Swindell-Dressler Corporation v. Dumbauld, 13866.
| Decision Date | 25 September 1962 |
| Docket Number | No. 13866.,13866. |
| Citation | 308 F.2d 267 |
| Parties | SWINDELL-DRESSLER CORPORATION, Petitioner, v. Honorable Edward DUMBAULD, Judge of the United States District Court, Western District of Pennsylvania, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Judd N. Poffinberger, Jr., Pittsburgh, Pa. (Kirkpatrick, Pomeroy, Lockhart & Johnson, Pittsburgh, Pa., on the brief), for Swindell-Dressler Corp., petitioner.
Henry B. Waltz, Jr., Greensburg, Pa., for intervenor, Central Rigging and Supply Company.
Before BIGGS, Chief Judge, and GANEY and SMITH, Circuit Judges.
This case comes before us on a statement of agreed facts but some supplementation and correction of those facts is required, as will appear hereinafter. Central Rigging and Contracting Corporation of Connecticut (Central) sued the J. E. Miller Transfer and Storage Company (Miller) in the District Court for the Western District of Pennsylvania at Civil Action No. 61-257 (257). Central Rigging and Contracting Corporation of Connecticut v. J. E. Miller Transfer and Storage Company, D.C., 199 F. Supp. 40.1 An amended complaint was filed on August 7, 1961, alleging that Central had delivered certain machinery to Miller at Paden City, West Virginia, to be transported by Miller to Martinsburg, West Virginia. Central further alleged that Miller had delivered the machinery in a damaged condition, the damage having occurred while the machinery was in Miller's custody. Jurisdiction was based on diversity only. Miller filed an answer to the amended complaint on August 8.
On September 25, 1961, Central brought suit in the court below at CA No. 61-565 (565) against Swindell-Dressler Corporation (Swindell), jurisdiction again being based on diversity of citizenship and jurisdictional amount. In this suit Central sought to recover a balance alleged to be due it on a contract for services rendered by Central to Swindell in dismantling a brick kiln in Paden City, West Virginia, and moving it to Martinsburg in that state. The kiln appears to have been part of the machinery which was the subject of the suit at 257. None of the services were performed in Pennsylvania. On October 12, Swindell filed an answer to this complaint.
On October 24, 1961, Miller at 257 filed a motion to change the venue of the suit and to transfer it to the United States District Court for the Northern District of West Virginia.
On November 7, 1961, Central filed a petition to consolidate the suit at 565 with the suit at 257 for the purposes of pretrial and trial. The petition stated that there were questions of fact common to both suits and that the parties in the two suits had engaged in a series of transactions to arrange for the relocation of a brick kiln in Martinsburg. Swindell, of course, was not a party to the suit at 257, and did not take part in any proceedings in that case.
On November 9, 1961, Judge Dumbauld entered an order transferring 257 to the United States District Court for the Northern District of West Virginia.2 According to the statement of agreed facts Judge Dumbauld granted this motion without a hearing. The legality of this transfer is, of course, not before us here.
About one month later, on November 29, 1961, the clerk of the court below gave written notice to counsel for Central, Swindell and Miller that Central's petition for consolidation would be heard on Monday, December 18, 1961, at 10 A.M. Neither Central nor Swindell had filed a motion for change of venue in 565. The motion for consolidation of 565 and 257, made by Central, was not withdrawn and therefore remained pending after the order had been made transferring 257 to the Northern District of West Virginia.
On November 13, 1961, Henry B. Waltz, Jr., Esquire, attorney for Central, addressed a letter to the clerk of the court below regarding 257 and 565. In this letter Mr. Waltz stated that he had "recently received" a copy of an order entered by Judge Dumbauld on November 9, 1961, ordering 257 transferred to the Northern District of West Virginia as the result of a petition for transfer filed by Robert E. Wayman, Esquire, counsel for Miller. Mr. Waltz also said in his letter:
To this letter Judge Dumbauld replied on November 14, 1961, as follows:
According to the statement of agreed facts and the record, on December 14, 1961, without notice to counsel for the parties and without a hearing, Judge Dumbauld entered an order at both 257 and 565, consolidating the two cases "for the purpose of all further proceedings therein" and transferring both cases to the Northern District of West Virginia "in accordance with this Court's order of November 9, 1961, transferring No. 61-257."3
This was done despite the fact that the court below on November 29, 1961, had scheduled a hearing for December 18, 1961, on Central's petition to consolidate the two cases. When that day came, however, there was no hearing on the petition for consolidation. The statement of agreed facts states in this connection:
At Judge Dumbauld's request the pleadings in 565 were returned to the clerk of the court below by the clerk of the United States District Court for the Northern District of West Virginia in a kind of escrow.4
Judge Dumbauld has filed an answer to the rule to show cause issued by this court in this case. He did not file a formal brief. He has also sent a letter, dated May 8, 1962, to the clerk of this Court, citing two authorities and expressing an admonition.5 Central has been permitted to intervene in these proceedings and its position seems in general to support the action taken by Judge Dumbauld.
We point out that Miller is taking no part in this proceeding and Miller has not been brought upon the record in any way. Miller has made no objection to the transfer of either case or to their purported consolidation. Swindell is the party which alleges that it is aggrieved by the actions of the court below. It is asserted by Swindell that the trial judge of his own volition and without any motion or petition by one or any of the parties, and without hearing, and without giving Swindell notice or an opportunity to be heard, exercised the powers vested in a United States District Court by Section 1404(a), Title 28 U.S.C.,6 and transferred 565 to the United States District Court for the Northern District of West Virginia. Swindell further asserts that without a hearing on the petition to consolidate, though a time and place for a hearing had been set and though Judge Dumbauld already had ordered 257 transferred and the papers had been sent to the transferee court, the order of consolidation and transfer of 565 of December 14, 1961, was entered. We will deal with the defenses asserted in the Judge's answer and by the intervenor at a later point in this opinion.
We are aware, of course, of the difficulties under which the United States District Court for the ...
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