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06/10/97 RUDOLPH TOHAN & WANDA TOHAN v.

SUPERIOR COURT OF PENNSYLVANIA


June 10, 1997

RUDOLPH TOHAN & WANDA TOHAN, H/W, APPELLANT
v.
OWENS-CORNING FIBERGLAS CORP., PITTSBURGH CORNING CORP., CELOTEX CORPORATION, H.K. PORTER COMPANY, INC., EAGLE-PICHER INDUSTRIES, INC., SOUTHERN TEXTILE COMPANY, GAF CORPORATION, RUBBEROID COMPANY, INC., OWENS-ILLINOIS, INC., KEENE CORPORATION, ARMSTRONG WORLD INDUSTRIES, INC., ARMSTRONG CORK COMPANY, UNITED STATES GYPSUM COMPANY, PORTER HAYDEN CO., FOSTER WHEELER CORPORATION, YORK-SHIPLEY, INC., PARS MANUFACTURING COMPANY, PHELPS PACKING & RUBBER CO., INC., HERCULES PACKING CORP., ANCHOR PACKING CO., AZTEC INDUSTRIES, INC., A.C. & S CORPORATION, FLEXITALLIC GASKET COMPANY, FLINTKOTE COMPANY, GARLOCK INDUSTRIES, FIBREBOARD CORPORATION, UNIROYAL, INC., NATIONAL GYPSUM COMPANY, CHICAGO FIRE BRICK CO., BRAND INSULATIONS, INC., TURNER & NEWALL, A.P. GREEN REFRACTORIES CO., ALLIED CORPORATION, BOILER TUBE CO. OF AMERICA, PRUDENTIAL SUPPLY CORPORATION, J.H. FRANCE REFRACTORIES, CO., RILEY STOKER CORPORATION, HARBISON WALKER REFRACTORIES, DREVER FURNACES, SELAS CORPORATION OF AMERICA, SELAS FURNACES, RAY OIL BURNER COMPANY, BICKLEY FURNACES, INC., NATIONAL BOILER WORKS, INC., SUPERIOR BOILER WORKS, INC., H.B. SMITH, KEELER/DORR-OLIVER BOILER CO., INTERNATIONAL BOILERS, CLEAVER BROOKS, DIVISION OF AQUACHEM, INC., APPELLEE

Appeal from the Judgment entered October 31, 1996. Docketed August 20, 1996 In the Court of Common Pleas of Philadelphia County, Civil, No. March Term, 1988, No. 2622. Before SABO, J.

Before: Beck, J., Saylor, J. And Montemuro* , J. Opinion BY Montemuro, J.

The opinion of the court was delivered by: Montemuro

OPINION BY MONTEMURO, J.:

Filed June 10, 1997

Appellants, Rudolph and Wanda Tohan, appeal from the judgment entered October 31, 1996 in the Philadelphia County Court of Common Pleas in favor of Appellees, Owens-Corning Fiberglas Corporation and numerous other asbestos manufacturers and suppliers. *fn1 We find that because Appellants failed to perfect an appeal within thirty days of the trial court's December 1, 1993 entry of summary judgment, we must quash this appeal as untimely.

On March 18, 1988, Appellants filed suit against Appellees in a consolidated asbestos matter, seeking damages resulting from Appellant-husband's personal injuries arising from occupational exposure to asbestos. The matter proceeded to a jury trial on November 1, 1993 in a reverse-bifurcated form: damages are determined in the first phase of the trial, and, if necessary, a second phase is conducted where the jury determines the liability of particular defendants. On November 12, 1993, following the presentation of evidence for the first phase of trial, Appellees moved to have Appellants' cause of action dismissed, asserting that Appellants were barred by the applicable two year statute of limitations because Appellant-husband knew or should have known he had a legally cognizable asbestos-related injury more than two years before suit was filed. The trial Judge heard argument, and, together with the evidence presented at trial, consisting of the videotaped depositions of Appellants and a treating pulmonologist, Dr. Mitchell Weiner, and the telephonic depositions of treating physicians, Drs. Rafael Salas and Mohan Kutty, the Judge granted summary judgment in favor of Appellees.

On November 22, 1993, Appellants filed a post-trial motion docketed as a motion for a new trial. On December 1, 1993, the trial court entered summary judgment in favor of Appellees. Oral argument on Appellants' post-trial motion was held on June 28, 1996, after which the trial court entered an Order denying the motion, docketed on August 20, 1996. Appellants filed a Notice of Appeal on September 18, 1996, and, thereafter, praeciped for entry of judgment, which was entered on October 31, 1996. On appeal, Appellants contend that the trial court abused its discretion when it granted summary judgment in favor of Appellees. (Appellants' Brief at 1).

Upon review of an appeal, our first task is to determine whether the matter is properly before this Court. The appealability of an order directly affects the jurisdiction of this Court, and, therefore, since jurisdiction was not challenged by either party in the instant case, we are compelled to raise this issue sua sponte. See Rieser v. Glukowsky, 435 Pa. Super. 530, 535, 646 A.2d 1221, 1223 (1994)(stating issue of jurisdiction may be raised by the court sua sponte).

It is well-established that the failure to file a timely appeal will divest this Court of jurisdiction. Sidkoff, Pincus, et al. v. Pennsylvania Nat'l. Mut. Cas. Ins. Co., 521 Pa. 462, 468, 555 A.2d 1284, 1287 (1989). This rule, however, "is dependent upon a predicate, which is that the order in question must have been final and properly entered; for an appeal period cannot begin to run absent a valid order." Id.

Initially, Appellants, without citation to caselaw, briefly assert that although the docket entry for December 1, 1993 states that summary judgment was granted, "the [in-court] motion itself was not so designated; and, since said motion came at the Conclusion of all of the evidence at trial, the trial court should properly have designated and treated said motion as a motion for directed verdict." (Appellants' Brief at 3-4). Therefore, before we decide whether Appellants have appealed timely, we must first determine whether, procedurally, the trial court's consideration and entry of summary judgment was proper.

In the instant case, on November 12, 1993, after evidence was presented in the damages phase, Appellees moved to have Appellants' suit dismissed based upon the running of the two year statute of limitations. The trial court heard argument from each side, and, on December 1, 1993, entered summary judgment in favor of Appellees. It is clear that summary judgment may be properly entered in favor of the defendants where the plaintiff's cause of action is barred by the statute of limitations. Brooks v. Sagovia, 431 Pa. Super. 508, 511, 636 A.2d 1201, 1202 (1994). When moving for summary judgment, the moving party must adhere to Pa.R.C.P. 1035 which states, in relevant part:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.

Pa.R.C.P. 1035(a).

Typically, after trial has commenced, a motion for summary judgment is no longer appropriate. William J. Heck Builders, Inc. v. Martin, 315 Pa. Super. 395, 397, 462 A.2d 253, 254 (1983). Further, our Court also has held that generally, an oral request for summary judgment, absent a written document, is insufficient to meet the requirements of Pa.R.C.P.1035(a). Taylor v. Owens-Corning Fiberglas Corp., 446 Pa. Super. 174, 191, 666 A.2d 681, 689 (1995), allocatur denied, 544 Pa. 661, 676 A.2d 1201 (1996). We note, however, that because of their complexity, the litigation of asbestos cases do not follow the "typical" trial format; indeed, asbestos litigation now has its own "special provisions" in the Rules of Civil Procedure. *fn2 Further, as noted above, asbestos litigation is unique in that it routinely proceeds in a reverse-bifurcated fashion. Thus, it is not surprising that a review of the asbestos caselaw reveals that given the complexity and unique nature of asbestos litigation, it is not uncommon practice for a court to permit a summary judgment motion based upon the statute of limitations at the end of the damages phase of trial.

In White v. Owens-Corning Fiberglas Corp., 447 Pa. Super. 5, 668 A.2d 136 (1995), at the end of the damages phase, the defendants motioned for summary judgment alleging that the plaintiff's suit was barred by the statute of limitations. Id. at 13, 668 A.2d at 140. The motion was granted and the plaintiffs appealed, contending, inter alia, that the trial court erred in considering the summary judgment motion after the commencement of the damages phase of trial. Id. at 14, 668 A.2d at 141. We disagreed, reasoning that our rules of civil procedure may be construed in a liberal manner to "secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable[,]" as long as there is good cause and "no showing of prejudice as a result of the failure to comply strictly with the rules." Id. at 16, 668 A.2d at 141. Accordingly, we held that where the trial Judge who initially presided over proceedings before the damages phase expressly preserved the summary judgment motion for review at a later date, such preservation was within the Judge's discretion, and, therefore, consideration of the motion at the end of the damages phase was proper. Id. at 16-17, 668 A.2d at 142.

In the instant case, the record reveals that after the evidence was received in the damages phase of the trial, defense counsel stated: "Your Honor, we want to renew for the defense our motion to have Mr. Tohan's cause of action dismissed on the basis of the running of the statute of limitations." (N.T. 11/12/93 at 3)(emphasis added). Appellants do not allege either error by the trial court in entertaining this motion, or prejudice resulting from its consideration, but, rather, merely claim that because defense counsel did not specifically articulate the motion as a motion for summary judgment, "the trial court should have properly designated and treated said motion as a motion for directed verdict." (Appellants' Brief at 4). We disagree and find that the procedural posture of this case closely parallels that of White.

The notes of testimony reveal that a meeting with a calendar Judge was held on or about October 25, 1993, before the commencement of the damages phase, wherein the parties agreed upon certain points for trial. (N.T. 11/1/93 at 14). Specifically, the testimony reveals an agreement which states that "all November summary judgment motions which are dependent upon the deposition of witnesses who have not yet testified will not be considered by Judge Moss before trial, . . . but the motion may be presented to the trial Judge at the Conclusion of phase one in the event of a plaintiff's verdict. The motion cannot be presented to the trial Judge before the completion of phase one." (N.T. 11/1/93 at 14). *fn3 Thus, we find that Appellees' motion was properly preserved, and therefore correctly considered by the trial court at the Conclusion of the damages phase. Regardless of nomenclature, whether defense counsel orally labelled the motion as a motion to dismiss based upon the statute of limitations, or a motion for summary judgment on the same grounds, the effect remains the same; the grant of either motion would effectively terminate litigation and put the plaintiff out of court. See Jonas v. Wiesmeth, 360 Pa. Super. 173, 520 A.2d 40 (1987)(holding order dismissing party from suit is always final and appealable). See also Discussion (infra) regarding the finality of summary judgment orders.

Further, despite Appellants' position concerning how this motion should have been regarded, the fact still remains that the trial court entered summary judgment on December 1, 1993, and the docket reveals that all parties received proper notice. Appellants did not protest at that time, and, therefore, we decline to hear their present complaint. See Taylor, 446 Pa. Super. at 192-5, 666 A.2d at 690 (holding trial court erred by granting oral summary judgment motion where motion was not previously preserved and was made the morning of trial, thus plaintiffs were denied notice and reasonable opportunity to respond). Next, we must determine whether Appellants appealed properly from the trial court's grant of summary judgment.

It is well-established that an order granting summary judgment is final and appealable. Progressive Home Fed. Sav. & Loan v. Kocak, 359 Pa. Super. 120, 122, 518 A.2d 808, 809 (1986); Alberici v. Safeguard Mut. Ins. Co., 444 Pa. Super. 351, 356 n.1, 664 A.2d 110, 113 n.1 (1995). Therefore, to preserve the right to appeal once summary judgment is granted, an appeal must be filed within thirty (30) days after the entry of that order. Pa.R.A.P. 903(a); Progressive, 359 Pa. Super. at 122, 518 A.2d at 808. Post-trial motions are not allowed following the entry of summary judgment, as it is the entry of judgment which initiates the running of the appeal period. Sterling v. Fineman, 428 Pa. Super. 233, 237, 630 A.2d 1224, 1227 (1993); Burkhart v. Brockway Glass Co., 352 Pa. Super. 204, 208, 507 A.2d 844, 846 (1986), alloctur denied, 514 Pa. 615, 521 A.2d 930 (1987). See Progressive, 359 Pa. Super. at 123, 518 A.2d at 809 (holding once trial court's summary judgment order was filed, judgment was entered and therefore appellant's subsequent praecipe for judgment was a "meaningless act.").

Instantly, the trial court entered summary judgment in favor of Appellees on December 1, 1993. Appellants, following the denial of their post-trial motions, filed their notice of appeal on September 18, 1996, almost three years after the entry of summary judgment. It is obvious that Appellants exceeded the prescribed thirty day appeal period. This Court is without jurisdiction to excuse a failure to file a timely notice, as the thirty day appeal period must be strictly construed. In re Greist, 431 Pa. Super. 188, 191, 636 A.2d 193, 195 (1994). Therefore, since we must quash this appeal as untimely, we are precluded from determining whether, on the merits, summary judgment was properly entered. *fn4 See Sweener v. First Baptist Church, 516 Pa. 534, 539-540, 533 A.2d 998, 999-1000 (1987)(after entry of summary judgment, party filed post-trial motions which were denied six months later, and party appealed; court held entry of summary judgment was final order from which any appeal was waived unless taken within thirty days).

Appeal quashed.


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