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Kurns v. Soo Line Railroad

Superior Court of Pennsylvania

July 17, 2013


Appeal from the Judgment entered June 21, 2012, in the Court of Common Pleas of Philadelphia County, Civil Division, at No: June Term, 2007 No. 1384.




Gloria Gail Kurns (Kurns), as executrix of the estate of George M. Corson (Corson), appeals from the judgment entered on June 21, 2012, in this asbestos case. Specifically, Kurns asks this Court to review the order dated May 8, 2008 which granted summary judgment to Soo Line Railroad (Soo Line). Because Kurns waived all of the arguments regarding the order, we affirm.

We begin discussion of the complicated history of this case with the the following summary by the United States Supreme Court.

George Corson was employed as a welder and machinist by the Chicago, Milwaukee, St. Paul & Pacific Railroad [(Railroad)] from 1947 until 1974. Corson worked in locomotive repair and maintenance facilities, where his duties included installing brakeshoes on locomotives and stripping insulation from locomotive boilers. In 2005, Corson was diagnosed with malignant mesothelioma.
In 2007, Corson and his wife filed suit in Pennsylvania state court against 59 defendants, including [Soo Line, the successor to Railroad, ] Railroad Friction Products Corporation (RFPC) and Viad Corp (Viad). According to the complaint, [Corson was exposed to asbestos through his work for Railroad, including products such as brakeshoes distributed by RFPC and engine valves sold by Viad's precedessor]. Corson alleged that he handled this equipment and that he was injured by exposure to asbestos. The complaint asserted state-law claims that the equipment was defectively designed because it contained asbestos, and that respondents failed to warn of the dangers of asbestos or to provide instructions regarding its safe use, [as well as claims against Soo Line under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60]. After the complaint was filed, Corson passed away, [Kurns] was substituted as a party….

Kurns v. Railroad Friction Products Corp., --- U.S. ---, 132 S.Ct. 1261, 1264-1265 (2012).

In April and May 2008, orders granting summary judgment to most defendants, including Soo Line and co-defendants Airco/BOC and Westinghouse, were entered by the Philadelphia County Court of Common Pleas (trial court). By notice filed on May 13, 2008, RFPC removed the case to the United States District Court for the Eastern District of Pennsylvania (district court) based upon diversity jurisdiction. That same day, the trial court entered orders denying the summary judgment motions of RFPC and Viad.

On May 29, 2008, Kurns filed in the trial court an "emergency motion to reconsider grant of summary judgment to Soo Line." On June 4, 2008, Kurns filed a notice of appeal to this Court from the orders granting summary judgment to Airco/BOC, Westinghouse, and Soo Line. By order of July 23, 2008, the district court scheduled the case for a settlement conference. On October 9, 2008, the trial court "marked as moot" the motion for reconsideration. Two days later, Kurns filed in the district court a motion for reconsideration of the grant of summary judgment to Soo Line. Kurns filed similar reconsideration motions in the district court as to defendants Airco/BOC and American Standard. Soo Line responded in district court on August 27, 2008.

On September 11, 2008, the district court signed an order stating "upon consideration of Plaintiffs' Motion for Reconsideration of Summary Judgment to Airco/BOC, and any response(s) thereto, it is hereby ORDERED and DECREED that said Motion is hereby DENIED without prejudice as this Court is without jurisdiction over this matter." District Court Order, 9/12/2008 (emphasis omitted). There are no orders on the district court docket separately addressing the motions for reconsideration as to Soo Line and American Standard.

The case proceeded in the district court with RFPC and Viad remaining as defendants while Kurns' appeal as to Soo Line, Airco/BOC, and Westinghouse Air Brake (Westinghouse) remained pending before this Court. In September and October of 2008, RFPC and Viad again moved for summary judgment in the district court. On October 23, 2008, Airco/BOC filed in this Court an application to quash Kurns' appeal. This Court, by order of December 4, 2008, denied the application to quash without prejudice to Airco/BOC's right to raise the issue before the merits panel. The district court, by order of February 3, 2009, granted summary judgment to RFPC and Viad, holding that the claims were preempted by federal law.

On February 24, 2009, Airco/BOC filed in the district court a motion for clarification of the September 2008 order which had denied without prejudice Kurns' motion for reconsideration. On March 4, 2009, Kurns filed in the district court a notice of appeal to the Third Circuit Court of Appeals. Two weeks later, Kurns filed in the district court a response to Airco's motion for clarification. The motion for clarification was eventually denied without prejudice by the district court by order of August 14, 2009.

On September 15, 2009, this Court quashed Kurns' appeal of the summary judgments in favor of Soo Line, Airco/BOC, and Westinghouse, holding that the removal of the case to federal court stripped this Court of jurisdiction. This Court cited relevant federal law which provides that after a notice of removal is filed with the state court, "the State court shall ...

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