White v. Owens-Corning Fiberglas, Corp.
| Decision Date | 11 January 1996 |
| Docket Number | OWENS-CORNING |
| Citation | 447 Pa.Super. 5,668 A.2d 136 |
| Court | Pennsylvania Superior Court |
| Parties | , Prod.Liab.Rep. (CCH) P 14,487 Harvey WHITE and Henrietta White, H/W, Appellants, v.FIBERGLAS, CORP., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company, Inc., Eagle-Picher Industries, Inc., Southern Textile Company, GAF Corporation, Rubberoid Company, Inc., Owens-Illinois Inc., Keene Corporation, Armstrong World Industries, Inc., Armstrong Cork Company, United States Gypsum Company, Porter Hayden Co., Foster Wheeler Corporation, York-Shipley Inc., Pars Manufacturing Company, Phelps Packing and Rubber Company, Hercules Packing Corporation, Anchor Packing Company, Harnischfeger Corporation, A.C. & S. Corporation, Flexitallic Gasket Company, Flintkote Company, Garlock Industries, Fibreboard Corporation, Uni-Royal, Inc., National Gypsum Company, Peltz Company, Brand Insulations Inc., Raymark Corporation, Turner Newall, A.P. Green Refractories Companies, Allied Corporation, Harvey Hubbell Inc., Prudential Supply Corp., J.H. France Refractories, Inc., Riley Stoker Corporation, Harbison Walker Refractories, American Hoist and Derrick Company, Drever Furnaces, Selas Corporation of America, Ray Oil Burner Company, Bickley Furnaces, Inc., National Airoil Burner Co., Superior Boiler Works, Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Company, International Boilers and Cleavor Brooks, Appellees. |
Robert J. O'Shea, Jr., Philadelphia, for appellants.
Christopher H. Jones, Philadelphia, for Harbison Walker Refractories, etc., appellees.
Before McEWEN, TAMILIA and KELLY, JJ.
This appeal asks us to determine whether the trial court erred in granting appellee's, Harbison Walker's, motion for summary judgment. The trial court ruled that appellants', Harvey and Henrietta White's, claim was time-barred as a matter of law by the statute of limitations. We, however, hold that the determination of whether appellants timely filed their complaint after discovering that appellant-husband suffered from asbestosis is one for the jury's resolution. Thus, we reverse.
The relevant facts and procedural history of this case are as follows. Appellants instituted this action on December 5, 1988 seeking damages for appellant-husband's physical injuries resulting from asbestos exposure. The complaint named fifty-four defendants, but Harbison Walker was the only remaining defendant at the time of trial. Trial was conducted in reverse bifurcated form; specifically, the first phase of the trial centered solely on the issue of damages. This phase of the trial, held in December, 1993, with the Honorable Ethan Allen Doty presiding, resulted in a jury verdict of $250,000.00 for appellants.
Appellant-husband was initially exposed to asbestos in 1945 when he worked in the construction industry. Appellant-husband was further exposed to asbestos while working at C.E. Refractories. From 1953 until he retired in 1984, appellant-husband worked for C.E. Refractories as a fork lift operator unloading bags of asbestos.
In March, 1987, appellant-husband was treated by Karen E. Deveney, M.D. for hernia problems. At the time of surgery for appellant-husband's hernia condition, Dr. Deveney discovered abnormalities on an x-ray of appellant-husband's chest. Accordingly, Dr. Deveney referred appellant-husband to Michael A. Grippi, M.D., who diagnosed appellant-husband with pleural and parenchymal asbestos related pulmonary disease and asbestosis on June 30, 1987. Appellants filed the complaint which initiated the present action on December 6, 1988. In addition to the asbestosis diagnosis, at the time of trial, in 1993, appellant-husband displayed discernible physical symptoms of asbestosis. Specifically, appellant-husband had severe difficulties breathing after walking more than half a block, climbing a flight of stairs, driving a nail, or washing the dishes.
The first phase of the reverse bifurcated trial was held in the Asbestos Trial Group 156 in December, 1993, before Judge Doty. During the trial, Judge Doty ruled that appellee's statute of limitations issue be preserved for disposition at a later date. Judge Doty made it clear in his ruling that the statute of limitations issue could be raised between phases one and two of the trial.
Following a $250,000.00 jury verdict in favor of appellants, on December 27, 1993, appellee filed a motion for post-trial relief. On July 22, 1994, before the court ruled on the post-trial motion, appellee filed a motion for summary judgment. In this motion, appellee alleged that appellants were barred from recovering for appellant-husband's asbestosis and other asbestos-related injuries because the two-year statute of limitations had run. Oral argument on the summary judgment motion was postponed because appellants contended that the statute of limitations issue was not properly preserved during the first phase of the trial. The Honorable Sandra Mazer Moss requested the trial transcripts in order to determine whether the motion was properly preserved. On August 11, 1994, the trial transcript was submitted to Judge Moss.
At oral argument on August 22, 1994, Judge Moss requested that appellee depose Dr. Grippi. In his deposition, taken on August 29, 1994, Dr. Grippi testified that appellant-husband had informed him that appellant-husband had consulted another doctor and was told of abnormalities on his chest x-ray two to three years prior to the visit with Dr. Grippi and that the abnormalities were a result of his asbestos exposure. Prior to the deposition of Dr. Grippi, on November 24, 1993, appellant-husband had been deposed. During that deposition, appellant-husband testified that he had consulted William Gorham, M.D. two or three years before consulting Dr. Grippi. Appellant-husband further testified that he had complained to Dr. Gorham about shortness of breath and had told Dr. Gorham of his asbestos exposure. Appellant-husband also testified that, pursuant to Dr. Gorham's instruction, he had x-rays performed on his chest. Significantly, appellant-husband testified that Dr. Gorham never informed him of the results of the x-rays. 1 On September 26, 1994, Judge Moss granted appellee's motion for summary judgment. This timely appeal followed.
Appellants raise the following issues for our review:
1. DID THE CALENDAR JUDGE ERR IN GRANTING SUMMARY JUDGMENT AFTER THE COMMENCEMENT OF TRIAL?
2. DID THE LOWER COURT ERR IN GRANTING SUMMARY JUDGMENT WITHOUT CONSIDERING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO APPELLANTS, THE NON-MOVING PARTIES?
3. DID THE LOWER COURT ERR IN GRANTING SUMMARY JUDGMENT BASED UPON A DISPUTED STATEMENT, ATTRIBUTED TO MR. WHITE, THAT MR. WHITE HAD KNOWLEDGE OF A NON-COMPENSABLE ASBESTOS-RELATED CONDITION SEVERAL YEARS BEFORE HE FILED SUIT?
4. DID THE LOWER COURT ERR IN IMPOSING A DUTY ON APPELLANT [-HUSBAND] TO INVESTIGATE FURTHER A NON-COMPENSABLE, ASYMPTOMATIC ASBESTOS-RELATED CONDITION, WHEN IT WAS DISPUTED THAT APPELLANT [-HUSBAND] HAD THE REQUISITE KNOWLEDGE OF THE OPERATIVE FACTS, AND
Initially, we must address appellee's claims regarding appellants' violations of the rules of appellate procedure. Appellee alleges that because appellants did not serve and file a designation of the contents of the record appellants intended to reproduce as well as a statement of issues to be argued on appeal, this appeal should be quashed. We disagree.
The rules of appellate procedure require an appellant to "serve and file a designation of the parts of the record which he intends to reproduce and a brief statement of issues which he intends to present for review." Pa.R.App.P. 2154. In the event that an appellant fails to file a designation of reproduced record or brief, an appellee may move for dismissal. Pa.R.App.P. 2188. This Court has held that the rules of appellate procedure are "mandatory, not directing" and it is within our discretion to dismiss an appeal when the rules of appellate procedure are violated. Rappaport v. Stein, 351 Pa.Super. 370, 374 n. 1, 506 A.2d 393, 395 n. 1 (1985). However, if the failure to comply with the rules of appellate procedure does not impede review of the issues or prejudice the parties, we will address the merits of the appeal. Savoy v. Savoy, 433 Pa.Super. 549, 553, 641 A.2d 596, 598 (1994); Williamson v. Williamson, 402 Pa.Super. 276, 289, 586 A.2d 967, 973 (1991). Furthermore, this Court is cognizant of Pa.R.App.P. 105(a) which allows liberal construction of the rules in order to "secure the just, speedy and inexpensive determination of every matter to which they are applicable." Pa.R.App.P. 105(a); Williamson v. Williamson, supra at 289, 586 A.2d at 973.
Instantly, appellants' procedural violations which appellee raises are minor and do not warrant dismissal of this appeal. Our review of the issues presented has not been impeded nor have the parties been prejudiced by the procedural violations. 2 Therefore, in order to adhere to the "speedy and inexpensive determination" of this matter, we will employ our discretion and consider the merits of this appeal.
Appellants essentially contend that the trial court improperly granted appellee's motion for summary judgment. First, appellants claim that the trial court erred in considering the summary judgment motion after the commencement of the damages phase of trial. We disagree.
Despite the fact that the trial judge must follow specific procedures and standards when ruling on a motion for summary judgment, the trial judge does have some discretion regarding the rules of civil procedure. The rules of civil procedure may be construed in a liberal manner to "secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable." Pa.R.Civ.P....
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