Gross v. Johns-Manville Corp.
| Decision Date | 11 December 1991 |
| Docket Number | JOHNS-MANVILLE |
| Citation | 600 A.2d 558,410 Pa.Super. 486 |
| Parties | William GROSS and Rosemarie Gross, H/W v.CORP., Pacor, Inc., Eagle Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Owens-Corning Fiberglas Corporation, Amatex Corporation, Pittsburgh Corning Corporation, Nicolet Industries, Inc., H.K. Porter Company, Forty-Eight Insulation, Inc. and Armstrong World Industries. Appeal of KEENE CORPORATION. William GROSS and Rosemarie Gross, H/W v. FIBREBOARD CORPORATION, Garlock, Inc., Pittsburgh Corning Corporation, Johns-Manville Corp., Pacor, Inc., Eagle Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Owens-Illinois Glass Company, GAF Corporation, Owens-Corning Fiberglas Corporation, Amatex Corporation, Nicolet Industries, Inc., H.K. Porter Company, Forty-Eight Insulation, Inc. and Armstrong World Industries. (Two Cases) Appeal of FIBREBOARD CORPORATION and Pittsburgh Corning Corporation. (Two Cases). William GROSS and Rosemarie Gross, H/W, Appellants v.CORP., Pacor, Inc., Eagle Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Owens-Corning Fiberglas Corporation, Amatex Corporation, Pittsburgh Corning Corporation, Nicolet Industries, Inc., H.K. Porter Company, Forty-Eight Insulation, Inc. and Armstrong World Industries, Appellees. |
| Court | Pennsylvania Superior Court |
Carol L. Widemon, Philadelphia, for Keene Corp., appellant (at 367) and appellee (at 368, 369 & 370).
Kristine F. Collins, Philadelphia, for Gross, appellants (at 370) and appellees (at 367, 368 & 369).
George E. McDavid, Philadelphia, for Fibreboard Corp. and Pittsburgh Corning, appellants at (368 & 369) and appellees (at 367 & 370).
Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
Before this Court are consolidated appeals from two orders entered in the Court of Common Pleas of Philadelphia County. This is a case involving personal injuries as a result of exposure to asbestos at the Philadelphia Naval Shipyard. Appeals have been filed by the plaintiffs, (the Grosses), as well as several of the defendants, (Keene Corporation, Pittsburgh Corning Corporation and Fibreboard Corporation). The Grosses appeal the trial court's orders of November 5, 1990, and December 7, 1990, in which their motion for a new trial and additur was denied, and their petition for delay damages was denied as being untimely with regard to those defendants who stipulated to liability following the damages phase of the trial. 1 The latter is an issue of first impression. Keene Corporation appeals the trial court's order of November 5, 1990, in which its motion for a new trial on the issue of damages or, in the alternative, remittitur was denied. Pittsburgh Corning Corporation and Fibreboard Corporation appeal the trial court's December 7, 1990, order which granted to the Grosses delay damages as to them and the November 5, 1990, order which denied their motion for a new trial based upon various errors allegedly committed by the trial court. We affirm in part and reverse and remand in part.
William Gross was a marine machinist employed by the Philadelphia Naval Shipyard from 1962 to 1983. It was during this time that he was exposed to asbestos. Mr. Gross testified during trial that he first began to experience shortness of breath in 1975. (N.T. February 6, 1990 p. 84). There was expert testimony that Mr. Gross had developed pleural plaques, pleural thickening and asbestosis as a result of his exposure to asbestos and that this played a role in his shortness of breath. (N.T. February 6, 1990, pp. 168-184). There was also expert testimony that his shortness of breath was due to obesity and hypertension and that the pleural thickening was of a minimal degree and therefore unlikely to be the cause of his respiratory symptoms. (N.T. February 7, 1990, pp. 85-88).
The proceeding took the form of a reverse bifurcated trial in which the issue of damages was tried first to be followed by a trial on the issue of liability. On February 8, 1990, the jury returned a verdict of $170,000.00 for William Gross and $50,000.00 for Rosemarie Gross on her loss of consortium claim. On February 9, 1990, following the damages phase of the case, several defendants stipulated to a 10% share of liability, reserving their rights to file post-trial motions and to appeal the damages verdict. The remaining defendants, Pittsburgh Corning Corp. and Fibreboard Corp., went on to the liability phase, and on February 15, 1990, the jury found all named defendants liable with the exception of H.K. Porter and Celotex Corp. who did not appear on the verdict sheet. 2
Post-trial motions were filed by the Grosses requesting an increase in the award and by the defendants requesting a new trial or, alternatively, for a reduction in the award. These motions were denied by the trial court in its opinion and order of November 5, 1990. On February 22, 1990, the Grosses filed a petition for delay damages. In its order and opinion of December 7, 1990, the trial court granted the Gross's petition as to the two defendants who went on to the liability phase; Pittsburgh-Corning and Fibreboard, and denied their petition as to the stipulating defendants as being untimely.
The trial court concluded that the Pa.R.Civ.P. 238 requirement that a petition for delay damages be filed within ten days began to run on February 9, 1990, for the stipulating defendants and on February 15, 1990, for those defendants who went on to the liability phase of the case. The petition for delay damages was therefore filed thirteen days after the stipulations to liability and not within the ten days required by the Rule.
Pa.R.Civ.P. 238 states in pertinent part:
(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.
* * * * * *
(c) Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation.
* * * * * *
It was the trial court's determination that a stipulation was, in effect, a "verdict or notice of decision" from which the time for filing begins to run. We disagree. The fact that this was a reverse bifurcated trial complicates what would, under ordinary circumstances, be an uncomplicated reading of the rule. It is clear that the case could not have ended at the conclusion of the first verdict, i.e. damages, since there had been no finding as to liability. Therefore the time within which to file for delay damages could not begin to run from the first verdict under any circumstances.
The trial court attempts to equate the stipulations to liability in conjunction with the damages verdict with a "notice of the decision". This, in our view, is an incorrect reading of the rule. Part (a) of the rule itself tells us what is meant by "notice of the decision", stating as follows: "... damages for delay shall be added to ... damages awarded ... in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators...." ...." Pa.R.Civ.P. 238(a)(1) (emphasis added). A stipulation is not a "decision" within the meaning of the rule. The term "decision" as set forth in the rule refers to the decision of the court in a nonjury trial which would be the equivalent of a verdict in a jury trial. The question then becomes whether the rule contemplated that a stipulation to liability in conjunction with a damages verdict, as occurred in this case, constitutes a verdict of a jury or decision of the court. We think not.
The plain meaning of the statute contemplates that delay damages not be requested until the verdict has been rendered. In most cases this would not be problematic. There would either be one verdict, encompassing both liability and damages or, in the case of a bifurcated trial, the first verdict would generally be the liability verdict (at which point the defendants may settle 3), followed by the damages phase making that the final verdict from which the time period to file for delay damages would run. A reverse bifurcated trial, while a useful tool in effecting settlement, creates the unique problem presented here.
The purpose of Rule 238 is to encourage early settlement of cases and to "unclutter the courts". See Craig v. Magee Memorial Rehab. Center, 400 Pa.Super. 126, 582 A.2d 1376, 1379 (1990) citing Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981); see also Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350, 1353 (1986). We do not consider a stipulation to liability a settlement offer. While we do not minimize the effort to do away with unnecessary litigation where liability is clear, we also consider that no settlement exists as a result of the stipulations. 4 It is therefore a reasonable interpretation of the rule that the verdict for the liability phase triggers the time period within which to file a petition for delay damages. 5 As a practical matter, it would be a duplication of efforts for the plaintiffs to be required to file more than one petition in the same case and for the trial judge to have to entertain more than one...
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