Gutteridge v. AP Green Services, Inc.

• Decision Date: 20 June 2002
• Citation: 804 A.2d 643,2002 PA Super 198
• Parties: Hope L. GUTTERIDGE, Executrix of the Estate of Charles E. Gutteridge, deceased, and widow in her own right, Appellant, v. A.P. GREEN SERVICES, INC., A.W. Chesterton, Inc., ACandS, Inc., Alliedsignal, Inc. and Pecora Corporation, Appellees. Hope L. Gutteridge, Executrix of the Estate of Charles E. Gutteridge, deceased, and widow in her own right, Appellant, v. A.P. Green Services, Inc., A.W. Chesterton, Inc., ACandS, Inc., Alliedsignal, Inc. and Hercules Chemical Company, Inc., Appellees. Hope L. Gutteridge, Executrix of the Estate of Charles E. Gutteridge, deceased, and widow in her own right, Appellant, v. A.P. Green Services, Inc., A.W. Chesterton, Inc., ACandS, Inc., Alliedsignal, Inc. and Philadelphia Electric Company, Appellees.
• Court: Pennsylvania Superior Court

804 A.2d 643

2002 PA Super 198

Hope L. GUTTERIDGE, Executrix of the Estate of Charles E. Gutteridge, deceased, and widow in her own right, Appellant, v. A.P. GREEN SERVICES, INC., A.W. Chesterton, Inc., ACandS, Inc., Alliedsignal, Inc. and Pecora Corporation, Appellees.

Hope L. Gutteridge, Executrix of the Estate of Charles E. Gutteridge, deceased, and widow in her own right, Appellant, v. A.P. Green Services, Inc., A.W. Chesterton, Inc., ACandS, Inc., Alliedsignal, Inc. and Hercules Chemical Company, Inc., Appellees.

Hope L. Gutteridge, Executrix of the Estate of Charles E. Gutteridge, deceased, and widow in her own right, Appellant, v. A.P. Green Services, Inc., A.W. Chesterton, Inc., ACandS, Inc., Alliedsignal, Inc. and Philadelphia Electric Company, Appellees.

Superior Court of Pennsylvania.

Argued September 26, 2001.

Filed June 20, 2002.

Reargument Denied August 28, 2002.

Robert E. Paul, Philadelphia, for appellant.

Timothy D. Rau, Philadelphia, for Pecora Corporation.

Thomas E. Seus, Philadelphia, for Hercules Chemical Company, Inc.

Robert B. Lawler, Philadelphia, for Philadelphia Electric Company.

Before HUDOCK, STEVENS and OLSZEWSKI, JJ.

HUDOCK, J.

¶ 1 This is a consolidated appeal and multiple cross-appeals from several trial court orders granting summary judgment in favor of certain defendants in a mass tort action predicated on exposure to asbestos and asbestine products. For the reasons set forth below, we reverse.

¶ 2 On April 4, 1997, Charles E. Gutteridge commenced suit in the Court of Common Pleas of Philadelphia County. An amended complaint was filed on November 18, 1997, alleging that Mr. Gutteridge, because of his employment at certain jobs between the years 1944 and 1989, was exposed to asbestos and asbestos-containing products. The amended complaint additionally avers that Mr. Gutteridge contracted mesothelioma as a result of this work-related exposure to asbestos. Mr. Gutteridge died on June 5, 1997. See Trial Court Opinion, 2/27/01, at 1 (explicating averments in amended complaint). His wife, Hope L. Gutteridge, subsequently was substituted as the plaintiff in the action underlying this appeal.

¶ 3 The matter proceeded through discovery toward a jury trial. However, on March 6, 1998, M.H. Detrick Co. filed a suggestion of bankruptcy. On November 27, 2000, the trial court granted partial summary judgment and dismissed all claims against A.P. Green Services, American Hoist & Derrick, Asbestospray Corporation, Beazer East, Crouse-Hinds, M.H. Detrick Co., Mobile Oil, Pneumo Abex, Vellumoid, Inc., W.R. Grace, Weil McClain and Garlock, Inc. The following day, November 28th, the trial court granted summary judgment in favor of Selby, Battersby & Co., and dismissed all claims as to these defendants. The same day, Babcock and Wilcox Co. filed a suggestion of bankruptcy. On November 29, 2000, the trial court granted summary judgment in favor of Hercules Chemical Co., Inc., Brand Insulation, Inc., and Pecora Corporation. Although the trial court initially denied summary judgment to John Crane, Inc., the trial court entered summary judgment in favor of this defendant on December 5, 2000. That same day, the trial court denied summary judgment to defendant Flintkote, Inc. On December 20, 2000, the Honorable Genece Brinkley entered an order designating the case as "settled after assignment for trial." This order was docketed in the trial court on December 27, 2000, and marked "notice given under Rule 236."

¶ 4 Mrs. Gutteridge (Appellant) filed a notice of appeal on December 26, 2000. On that same day, Hercules Chemical Company, Inc. (Hercules), Pecora Corporation (Pecora) and PECO Energy Company (f/k/a Philadelphia Electric Company) (PECO) lodged cross-appeals via separate notices of appeal from the trial court's orders. (Hereinafter, consistent with Rule of Appellate Procedure 908, Hercules, Pecora and PECO are referenced collectively as "Appellees.") On January 17, 2001, the trial court entered an order directing Appellant to file a concise statement of matters complained of on appeal. She complied on February 5, 2001. The trial court subsequently filed a full opinion. The trial court did not enter a Rule 1925(b) order with regard to the cross-appeals. ¶ 5 Before addressing the parties' substantive claims, we must first determine whether this consolidated appeal stems from a final order. This matter is jurisdictional. When an order underlying an appeal is neither a final order nor an interlocutory order which is appealable as of right, and does not comprise an interlocutory order heard by permission, there is no basis upon which this Court may assert jurisdiction in the matter. Puricelli v. Puricelli, 446 Pa.Super. 493, 667 A.2d 410, 413 (1995). See Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 216 (1985) (quashing an appeal from an interlocutory and unappealable order).

¶ 6 Subject to exceptions, "an appeal may be taken as of right from any final order of an administrative agency or lower court." Pa.R.A.P. 341(a). A final order is any order that disposes of all claims and all parties, or any order that is expressly defined as a final order by statute, or any order entered as a final order pursuant to Rule of Appellate Procedure 341(c) (determination of finality). Id., subsection (b). At first glance, it would appear that the orders granting summary judgment in this case are not final and appealable. Sixteen named defendants remained after the trial court granted summary judgment in favor of Appellees. Nevertheless, the trial court docket indicates that the Honorable Genece Brinkley signed an order on December 20, 2000, stating that the case was "settled after assignment for trial." Order, 12/20/00. Furthermore, the certified record discloses that notice of this order was provided as required by Rule of Civil Procedure 236.

¶ 7 A trial court order declaring a case settled as to all remaining parties renders prior grants of summary judgment final for Rule 341 purposes, even if the prior orders entered disposed of fewer than all claims against all parties. Baker v. Cambridge Chase, Inc., 725 A.2d 757, 762 (Pa.Super.1999). Such an order is itself finalized by delivery of notice under Rule 237. Gavula v. ARA Services, Inc., 756 A.2d 17, 19 (Pa.Super.2000). In the present case, all parties are now settled, dismissed by order of summary judgment, or bankrupt. See Prelude, Inc. v. Jorcyk, 695 A.2d 422, 423 (Pa.Super.1997) (en banc) (concluding that otherwise proper appeal proceedings may go forward against non-bankrupt parties). Because the requisites to a final order have been met, we conclude that the consolidated appeal is properly before us and that we have jurisdiction to proceed.

¶ 8 Appellant raises five arguments for our consideration:

1. Did the lower court commit an error of law in making factual determinations and disbelieving certain testimony offered by Plaintiff-Appellant in opposition to the [Appellees'] motions for summary judgment when credibility issues should be determined by a jury?

2. Was PECO liable for injuries to workmen on premises that it owned and over which it retained control?

3. Was PECO liable for dangerous conditions on its premises and did it have a duty to warn business invitees as to any dangers of which it knew or should have known?

4. Did the lower court commit an error of law in applying the Eckenrod¹ standard to PECO's liability in this case when it found Mr. Gutteridge's exposure to asbestos on PECO premises or in misapplying Eckenrod under the circumstances?

5. Did the lower court err in refusing to use circumstantial evidence?

Appellant's Brief at 4. Appellees have not identified new issues pursuant to their cross-appeals. Rather, they have phrased their contentions in the form of counter-statements of the issues raised by Appellant in her appeal. Before proceeding to the merits of the claims, we note that the parties have relied upon numerous opinions filed by federal courts in support of their arguments. Federal court decisions do not control the determinations of the Superior Court. Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super.2002); Kleban v. National Union Fire Insurance Co., 771 A.2d 39, 43 (Pa.Super.2001). Our law clearly states 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. Commonwealth v. Lambert, 765 A.2d 306, 315 n. 4 (Pa.Super.2000),cert. denied, 121 S.Ct. 1353, 532 U.S. 919, 149 L.Ed.2d 284 (2001). Accord Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d 947, 952 (Pa.Super.2000).

¶ 9 Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Capek v. Devito, 564 Pa. 267, 270 n. 1, 767 A.2d 1047, 1048 n. 1 (2001). The moving party has the burden of proving that no genuine issues of material fact exist. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa.Super. 1999). In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116, 1117-18 (Pa.Super.2000). Thus, summary judgment is proper only when the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Id. at 1117. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Basile v. H & R Block, Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000).

¶ 10 As already noted, on...