Stating in a published opinion what it had previously held in an unpublished memorandum, the state Superior Court has ruled that when a case is removed from state court to federal court, the state court's orders are "transformed" into federal court orders that must be appealed in federal court.

In so holding, the state Superior Court ruled that when an asbestos case was removed from the Philadelphia Court of Common Pleas to the U.S. District Court for the Eastern District of Pennsylvania, the state court's order granting summary judgment to the defendant became a federal court order, which the plaintiff failed to challenge on appeal.

In Kurns v. Soo Line Railroad, a three-judge state Superior Court panel, examining the case on appeal for the second time, unanimously affirmed Philadelphia Court of Common Pleas Judge Allan L. Tereshko's 2008 order granting summary judgment to defendant Soo Line Railroad, saying plaintiff Gloria Kurns waived the issue when she failed to preserve it on appeal in federal court.

Writing for the court, Senior Judge Eugene B. Strassburger III wrote that Tereshko's order became a federal court order when the case was transferred and Kurns did not challenge the order on appeal to the U.S. Court of Appeals for the Third Circuit.

"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. Upon removal, the order was 'transformed by operation of 28 U.S.C. § 1450' into an order of the district court," Strassburger said, evoking language from the Third Circuit's 2002 opinion in In re Diet Drugs.

Strassburger was joined by Judges Jack A. Panella and Judith Ference Olson.

Kurns, as executrix of the estate of George Corson, was substituted as the plaintiff in a mesothelioma suit against Soo Line and several other defendants after Corson died, according to Strassburger.

In April and May 2008, Tereshko granted summary judgment to Soo Line, along with co-defendants Airco/BOC and Westinghouse, and the case was removed to federal court soon after, Strassburger said.

On June 4, 2008, according to Strassburger, Kurns appealed Tereshko's order to the Superior Court.

In September 2008, according to Strassburger, the federal court denied without prejudice Kurns' motion for reconsideration of the grant of summary judgment in favor of Airco/BOC, finding that it did not have jurisdiction over the matter.

The federal court did not, however, issue separate orders denying Kurns' motion for reconsideration of the grants of summary judgment in favor of Soo Line or co-defendant American Standard, Strassburger said.

Kurns' case proceeded in federal court against remaining defendants Railroad Friction Products Corp. and Viad Corp., while Kurns' appeal of Tereshko's order granting summary judgment to Soo Line was pending before the Superior Court, according to Strassburger.

In February 2009, the federal court granted summary judgment to RFPC and Viad, holding that Kurns' claims were pre-empted by federal law, and Kurns appealed the ruling to the Third Circuit, according to Strassburger.

In a September 2009 unpublished memorandum, the Superior Court denied Kurns' appeal of Tereshko's grant of summary judgment to Soo Line, holding that it had no jurisdiction over the matter because the case had been removed to federal court, Strassburger said.

In reaching that conclusion, according to Strassburger, the Superior Court cited 28 U.S.C. § 1446(d), which states that, once a case has been removed from state court to federal court, "'the state court shall proceed no further unless and until the case is remanded.'"

The Superior Court found that when the case was removed, the grant of summary judgment to Soo Line was also removed, according to Strassburger.

In September 2010, the Third Circuit affirmed the Eastern District court's grant of summary judgment to RFPC and Viad and the U.S. Supreme Court subsequently affirmed the Third Circuit's ruling, Strassburger said.

In June 2012, Kurns again appealed to the Superior Court Tereshko's May 2008 order granting summary judgment to Soo Line.

But Strassburger, pointing to the Superior Court's 1998 ruling in Smitley v. Holiday Rambler, said Kurns could not challenge the grant of summary judgment in state court if she had the opportunity to challenge it in her appeal to the Third Circuit.

Strassburger also cited case law holding that when a case is removed from state court to federal court, the entire record is removed and the federal court picks up where the state court left off.

In Nissho-Iwai American v. Kline, for example, the U.S. Court of Appeals for the Fifth Circuit held that "'the federal court accepts the case in its current posture as though everything done in state court had in fact been done in the federal court,'" according to Strassburger.

"Accordingly, 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," Strassburger said.

While Kurns argued that the Eastern District court said it did not have jurisdiction over the appeal from the summary judgment grant in favor of Airco/BOC, Strassburger said that jurisdictional question was still one for the Third Circuit to consider.

Kurns also argued that the Superior Court, in denying her first appeal from the grant of summary judgment, had directed her to seek remand to the state court once the federal proceedings were closed, but Strassburger said that was an "inaccurate" representation of the Superior Court's ruling.

According to Strassburger, when the Superior Court first examined the case on appeal, it "informed Kurns that the federal court was the place to seek the relief she requested."

Strassburger said the Superior Court "in no way suggested that Kurns could appeal some orders all the way to the U.S. Supreme Court and then, when the case was concluded and the record was sent back to the trial court sua sponte by the federal court, file a new appeal to this court."

"This court did not direct her to seek remand after the federal proceedings were concluded," Strassburger said. "Rather, we indicated, Kurns had the option to appeal in the federal system. Aside from that, she had the option to petition the district court to remand the case to state court so she could appeal to this court."

Counsel for Kurns, Robert E. Paul of Paul, Reich & Myers in Philadelphia, could not be reached for comment.

Counsel for Soo Line, Jonathan Dryer of Wilson Elser Moskowitz Edelman & Dicker in Philadelphia, declined to comment.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 11-page opinion in Kurns v. Soo Line Railroad, PICS No. 13-2192, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)