The Penn Record Jul. 24, 2013, 4:16pm


A three-judge Pennsylvania Superior Court panel has thrown out a plaintiff’s appeal in an

asbestos mass tort case, ruling that the state appeals body has no jurisdiction in the case because the litigation had previously been removed to a federal court.

In a July 17 published opinion, the panel, consisting of Superior Court Judges Jack Panella, Judith Ference Olson and Eugene Strassburger, affirmed a June 21, 2012, defense judgment entered in Philadelphia Common Pleas Court.

The case involved Gloria Gail Kurns, executrix of the estate of the late George M. Corson, a welder and machinist who worked in locomotive repair and who was later diagnosed with malignant mesothelioma, a disease the man attributed to his on-the-job asbestos exposure.

George Corson had installed brake shoes on locomotives and stripped insulation from locomotive boilers, actions he contended led to his terminal illness.

The couple filed suit in Philadelphia’s Common Pleas Court in 2007 against a total of 59 defendants, including Soo Line Railroad, which was the successor to the Chicago, Milwaukee, St. Paul & Pacific Railroad, where George Corson had worked from 1947 to 1974.

Two other defendants included Railroad Friction Products Corp. and Viad Corp., the court record shows.

In the complaint, which was filed in 2007, two years after the late Corson was diagnosed with mesothelioma, the couple asserted state-law claims that the equipment used by Corson was defectively designed because it contained asbestos and that the defendants failed to warn of the dangers of asbestos and failed to provide instruction regarding its safe use.

In the spring of 2008, a Philadelphia Common Pleas Court judge granted summary judgment to most of the defendants, including Soo Line Railroad.

In mid-May 2008, the record shows, defendant Railroad Friction Products Corp. removed the case to the U.S. District Court for the Eastern District of Pennsylvania due to diversity jurisdiction.

On the same day the removal notice was filed, the Philadelphia judge entered orders denying the summary judgment motion of RFPC and co-defendant Viad Corp.

Kurns, who became lead plaintiff after Corson’s death, subsequently filed an appeal with the state Superior Court from the trial judge’s orders granting summary judgment to Soo Line Railroad and two other defendants.

Days later, Kurns filed at U.S. District Court a motion for reconsideration of the granting of summary judgment to Soo Line.

On Sept. 11, 2008, a federal judge denied without prejudice the plaintiff’s motion for reconsideration of summary judgment granted to two of the defendants, but it docketed no order with regard to Soo Line, the record shows.

The case proceeded in federal court with RFPC and Viad as defendants, while Kurns’ appeal as to Soo Line and two other defendants remained pending before the state Superior Court.

In February 2009, a federal judge granted summary judgment to RFPC and Viad, ruling that the claims were preempted by federal law.

Meanwhile, in September of that year, Superior Court judges quashed Kurns’ appeal of summary judgments in favor of Soo Line and two other defendants, holding that the removal of the case to U.S. District Court stripped Superior Court of its 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 proceed no further unless and until the case is remanded,’” states the July 17 Superior Court published opinion. “This Court explained that, because a notice of removal removes the entire civil action to the federal court, the interlocutory orders granting summary judgment to Soo Line, Airco, and Westinghouse ‘were also effectively removed to federal court as part of that action.’”

Airco and Westinghouse were two other defendants in the case.

The Superior Court judges noted that Kurns never sought review of their order with the Pennsylvania Supreme Court.

Meanwhile, on Sept. 9, 2010, the U.S. Third Circuit Court of Appeals affirmed the federal court’s dismissal of Kurns’ claims as to RFPC and Viag, agreeing that they were preempted by federal law.

The U.S. Supreme Court ultimately affirmed the Third Circuit’s decision.

Last June, a U.S. District judge sent a Philadelphia Common Pleas Court judge a letter explaining that the case had been disposed of in federal court.

Kurns then filed in the state trial court a notice of appeal to Superior Court from the May 2008 summary judgment grant in favor of Soo Line, which raised two questions: whether Kurns offered sufficient evidence to probe whether Soo Line’s negligence contributed to George Corson’s mesothelioma, and whether under the U.S. Supreme Court’s decision in the case Soo Line was strictly liable for causing the man’s disease.

In the end, the Superior Court determined that it had no jurisdiction to decide the appeal, since removal of the case to the district court, “transformed, for all intents and purposes, the trial court’s order granting Soo Line’s motion for summary judgment into an order of the district court.

“Appellate review of that order, then, was properly sought in the Third Circuit along with review of the district court’s orders granting summary judgment to RFPC and Viad,” the Superior Court wrote.

The panel further wrote that whether the federal court’s “implicit” ruling that the district judge lacked jurisdiction was a question properly addressed to the Third Circuit, where Kurns appealed the other federal court orders rather than relying on the district court’s “official pronouncement” that her claims against RFPC and Viad were preempted.

“This Court went on to explain that the fact that the district court had reconsidered the grant of summary judgment as to RFPC and Viad, after having declined to reconsider summary judgment as to Airco, Westinghouse, and Soo Line, supported this Court’s position that the entire case was removed to the federal court,” the Superior Court wrote. “In sum, the interlocutory trial court order granting Soo Line’s motion for summary judgment was removed to the federal court along with the rest of the case. Because [Kurns] did not challenge that order when she filed her appeal to the Third Circuit, we are constrained to hold that Kurns waived the questions she now presents to this court.”

The decision was penned by Superior Court Judge Eugene Strassburger.

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