Brown v. Philadelphia Asbestos Corp.

HOFFMAN, Judge.

This is an appeal from the July 22, 1992 order denying appellants’, Fibreboard Corporation and Keene Corporation, motions for judgment n.o.v., new trial and/or remittitur. Appellant Keene Corporation (hereinafter “Keene”) presents one issue for our consideration:

Whether the Trial Court erred in failing to grant defendant Keene Corporation’s motion for non-suit and directed verdict ... on the ground that plaintiffs sole alleged asbestos-related condition, non-impairing pleural thickening, was not compensable as a matter of law.

Keene’s Brief at i. Appellant Fibreboard Corporation (hereinafter “Fibreboard”) presents the following issues:

1. Does the law of Pennsylvania permit a plaintiff to recover damages on the basis of plaintiffs counsel’s fear, as expressed in his summation, that the defendant may be bankrupt in the future and therefore not answerable for damages should the jury fail to award damages presently?

2. Does the law of Pennsylvania permit a plaintiff to recover damages for physical pain and suffering where the plaintiff has failed to allege any such damages?

3. Whether the court below erred in denying Fibreboard’s Motion for New Trial on the grounds that the amount of the jury’s award was not supported by the evidence and was arbitrary and capricious?

4. Whether the court below committed an error of law in denying Fibreboard’s Motion for Remittitur?

Fibreboard’s Brief at i. For the reasons that follow, we stay in part, reverse in part and vacate in part.

Appellees, Thomas and Etta Mae Brown, filed a complaint on July 22,1982, against appellants, Keene and Fibreboard, et al, to recover for injuries arising out of Mr. Brown’s occupational exposure to asbestos. The case was consolidated with two other similar actions filed by James Didio and John Andrews. A joint trial commenced before the Honorable Charles Wright and a jury, with the damage stage preceding the liability determination. The jury determined that Mr. Brown suffers from asbestos-caused pleural thickening and awarded appellees damages in the amount of four hundred thousand dollars. Keene and Fibreboard stipulated that their shares of liability for appellees’ damages would be one-seventh and one-sixth respectively. Post-trial motions were filed and denied. This timely appeal followed.

On December 3,1993, Keene Corporation filed a bankruptcy petition under 11 U.S.C. § 301 in the United States Bankruptcy Court for the Southern District of New York. In light of the automatic stay provisions of the United States Bankruptcy Code, we must preliminarily determine whether this court may address the merits of Keene’s appeal.

11 U.S.C. § 362(a)(1) provides as follows:

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]

Id.

We point out that this stay includes “appeals in actions that were originally brought against the debtor, regardless of whether the debtor is the appellant or the appellee.” Borman v. Raymark Industries, Inc., 946 F.2d 1031, 1033 (1991). Moreover, the stay may not be waived by either creditor or debtor. Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1206 (3rd Cir.1991). Finally, “[t]he automatic stay’s effect on judicial proceedings against the debtor does not depend upon whether the court finds for or against the debtor.” Id.

As Keene’s appeal arises from an action brought against Keene before the filing of his bankruptcy petition, we must stay Keene’s appeal pending the conclusion of the bankruptcy proceedings.¹ Moreover, as the automatic stay applies only to the bankrupt debtor, we must sever Keene from the instant appeal. See 11 U.S.C. § 362(a). See also Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d at 1205. Accordingly, we will proceed with the merits of Fibreboard’s claims.

Fibreboard contends that the trial court erred in failing to grant its motions for directed verdict as appellees failed to allege any damages for pain and suffering.² Specifically, Fibreboard argues that as Mr. Brown’s pleural thickening is asymptomatic,³ producing no physical or functional impairment, it is not an injury entitling appellees to compensation. We agree and accordingly reverse and vacate the judgment entered against Fibreboard.

It is well-settled that “[w]hen deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony.” Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 354, 580 A.2d 1382, 1387 (1990), appeal denied, 527 Pa. 650, 593 A.2d 422 (1991). On review we will reverse the trial court’s decision only if there is an abuse of discretion or error of law. Id.

This court has recently held en banc that asymptomatic pleural thickening is not compensable as a matter of law.⁴ Giffear v. Johns-Manville, Corp., et al., 429 Pa.Super. 327, 632 A.2d 880 (1993). It is undisputed in the instant case that Thomas Brown suffered only from asymptomatic pleural thickening. As appellees have no legally cognizable claim, directed verdict should have been granted to Fibreboard.

Accordingly, Keene’s appeal is stayed pending the conclusion of the bankruptcy proceedings. However, regarding Fibreboard, we vacate that part of the July 22,1992 judgment order as entered against Fibreboard.

Stayed in part; reversed in part; vacated in part.

JOHNSON, J., files a dissenting opinion.

1 . Although Keene’s appeal is stayed under 11 U.S.C. § 362(a)(1), we do not imply that it would be improper for the bankruptcy court to lift or modify the stay to permit disposition.

2 . Because of our disposition of Fibreboard’s claims for a directed verdict, we need not address their other contentions of trial court error.

3 . Dr. William Fineman, M.D., testified as an expert witness on behalf of Mr. Brown. Dr. Fineman testified that Mr. Brown’s thickening condition had no impact on his ability to perform any of life’s functions. Deposition testimony of Dr. Fineman 9/19/91 at 43. Dr. Fineman further testified that the symptoms Mr. Brown currently exhibits, occasional wheezing and shortness of breath, are attributable to his asthmatic bronchitis rather than his pleural thickening condition. Id. at 45.

4 . Although Giffear was filed after the complaint in the underlying action, ‘‘[w]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including direct appeal." Blackwell v. Commonwealth, State Ethics Comm'n, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)). As Giffear does not specify whether its holding is prospective or retroactive and as Fibreboard has properly preserved the issues dealt with in Giffear, we will apply the holding in Giffear to the instant action.