GAF Corp. v. Cathcart

574 A.2d 604, 393 Pa. Super. 266, 1990 Pa. Super. LEXIS 689
CourtSuperior Court of Pennsylvania
DecidedMarch 27, 1990
DocketNo. 666
StatusPublished
Cited by1 cases

This text of 574 A.2d 604 (GAF Corp. v. Cathcart) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GAF Corp. v. Cathcart, 574 A.2d 604, 393 Pa. Super. 266, 1990 Pa. Super. LEXIS 689 (Pa. Ct. App. 1990).

Opinions

MONTEMURO, Judge:

On March 9, 1989, this Court, by a per curiam order, granted the GAF Corporation, appellant herein, permission to appeal from , the interlocutory order of the trial court, denying GAF’s petition for judgment of non pros. The Honorable Sandra Mazer Moss, J., of the Philadelphia Court of Common Pleas, by Order dated November 21, 1988, certified that the order denying GAF’s petition for judgment of non pros involves controlling questions of law as to which there are substantial grounds for difference of opinion. Although the trial court emphasized a single question of law in its November 21, 1988, Order, this Court granted GAF permission to appeal without limiting the appeal to one or more questions presented in GAF’s petition. See Pa.R.A.P. 1321. Accordingly, we will now review the trial court’s denial of the non pros petition filed by GAF on the merits.

The facts and procedural history of this matter are well known to this Court, and appear in detail in our Opinion in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). On February 6, 1976, David and Thelma Cathcart brought suit against thirty-one defendants, including GAF, by filing a Writ of Summons. By the end of February of 1976, the Cathcarts’ case was one of forty-five asbestos cases filed in the Philadelphia Court of Common Pleas by the firm of Shein and Brookman, P.A. All of these forty-five cases were subsequently assigned to the Honorable Harry Takiff for all purposes. During February of 1976, the Cathcarts petitioned to consolidate the forty-five cases for the purposes of service, discovery, and trial. This petition was denied. As the April 30, 1981, Opinion of Judge Takiff recounts, a preliminary conference regarding these cases was held on May 19, 1976. During [269]*269this conference, in which no less than twenty-two defense attorneys participated, issues concerning procedure, service of process, jurisdiction, and discovery were discussed. It was clearly recognized by the attorneys present at the preliminary conference, as well as the trial court, that many of the defense attorneys were at the conference “informally” because of the fact that their clients had never been properly served.

More conferences were held by Judge Takiff during June and July of 1976, and it was agreed that plaintiffs’ counsel would file preliminary interrogatories to aid in the preparation of Complaints.1 These interrogatories were filed on July 29, 1976, and sought general information concerning each defendant’s involvement in the asbestos industry. Throughout this time, it is undisputed that the plaintiffs’ attorneys were struggling with the problem of effecting service upon the defendants for all of the forty-five cases being handled by Judge Takiff. To this end, a petition was filed on July 13, 1976, for leave to serve by registered mail, a method of service which would have minimized the Sheriff’s costs incident to the service of Writs. At this point in time, the Cathcarts’ 1976 action had not been formally served on any of the named defendants. While the petition for leave to serve by registered mail was pending, GAF voluntarily accepted service on August 11, 1976. The petition to serve by registered mail was subsequently denied. Three other defendants also accepted service: Owens-Corning, Janos Asbestos, and Pars Manufacturing. GAF was also one of fifteen defendants which answered the plaintiffs’ preliminary interrogatories.

During 1977, Judge Takiff entered various pre-trial orders in an attempt to streamline the discovery process for [270]*270all of the asbestos cases instituted by Shein and Brookman, P.A. The first of these orders, dated July 21, 1977, “addressed a number of difficulties created by this massive, multi-party group of cases including, inter alia, the formation of committees of plaintiffs’ and defendants’ counsel, the problem of cross-claims between and among defendants, the need for filing a jury trial demand, and the methods by which repetitive medical examinations of the plaintiffs would be minimized and medical records exchanged.” Op. of Trial Court, April 30, 1981, at 14. This July 21, 1977, Order, was entered on the Cathcart docket. We note that in January of 1978, one of the defendants in the Cathcart case which had accepted service of process, Pars, ruled the Cathcarts to file a complaint in the 1976 summons action, and when the Cathcarts failed to do so, Pars obtained a judgment of non pros.

In September of 1978, Shein and Brookman, P.A., instituted a second lawsuit, on behalf of one hundred and nineteen plaintiffs, at a new court term and number, which was filed and served upon defendants as a multi-party complaint. The Cathcarts were a part of this second lawsuit, and there is no dispute that their cause of action in the 1978 action was identical to the cause of action underlying their 1976 action commenced by a Writ of Summons. The 1978 action included thirty-one defendants, sixteen of which had been named in the 1976 action. GAF was one of these defendants. The other fifteen defendants were named for the first time. A complaint was filed in the 1976 summons action in January of 1981.

Instantly, our focus is necessarily upon the 1976 action. However, we note that in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), we affirmed summary judgment which had been granted in the 1978 case in favor of all defendants as to Thelma Cathcart’s claim for emotional distress, due to the absence of physical manifestations of disease. We also affirmed summary judgment which had been entered in the 1978 case in favor of all defendants, except GAF, Certain-Teed, and UNAR[271]*271CO 2, as to David Cathcart’s claims and Thelma Cathcart’s consortium claims. The summary judgment granted in favor of the defendants in the 1978 action was based upon the bar of the statute of limitations.3

Additionally, in our decision in Cathcart, supra, we affirmed the entry of judgments of non pros entered in favor of all named defendants in the 1976 action except those defendants which had been made parties to the 1976 action by accepting service or by otherwise submitting to the jurisdiction of the court: GAF, Owens-Corning, Amatex, UNARCO, and Certain-Teed. Most of this Court’s Opinion in Cathcart involves a discussion of the statute of limitations defense, as it applied to the 1978 action. As an initial issue, we agreed with the trial court’s determination that as to those defendants which had not accepted service in the 1976 action or otherwise submitted to the jurisdiction of the court, these defendants had not waived their right to challenge the court’s jurisdiction. The non pros judgments entered as to the 1976 summons action were affirmed with little discussion because, although the Cathcarts had appealed the non pros judgments, they failed to challenge the factual findings rendered by the trial court in support of these judgments:

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Bluebook (online)
574 A.2d 604, 393 Pa. Super. 266, 1990 Pa. Super. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaf-corp-v-cathcart-pasuperct-1990.