, the Bankruptcy Court, affirmed by the District Court, followed our precedent in Avellino & Bienes v. M. Frenville Co. (Matter of M. Frenville Co.), 744 F.2d 332 (3d Cir. 1984) ("Frenville"), to hold that a plan of reorganization did not discharge asbestos-related tort claims filed by Mary Van Brunt and her husband Gordon (the "Van Brunts") against Grossman's Inc. The underlying asbestos exposure occurred pre-petition but the injury manifested itself post-petition. The Appellant, JELD-WEN, Inc., successor to defendant Grossman's Inc. and its affiliates (hereafter "Grossman's"), asks us to overrule the holding of Frenville.


In 1977, Appellee Mary Van Brunt, who was remodeling her home, purchased products that allegedly contained asbestos. She purchased those products in upstate New York from Grossman's, a home improvement and lumber retailer. In April 1997, Grossman's filed petitions under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101 et seq.

The following are among the  [**3] undisputed facts set forth in the Bankruptcy Court's Findings of Fact: "[a]t the time of the [bankruptcy], Grossman's had actual knowledge that it had previously sold asbestos containing products such as gypsum board and joint compound"; "Grossman's knew of the adverse health risks associated with exposure to asbestos"; it "was aware that asbestos manufacturers had been or were being sued by asbestos personal-injury claimants"; it "was aware that producers of both gypsum board and joint compound were being sued for asbestos-related injuries"; and it "was not aware of any product liability lawsuits based upon alleged exposure to asbestos-containing products that had been filed against [it] . . . ." App. at 20-21.

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607 F.3d 114 *; 2010 U.S. App. LEXIS 11155 **; 53 Bankr. Ct. Dec. 56; Bankr. L. Rep. (CCH) P81,777

In re: Grossman's Inc., et al., Debtors; JELD-WEN, Inc., f/k/a Grossman's Inc., Appellant v. Gordon Van Brunt, Individually and in his capacity as Personal Representative of the Estate of Mary Van Brunt* *Amended pursuant to Fed. R. App. P. 43

Prior History:  [**1] On Appeal from the United States District Court for the District of Delaware. (D.C. No. 1-08-cv-00427). District Judge: Honorable Joseph J. Farnan, Jr.

JELD-WEN, Inc. v. Van Brunt (In re Grossman's, Inc.), 400 B.R. 429, 2009 U.S. Dist. LEXIS 8482 (D. Del., 2009)


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