a motion to reconsider our memorandum and order of July 1, 1982, and filed on July 7th, 1982 541 F. Supp. 1384. The motion to reconsider was served 12 days thereafter on July 19th, 1982.
Now, preliminarily, it may be noted that motions to reconsider "shall be served within 10 days after the entry of the judgment, order or decree concerned." See local R. Civ. P. 20(g). The Third Circuit has held that the local rules of this district must be given effect and that they cannot be ignored by the district courts. See United States v. Ferretti, 635 F.2d 1089, 1094 (3rd Cir. 1980). See also, Schmidt v. Silver, 89 F.R.D. 519 (E.D.Pa. 1981). Consistent with that ruling, the Third Circuit also requires litigants to strictly follow local rules of appellate procedure. Appeals which do not comply with the local rules are properly dismissed. See Kushner v. Winterthur Swiss Insurance Company, 620 F.2d 404 (3rd Cir. 1980) (dismissing an appeal for failure to complete the index appended thereto, failure to append the lower court's docket entries and failure to note the names and addresses of counsel on the cover of the brief).
The courts within this district have faithfully and consistently applied the time limitations embodied in the local rules. In Move Organization v. City of Philadelphia, 89 F.R.D. 521 (E.D.Pa. 1981), Judge Giles held that failure to oppose a motion within the time limitations contained in local R. Civ. P. 20(c) warranted granting the motion as unopposed. In Consorcio Constructor Impregilo v. Mack Trucks, 497 F. Supp. 591 (E.D.Pa. 1980), we held that failure to comply with local R. Civ. P. 7 (IV)(a), regulating the time within which appeals from magistrates must be filed compelled denial of the appeal. In so holding, we observed that to sanction counsel's failure to comply with the time limitations contained in the local rules would "invite disregard of procedural requirements in all of the rules, cause a delay in disposition of disputes by creating confusion on trial dockets and prejudice the opposing party by injecting an unnecessary element of uncertainty into trial strategy and preparation. Worse, the rules' articulated purpose of securing the 'just, speedy and inexpensive determination of every action' would be reduced to an empyrean principle with no practical meaning."
We there also quoted Bank Building and Equipment Corporation of America v. Mack Local 677 Federal Credit Union, 87 F.R.D. 553, 555 (E.D.Pa. 1980).
Specifically, Judge Fullam held in Lewis v. R.D. Timpany, No. 75-3289 (E.D.Pa. November 9, 1981) that a motion for reconsideration is properly denied where it is untimely. Hence, for this reason alone we properly deny the motion.
However, we prefer not to base our decision upon the rules and upon the time limitations mentioned. We feel that under the facts and circumstances of this case that there are additional reasons which should support our conclusion. The written motion asserted that based upon a recent rereading of Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 42 L. Ed. 2d 107, 95 S. Ct. 127 (1974) and upon "new" and unspecified facts that our decision was erroneous. At oral argument, National Liaison Counsel for Pittsburgh Corning asserted that the issues litigated in Borel are dissimilar to those currently before the Court and that a multitude of verdicts, inconsistent with Borel, have been generated. Hence, he urged that we erred in our prior opinion.
Treating first the purported lack of identity in issue between Borel and the case at bar, Borel specifically found that Unibestos was defective between 1962 and 1968 and that Pittsburgh Corning was accordingly "strictly liable." See Borel v. Fibreboard Paper Products Corporation, 493 F.2d at 1086. And in passing, though not controlling, see Amader v. Johns-Manville, 541 F. Supp. 1384, slip opinion at page 5, note 1 (E.D.Pa. 1982). Moreover, both Mr. Amader and Mr. Borel were insulators and were exposed to Unibestos on various jobs.
Furthermore, the fact that Texas law of strict liability is not completely coextensive with Pennsylvania law is irrelevant to the disposition of the motion at bar. When Borel was decided, Texas apparently required plaintiffs in 402A cases to prove inter alia that the product was "unreasonably dangerous." Pennsylvania law has no such requirement; plaintiffs' burden here is less demanding. See Azzarello v. Black Brothers Company, 480 Pa. 547, 391 A.2d 1020 (1978).
Pittsburgh Corning's assertion that juries have found that Unibestos was not defective and that we should not apply collateral estoppel need not detain us long. The jury verdicts which it has purportedly won are inefficient to create a collateral estoppel bar for several reasons: first, some are general verdicts and we are unable to discern the basis thereof; that is, juries could have found for Pittsburgh Corning on any number of issues including statute of limitations, lack of proximate cause, et cetera. Collateral estoppel goes to issue preclusion, and without jury interrogatories we cannot and therefore will not speculate as to the basis for a jury's decision. Secondly, a number of juries apparently found Unibestos not to have been defective between 1962 and 1968. However, due to plaintiffs' recoveries in those cases, no appeal was ever taken. As such, there was no "full and fair" opportunity to litigate.
As Pittsburgh Corning originally argued, an adverse jury finding which cannot be appealed from due to a favorable verdict is not considered a "final" judgment for present purposes. See Pittsburgh Corning's Answer to Plaintiff's Motion for Summary Judgment, document 741 at pages 12 and 13. Also see Digiacomo v. Johns-Manville Corporation, No. 76-604, slip opinion at page 5 (D.N.J. May 3rd, 1982). Also see Amader v. Johns-Manville, 541 F. Supp. 1384, slip opinion at page 4 (E.D.Pa. 1982).
Our prior opinion was rendered only after substantial briefing by the parties which included supplemental and reply briefs and oral argument. Our opinion was based upon a thorough study of the principles underlying the collateral estoppel doctrine and of the Borel case, a decision handed down nine years ago. Defendant's somewhat untimely assertion that "new" facts have come to light with respect to Borel and that these facts could not have been discovered by Pittsburgh Corning during the prior briefing process strains the imagination; nevertheless, we have reconsidered our prior ruling.
Because we conclude that the "new" facts asserted in oral argument are not "new" and are legally insufficient in any event to change the results previously reached, we will deny the defendant's motion for reconsideration.
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