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NANCY L. WENRICK v. SCHLOEMANN-SIEMAG AKTIENGESELLSCHAFT AND EATON CORPORATION (01/07/87)

filed: January 7, 1987.

NANCY L. WENRICK, ADMINISTRATRIX OF THE ESTATE OF HAROLD WENRICK, DECEASED,
v.
SCHLOEMANN-SIEMAG AKTIENGESELLSCHAFT AND EATON CORPORATION, SUCCESSOR-IN-INTEREST BY MERGER TO CUTLER-HAMMER, INC.; APPEAL OF EATON CORPORATION SUCCESSOR-IN-INTEREST BY MERGER TO CUTLER-HAMMER, INC.; NANCY L. WENRICK, ADMINISTRATRIX OF THE ESTATE OF HAROLD WENRICK, DECEASED, APPELLANT, V. SCHLOEMANN-SIEMAG AKTIENGESELLSCHAFT AND EATON CORPORATION, SUCCESSOR-IN-INTEREST BY MERGER TO CUTLER-HAMMER, INC.



Appeal from the Order entered May 20, 1985, Court of Common Pleas, Philadelphia County, Civil Division at No. 3944 May Term, 1980. Appeal from the Order entered May 20, 1985, Court of Common Pleas, Philadelphia County, Civil Division at No. 3944 May Term, 1980.

COUNSEL

Francis J. Deasey and James L. McKenna, Philadelphia, for Eaton, appellant in No. 1533 and appellee in No. 1668.

Robert M. Britton and William F. Sullivan, Philadelphia, for Wenrick, appellant in No. 1668 and appellee in No. 1533.

Robert F. Harchut, Philadelphia, for Schloemann-Siemag, appellee.

Cavanaugh, Beck and Johnson, JJ.

Author: Beck

[ 361 Pa. Super. Page 140]

Harold Wenrick was crushed to death by a component of a large extrusion press which was activated when a fellow worker accidentally tripped the unguarded lever of an electrical limit switch. His widow, Plaintiff Nancy L. Wenrick, brought this action as administratrix of her late husband's estate and on behalf of herself and her children against Eaton Corporation ("Eaton"), corporate successor of Cutler-Hammer, Inc., the supplier and designer of the electrical control system of the press, and Schloemann-Siemag Aktiengesellschaft and Schloemann-Siemag, Inc. ("SMS"), corporate successor of Feller Engineering Co., the manufacturers and designers of the press. Prior to trial, Plaintiff's case against SMS was settled for $200,000.

The case came to trial before the Honorable Charles A. Lord of the Court of Common Pleas of Philadelphia County. At the conclusion of the Plaintiff's case, counsel for Eaton orally moved for a compulsory non-suit on the three counts pending against Eaton: strict liability, breach of warranty and negligence. Before the trial court had an opportunity to rule on the motion, Plaintiff's counsel withdrew the breach of warranty claim. Thereafter, the trial court denied the motion for compulsory non-suit.

At the conclusion of the trial on March 6, 1984, the case was submitted to the jury on special interrogatories. In its answers, the jury found both that the press and the electrical control systems were defective and that the defective conditions were substantial factors in causing Plaintiff's losses. In addition, the jury also answered interrogatories on a negligence theory with findings that both SMS and Eaton were negligent: SMS in failing to place a guard on the limit switch after the press was delivered to Plaintiff's employer, and Eaton in failing to warn SMS of the unguarded limit switch. With reference to the findings of negligence, the jury also answered special interrogatories with findings that SMS was 65% negligent and Eaton was 35% negligent. Finally, the jury found that Mr. Wenrick was not contributorily negligent.

[ 361 Pa. Super. Page 141]

The jury then awarded damages to Mrs. Wenrick in the amount of $1,500,000 under the Wrongful Death Act and $25,000 under the Survival Act. This recovery, coupled with the addition by stipulation of $3,222 in funeral expenses, amounted to a total verdict of $1,528,322.

Eaton filed timely post-trial motions, including a motion for judgment n.o.v. On May 20, 1985 a three-judge court en banc, consisting of Judge Lord, the Honorable Joseph P. Braig and the Honorable Lawrence Prattis, denied Eaton's post-trial motions and entered judgment against Eaton only in the amount of $764,161. The amount of this judgment did not include any damages for delay pursuant to Pa.R.C.P. 238.

Both Eaton and the Plaintiff appealed from the May 20, 1985 Order. On June 12, 1985 the trial court amended its May 20, 1985 Order to add delay damages, thereby increasing the judgment by $287,916.60, for a total judgment of $1,052,077.60.

Eaton, Appellant at No. 1533 Philadelphia, 1985, first argues on appeal that the trial court was deprived of jurisdiction when Eaton attempted to have the case removed to federal court. Eaton also contends that the trial court committed reversible error by admitting expert testimony on the ultimate issue, by refusing to grant a compulsory non-suit and thereafter judgment n.o.v. as to both the strict liability and negligence counts, by improperly charging the jury and in submitting the claims against Eaton to the jury. Apparently, Plaintiff is not pursuing her cross-appeal filed at No. 1668 Philadelphia, 1985 because the trial court added delay damages subsequent to the filing of the cross-appeal.

We reverse the trial court's denial of Eaton's Motion for Judgment N.O.V. as to both the strict liability and negligence counts because we find that Eaton was not responsible for the creation of the defect that resulted in Mr. Wenrick's death.

Initially, however, we will address the fundamental question of jurisdiction that Eaton has raised.

[ 361 Pa. Super. Page 142]

I. JURISDICTION

On March 6, 1984, just prior to closing arguments in the trial of this case, appellant notified the trial court and appellees that it had petitioned the Federal District Court for the Eastern District of Pennsylvania for removal of the case to that court. Normally, the filing of such a petition imposes an automatic stay on any further proceedings in the state court and any proceedings that are conducted in the state court are a nullity until there has been a remand by the federal court. Fischman v. Fischman, 470 F.Supp. 980 (E.D.Pa.1979); 28 U.S.C. ยง 1446(e). In other words, this federal removal provision has the effect of a statutory stay of further state proceedings. Vendetti v. Schuster, 242 F.Supp. 746, 751 (W.D.Pa.1965).

In response to appellant-Eaton's removal petition, appellee-Wenrick filed a motion in the District Court requesting, inter alia, that the court declare the petition void ab initio since Eaton had not secured the consent of the co-defendant, SMS, to the removal. With two limited exceptions not applicable to this case, all defendants must join in or consent to removal. Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900).

In a Memorandum Opinion and Order dated April 16, 1984, Judge VanArtsdalen of the District Court rejected Eaton's removal petition and remanded the case for further proceedings in the state court. The reason for the rejection of the petition was the failure of appellant to secure SMS's consent. However, the District Court expressly refused to ...


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