Webber v. Ford Motor Company (2013)

Our plain-English summary of Webber v. Ford Motor Company (Pennsylvania Superior Court, April 16, 2013).

George Webber and his wife Tina sued Ford, Pneumo Abex and Honeywell (as successor to Bendix), among others, claiming asbestos in their products caused his peritoneal mesothelioma. Mr. Webber testified he was exposed when he changed brakes with his father and friends over his life. After a five-week trial, a nine-member jury, including an alternate the parties had agreed could deliberate, found he was exposed to the products and that they were defective, but that none was a substantial cause of his disease. Seven jurors voted for the defendants. The Webbers objected to the verdict being recorded and filed post-trial motions. When 120 days passed without a ruling, the defendants had judgment entered under Rule 227.4(1)(b). The trial court then opened and vacated the judgment and declared a mistrial. The Superior Court reversed. It held the trial court had no authority to disturb that judgment, the verdict was recorded when docketed, the Webbers had waived their objection to the ninth juror, and defense expert testimony supported the causation finding. This was a non-precedential decision.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Pennsylvania Superior Court
• Decided: April 16, 2013
• Stage: Appeal from post-trial motions
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Pennsylvania

Outcome. The Superior Court reversed the trial court's orders opening and vacating the judgment entered for Ford, Abex and Honeywell and granting a mistrial, and denied the Webbers' motion to quash, so the defense judgment stood.

What the court held. A judgment entered by the prothonotary under Pa.R.C.P. 227.4(1)(b) after 120 days of pending post-trial motions cannot be opened, vacated or reconsidered by the trial court. A jury verdict is recorded when docketed absent ambiguity, and a new trial is not warranted where a reasonable theory supports the jury's answers.

Issues decided: Causation, Trial Procedure and Discovery.

The people and their exposure

• George Webber: peritoneal mesothelioma

Who	Work	Where	When	Products
George Webber	changed brakes alongside his father and friends			brakes, clutches and friction materials, chrysotile, Brake products of Ford, Abex (Pneumo Abex) and Honeywell (Bendix)

The defendants

• Ford Motor Company (manufacturer)
• Pneumo Abex, LLC, successor in interest to Abex Corporation (manufacturer)
• Honeywell International, Inc., successor in interest to Allied Signal, Inc., successor in interest to Bendix Corporation (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

GEORGE WEBBER AND TINA WEBBER, H/W, Appellees,

v.

FORD MOTOR COMPANY, PNEUMO ABEX, LLC, SUCCESSOR IN INTEREST TO ABEX

CORPORATION, AND HONEYWELL INTERNATIONAL, INC., AS SUCCESSOR IN INTEREST TO

ALLIED SIGNAL, INC., AS SUCCESSOR IN INTEREST TO BENDIX CORPORATION, Appellants.

Consolidated Appeals Nos. 1960 EDA 2012 and 1961 EDA 2012.

Filed: April 16, 2013.

Superior Court of Pennsylvania.

BEFORE: GANTMAN, ALLEN, and OTT, JJ.

NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

MEMORANDUM BY ALLEN, J.

At docket 1960 EDA 2012, Ford Motor Company ("Ford"), Pneumo Abex, LLC ("Abex"), and Honeywell International, Inc. ("Honeywell"), (collectively "Appellants"), appeal from the trial court's order opening and vacating a judgment entered by the prothonotary pursuant to Pa.R.C.P. 227.4(1)(b). At docket 1961 EDA 2012, Appellants appeal from the trial court's order granting a mistrial. After careful review, we reverse the orders and deny the motion to quash these appeals filed by George Webber ("Mr. Webber"), and his wife, Tina Webber (collectively "the Webbers").

Our review of the record shows that the Webbers instituted a personal injury action against multiple defendants, alleging that the defendants' asbestos-containing products caused Mr. Webber's peritoneal mesothelioma. See generally Webbers' Complaint, 12/15/10. At trial, the Webbers proceeded only against Appellants. The verdict slip contained the names of four additional defendants who had settled with the Webbers before trial. See Jury Verdict Sheet, at 1. During the five-week trial, Mr. Webber testified about his exposure to Appellants' asbestos-containing products during the numerous times throughout his life when he changed brakes alongside his father and his friends. See generally Mr. Webber's Testimony, N.T., 1/30/12 and 1/31/12. Conversely, Appellants adduced testimony that Mr. Webber's peritoneal mesothelioma was more likely caused by amphobile asbestos than by chrysotile asbestos. N.T., 1/31/12, PM Session, at 10-11. Appellants' expert explained that Appellants' brake products contained chrysotile asbestos. N.T., 2/10/12, PM Session, at 58-59.

Originally, the jury panel consisted of eight regular jurors and one alternate. See generally N.T., 1/18/12. After the parties rested, but prior to closing arguments and jury instructions, Abex's counsel addressed the trial court: [Abex's counsel]: Your Honor, I was going to just say, the defendants certainly have no objection to juror number nine deliberating since he's been here for five weeks. I mean he's an alternate, technically, but we certainly have no objection to him deliberating with the jury.

N.T., 2/15/12, PM Session, at 29. Significantly, the Webbers' counsel responded "[n]o objection." Id. Immediately after the jury retired, the Webbers' counsel said to the trial court:

Your Honor, I want to object to [Abex's counsel's] comment about the ninth juror participating, that he made in front of the jury. It's improper. He knows it's improper, and the reason he made it was to ingratiate himself in front of the ninth juror, and maybe the others, and whether we agree or not agree, after that kind of comment in front [of the jury], there's no choice that we would have, one way or the other, and I would ask that [Abex's counsel] be admonished not to make comments like that in front of the jury.

Id. The Webbers' counsel did not ask the trial court to remove the ninth juror from the jury panel.

During the jury charge conference, counsel for the parties conducted the following discussion concerning the number of jurors needed to reach the 5/6 majority required for a verdict pursuant to 42 Pa.C.S.A. § 5104 (b).[1]

[The trial court]: You better tell me what 5/6ths of nine is. I know with eight, it's seven. Is it eight[?] [Ford's counsel]: I think it's seven, Your Honor.

[The Webbers' counsel]: There's a difference between allowing him to deliberate, and now I understand what he's up to, allowing the ninth juror to deliberate with the other jurors and spend time with them and counting him in order to increase the number of jurors we have to have in order to win, and I object to that and there's no reason. We spent hours and hours and hours together. There is no reason why [Abex's counsel] couldn't have brought this up earlier, out of the presence of the jury. Maybe that's what he's up to, and if so, that's improper.

[The Webbers' counsel]: Certainly we're going with the amount that we started with, which is eight, and if the alternate needs to be used, they'll have to start deliberations again. If that is his game, that is more than inappropriate.

[Abex's counsel]: Game?

[The Webbers' counsel]: That is sanctionable.

[The trial court]: The point is —

[Abex's counsel]: Judge, we don't have a problem going with seven.

[Honeywell's counsel]: Judge, if it was eight people that were deliberating, you would need seven out of eight. So if there's nine people that are deliberating, that is seven and a half people.

[Ford's counsel]: It's seven point five, Your Honor. I just calculated it.

[The Webbers' counsel]: Which means eight under the rules.

[The Webbers' counsel]: They can't change the numbers.

[Abex's counsel]: We'll go with seven. We'll round it down to seven.

[Honeywell's counsel]: We'll round it down to seven, that's all.

[The trial court]: Is this a thing of liking or disliking that juror?

[Abex's counsel]: He's been here for six weeks, Judge.

[The Webbers' counsel]: It's always about due process when they have an agenda, and it's never about due process — they're complaining when we have jurors who are actually — when there's potential juror

misconduct, oh, [The Webbers' counsel] shouldn't let him go.

[The trial court]: Let's get back to — we're going to go back to the points of Honeywell, Bendix.

Id. at 29-32 (emphasis supplied).

The trial court instructed the jury as follows:

[The trial court]: Your verdict — I know that like — I think that we have agreed that when seven of you — [Abex's Counsel]: Yes.

[The trial court]: It can be unanimous. Nine, that means you have a unanimous verdict, when all nine of you agree, but when seven agree, seven, eight or nine agree, then you reached a verdict, but it could be

unanimous, so I just want you to know that. But when seven of you agree on this verdict sheet, that is the time that you can just tell [the court], and say, okay, we reached a verdict ...

N.T., 2/16/12, PM Session, at 84-85.

During the two days of their deliberations, the jury submitted numerous questions, requested exhibits, and asked to be read back portions of testimony and the jury charge. See generally N.T., 2/16/12 and 2/17/12. The notes from the jury were signed by the ninth juror as the foreperson. Id. The Webbers' counsel did not object to the ninth juror serving as foreperson. On February 17, 2012, the jury announced its verdict. N.T., 2/17/12, at 39-42. The jury found that Mr. Webber's illness was caused by exposure to asbestos, that he had been exposed to all of the products manufactured by the seven defendants, and that those products were defective. See id.; see also Jury Verdict Sheet, at 1-3. However, the jury also found that none of the defendants' products were a substantial factual cause of Mr. Webber's peritoneal mesothelioma. Id. After the jury's verdict was announced, the court crier asked the trial court "may the verdict be recorded?" The trial court responded by asking to "see counsel" at sidebar. Following the sidebar, the jury was polled and the verdict was 7-2 in favor of Appellants. Id. at 42-45. The two opposing votes were cast by jurors from the original panel of eight. Id. The ninth juror voted in favor of Appellants. Id. at 45. After the jury was polled, the court crier asked "now, may the verdict be recorded?" Id. at 45. The trial court stated "Yes, the verdict may be recorded ..." Id. The Webbers' counsel interrupted the trial court's recording of the verdict and requested a sidebar. Id. The trial court indicated to the crier "so [the verdict is] not recorded yet ..." Id. In the ensuing sidebar, the Webbers' counsel stated:

I think that because there were two jurors that have voted in favor of [the Webbers], ... I think that there is not a verdict now and I think that — what do we want to do? That we not count [the ninth juror's] vote and that they be sent back to re-deliberate.

Id. at 48.

After the Webbers' counsel requested further deliberations, counsel for Appellants responded:

[Abex's counsel]: Juror No. 9 is a part of this jury irrespective of what [Abex's counsel] did or did not do. [The Webbers' counsel] could have said — they could have come to sidebar and said, Look, Judge, we will take this up later. No, what they said is, that's okay. And then, moreover, we negotiated with them and said, you know what, seven out of nine will be a verdict, if you recall, instead of eight out of nine because [the Webbers' counsel] brought up all that 7.5. And they said, no, we will just make it seven out of the nine, and they did that. Now, these are — these issues are post trial motion issues, they're not —

[Honeywell's counsel]: And, Your Honor, you charged this jury and told them [if] seven out of nine reached, you told them if seven-eighths or nine of them come to a decision. And that's what they did. And for them to come out here now, knowing not only that No. 9 was deliberating and considering this, but was the

foreperson, all of the motions they made are post-trial motions. We discussed this verdict sheet ad nauseam. They designed this verdict sheet and handed it up to the court. If they don't understand the jury's verdict, that's for them. The verdict is consistent, it makes sense, they agreed to seven out of 9. I suggest you thank the jurors for their service and let [the Webbers'] take up any of these motions in post-trial motions. Id. at 49-50.

After Appellants repeatedly urged the trial court to address the Webbers' arguments in post-trial motions, the trial court stated "I think you're right." Id. at 52. After additional arguments, the trial court concluded the sidebar and announced, "I'm going to thank the jury and send them home." Id. at 55.

When the jury returned, the following discussion ensued:

[The trial court]: Well, I just want to — I do want to thank you for your service, right. And we're going to record your verdict so we have that. Now, what I — I'm sorry, go ahead.

[The Webbers' counsel]: Your Honor, we object.

[The Webbers' counsel]: Your Honor, we object to the recording of the verdict.

[The trial court]: Very good.

[The Webbers' counsel]: For all the reasons that we stated on the off the record [sic].

[The trial court]: I forgot.

[The Webbers' counsel]: We stated at sidebar. But we want to be clear that we object to the —

[The trial court]: Because then, you know what, it really shouldn't be recorded because of the objection. [The Webbers' counsel]: That's right.

[The trial court]: I hear you.

[The Webbers' counsel]: That's why we object. Please do not record it.

[The trial court]: Or I should say objections plural. All right, thank you, members of the jury.

Id. at 56-57.

After the jury was released, counsel for the parties resumed their debate concerning the verdict's status: [The Webbers' counsel]: We continue to ask that the verdict not be recorded.

[The trial court]: Well, it's not. I mean, when I — okay, I'm just sending it out, I have to fill out a worksheet that simply says — but you're protecting the record in terms of you're saying they didn't have a verdict.

[Webbers' counsel]: Correct.

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[Abex's counsel]: I would ask that the court preserve [the Webbers' counsel's] objection and record the verdict on behalf of all the defendants.

[Ford's counsel]: We join on behalf of Ford.

[The trial court]: No, I just want to say that I know that I — like I — just so — I want to say something because it's just too ... this case is — I just want to put my — I remember saying, Oh, my goodness, what's five-sixths of — which is what — if it were eight jurors, I know it's seven, if it were 12, I know it's 10, 11 or 12. But this did take me — but I — and then when I got to instructing the jury I did look over at counsel and I — you know, you said 7, 8, 9, so —

[Ford's Counsel]: Right.

[The trial court]: All right, that's it.

Id. at 59, 63-64.

On February 21, 2012, the trial court submitted the trial worksheet to the prothonotary. See Trial Worksheet, 2/21/12, at 1. In the section labeled "[f]ull description of disposition (to be written verbatim on the docket)," the trial court wrote, "Jury Verdict in favor of all Defendants and against [the Webbers] Rendered on Feb. 17, 2012." Id. The trial court did not indicate that the verdict should not be deemed recorded. The prothonotary docketed the verdict on February 21, 2012, and sent a copy to counsel. The Webbers' counsel did not file any written objections to the docketing of the verdict, nor did the Webbers' counsel request that the trial court issue an order specifying that the verdict, while docketed, was not recorded. On February 27, 2012, the Webbers filed their post-trial motion. See generally Webbers' Post Trial Motion, 2/27/12. The Webbers did not assert that the verdict was not recorded. Id. The Webbers repeatedly referenced the jury's result as a verdict. Id. The Webbers "demand[ed] one or more of the following":

1.) grant of judgment n.o.v. and molding of the verdict to strike the answers to question #4 and convene new jury to decide damages only.

2.) grant of judgment n.o.v. and molding of the verdict to decide only which of the 7 defendants were responsible to pay the verdict.

3. grant of judgment n.o.v. that all 7 were liable and convene new trial to determine damages.

4. grant of complete new trial on all issues, although [the Webbers'] preference is alternative #1.

Id. at 8-9 (emphasis supplied).

On April 26, 2012, the trial court heard arguments. The trial court, an appointed senior judge, was not commissioned for 31 days following arguments. See generally Trial Court Opinion, 6/28/12. On June 27, 2012, 121 days following the filing of the Webbers' post-trial motion, Appellants praeciped the prothonotary to enter judgment in their favor pursuant to Pa.R.C.P. 227.4(1)(b).

Pennsylvania Rule of Civil Procedure 227.4 provides that the prothonotary shall, upon praecipe of a party: (1) enter judgment upon a nonsuit by the court, the verdict of a jury or the decision of a judge following a trial without a jury, if

***

(b) one or more timely post-trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion. A judgment entered pursuant to this subparagraph shall be final as to all parties and shall not be subject to reconsideration ...

Pa.R.C.P. 227.4(1)(b).

On June 28, 2012, the trial court entered two orders. One order opened and vacated the judgment. The other order declared a mistrial. Appellants appealed from these orders on July 2, 2012. The trial court did not order compliance with Pa.R.A.P. 1925.

Appellants present the following issues for our review:

1. Did the trial court err in entering an order purporting to open and vacate the entry of judgment because: (a) the trial court had no authority to open, vacate, or strike the judgment entered under Pa.R.C.P. 227.4(1)(b) for any reason; (b) there was no impropriety in the entry or service of judgment, where the praecipe

contained the required certificate of service, any requirement of service by mail is satisfied by electronic service in a court that has adopted an electronic filing system under Pa.R.C.P. 205.4; and (c) the judgment was entered more than 120 days after the first post-trial motion was filed?

2. Did the trial court err in granting a mistrial because: (a) final judgment had been entered pursuant to Pa.R.C.P. 227.4(1)(b); (b) the trial court had no authority to grant a mistrial after a jury verdict was announced and recorded; and (c) viewing the mistrial order as granting a new trial, there is no basis to grant a new trial where, as here, the only reasons that the trial court provided for granting the new trial were events that occurred outside of the presence or knowledge of the jury and did not constitute grounds for a new trial? Appellants' Brief at 3-4.

When a trial court vacates a judgment entered pursuant to Pa.R.C.P. 227.4(1)(b), it poses a question of law, regarding which our review is plenary. Crystal Lake Camps v. Alford, 923 A.2d 482, 486 (Pa. Super. 2007). The crux of the parties' dispute in this case is whether the jury's decision was properly recorded as a verdict. The Webbers contend that the jury's decision did not result in a proper verdict due to the inclusion of the ninth juror during jury deliberations and voting, and because the trial court never affirmatively recorded the jury's decision. See Webbers' Brief at 11-12. The Webbers maintain that without a recorded verdict, no judgment could have been entered, and Appellants' appeals should be quashed. Id. Appellants assert that the jury's verdict was properly recorded. See Appellants' Brief at 7. We agree with Appellants.

Initially, we note that in criminal cases, the trial court may only seat an alternate juror when a principal juror becomes unable or disqualified to perform his or her duties. Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998) (internal citation omitted). We have no such mandate in the civil arena. Moreover, in civil litigation, parties can stipulate to a lesser majority than a 5/6 verdict. See Kardibin v. Associated Hardware, 426 A.2d 649, 655 (Pa. Super. 1981) (allowing verdict by less than 5/6 majority as stipulated by parties, and noting that litigants in civil cases are not "restricted from accepting a non-unanimous verdict of less than 5/6").

Here, the Webbers claimed:

[The Webbers] could not, without incurring the wrath of the entire jury by appearing insensitive and callous toward the alternate, who had come to Court every day for five weeks, object at that instant in front of the jury, or even seem equivocal. However, [the Webbers] did object strenuously as soon as was practicable at side bar. The Court should have told the jury that the rules did not permit the alternate to sit, in spite of all of the parties good intentions, even if both sides were willing for that to happen. That cover would have allowed [the Webbers'] objection without causing the improper prejudice intended by the [Appellants'] intentional misconduct.

Webbers' Memorandum on Post-Trial Motions, 4/11/12, at 3-4. However, during the referenced sidebar, the Webbers' counsel never asked the trial court to remove the ninth juror without alerting the jury that the Webbers requested his dismissal. Although the Webbers' counsel alleged the impropriety of Abex's counsel currying favor with the jury, the Webbers' counsel did not assert the improper composition of the jury.

During the charging conference, the Webbers' counsel objected to increasing the number of jurors required for a 5/6 majority from 7 to 8, due to the inclusion of the ninth juror. However, the Webbers' counsel, again, did not ask for the ninth juror to be removed. Once Appellants stipulated that an agreement by 7 jurors would constitute a verdict, the Webbers' counsel did not reject, or object to, Appellants' stipulation. When the trial court resumed the jury charge conference following Appellants' stipulation, the Webbers' counsel did not assert that the jury's composition or the 5/6 majority issues remained unresolved. Moreover, the Webbers' counsel did not object or request a sidebar when the trial court charged the jury that an agreement by at least 7 of the 9 jurors would constitute a verdict.

Significantly, and as noted by Abex's counsel:

[Abex's Counsel]: Your Honor, [the Webbers' counsel's arguments] are all post-trial motions issues. But all [the Webbers' counsel] had to do is say, Your Honor, could we see you at sidebar.

THE COURT: But he didn't.

N.T., 2/17/12, at 61 (emphasis supplied). The Webbers' counsel's failure to act is fatal to the Webbers' challenge to the jury's composition and decision. See Randt v. Abex Corp., 671 A.2d 228, 232 (Pa. Super. 1996) (internal citation omitted) ("Where a party fails to specifically object to a trial court's jury instruction, the objection is waived and cannot subsequently be raised on appeal."). 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 7 or more of the jurors would constitute a verdict. Moreover, the Webbers did not contest in their post-trial motion the favorable liability findings from the jury under the jury verdict questions 1-3. The Webbers' Post Trial Motion, 2/27/12, at 4. Rather, the Webbers reject the jury's causation determination under question 4. Id. Specifically, the Webbers asked the trial court to "mold the verdict by striking question #4 and holding [Appellants] each liable for 1/7 of the verdict pursuant to questions 2&3 and ordering a new trial on damages only." Id.

Based on the foregoing, we do not find that the jury's composition was improper because the record reflects that the Webbers allowed the alternate juror to join the original jury panel of 8, did not object to the ninth juror's role as a foreperson, and only asked for his removal after the jury had rendered its decision. As to the decision, our Pennsylvania Supreme Court has explained that "[t]he only verdict is that which the jury announces orally in court and which is received and recorded at the direction of the court as the finding of the jury." See Pittsburgh v. Dinardo, 189 A.2d 886, 887-888 (Pa. 1963) (internal citation omitted).

Further, our Supreme Court explained:

It is basic law in this Commonwealth that strict form is not required in verdicts. What is required is for the jury's intention to be free of ambiguity and clearly understood. Parks v. Bishop, 296 Pa. 91, 145 A. 718 (1929). []

It is only where the verdict is so uncertain that it cannot be clearly ascertained what the jury decided on the issues presented that a court is justified in refusing to accept it. Pittsburgh v. Dinardo, [189 A.2d 886 (Pa. 1963)]; Anstine v. Penna. R.R. Co., 342 Pa. 423, 20 A.2d 774 (1941); Eastley v. Glenn, 313 Pa. 130, 169 A. 433 (1933); Schmertz et al. v. Shreeve et al., 62 Pa. 457 (1869). Additionally as noted by Mr. Justice Eagen speaking for this Court in Hornak v. Pittsburgh Railways Company et al., supra.

`It is true that a trial judge has wide discretion in directing further deliberations by a jury so that the jury might correct matters of informality and uncertainty. But by the same token, every reasonably possible intendment is to be made in favor of the findings of a jury, and an inconsistency may justifiably be declared to exist only if there is no reasonable theory or conclusion to support the jury's verdict.' (citations omitted.) [Hornak], 249 A.2d [312], 315 ([Pa.] 1969).

Palmer v. Foss Motors, Inc., 327 A.2d 80, 83-84 (Pa. 1974) (emphasis supplied).

Here, the jury gave clear answers to the four liability questions on the verdict slip. Thus, as noted in Palmer, there could be no basis for the trial court to refuse to accept the jury's verdict. Moreover, the record shows that the trial court did not find the decision to be so inconsistent that further deliberation was required. Thus, the jury's verdict in this case was not "so uncertain" that the trial court would be "justified in refusing to accept it," and under these circumstances, we find that the verdict was recorded when it was docketed.

It is additionally noteworthy in this case that: (1) the trial court praised the jury for their work and thanked them for their verdict; (2) the trial court indicated in two instances that it would record the verdict; (3) the trial court described the disposition of the case in its trial worksheet as a jury verdict in Appellants' favor without instructing the prothonotary that docketing the verdict was not a recording of the verdict; (4) the Webbers' counsel did not file any written objections to the docketing of the verdict, nor did he seek an order clarifying that the verdict, while docketed, was not recorded; (5) the Webbers' post-trial motion referenced the jury's decision as a verdict, sought to benefit from the three favorable liability decisions reached by the jury, and did not claim that the verdict was unrecorded; and (6) the Webbers did not file a cross-appeal challenging the verdict's impropriety.

Given the foregoing, we find that the trial court lacked the authority to open and vacate the judgment in Appellants' favor and reverse the trial court accordingly. See Pentarek v. Christy, 854 A.2d 970, 972-974 (Pa. Super. 2004) vacated on other grounds 874 A.2d 1160 (Pa. 2005) (reversing a trial court's grant of a new trial after a judgment was recorded pursuant to Pa.R.C.P. 227.4(1)(b) because trial court's order was "entirely devoid of legal effect"); see also Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 592-593 (Pa. Super. 2004) (reversing a trial court's order striking the judgment entered pursuant to Pa.R.C.P. 227.4(1)(b), noting that "[t]here is no list of exceptions to [the rule]); Conte v. Hahnemann University Hospital, 707 A.2d 230, 231 (Pa. Super. 1998) (a judgment entered pursuant to Pa.R.C.P. 227.4(1)(b) "is not subject to either reconsideration or any other motion to strike, open, or vacate").

In reversing the trial court's order opening and vacating the judgment, it is of no consequence that during the 120-day period set forth under Pa.R.C.P. 227.4(1)(b), the trial court, sitting as a senior judge, was not commissioned for 31 days. See The Webbers' Brief at 12, 29-31 (arguing Appellants' "praecipe to enter judgment was ... premature because [the Webbers'] post-trial motion had not been pending 120 days before a duly commissioned judge"); See also Hartner v. Home Depot USA, Inc., 836 A.2d 924, 926 (Pa. Super. 2003) (affirming judgment entered pursuant to Pa.R.C.P. 227.4(1)(b) notwithstanding lapses during 120 day period when no trial court was assigned to case due to the resignation of original trial judge and the appointment of new judge).

We further find that the trial court lacked the authority to grant a mistrial. See Johnson v. Frazier, 787 A.2d 433, 435 (Pa. Super. 2001) (procedurally illogical to terminate a trial [with a mistrial] when the trial has already ended). Instead, we treat the mistrial order as one granting a new trial, which requires us to review the record in the light most favorable to the prevailing party. See Johnson, supra, at 435; see also Schmidt v. Boardman, 958 A.2d 498 (Pa. Super. 2008), affirmed, 11 A.3d 924 (Pa. 2011) (internal citations omitted). The Webbers maintain that the jury's verdict was inconsistent. See Webbers' Brief at 11-12. However, "consistency will be presumed unless there is no reasonable theory to support the jury's verdict." Beyrand v. Kelly, 253 A.2d 269, 270 (Pa. 1969), citing Hornak v. Pittsburgh Railways Co., 249 A.2d 312 (Pa. 1969). Here, the record contains testimony supporting the jury's determination that Mr. Webber's peritoneal mesothelioma was not substantially caused by Appellants' products. We therefore reverse the trial court's order granting a mistrial or alternatively granting a new trial.

As succinctly set forth by Appellants, there is evidentiary support in the record "that would reconcile the jury's answers to question nos. 1 and 4." Appellants' Reply Brief at 20. Appellants explain:

As was discussed at length in [Appellants'] responses to [the Webbers'] post-trial motion, among the theories presented at trial, the jury reasonably could have believed the following: (1) that while some exposures to [settling and non-settling] [Appellants'] products were proven, they were insufficient to cause peritoneal

mesothelioma which, according to the expert testimony at trial on both sides, requires more significant and substantial asbestos exposures than does pleural mesothelioma; (2) that peritoneal mesothelioma is not caused by chrysotile asbestos, which is the only asbestos contained in the [Appellants'] products, and thus there must have been unknown exposures to amphibole asbestos in [Mr. Webber's] [life]; (3) that amphibole asbestos is more likely causative than chrysotile asbestos and, as such, [Mr.] Webber's peritoneal

mesothelioma was not caused by exposure to the chrysotile asbestos in the [settling and non-settling

Appellants'] products; (4) that peritoneal mesothelioma can only be caused by substantial exposure over an extended period of time to asbestos, and the exposures to the [settling and non-settling Appellants'] products proven by [the Webbers] were minimal, at best, and insufficient to establish causation; (5) that [the Webbers] failed to meet their burden of proof regarding the sufficiency of exposure necessary to meet the minimum threshold of causation; or (6) that there is a certain threshold of exposure that must be met before asbestos, no matter what the type, can be considered a cause in fact of the disease and proof of that wasn't achieved in this case.

Appellants' Reply Brief at 20-22 (footnotes and citations to the record omitted).

Appellants presented testimony that their brake products contained chrysotile asbestos. N.T., 2/10/12, PM Session, at 58-59. Appellants' expert, Dr. James Crapo, opined that "chrysotile asbestos is not a cause for peritoneal mesothelioma ... [and] most peritoneal mesotheliomas are actually idiopathic, [meaning] we don't have a known or understandable cause ..." N.T., 1/31/12, PM Session, 10-11. Dr. Crapo testified that "when you do have an asbestos-related peritoneal mesothelioma; they're related to high dose exposures to amphibole fibers of asbestos." Id. at 11.

Significantly, the Webbers' expert, Dr. Arnold Brody, agreed during cross-examination that "amphibole and chrysotile asbestos ... have different properties ... [and] different potencies" relative to "causing ... mesothelioma." N.T., 1/26/12, at 113. Dr. Brody further agreed that "amphibole [asbestos] are more potent in causing mesothelioma than chrysotile [asbestos]" due to "the dimensions ... and the durability of the fibers ..." Id. at 114. Specifically, "[a]mphibole fibers tend to stay lodged in the tissue for years ... and chrysotile [fibers] ... not as long." Id. Dr. Brody testified that chrysotile asbestos fibers are "more likely to be found in the pleura as the target site" for asbestos-induced disease. Id. He conceded that "generally speaking it would take more exposure to asbestos to get peritoneal mesothelioma versus a pleural mesothelioma." Id. at 115.

Dr. Brody agreed that his prior mentor theorized that only one type of amphibole asbestos "causes mesothelioma." Id. at 116. He further acknowledged that there are texts that conclude: (1) "[c]hrysotile asbestos does not increase the risk of peritoneal mesothelioma"; (2) "it's basically accepted on the basis of epidemiological investigations that asbestos induced peritoneal mesothelioma ... is not caused by chrysotile exposure ... because the durability of chrysotile fibers prevent [them] from reaching the peritoneum in any significant dose"; and (3) "[p]eritoneal mesotheliomas follow exposure to ... amphibole fibers ... but have not consistently been related to exposure to chrysotile asbestos." Id. at 121, 123, 124, and 128. It is well settled that:

A jury is entitled to believe all, part, or none of the evidence presented. Rafter v. Raymark Industries, Inc., 429 Pa. Super. 360, 632 A.2d 897 (1993). A jury can believe any part of a witness' testimony that they choose, and may disregard any portion of the testimony that they disbelieve. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). Credibility determinations are for the jury. Sundlun v. Shoemaker, 421 Pa. Super. 353, 617 A.2d 1330 (1992). [] A new trial should not be granted on a mere conflict in the testimony. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984).

Randt v. Abex Corp., 671 A.2d 228, 234 (Pa. Super. 1996).

We have explained that "It is the function of the [fact-finder] to evaluate evidence adduced at trial to reach a determination as to the facts, and where the verdict is based on substantial, if conflicting evidence, it is conclusive on appeal." Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003) (internal citation omitted). Accordingly, the jury in the present case was free to reject the Webbers' claim that Appellants' products were the substantial cause of Mr. Webber's disease. See Commonwealth v. Boczkowski, 846 A.2d 75, 82 (Pa. Super. 2004) citing Commonwealth v. Tharp, 830 A.2d 519, 527 (Pa. 2003) ("[T]he [fact-finder] [is] not obligated to accept" the evidence submitted by a party.).

In all, we find that the verdict in this case was recorded and the judgment was properly entered by the prothonotary pursuant to Pa.R.C.P. 227.4(1)(b). We thus reverse the trial court's June 28, 2012 orders opening and vacating the judgment in Appellants' favor and granting a mistrial. We deny the Webbers' motion to quash these appeals because the appeals were taken from final orders. See Pa.R.A.P. 302.

Orders reversed. Motion to quash appeals denied. Jurisdiction relinquished.

[1] 42 Pa.C.S.A §5104(b) provides that "[i]n any civil case a verdict rendered by at least five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury."

Sources

• The opinion on Google Scholar
• Pennsylvania asbestos laws
• Pennsylvania asbestos exposure sites