The Pennsylvania Superior Court has ruled that a trial judge did not have jurisdiction to order a mistrial in a hotly contested asbestos case.

Judge Cheryl Lynn Allen, writing for the three-judge panel, said in an unpublished decision Tuesday that Philadelphia Court of Common Pleas Senior Judge Esther R. Sylvester did not have jurisdiction to open and vacate the judgment in favor of the defendants and to order a mistrial.

Allen was joined in the opinion by Judges Susan Peikes Gantman and Paula Francisco Ott.

The judgment was properly entered by the prothonotary under Pennsylvania Rule of Civil Procedure 227.4, which allows for judgments to be entered if judges have not disposed of parties’ post-trial motions within 120 days of when the motions were filed, Allen said.

Sylvester said in her opinion required under appellate procedural rules that she declared a mistrial, among other reasons, because the defendants sent a copy of their motion for her recusal to the administrative judge of the Philadelphia Court of Common Pleas’ trial division. Sylvester also said that the defendants’ filing was premature because, while it was made on the 121st calendar day after the filing of the first post-trial motion in the case, it was made on the 91st day of her jurisdiction because she was not certified to sit as a senior judge for 30 days within the 120 days.

While Sylvester was not commissioned for 31 days following post-trial arguments, "it is of no consequence that during the 120-day period set forth under [Pennsylvania Rule of Civil Procedure] 227.4(1)(b), the trial court, sitting as a senior judge, was not commissioned," Allen said.

The plaintiff, George Webber, and his wife said in court papers that his peritoneal mesothelioma was diagnosed in October 2010. The plaintiffs argued that Webber was exposed to asbestos from brake linings and clutches used in Ford vehicles, from Bendix brakes and brake linings, and from Abex brake linings. Honeywell International is the successor to Bendix.

The jury found that Webber’s illness was caused by exposure to asbestos, that he was exposed to all of the products made by the seven defendants, and that the products were defective. But the jury, voting 7-2, also found that there was not specific causation and that the defendants’ products were not a substantial factual cause of Webber’s peritoneal mesothelioma.

Plaintiffs’ counsel Robert E. Paul, of Paul, Reich & Myers in Philadelphia, said during oral argument that Sylvester did have jurisdiction to grant a mistrial because the verdict entered by the jury was legally invalid.

Allen said that when Sylvester submitted the trial worksheet to the prothonotary, the trial court did not indicate that the verdict should not be recorded, nor did the plaintiffs’ counsel file any written objections to the docketing of the verdict or request that Sylvester order that the verdict, while docketed, was not recorded.

Sylvester also did not order the jury to keep deliberating, and she did not "find the decision to be so inconsistent that further deliberation was required," Allen said.

The jury’s composition also was not improper, Allen said. Paul had argued that there wasn’t a verdict to count from and the verdict was legally invalid.

When one of the defense attorneys suggested in front of the jury that an alternate juror deliberate with the rest of the panel, the plaintiff’s counsel originally had no objection in open court, but then objected outside of the hearing of the jury to having the request made in front of the jury about having the alternate deliberate with the rest of the panel. Despite that objection, the Superior Court determined that the plaintiffs’ counsel did not ask the trial court to remove the alternate juror from the panel.

"The Webbers’ counsel’s failure to act is fatal to the Webbers’ challenge to the jury’s composition and decision. … Here, the Webbers’ counsel did not specifically ask for the removal of the ninth juror, and did not object when the trial court instructed the jury that an agreement by seven or more of the jurors would constitute a verdict," Allen said.

Parties can stipulate to have a smaller majority than five-sixths to reach a valid verdict, Allen said.

Robert L. Byer, an attorney for defendant Ford Motor Co. and of Duane Morris in Pittsburgh, said that his client is very pleased about the outcome in the Superior Court.

When reached by The Legal, Paul declined comment.

Carl D. Buchholz III, an attorney for defendant Honeywell International and of Rawle & Henderson in Philadelphia, also argued before the Superior Court. Buchholz declined comment.

The defendants had witnesses who testified that Webber’s peritoneal mesothelioma was more likely to be caused by amphibole asbestos than by chrysotile asbestos, while the brake products at issue in the case contained chrysotile asbestos, Allen said.

At one point the case had included the plaintiff making a now-withdrawn allegation of ex parte judicial intervention on the verdict sheet.

Later, the plaintiffs’ counsel amended a portion of his post-trial motion that originally alleged the verdict sheet in the case was developed because of alleged ex parte contact by the defense lawyers with the leadership of Philadelphia’s civil courts. Court leadership strongly denied any contact with the defense.

Paul said in amended post-trial motions filed March 22, 2012, that the defendants in Webber v. 3B Products sought to "intimidate" Sylvester by writing to Philadelphia Court of Common Pleas Judge John W. Herron, the administrative judge of the trial division, and Philadelphia Court of Common Pleas Judge Sandra Mazer Moss, about their motion to recuse Sylvester and also by asking Sylvester to adopt a proposed verdict sheet used by Herron when he tried an asbestos case.

The third defendant in the case is Pneumo Abex, which is represented by Kelley Jasons McGowan Spinelli Hanna & Reber.

Peritoneal mesothelioma is a rare type of cancer that arises in the lining surrounding the abdominal cavity known as the peritoneum.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the 22-page opinion in Webber v. Ford Motor, PICS No. 13-0894, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •