Lewis v. Rego Co.

• Decision Date: 15 March 1985
• Docket Number: No. 84-1335,84-1335
• Citation: 757 F.2d 66
• Parties: 17 Fed. R. Evid. Serv. 967 William LEWIS, Carolyn Lewis, William Price, Cheryl Price, David McKay, Cindy McKay, Howard Clark, Acquanetta Clark, Frank P. Spadaro, Frances M. Spadaro v. REGO COMPANY, the Bastian Blessing Co., in its own right and t/a Rego Company, Astro Controls, Inc., in its own right and t/a Bastian Blessing and Rego Company, the Marmon Group, in its own right and t/a Rego Company. Appeal of Howard CLARK and Acquanetta Clark, Frank P. Spadaro and Frances M. Spadaro.
• Court: U.S. Court of Appeals — Third Circuit

Page 66

757 F.2d 66

17 Fed. R. Evid. Serv. 967

William LEWIS, Carolyn Lewis, William Price, Cheryl Price David McKay, Cindy McKay, Howard Clark, Acquanetta Clark, Frank P. Spadaro, Frances M. Spadaro v. REGO COMPANY, the Bastian Blessing Co., in its own right and t/a Rego Company, Astro Controls, Inc., in its own right and t/a Bastian Blessing and Rego Company, the Marmon Group, in its own right and t/a Rego Company Appeal of Howard CLARK and Acquanetta Clark, Frank P Spadaro and Frances M. Spadaro.

No. 84-1335.

United States Court of Appeals Third Circuit.

Argued Jan. 14, 1985.

Decided March 15, 1985.

Robert A. Sloan, (Argued) Stephen A. Sheller & Associates, Philadelphia, Pa., for appellants.

Joseph E. O'Neil, (Argued) Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for appellee, Rego Company.

Before HUNTER and HIGGINBOTHAM, Circuit Judges, and DEBEVOISE, District Judge ^*.

OPINION OF THE COURT

DEBEVOISE, District Judge:

Appellants in this products liability case appeal from a judgment of the district court entered upon a jury verdict in favor of appellee Rego Company. Appellants also challenge the district court's order denying their motion to remand the case to the state court from which it was removed. We conclude that the district court correctly denied the motion to remand, and, therefore, it is necessary to consider the merits of appellants' contention that the district court committed reversible errors in the course of the trial.

I. Removal

Appellants, Howard and Acquanetta Clark, Frank P. and Frances M. Spadero and others, commenced this action in the Court of Common Pleas of Delaware County, Pennsylvania, on or about August 12, 1983. Named as defendants were Rego Company, The Bastian-Blessing Co., Astro Controls, Inc., and The Marmon Group. ¹

On September 16, 1983, three of the four defendants (Rego, Astro and Marmon) were served, and on September 26 they filed a removal petition in the district court asserting that the action was one over which the district court had original jurisdiction under 28 U.S.C. Sec. 1332 (diversity of citizenship). The fourth defendant, Bastian, did not join in the petition. The petition stated "[t]hat no entry of appearance has yet been made on behalf of The Bastian-Blessing Co." The petition also stated "that upon information and belief The Bastian-Blessing Co., is not now, and was not at the time of the commencement of this action, a citizen of the Commonwealth of Pennsylvania." Bastian was served on October 3, 1983.

On October 28, 1983, plaintiffs moved to remand. On November 9, Bastian's attorney wrote the trial judge stating that "I join in [the other defense attorneys'] Petition for removal to the Federal District Court." On November 10, the attorneys for Rego, Astro and Marmon filed an "Amendment to Petition for Removal" reciting Bastian's consent to and joining in the petition and asserting facts showing that Bastian's presence did not deprive the court of diversity jurisdiction. Thereafter the trial court entered an order stating that "it appearing to the court that at the time the petition for removal was filed all of the defendants which had been served joined the petition, the motion to remand is DENIED. The subsequent joinder or non-joinder of a subsequently served diverse defendant is immaterial."

Appellants urge that the removal petition was defective on its face and consequently did not confer jurisdiction on the district court because: (i) it did not set forth a reason which would justify Bastian's failure to join in the petition; (ii) it did not state affirmatively Bastian's citizenship; and (iii) its allegation that Bastian was not a citizen of Pennsylvania was "not stated with certainty but rather 'upon information and belief.' " (Appellants' brief at 10). Further, appellants argue as a general proposition that if all defendants are served within 30 days of service of the first defendant, all must join in the removal petition; here Bastian did not join in the removal petition either within 30 days of service on the first defendants to be served or within 30 days of service upon Bastian.

Removal is a statutory right, and the procedures to effect removal must be followed, e.g., Resident Advisory Board v. Tate, 329 F.Supp. 427 (E.D.Pa.1971). Here Rego, Astro and Marmon proceeded under 28 U.S.C. Sec. 1446 which provides that "[a] defendant or defendants desiring to remove any civil action ... from a state court shall file in the district court ... a verified petition containing a short and plain statement of the facts which entitled him or them to removal...." Section 1446 has been construed to require that when there is more than one defendant, all must join in the removal petition, e.g., Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270 (7th Cir.1982).

There are exceptions to the rule requiring that all defendants join in the removal petition. One exception arises when a non-resident defendant has not been served at the time the removing defendants file their petition. In that situation the removal petition will be effective provided that it alleges that the defendants who did not join in it were not served in the state proceeding. DiCesare-Engler Productions, Inc. v. Mainman, Ltd., 421 F.Supp. 116 (W.D.Pa.1976).

Appellants in the present case argue that the removal petition was defective on its face because it did not allege that Bastian had not been served in the state proceeding. Instead the petition alleged that "no entry of appearance has yet been made on behalf of [Bastian]," leaving open the possibility that Bastian might have been served but simply had not yet entered an appearance. We conclude that while it would have been preferable to have alleged non-service, the language of the petition was sufficient to bring it within the non-service exception. ²

We also conclude that appellants' other objections to the face of the petition are not well taken. The petition alleged that all the plaintiffs were citizens and residents of Pennsylvania. It was sufficient to establish diversity jurisdiction to allege that Bastian was not a citizen of Pennsylvania. This statement was based on information which counsel for the removing defendants obtained from Bastian's representatives when seeking to persuade Bastian to enter an appearance and join in the removal petition. The effectiveness of the removal petition was not vitiated by the fact that in an abundance of caution it charcterized the information about Bastian's citizenship as being based on information and belief.

As noted above, although Bastian had not been served at the time the removal petition was filed, Bastian was served within the 30-day period after service on the other three defendants. Appellants contend that in such circumstances if Bastian did not join in the petition before expiration of the 30-day period, the action should have been remanded. Any other rule, appellants argue, would encourage a race to the courthouse, enabling the defendants first served in a case to determine whether it would be removed.

Appellants cite no authority for the rule they espouse, and we agree with the district court that the removal statute contemplates that once a case has been properly removed the subsequent service of additional defendants who do not specifically consent to removal does not require or permit remand on a plaintiff's motion. The statute itself contemplates that after removal process or service may be completed on defendants who had not been served in the state proceeding. The right which the statute gives to such a defendant to move to remand the case confers no rights upon a plaintiff. 28 U.S.C. Sec. 1448. ³

Having concluded that the district court's order denying the motion to remand should be affirmed, it is necessary to consider appellants' contention that the trial court committed harmful errors in the course of the trial of the case.

II. Asserted Trial Errors

This is a products liability case arising out of the explosion of a propane cylinder on September 11, 1981 at Sun Ship, Inc., in Chester, Pennsylvania. Appellants' claims against appellee, the manufacturer of the cylinder's safety relief valve, are based on strict liability in tort. Specifically, it is charged that the relief valve was defective in design and was sold without adequate warnings. Appellants advance fourteen grounds for reversal of a judgment on a jury verdict in favor of appellee. We find no merit to most of these grounds but conclude that legal error in the jury charge concerning misuse of the product and the cumulative effect of erroneous rulings relating to a report of one of appellee's experts require reversal and remand for a new trial.

A. The Jury Charge

Applying Pennsylvania law which is applicable in this case, the trial court correctly charged the jury that if it found "that the product at the time it left [appellee's] control lacked any element necessary to make it safe for use or contained any condition that made it unsafe for use, then the product was defective and the [appellee] is liable for the harm caused by such defect." (App. at 873a). The court instructed the jury how to determine if a product was defective. The court further instructed the jury that "[a] supplier must give such warnings and instructions as are required to inform the user or consumer of the possible risk of using the product or which are created by the inherent limitations in the safety of such use. If you find such instructions or warnings were not given, the [appellee] is liable for all harm caused thereby." (App. at 875a). The court fully charged that in addition to proof of a defective product, appellants were required to establish that the defect was the proximate cause of their injuries.

The portion of the charge which appellants contend was not in accordance with Pennsylvania law concerned misuse of the product, reflecting one of appellee's contentions at the trial,...