Gold v. Johns-Manville Sales Corp.

• Decision Date: 07 December 1983
• Docket Number: 82-5717,No. 82-5734,No. 82-5714,82-5734,83-3149 and 83-5100,No. 82-5753,JOHNS-MANVILLE,No. 82-5717,82-5753,OWENS-ILLINOI,INC,Nos. 82-5714,No. 83-5100,82-5714,83-5100,s. 82-5714
• Citation: 723 F.2d 1068
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Jack GOLD, et al. v.SALES CORP., et al. Appeal of ARMSTRONG CORK COMPANY, inEdward J. SAUNDERS, et al. v.SALES CORP., et al. Charles STRECK v.CORP., et al., etc. v., et al. Richard O. EVANS, et al. v.SALES CORP., et al., and NICOLET, INC. v. TURNER & NEWALL, LTD., etc. Appeal of GAF CORPORATION, inRichard O. EVANS, et al. v.SALES CORP., et al. and NICOLET, INC. v. TURNER & NEWALL, LTD., etc. Appeal of RAYMARK INDUSTRIES INC., inJoan Guenther WAGNER, etc. v.CORP., et al. Appeal of GAF CORP., inJoan Guenther WAGNER, etc. v.CORP. et al. Appeal of RAYMARK INDUSTRIES INC., etc., in

Page 1068

723 F.2d 1068

11 Bankr.Ct.Dec. 646

Jack GOLD, et al. v. JOHNS-MANVILLE SALES CORP., et al.

Appeal of ARMSTRONG CORK COMPANY, in No. 82-5714.

Edward J. SAUNDERS, et al. v. JOHNS-MANVILLE SALES CORP., et al.

Charles STRECK v. JOHNS-MANVILLE CORP., et al., etc. v. OWENS-ILLINOIS, INC., et al.

Richard O. EVANS, et al. v. JOHNS-MANVILLE SALES CORP., et al., and NICOLET, INC. v. TURNER & NEWALL, LTD., etc.

Appeal of GAF CORPORATION, in No. 82-5717.

Richard O. EVANS, et al. v. JOHNS-MANVILLE SALES CORP., et al. and NICOLET, INC. v. TURNER & NEWALL, LTD., etc.

Appeal of RAYMARK INDUSTRIES INC., in No. 82-5734.

Joan Guenther WAGNER, etc. v. JOHNS-MANVILLE CORP., et al.

Appeal of GAF CORP., in No. 82-5753.

Joan Guenther WAGNER, etc. v. JOHNS-MANVILLE CORP. et al.

Appeal of RAYMARK INDUSTRIES INC., etc., in No. 83-5100.

Nos. 82-5714, 82-5717, 82-5734, 82-5753, 83-3149 and 83-5100.

United States Court of Appeals Third Circuit.

Argued Oct. 13, 1983.

Decided Dec. 7, 1983.

Rehearing and Rehearing In Banc Denied in No. 83-3149 Jan. 6, 1984.

Karl Asch (argued), Elizabeth, N.J., for Marshall A. Smith, et al.

James C. Gavin (argued), Egood & Gavin, Westmont, N.J., for Richard O. Evans, et al.

Anthony Marchetta (argued), Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney, Newark, N.J., for GAF, successor in interest to Ruberoid.

David Booth Beers (argued), Shea & Gardner, Washington, D.C., William C. Carey, Lum, Biunno & Tompkins, Newark, N.J., for Brinco Mining Limited.

Joseph Rasnek, Carpenter, Bennett & Morrissey, Newark, N.J., for Hooker Chemical (Oxidental Petroleum).

John R. Leith, Mattson, Madden & Polito, Newark, N.J., for Special Materials, Inc. (successor to Special Asbestos Co., Inc.).

David P. Affinito, Feuerstein, Sachs & Maitlin, West Orange, N.J., for North American Asbestos.

Joseph A. Foglia, Foglia & Altieri, Hackensack, N.J., for Norca Corp.

Wendy Mager, Smith, Stratton, Wise & Heher, Princeton, N.J., for Bell Asbestos Mines, Ltd.

Richard Jones, Stryker, Tams & Dill, Newark, N.J., for Metropolitan Life Insurance Co.

Kathleen Moran, Lorelei J. Borland, Morgan, Melhuish, Monaghan Arvidson, Abrutyn & Lisowski, Livingston, N.J., for Raybestos-Manhattan, Inc. (Raymark Industries, Inc.).

Mary Cuff, Asst. U.S. Atty., Dept. of Justice, Newark, N.J., for U.S.A. and the General Services Administration.

Morris Zucker, Zucker, Facher & Zucker, South Orange, N.J., for Advocate Mines, Ltd.

Paul M. Colwell, Wolff & Sansom, Roseland, N.J., Sullivan & Cromwell, New York City, for Turner & Newall PLC.

John B. LaVecchia, Connell, Foley & Geiser, Newark, N.J., for H.K. Porter.

John McGoldrick, McCarter & English, Newark, N.J., for Hercules, Inc.

John W. Reinman, Lamb, Hutchinson, Chappel, Ryan & Hartung, Jersey City, N.J., for Carey Canadian Mines.

H. Frank Carpentier, Carton, Nary, Witt & Arvanitis, Neptune, N.J., for Flintkote Co.

Marc Z. Edell, Porzio, Bromberg & Newman Morristown, N.J., for Lake Asbestos of Quebec.

William K. Lewis, Shanley & Fisher, Newark, N.J., for Asbestos Corporation, Ltd.

Craig S. Combs, Giblin, Combs & Cooney, Morristown, N.J., for Continental Products Corp.

James Egidio, Ribis, McCluskey & Sweeney, Short Hills, N.J., for Huxley Development Corp.

Brawer & Green, Clifton, N.J., for Vermont Asbestos Corp.

Steedle, Megargee, Youngblood, Franklin & Corcoran, Pleasantville, N.J., for Armstrong Cork Co.

Graham, Golden, Lintner & Rothschild, Somerville, N.J., for Fibreboard Corp.

Michael L. Temin, Philadelphia, Pa., for Philadelphia Bar Assoc., amicus curiae; Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., of counsel.

Before ADAMS, HUNTER and BECKER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The questions before us in this appeal arise out of a host of personal injury and wrongful death actions filed by plaintiffs who have been exposed to asbestos and to products manufactured from asbestos fiber. Johns-Manville Corporation, as well as various subsidiaries and other corporate entities affiliated with it (collectively called Johns-Manville), is named as a defendant in virtually every case. U.N.R. Industries (Unarco) is also a named defendant in many cases; several other manufacturers, distributors, and suppliers of asbestos fiber and asbestos products are defendants and third-party defendants in various cases.

On July 29, 1982, Unarco filed a petition for reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978 in the bankruptcy court for the Northern District of Illinois. On August 26, 1982, Johns-Manville filed a similar petition in the bankruptcy court for the Southern District of New York. Citing the automatic stay provisions of the Bankruptcy Act ¹ and appealing to a trial court's inherent power to regulate litigation, several defendants moved in the district courts for orders staying or suspending further proceedings in these cases. The remaining defendants joined these motions, and various plaintiffs filed cross-motions for an order severing from the main cases all claims asserted by and against Johns-Manville and Unarco. The district courts denied defendants' motions and granted plaintiffs' motions, thus severing and staying all claims, counterclaims, cross-claims, and third-party claims brought by or against Johns-Manville and Unarco and requiring all remaining claims to proceed to trial. Several defendants filed timely notices of appeal from these orders, and the various appeals were consolidated along with a petition for a writ of mandamus or prohibition.

I

We must first direct our attention to the jurisdictional base on which we might ground appellate review of the district judges' decision that these cases proceed to trial. Defendants advance several possible grounds: some demand an appeal as of right from a final order or from an injunctive, interlocutory order; others seek original review by a petition for a writ of mandamus or prohibition. The distinctions are important, for on direct appeal a reviewing court has broad and in some instances plenary authority to "modify, vacate, set aside or reverse" an order of the district court and on remand may direct any such action "as may be just under the circumstances." 28 U.S.C. Sec. 2106 (1982). In contrast, under the All Writs Act, 28 U.S.C. 1651(a) (1976), appellate courts may issue a writ of mandamus or prohibition only when "necessary or appropriate in aid of their ... jurisdictions." While a simple showing of error might be sufficient to obtain a reversal on a direct appeal, a writ of mandamus issued under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275 n. 6, 19 L.Ed.2d 305 (1967); United States v. Cuthbertson, 651 F.2d 189, 193 (3d Cir.1981).

A

Several defendants maintain that the orders of the district court denying a stay are appealable as of right under 28 U.S.C. Sec. 1291, a provision that establishes appellate jurisdiction over most final decisions of district courts. ² An order requiring that a trial proceed is not a final order in the traditional legal sense, since it does not embody a conclusive judgment as to any element of the controversy underlying the trial. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Defendants direct our attention, however to the "collateral order exception" to Sec. 1291. That exception, as explained in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), refers to the "small class" of decisions that "finally determine claims of right separable from, and collateral to, rights asserted in the action, [claims] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

Defendants assert that their claim to protection under the automatic stay of the Bankruptcy Code is a claim of right, collateral to the rights asserted in the underlying tort actions filed against them, and that this right is so important as to make postponement of appellate review of a denial of that claim a fundamental injustice. We cannot agree.

This Court has consistently maintained that the collateral order doctrine must be sparingly applied, "lest the exception swallow up the salutary general rule." Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3d Cir.1977); Rodgers v. U.S. Steel Corp., 541 F.2d 365, 369 (3d Cir.1976). If the principle imparting finality to certain collateral, intermediate orders does not go so far as to include an order granting a stay in a civil action, Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d 537 (3d Cir.1975), or an order setting a trial date in a criminal proceeding "no matter how serious the consequences for a defendant are alleged to be," Stans v. Gagliardi, 485 F.2d 1290, 1292 (2d Cir.1973), we do not perceive how an order setting a trial date for tort actions, some of which were filed six years ago, can legitimately be considered as the predicate for an extraordinary appeal. Such an order is simply a step in the process of bringing a case to final judgment and can be effectively reviewed on appeal from that judgment.

B

Several defendants seek to predicate the jurisdiction of this Court on 28 U.S.C. Sec. 1292(a)(1), which provides for appellate review of certain interlocutory orders taking the form of an injunction. ³ A party seeking review under this statute must shoulder a heavy burden, since the centrality of the final judgment rule in apportioning judicial business among the several tiers of our court system has led to a policy of strictly construing Sec. 1292, again "lest a floodgate be opened that brings into the exception [so] many pretrial orders" as to frustrate the policy against piecemeal appeals. Switzerland Cheese Ass'n, v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193,...