Kurns v. Soo Line Railroad, 72 A.3d 636

Background

George Corson, a locomotive welder/machinist from 1947–1974, was diagnosed with malignant mesothelioma in 2005; suit was filed in Pennsylvania in 2007 by Corson (later substituted by executrix Kurns) against 59 defendants alleging asbestos exposure and FELA claims against the railroad successor, Soo Line.
In April–May 2008 the Pennsylvania trial court granted summary judgment to many defendants, including Soo Line; RFPC removed the entire action to federal court on May 13, 2008.
Upon removal, interlocutory state-court orders (including the grant of summary judgment to Soo Line) became orders of the federal district court under 28 U.S.C. § 1450; Kurns pursued appeals and proceedings in the federal system (Third Circuit and ultimately the U.S. Supreme Court) on other defendants.
The Third Circuit and the U.S. Supreme Court disposed of the federal litigation (holding certain claims preempted), the federal record was returned to the state trial court in June 2012, and Kurns then filed a new appeal in state court (June 27, 2012) challenging the May 2008 summary judgment in favor of Soo Line.
The Pennsylvania Superior Court held Kurns waived review of the Soo Line summary-judgment order because she failed to challenge it in the federal appellate process after removal, where the order had become a federal court order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Soo Line’s summary judgment could be reviewed in state court after federal removal and federal proceedings concluded	Kurns argued she could now appeal the state trial court’s May 2008 grant of summary judgment to Soo Line after federal proceedings ended and the record returned	Soo Line argued the state-court order was transformed into a federal district court order upon removal and thus should have been litigated/appealed in the federal courts; failure to do so waives review in state court	Held: Waiver — because removal converted the state orders into federal orders, Kurns should have challenged them in the federal appellate process and cannot relitigate them now in state court
Whether the district court lacked jurisdiction to reconsider the state summary-judgment order (as Kurns relied upon)	Kurns contended the district court implicitly ruled it lacked jurisdiction to revisit the state summary-judgment order	Soo Line and the court pointed out any jurisdictional or reconsideration issues should have been addressed in federal appeals	Held: The question belonged to the federal courts; Kurns’ reliance on an alleged district-court jurisdictional ruling does not avoid waiver
Whether prior appellate guidance from the state court permitted later state appeal after federal disposition	Kurns claimed the Superior Court’s earlier memorandum effectively directed her to seek remand and then re-appeal to the state court after federal proceedings ended	The court explained its earlier memorandum identified federal remedies (appeal or motion to remand) and did not authorize waiting until after federal finality to file a new state appeal	Held: No such authorization; the earlier memorandum did not excuse pursuing review in federal court and does not overcome waiver
Whether Kurns preserved questions about Soo Line negligence / strict liability for mesothelioma	Kurns raised negligence and strict liability theories in her state appeal	Soo Line argued those merits issues were forfeited because the interlocutory summary-judgment order became a federal order and was not appealed in the federal forum	Held: Forfeited/waived — appellate review of the merits was barred because Kurns failed to challenge the order in the proper (federal) appellate process

Key Cases Cited

Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423 (U.S. 1974) (upon removal the federal court takes the case where the state court left off)
In re Diet Drugs, 282 F.3d 220 (3d Cir. 2002) (interlocutory state-court orders become district-court orders upon removal and may be treated as the district court would treat its own interlocutory orders)
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988) (federal court accepts case in its current posture after removal)
Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U.S. 103 (U.S. 1939) (removal substitutes the federal appellate route for review that would otherwise lie in state courts)
Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3d Cir. 2011) (appealability and finality considerations for district-court orders dismissing parties)
Kurns v. A.W. Chesterton, Inc., 620 F.3d 392 (3d Cir. 2010) (federal appellate disposition of related preemption issues)
Kurns v. Railroad Friction Prods. Corp., 132 S. Ct. 1261 (U.S. 2012) (Supreme Court disposition of federal preemption issues)
Smitley v. Holiday Rambler Corp., 707 A.2d 520 (Pa. Super. 1998) (principle that matters available in an earlier appeal cannot be pursued later)
Glynn v. Glynn, 789 A.2d 242 (Pa. Super. 2001) (same principle regarding preservation of issues for appeal)