512 F.2d 209 (3rd Cir. 1975), 74-1043, Hattersley v. Bollt

Docket Nº:LAZOVITZ, INC., appellant in Nos. 74-1043 and 74-1044, et
Citation:512 F.2d 209
Party Name:George HATTERSLEY and Susanne Hattersley, husband and wife v. Theodore BOLLT, Individually and trading as
Case Date:February 19, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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512 F.2d 209 (3rd Cir. 1975)

George HATTERSLEY and Susanne Hattersley, husband and wife


Theodore BOLLT, Individually and trading as "National

Properties" and/or"National Properties, Inc." and

International Properties, Inc., and Fred

I. Liebmann, A.I.A.


LAZOVITZ, INC., appellant in Nos. 74-1043 and 74-1044, et

al., Third-Party Defendants.

Nos. 74-1043, 74-1044.

United States Court of Appeals, Third Circuit

February 19, 1975

Argued Nov. 14, 1974.

As Amended March 24, 1975.

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[Copyrighted Material Omitted]

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John J. O'Brien, Jr., Philadelphia, Pa., for appellant.

T. E. Byrne, Jr., Mark D. Alspach, Krusen, Evans & Byrne, Philadelphia, Pa., for appellee.

Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.


VAN DUSEN, Circuit Judge.

This is an appeal from a judgment of contribution 1 entered against appellant-

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-third-party defendant, Lazovitz, Inc., and in favor of appellee-third-party plaintiff, Bollt. Bollt, the owner of an office building, 2 joined Lazovitz, which was acting as general contractor in the renovation of Bollt's property, 3 in a personal injury action brought by Hattersley, an employee of a subcontractor to a subcontractor, and Hattersley's wife. 4 Hattersley was injured on September 30, 1970, when he fell into an elevator shaft just as the elevator was passing the floor from which he fell. The elevator was being operated by Daniel Small, 5 an employee of Bollt.

Before the case was submitted to the jury, Bollt agreed to pay the Hattersleys $500,00. in damages, should the jury return a verdict for the Hattersleys. Lazovitz neither knew of this agreement nor concurred in it.

The case was submitted to the jury on special interrogatories, pursuant to F.R.Civ.P. 49(a). 6 On September 18, 1973,

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the jury reached a verdict in favor of the Hattersleys, finding both Bollt and Lazovitz negligent. A judgment was filed on November 26, 1973. 7

I. Appealability of Judgment Filed November 26, 1973

Appellee Bollt contends that the judgment filed November 26, 1973, was not a final judgment appealable under 28 U.S.C. § 1291 because it "leaves some matter involved in the controversy in the District Court still open for further hearing and determination before the ultimate rights of the parties are conclusively adjudicated ...." Brief for Appellee at 3. 8

The district court entered a "Civil Judgment" phrased in substantially the form prescribed by this court in Smith v. Whitmore, 270 F.2d 741, 746 (3d Cir. 1959). 9 In accordance with the jury verdict, Lazovitz was adjudged a joint tortfeasor, liable in contribution to Bollt for any amount which Bollt should pay the Hattersleys "in excess of the sum of two hundred fifty thousand ... dollars." The district court rejected Bollt's contention that Lazovitz was liable on a contract of indemnification for any amount "over and above the amount which Lazovitz, Inc. might be required to pay by way of contribution ...." 208a. This judgment does not, in terms, assess the precise monetary amount owed by Lazovitz to Bollt. Moreover, it conditions Bollt's right to payment from Lazovitz upon Bollt's prior payment of the judgment to the Hattersleys. Nevertheless, because the judgment fixes Lazovitz's ultimate liability and clearly establishes the parameters of that liability, it is a final, appealable order. 10 The Supreme Court of the United States has emphasized that "the requirement of finality is to be given a 'practical rather than a technical construction.' " Gillespie v. United States Steel, 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964).

Where the practical effect of a judgment or order is final and only requires a ministerial act to implement it, such judgment or order is appealable under 28 U.S.C. § 1291. Since the effect of this district court judgment settles "the primary issue then existing between the parties," Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d 259, 260 (5th Cir. 1972), and determines the rights and equities between the parties, it is a final judgment, notwithstanding any provision

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for future determination of the actual amount of recovery. Durkin v. Mason & Dixon Lines, 202 F.2d 425 (6th Cir. 1953). In Forman, supra, the court held final an order of the district court which enforced a settlement between the insurer and the insured, even though the efficacy of the order "was conditioned on surrender of the policy and delivery of the check." 469 F.2d at 260. Durkin, supra, allowed an appeal under 28 U.S.C. § 1291 from an order which granted recovery in an amount to be later determined. And in Friedman v. Wilson Freight Forwarding Co., 3 Cir., 320 F.2d 244, 247 (1963), this court clearly implied that a Smith v. Whitmore judgment effectively determined the parties' rights and was appealable, using, inter alia, this language:

"Steinman's basic legal obligation of contribution had already been properly determined, subject only to the payment of money by Wilson to the plaintiff. All that followed was administration of that basic decision. In this process, different from a trial, the court could assure itself in any reasonable way that Wilson had paid the plaintiff and, therefore, that the matter was ripe for an unqualified order that Steinman reimburse Wilson. The filing of the plaintiff's receipt and release as part of the post-judgment record was a normal and proper way of supplying the court with that assurance.

"... the judgment was ... at most subject to vacation upon a subsequent showing of mistake (or) misrepresentation ...."

The judgment now appealed from has determined the rights of the parties by adjudging Lazovitz's status as a joint tortfeasor and Bollt's right to contribution from Lazovitz under the procedure used in Friedman. The amount of that liability will be subject to arithmetic computation when Bollt pays more than half the judgment. For example, upon the mere filing of a praecipe evidencing full payment of the judgment, Bollt is entitled to collect from Lazovitz $250,000. 11 Where actual payment awaits only a future ministerial order, finality is not lacking. See United States v. 1,431.80 Acres of Land, 466 F.2d 820, 822 (8th Cir. 1972). Since Bollt's claim against Lazovitz has thus been effectively established "both as to liability and as to amount," the judgment is a final one. 12 Cf. United States v. Estate of Pearce, 498 F.2D 847, 848-49 (3d Cir. 1974).

We recognize that a subsequent appeal is possible under the procedure contemplated by Friedman, supra, challenging a district court ruling on an allegation that the praecipe containing a representation of payment by the third-party plaintiff is inaccurate. 13 However, we believe such appeals are unlikely and will be infrequent. Any departure from the strictest construction of "final decisions" appealable under 28 U.S.C. § 1291 may encourage parties to appeal from orders of barely arguable finality. Multiplications of such appeals would doubtless result in much "useless expenditure." 9 J. Moore, Federal Practice, P110.12 at 152 (2d ed. 1973). We are, however, of the opinion that, in this situation, the possibility of such appeals is outweighed by

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"the danger of denying justice by delay." Dickinson v. Petroleum Conversion Corporation, 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950).

If this appeal is disallowed, Lazovitz will be unable to raise the issues which it urges here until such time as Bollt files a praecipe and sues on the resulting judgment against Lazovitz as third-party defendant. The Hattersleys have at least 20 years to collect their judgment from Bollt. If we hold the "Civil Judgment" non-final, Bollt would presumably have another 20 years to seek contribution from Lazovitz. 14 The time thus elapsing prior to a final ruling in this court on the issues determined by the district court judgment could easily be lengthy. Such a delay could result if the Hattersleys dallied in seeking to collect their judgment, if they were unable to collect it speedily, or if Bollt were to pay in installments over a period of years. Lazovitz's ability to raise its defense against Bollt in a trial granted years later as a result of such a delayed appeal would be handicapped with the passage of time and the consequent loss of evidence, as through the dimming of witnesses' memories, loss of records, or death of witnesses. By contrast, delay would pose no barrier to Bollt's suing on the judgment unless he delayed beyond the long 20-year limitation period. 15

For the foregoing reasons, we will deny Bollt's motion to dismiss the appeal. 16

II. Bollt's post-trial motion for rehearing and reconsideration

Neither at oral argument nor in his brief did Bollt request a remand of this case so that the district court could determine Bollt's post-trial motion. 17 We have not, however, overlooked decisions in other courts of appeals which provide for remand to the district court for decision of a timely post-trial motion filed in the district court during the pendency of an appeal. 18 We believe that the procedure, recommended in 6A J. Moore, Federal Practice, P 59.09(5) at 59-223-59-229 (2d ed. 1974), is desirable. 19 If a timely motion under F.R.Civ.P. 59 has been filed in the district court after the filing of a notice of appeal, the court of appeals should be moved to "... remand the case to

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the district court so that the latter court may pass on the motion ... that was timely made there." Id. at 59-223.

"(A) showing of substantial merit underlying the motion for new trial should be made to the appellate court in order to satisfy the latter that the trial court would be justified in granting a new trial.

"(Alternatively) (i)f the...

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