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

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 ...


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