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WILLIAM NOECKER AND THERESA NOECKER v. JOHNS-MANVILLE CORPORATION AND JOHNS-MANVILLE SALES CORPORATION (08/08/86)

filed: August 8, 1986.

WILLIAM NOECKER AND THERESA NOECKER, APPELLEES,
v.
JOHNS-MANVILLE CORPORATION AND JOHNS-MANVILLE SALES CORPORATION, DEFENDANT-APPELLANT, AND OWENS-CORNING FIBERGLAS CORPORATION; CELOTEX CORPORATION; 48 INSULATION; EAGLE-PICHER, DEFENDANTS-APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, at No. 366 (118) April Term, 1977.

COUNSEL

Charles W. Craven, Philadelphia, for appellants.

Martin Greitzer, Philadelphia, for appellees.

Montemuro, Hoffman and Cercone, JJ.

Author: Montemuro

[ 355 Pa. Super. Page 466]

On April 5, 1977, plaintiffs-appellees, William and Theresa Noecker, brought an action against defendant-appellant, Johns-Manville Corporation (hereinafter Johns-Manville), and certain other corporate entities, claiming that Mr. Noecker had contracted asbestosis as a result of exposure at his place of employment (Combustion Engineering, Inc.) to asbestos products either manufactured or sold by the various defendants. In its responsive pleadings, appellant denied that Mr. Noecker's disability was caused by asbestosis induced by exposure to any of its products. Appellant posited that the disability was either caused by silicosis (a disease resulting from prolonged exposure to silica) or resulted from exposure to products of the co-defendants. Appellant also filed cross-claims for contribution against the co-defendants.

Before trial, three of the defendants effected releases with plaintiffs-appellees which barred any recovery by plaintiffs-appellees against them. Based on its release, one of the settling defendants, Owens Corning Fiberglas Corp., then filed a motion for severance as to all cross-claims filed by it and against it. The release, which expressly denied Owens Corning's joint tortfeasor status, provided, inter alia, that:

It is further agreed and understood by the parties hereto, that any other person or organization whom we [plaintiffs] claim are liable to us for our injuries, losses

[ 355 Pa. Super. Page 467]

    and damages shall not be entitled to a satisfaction or reduction or pro rata reduction of damages we are claiming against them by reason of the payment herein, unless it is adjudicated that Releasees are Joint Tortfeasors with said person or organization. In the event that Releasees are adjudicated to be Joint Tortfeasors then the payment herein shall constitute a reduction to the extent of the pro rata share of liability of Releasees for the damages recoverable by us from the other tortfeasors.

On the first day of trial, the court entertained Owens Corning's motion for severance on its own behalf and on behalf of the other settling defendants as well. Appellant opposed the granting of severance solely on the basis that severance would prejudice it in its pursuit of contribution claims against the settling defendants in that it would be forced to bring a separate action for contribution at a later date. After hearing argument on the issue, the trial court granted severance for the settling defendants, directing separate trials as to any cross-claims for contribution and/or indemnity. The case proceeded to trial before a jury, with Johns-Manville as the sole defendant left in the case.*fn1 The trial resulted in a verdict against appellant in the amount of $550,000 in compensatory damages and $50,000 in punitive damages. Appellant subsequently filed a motion for judgment notwithstanding the verdict and for a new trial. On April 28, 1982, the trial court denied appellant's motions and entered judgment (which reflected delay damages) in favor of plaintiffs-appellees. This appeal followed.*fn2

Appellant presents the following issues for our review:

[1] Does a trial court commit reversible error when it severs and orders a separate trial of the claims for contribution made by a defendant against co-defendants, who have entered into joint-tortfeasor settlements with

[ 355 Pa. Super. Page 468]

    the plaintiff but without an adjudication or admission of their status as joint tortfeasors, and then enters a judgment for plaintiffs against the non-settling defendant for the full amount of the damages awarded by jury plus Rule 238 delay damages on that amount?

[2] Did the trial court commit prejudicial error during its instructions to the jury when, in connection with the key factual disputes, it recited ...


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