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ROBERT A. SMITH v. CELOTEX CORPORATION (08/30/89)

filed: August 30, 1989.

ROBERT A. SMITH, APPELLEE,
v.
CELOTEX CORPORATION, EAGLE-PICHER INDUSTRIES, INC., GAF CORPORATION, JOHNS-MANVILLE SALES CORPORATION, KEENE CORPORATION, OWENS-CORNING FIBERGLASS CO., INC., CERTAINTEED PRODUCTS CORPORATION, PACOR, INC., APPELLEES. APPEAL OF GAF CORPORATION



Appeal from the Judgment entered on June 6, 1989 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2318 February 1980.

COUNSEL

H. Nathaniel Metz, Philadelphia, for GAF Corp., appellant.

Robert E. Paul, Philadelphia, for Smith, appellee.

Cirillo, President Judge, and Beck and Kelly, JJ.

Author: Beck

[ 387 Pa. Super. Page 342]

This is an appeal by GAF Corporation from a judgment against it after a jury trial of appellee Robert A. Smith's personal injury claims.*fn1 Smith was employed as an applicator of finished asbestos products, including pipe covering products, at least one of which was manufactured by GAF. He instituted suit against GAF and several other asbestos manufacturing defendants on February 19, 1980. A jury trial was conducted from January 21, 1986 to February 13, 1986. Trial was had in reverse bifurcated procedure. The first phase adjudicated medical causation and compensatory damages issues, and the second phase adjudicated liability and punitive damages issues. The jury awarded $500,000 in compensatory damages and, as to GAF, $20,000 in punitive damages.*fn2 The trial court thereafter molded the verdict to assess $83,333.33 in compensatory damages against GAF, $20,000 in punitive damages against GAF, and $49,885.84 in delay damages against GAF.

GAF appeals all three of these awards. It raises the following issues:

1. Whether the documentary evidence and deposition testimony offered by the plaintiff was admissible against GAF, and if so, whether it was legally sufficient to support an award of punitive damages?

2. Whether the trial court adequately instructed the jury regarding punitive damages?

3. Whether the plaintiff sustained his burden of proof to establish at trial that GAF is subject to punitive damages for the acts and/or omissions of The Ruberoid Co.?

[ 387 Pa. Super. Page 3434]

. Whether the trial court erred in allowing cross-examination of the defendants' medical expert with regard to past patient referrals by attorneys and fees earned from such referrals?

5. Whether the compensatory award can stand where the trial court allowed the plaintiff to argue a lost wages claim and then excluded the claim as a matter of law without any instructions to the jury?

6. Whether the trial court's order to mold the verdict is premature until the releases provided to the settled tortfeasors are produced and reviewed?

7. Whether the award of delay damages is appropriate in the context of this case?

We agree with appellant's position as to issues 1 and 5 and, therefore, grant judgment N.O.V. to appellant as to punitive damages and remand for a new trial as to compensatory damages. This disposition obviates the need for us to opine on GAF's claims of error as to the award of delay damages and as to the trial court's molding of the verdict.*fn3

Appellant's first three issues and the bulk of its argument focus on the propriety of the punitive damages award of $20,000. We find that the evidence regarding punitive damages offered against appellant was legally insufficient to permit an award of such damages.

It has long been the law of Pennsylvania that punitive damages are appropriate only in the most circumscribed situations. Section 908 of the Restatement (Second) of Torts, which has been adopted in Pennsylvania, sets forth the governing principles for awards of punitive damages:

[ 387 Pa. Super. Page 344]

Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts, Section 908(2) (1965). See also Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58, 69 (1989); Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989); Martin v. Johns Manville Corp., 508 Pa. 154, 168, 494 A.2d 1088, 1096 (1985) (plurality); Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963).

The reckless disregard of the rights of others that is required under Section 908 is further explained by Section 500 of the Restatement, which defines "reckless disregard" as follows:

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such ...


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