Cathcart v. Keene Industrial Insulation

471 A.2d 493, 324 Pa. Super. 123, 1984 Pa. Super. LEXIS 3700
CourtSupreme Court of Pennsylvania
DecidedJanuary 13, 1984
Docket1377
StatusPublished
Cited by248 cases

This text of 471 A.2d 493 (Cathcart v. Keene Industrial Insulation) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cathcart v. Keene Industrial Insulation, 471 A.2d 493, 324 Pa. Super. 123, 1984 Pa. Super. LEXIS 3700 (Pa. 1984).

Opinions

[129]*129HESTER, Judge:

Appellants, David and Thelma Cathcart, brought suit on February 6, 1976, at No. 923 February Term, 1976 (hereinafter referred to as the 1976 action) against the following thirty-one defendants (listed alphabetically), by filing a Writ of Summons in Trespass: Amatex Corp.; American Textile; Asbestos Textile Corp.; Baldwin Hill; Benjamin Foster Div. of Amchem Products, Inc.; Carey; Carolina Narrow Fabric Co.; Certain-Teed Products Corp.; Delaware Asbestos and Rubber Co.; Eagle-Picher Industries, Inc.; Eastern Refractory, Inc.; Ehret; Ehret Baldwin Hill; Forty-Eight Insulation Inc.; GAF Corp.; Grant Wilson; Janos Asbestos; Johns-Manville; Keene Industrial Insulation; Nicolet Industries; Owens-Corning, Pabco Industrial Products Division; Pars Manufacturing; Philadelphia Asbestos; Pittsburgh Corning; H.K. Porter Co.; Raybestos-Manhattan; Southern Asbestos; J.P. Stevens; Taylored Industries; and United Asbestos and Rubber Co. (UNARCO). Appellants also named “John Doe” in an apparent attempt to preserve the right to later name other defendants who were unknown at the time. The action was filed against these various defendants because it was thought that they might have supplied asbestos products to appellant David Cathcart’s place of employment, the Philadelphia Naval Shipyard, and thus have contributed to Mr. Cathcart’s contraction of asbestosis and other related diseases. GAF, Owens-Corning, and Pars accepted service of the summons.1 Appellants did not formally effect service upon the other defendants2, although UN ARCO took action [130]*130which indicated that it was submitting to the jurisdiction of the court, and counsel entered appearances on behalf of Amatex and Certain-Teed.3

On September 5, 1978, appellants filed a complaint at a new number, No. 88 (123) September Term, 1978 (hereinafter referred to as the 1978 action) against thirty-one defendants, sixteen of which had also been named in the 1976 action: Asbestos Textile Company; Philip Carey Manufacturing Co.; Certain Teed Products Corporation; Delaware Asbestos and Rubber Co.; Eagle Picher Industries, Inc.; Forty-Eight Insulation, Inc.; GAF Corporation; JohnsManville Corporation; Keene Corporation; Nicolet Industries, Inc.; Fibreboard Corporation, Pabco Industrial Products Division; Pittsburgh Corning Corporation; H.K. Porter Co., Inc.; Raybestos Manhattan, Inc.; Southern Asbestos Company; and UN ARCO Industries, Inc. Fifteen of the defendants were named for the first time: Armstrong Cork Company; Asbestos Textile Institute, Inc.; Asten Hill Manufacturing Co.; J. Franklin Burke Co.; Carolina Asbestos Co.; General Asbestos Co.; Glen Alden, Inc.; Keasbey Mattison Co.; Johns-Manville Sales Corporation; Rapid American, Inc.; Ruberoid Company, Inc.; Thermoid Co.; [131]*131Turner Newall, Ltd.; Uni-Royal, Inc.; and U.S. Rubber Co. Inc. Owens-Corning and Janos, both of which had been named in the 1976 action and had accepted service of the summons, were not named in the 1978 action. Amatex, on whose behalf an appearance had been entered by counsel in the 1976 action, was similarly not named as a defendant in the 1978 action.

In January, 1978, Pars ruled the plaintiffs to file a complaint in the 1976 case, and when the plaintiffs failed to file a complaint, obtained a judgment of non pros. On September 25, 1980, defendant Raybestos filed a motion for summary judgment in the 1978 action “on behalf of all defendants except Owens Corning Fiberglass Corporation and GAF Corporation.” On October 1, 1980, Pittsburgh Corning filed a motion for summary judgment in the 1978 action “in favor of all defendants, against the plaintiffs.” Motions for summary judgment were also filed in the same case within the next four months by Pacor, Keene, and Eagle-Picher. All of the defendants named in the 1976 action evidently filed motions for non pros of the 1976 action in November, 1980, although there is no record on the docket of such filing. On January 2, 1981, the plaintiffs finally filed a complaint in the 1976 case. On April 30, 1981, the lower court issued an opinion and order non-prossing the 1976 case as to all named defendants except Owens-Corning, Amatex4, GAF, Certain-Teed, and UNARCO. On the same date, the lower court also issued an opinion and order in the 1978 case, granting summary judgment and dismissing Thelma Cathcart’s claim for emotional distress as to all defendants, denying summary judgment as to GAF, Certain-Teed, and UNARCO on David Cathcart’s claims and on Thelma Cathcart’s consortium claim, and granting summary judgment in favor of the remaining twenty-eight defendants as to David Cathcart’s claims and [132]*132Thelma Cathcart’s consortium claim. The plaintiffs filed timely notices of appeal in both actions.5

A court properly enters a judgment of non pros when a party to the proceedings has shown a want of due diligence by failing to proceed with reasonable promptitude, when there has been no compelling reason for the delay, and when the delay has caused some prejudice to the adverse party. Carter v. Amick, 246 Pa.Super. 530, 534, 371 A.2d 961, 963 (1977). In the case before us, in ruling on the defendants’ motions for non-pros of the 1976 action, the lower court held that appellants had not abandoned their claims as to any of the defendants. The lower court also ruled that appellants had not delayed unreasonably with respect to GAF, UNARCO, Certain-Teed, Amatex, and Owens-Corning, since these five defendants had been made parties to the 1976 action, and since there had been activity by appellants (filing a complaint, albeit at a different number and adding many new parties, petitioning to consolidate the 1976. and 1978 actions," and engaging in substantial discovery) which indicated that they were pursuing the 1976 action. With respect to the remaining twenty-five defendants 6, the lower court found: 1) that appellants had delayed [133]*133unreasonably in prosecuting their case by not taking any action from the time that they initiated suit in February, 1976, until they attempted to serve copies of a complaint in January, 1981, a period of almost five years; 2) that appellants’ delay “was the result of an effort to save costs” and was “inexcusable”; and 3) that the twenty-five defendants had been prejudiced (although the lower court was not clear as to what the prejudice actually was). Appellants do not challenge these findings.

In arriving at its conclusion that the plaintiffs had delayed unreasonably in waiting almost five years after initiating their suit until attempting to bring the twenty-five defendants within the court’s jurisdiction, the court made a “preliminary determination” that twenty-five of the defendants had not waived service of process or subjected themselves to the court’s jurisdiction.7 It is this portion of the lower court’s findings that appellants dispute. Appellants argue that the twenty-five defendants waived the right to challenge personal jurisdiction because of participation of counsel in court conferences, in the work of a defense counsel committee, and in the drafting of interrogatories which were served upon appellants, and because the defendants received and benefited from answers to interrogatories. Appellants argue that the twenty-five defendants fall into the same category as the remaining five defendants, and therefore should not have had non pros granted in their favor.

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Bluebook (online)
471 A.2d 493, 324 Pa. Super. 123, 1984 Pa. Super. LEXIS 3700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cathcart-v-keene-industrial-insulation-pa-1984.