Cobbs v. Allied Chemical Corp.

• Citation: 661 A.2d 1375,443 Pa.Super. 386
• Decision Date: 18 August 1995
• Docket Number: INC,OWENS-ILLINOI
• Parties: Juanita COBBS, Administratrix of the Estate of Thomas Cobbs v. ALLIED CHEMICAL CORPORATION, Johns-Manville Corporation, Philip Carey Corporation, and Keene Corporation, and Celotex Corporation, v. EAGLE PICHER, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh-Corning Corp., GAF Corp., and Pacor. Appeal of(TWO CASES)
• Court: Superior Court of Pennsylvania

Page 1375

661 A.2d 1375

443 Pa.Super. 386

Juanita COBBS, Administratrix of the Estate of Thomas Cobbs v. ALLIED CHEMICAL CORPORATION, Johns-Manville Corporation, Philip Carey Corporation, and Keene Corporation, and Celotex Corporation, v. EAGLE PICHER, Owens-Corning Fiberglas Corp., Owens-Illinois,

Inc., Pittsburgh-Corning Corp., GAF Corp., and Pacor.

Appeal of OWENS-ILLINOIS, INC. (TWO CASES)

Superior Court of Pennsylvania.

Argued March 2, 1995.

Filed June 12, 1995.

Reargument Denied Aug. 18, 1995.

Eric J. Kadish, Philadelphia, for appellant.

Robert J. Murphy, Philadelphia, for Cobbs, appellee.

Before ROWLEY, P.J., and CAVANAUGH and McEWEN, JJ.

CAVANAUGH, Judge:

Owens-Illinois, Inc. ("Owens") appeals from two judgments entered following a jury verdict in favor of appellee/plaintiff, in a suit for personal injuries arising from the occupational exposure of appellee's decedent to asbestos. After careful review, we vacate both judgments and remand this case for further proceedings. ¹

On January 26, 1981 appellee brought suit against Allied Chemical Corporation, Johns-Manville Corporation, Philip Carey Corporation, Keene Corporation, and Celotex Corporation, alleging injuries and death to her husband due to occupational exposure to asbestos. Celotex Corporation, on March 11, 1983, filed a third party complaint against, inter alia, Pittsburgh-Corning Corporation, Owens-Corning Fiberglas Corporation, and appellant Owens, joining them as additional defendants. Owens thereafter filed an answer and new matter in which it raised the statute of limitations defense to appellee's/plaintiff's lawsuit.

Several years later, in 1992, the case, after having been consolidated with five other asbestos cases, was tried before a jury in a reverse-bifurcated proceeding (damages phase of trial tried before liability phase). The jury subsequently returned a verdict in favor of appellee in the amount of $175,000. ² Thereafter, on March 2, 1992, Owens and Keene entered into a stipulation with appellee, wherein it was agreed that if the liability phase of the case would have proceeded, it would have been determined that the asbestos-containing products, manufactured by original defendant Keene and additional defendants Owens, Pittsburgh-Corning and Owens-Corning, were all a substantial factor and cause of decedent's injuries, disease, damages, and death.

Owens and Keene subsequently filed post-trial motions. ³ In its motion, Owens raised, inter alia, the statute of limitations issue. Specifically, Owens argued that it was joined following the expiration of the limitations period on any direct claim which appellee/plaintiff could bring against Owens. As such, Owens maintained that it could not be held directly liable to appellee, but rather, it could only be held liable to Keene for contribution. The trial court denied Owens' post-trial motions, specifically finding that the statute of limitations issue "was not raised before nor decided by the trial judge." Owens subsequently filed the present appeals, raising the identical issue in each:

Whether the trial court erred in denying appellant Owens-Illinois' motion for judgment on the basis that plaintiff's claim against Owens-Illinois was barred by the statute of limitations?

Owens initially contends that the trial court erred in failing to consider its limitations defense. Conversely, appellee alleges that Owens' admission of liability, in the stipulation between the parties, acted as a waiver of Owens' rights to post-trial relief. Appellee further contends that even if Owens has not waived its rights to post-trial relief, the statute of limitations issue was not raised or preserved in either the damage phase of the trial, or as part of the stipulation. In resolving this dispute, it is necessary to first examine the terms of the stipulation.

It is well-established that parties, by stipulation, may bind themselves on all matters except those affecting jurisdiction and prerogatives of the court. Longenecker v. Matway, 315 Pa.Super. 411, 415, 462 A.2d 261, 263 (1983). When interpreting a stipulation, courts employ the rules for construction of contracts, with the primary focus placed on ascertaining and giving effect to the intention of the parties. Tyler v. King, 344 Pa.Super. 78, 89, 496 A.2d 16, 21 (1985). The language of a stipulation, like that of a contract, is construed against the drafter. Id. In construing a stipulation, the court will adopt the interpretation that is the most reasonable and probable, bearing in mind the objects which the parties intended to accomplish through the agreement. Wrenfield Homeowners Association v. DeYoung, 410 Pa.Super. 621, 627, 600 A.2d 960, 963 (1991). The court will not extend the language by implication or enlarge the meaning of terms beyond what is expressed. Ballard v. Heppe, 403 Pa.Super. 441, 445, 589 A.2d 266, 268 (1991). ⁴

Following the damage phase of the trial, appellee's counsel placed on the record, in the presence of the trial court, a stipulation regarding the liability of Keene, Pittsburgh-Corning, Owens-Corning, and appellant Owens. After reviewing the stipulation, we conclude, from its clear and unambiguous language, that it was limited to the narrow issue of legal causation. At no point were Owens or any other defendants' rights to post-trial relief discussed, mentioned or otherwise implicated. Examining the stipulation on its face, and narrowly construing its terms, we can only conclude that Owens' rights to post-trial relief were unaffected by the stipulation and remained intact. ⁵ , ⁶

We must now determine whether Owens has preserved the statute of limitations issue. As previously noted, appellee also contends that the statute of limitations issue was waived because Owens failed to raise or preserve it in either the damage phase of the trial or in the stipulation.

The statute of limitations is a procedural bar to recovery which may be waived by explicit consent or by conduct. Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 377, 496 A.2d 840, 845 (1985). Here, the liability phase of the trial did not take place due to Owens' and the other defendants' stipulation regarding the narrow issue of causation. This issue was entirely separate and apart from the purely legal defense of the statute of limitations. The limitations defense was likewise not implicated, and thus not necessarily raised, in the phase of the trial regarding damages. With respect to the preservation of an issue for post-trial review, Pa.R.C.P. 227.1(b) provides:

(b) Post-Trial relief may not be granted unless the grounds therefor,

(1) if then available, were raised in pre-trial proceedings or motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and

(2) are specified in the motion.

In this case, Owens raised the statute of limitations defense in its answer and new matter, filed in response to the third party complaint which joined Owens as an additional defendant. Moreover, Owens specified, in its motion for post-trial relief, the grounds upon which it contended that the time bar of the statute of limitations was applicable. We do not find Owens' failure to raise the limitations defense at trial to be fatal to its request for relief, particularly in view of the nature and conduct of the trial in this case (reverse bifurcated proceeding where liability stipulated to following verdict on damages), and the fact that Owens complied with our procedural rules in raising the limitations defense both in pre-trial proceedings and in post-trial motions. See Armacost v. Winters, 258 Pa.Super. 424, 392 A.2d 866 (1978) (trial court did not err in instructing jury on statute of limitations defense, where defense was raised in answer, and, despite defendant's admission of liability, he had not waived limitations defense). As such, we conclude that the trial court erred in finding that the statute of limitations had been waived. ⁷

At this point, we would normally address the merits of Owens' statute of limitations defense. However, because we sit as reviewing court, and not as a court of first impression, we remand this case in order for the trial court to decide the statute of limitations issue in the first instance.

Judgments vacated. Case remanded for further proceedings.

Jurisdiction relinquished. ⁸

1 We note that a single jury verdict is the basis for both judgments in this case. The trial court, following Owens' appeal from the first judgment, vacated that judgment at the request of Owens, and entered the second judgment, from which Owens also appealed. Appellee, in one of several motions filed with this Court, has challenged the propriety of the entry of the second judgment, and has moved to quash and/or dismiss the appeal taken from the second judgment. Because our disposition...