by Carl D. Buchholz, III
cbuchholz@rawle.com

George Webber and Tina Webber, H/W, Appellees,v. Ford Motor Company, Pneumo Abex, LLC, Successor in Interest to Abex Corporation, and Honeywell International, Inc., as Successor in Interest to Bendix Corporation, Appellants. Consolidated Appeals Nos. 1960 EDA 2012 and 1961 EDA 2012. Superior Court of PA. Filed: April 16, 2013

In Webber v. Honeywell International, Inc., et al., the Pennsylvania Superior Court recently reversed two orders of the trial court which attempted to vacate a jury’s verdict in favor of the three asbestos defendants: Ford Motor Company, Pneumo Abex, and Honeywell International.  Honeywell was represented at trial by Rawle & Henderson partner Scott Griffith. After a contentious, 16-day trial in which defendants filed several motions for mistrial based upon the appearance of impropriety by the rulings of the trial judge, the jury returned a special verdict form which found asbestos exposure was a factual cause of plaintiff George Webber’s peritoneal mesothelioma, that Webber was exposed to asbestos from products of the three defendants, and that the products of all three defendants were “defective.” However, the jury also found that the exposure to the asbestos contained in the defendants’ products was not a factual cause of Webber’s peritoneal mesothelioma.

Plaintiffs filed timely post-trial motions seeking a new trial based on an alleged error by the trial court in allowing an alternate juror to serve as a member of the deliberating jury and on the ground that the jury’s verdict was inconsistent.

The trial court failed to rule on the plaintiffs’ post-trial motions within the 120 days required by the Pennsylvania Rules of Civil Procedure. Accordingly, on the 121st day after the plaintiffs’ post-trial motions had been filed, the defendants filed a Praecipe of Entry of Judgment in favor of the defendants with the Prothonotary pursuant to Rule 227.4 of the Pennsylvania Rules of Civil Procedure, which the Prothonotary proceeded to enter. The following day, the trial court, sua sponte, filed orders purportedly quashing the entry of judgment and granting a mistrial. The three defendants appealed the trial court’s two orders to the Pennsylvania Superior Court.

Carl D. Buchholz, III, Chair of Rawle & Henderson’s Appellate Section, represented defendant Honeywell in the appeal. At oral argument before a three-judge panel of the Superior Court, counsel for Ford argued first regarding the alleged error of the trial court in attempting to strike the entry of judgment. Ford’s counsel cited the Superior Court panel to a number of prior Superior Court cases which held that once entry of judgment is entered by the Prothonotary pursuant to Rule 227.4, the trial court has no further jurisdiction or authority over the case, and jurisdiction over the case resides solely in the Superior Court. Plaintiffs’ counsel argued that the 120-day requirement had not expired when the entry of judgment was entered by the Prothonotary because the trial judge had been “decommissioned” for 31 days during that time.

Carl Buchholz argued regarding the alleged error of the trial court in granting a mistrial four months after the jury had rendered its verdict. As to plaintiffs’ argument that the defendants’ appeal of this issue was premature since an appellate court has no authority to review a mistrial granted by the trial court, Carl cited the panel to prior Pennsylvania Supreme Court and Superior Court decisions which held that a “mistrial” granted by a trial court after the jury has announced its verdict is in fact an award of a “new trial”, which is immediately appealable to the Superior Court.

The defense also addressed the grounds cited by plaintiffs in their post-trial motions for a new trial:  the trial court’s alleged error in allowing the alternate juror to deliberate in the verdict and the grounds that the verdict was inconsistent. Carl argued that a review of the trial transcript showed that plaintiffs’ counsel never objected to the alternate juror participating in the jury deliberations and verdict until after the verdict was announced. Further, with regard to plaintiffs’ allegation that a new trial was warranted because the jury’s verdict was inconsistent, Carl noted that there was evidence presented at trial by defendants that the chryostile asbestos in defendants’ products does not cause peritoneal mesothelioma, that the development of peritoneal mesothelioma required more significant and substantial exposure than Webber had to any of the particular defendants’ products, and that there were questions of fact for the jury as to whether plaintiffs’ evidence established that Webber had the required “regular, frequent and in close proximity” exposure to any of the three defendants’ products.

On April 16, 2013, the Superior Court panel filed its opinion. The panel reversed the trial court’s two orders purportedly quashing the entry of judgment and granting a mistrial, and reinstated the jury’s verdict in favor of the three defendants. In its opinion, the Superior Court panel flatly rejected plaintiffs’ counsel’s argument that the 120-day period for the trial court to rule on post-trial motions had not expired at the time the judgment was entered since the trial court was not commissioned for 31 days during that period, and affirmed that the trial court had no jurisdiction over the case once the judgment was entered by the Prothonotary.

The Superior Court panel also addressed the granting of a mistrial by the trial court. The panel agreed with the defense argument that the trial court had no authority to grant a mistrial four months after the jury’s verdict had been rendered. Further, in reviewing the granting of a “mistrial” as the granting of a “new trial”, the panel found that there was no basis in fact or law for the trial court to award a new trial. As to plaintiffs’ claim that the trial court erred in permitting the alternate juror to participate in the jury deliberations and verdict, the panel noted that plaintiffs’ counsel never objected to the alternate juror and specifically observed that plaintiffs’ counsel’s “failure to act is fatal to the plaintiffs’ challenge to the jury’s compensation and decision.”

The panel also rejected plaintiffs’ argument that the jury’s verdict of no liability on the part of the defendants was “inconsistent” because the jury found that all of the defendants’ products contained asbestos, that Webber had exposure to all three defendants’ products, and that Webber’s peritoneal mesothelioma was caused by asbestos exposure. In rejecting this argument, the panel specifically referenced the testimony of defendants’ liability expert that the chrysotile asbestos contained in defendants’ products is not a cause of peritoneal mesothelioma and observed that plaintiffs’ own liability expert admitted that chrysotile asbestos fibers are less potent than amphipole asbestos fibers and are typically found in the pleura as opposed to the peritoneal. Thus, the Superior Court found there was nothing inconsistent with the jury’s answers to the four interrogatory questions or the jury’s finding of no liability.

Carl D. Buchholz, III, is Chair of the Maritime, Insurance Coverage and Appellate Sections. His federal appellate practice includes an argument before the United States Supreme Court, as well as numerous arguments before the U.S. Court of Appeals for the Third Circuit. His state appellate practice includes seven arguments before the Pennsylvania Supreme Court, as well as numerous arguments before the Pennsylvania Superior Court and Commonwealth Court. In 2006, the Pennsylvania Supreme Court appointed Carl to the Disciplinary Board of the Supreme Court of Pennsylvania. In 2010, the Pennsylvania Supreme Court designated Carl as Chair of the Disciplinary Board. He graduated from Muhlenberg College and Villanova Law School where he was a member of the Villanova Law Review and graduated with honors.