of the act if any practice of engineering done by them is incidental to the manufacturing of their products. 63 Pa. Cons. Stat. Ann § 152 (g).
We therefore hold that AFTEC was not unlawfully engaging in the practice of engineering and the contract is not void under Pennsylvania law. Furthermore, because of our holding, we need not address Reading Tube's arguments that estoppel would prevent Wausau from asserting this defense at this stage of the litigation, and that Reading Tube's bad faith claim would still survive a finding that the contract was illegal.
III. Wausau's Motion to Bifurcate
In the alternative, Wausau asks the Court to try the issue of liability on both counts before Reading Tube presents any evidence on the issue of damages. Wausau contends that bifurcation would be in the interest of judicial economy and efficiency, and prevent unfair prejudice. Wausau argues that if Reading Tube fails to prove that Wausau is liable in its substantive claims, then there will be no need for it to present evidence on damages. Wausau points out that in order to succeed in its bad faith claims, Reading Tube must prove liability by a higher standard of clear and convincing evidence. Wausau further points out that Reading Tube has submitted information in support of its summary judgment motion concerning its damages in excess of the performance bond sum. Wausau contends that such evidence is irrelevant since it can only be liable up to the face amount of the bond under Count I, and for any of Wausau's alleged bad faith proven under Count II, neither of which depend on whether Reading Tube suffered injury above the penal bond sum. Wausau also argues that evidence of Reading Tube's damages caused by parties other than Wausau, especially AFTEC, is irrelevant, and Reading Tube will confuse the jury if allowed to present such evidence at trial.
Reading Tube argues that it is entitled to present evidence of damages above the face amount of the bond because Wausau will attempt to refute certain items of damages that Reading Tube will present. Reading Tube claims that it will therefore need to establish that it is clearly entitled to the penal bond sum by presenting all of its evidence on damages. Reading Tube also argues that the effect of Wausau's refusal to act is relevant to the issue of bad faith and that if the trials are separated, Reading Tube will be forced to present most of its evidence twice.
Motions to conduct separate trials are within the court's discretion when the separation will "further ... convenience [and] avoid prejudice." Fed R. Civ. P. 42(b). The party seeking separate trials has the burden of proving that it is necessary. See e.g., McCrae v. Pittsburgh Corning Corp., 97 F.R.D. 490, 492 (E.D. Pa. 1983).
Wausau has failed to show that separate trials are necessary. Wausau cannot prevail in its motion for separate trials merely because it believes that Reading Tube may try to present prejudicial evidence; Wausau can always object to any prejudicial evidence Reading Tube seeks to present if and when Reading Tube makes that attempt. Neither can Wausau successfully argue that it should prevail on its motion for separate trials because it believes that Reading Tube will not be able to meet its burden of establishing liability, and it wishes to avoid issues of damages altogether. The jury can decide issues of liability and damages simultaneously. Accordingly, Wausau's request for bifurcation is denied.
An appropriate Order follows.
AND NOW, this 22nd day of October, 1996, upon consideration of Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment, both motions are DENIED.
FURTHER, upon consideration of Defendant's Motion for Separate Trials, said motion is DENIED.
BY THE COURT:
J. Curtis Joyner, J.
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