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LOUIS GIOVANETTI v. JOHNS-MANVILLE CORPORATION (03/31/88)

filed: March 31, 1988.

LOUIS GIOVANETTI, APPELLANT,
v.
JOHNS-MANVILLE CORPORATION, AMATEX CORPORATION, H.K. PORTER COMPANY, SOUTHERN ASBESTOS COMPANY, EAGLE-PITCHER INDUSTRIES, CELOTEX CORPORATION, OWENS-CORNING FIBERGLAS, INC., GENERAL REFRACTORIES COMPANY, GAF CORPORATION, UNARCO INDUSTRIES, INC., FIBREBOARD CORPORATION, FORTY-EIGHT INSULATIONS, CERTAINTEED CORPORATION, KEENE CORPORATION AND PACOR CORPORATION



Appeal from the Judgment Entered April 3, 1987, in the Court of Common Pleas of Philadelphia County, Civil, No. 3102 Nov. Term 1980. Appeal from the Order Entered August 6, 1987 in the Court of Common Pleas of Philadelphia County, Civil, No. 3102(-) Nov. Term 1980.

COUNSEL

John W. Haigis, III, Philadelphia, for appellant.

John P. Kelly, Philadelphia, for appellees.

Cirillo, President Judge, and McEwen and Montemuro, JJ.

Author: Cirillo

[ 372 Pa. Super. Page 434]

This is an appeal from the Court of Common Pleas of Philadelphia County in which a jury relieved various corporations of liability to Louis Giovanetti for injuries allegedly resulting from his exposure to asbestos. We affirm.

Louis Giovanetti, a New Jersey resident, initiated this action in the Philadelphia Court of Common Pleas to recover for injuries allegedly sustained as a result of exposure to asbestos. The exposure allegedly occurred during his employment as a tinsmith and a welder in both New Jersey and Pennsylvania over the course of nearly thirty years.

[ 372 Pa. Super. Page 435]

Giovanetti named various manufacturers and distributors of the asbestos products as defendants. The trial was conducted in reverse bifurcated form, with the questions of damages and causation being determined before liability.

On the second day of trial, the defendants indicated for the first time that they were seeking the application of New Jersey law to the facts of the case. The court complied, and the jury was told to disregard any of counsel's opening arguments that were based on the application of Pennsylvania law. The jury determined that Giovanetti suffered no compensable injury as a result of his exposure to asbestos, thereby obviating the need to proceed to the second phase of the trial. Giovanetti filed for post-trial relief, which was denied. This appeal followed.

Giovanetti contends that he should be granted a new trial for the following reasons: (1) the inherently prejudicial effect of the court's application of New Jersey law at the appellee's behest when both parties had completed a portion of the trial with the tacit understanding that Pennsylvania law would apply; (2) the internally inconsistent nature of the jury's verdict, as evidenced by their answers to special interrogatories; and (3) the impropriety of the verdict as against the weight of the evidence.

Giovanetti first contends that he was prejudiced by the application of New Jersey law to the facts of his case. Although he does not suggest that the choice of New Jersey law was invalid, he maintains that Pennsylvania law should have been chosen in light of the tacit agreement among the parties that Pennsylvania law would apply. This agreement, according to Giovanetti, was evidenced by the fact that before the conflict of law issue was raised, twenty-three of the twenty-nine points for binding instruction submitted to the court by the appellees referred to Pennsylvania cases, and none referred to New Jersey law. Additionally, counsel for ...


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