Behr v. Mine Safety Appliances Company, No. 11878.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtGOODRICH, KALODNER and HASTIE, Circuit
PartiesAnne Livingston BEHR, Appellant, v. MINE SAFETY APPLIANCES COMPANY, a corporation of the State of Pennsylvania, Carbon Monoxide Eliminator Corporation, a corporation of the State of Delaware; Catalyst Research Corporation, a corporation of the State of Maryland; George H. Deike; William P. Yant; John F. Beggy; John T. Ryan, Jr.; W. Denning Stewart; Potter Bank & Trust Co., Executor of the Estate of Howard Zacharias, Deceased; and John T. Ryan, Jr., and John F. Beggy, Administrators of the Estate of John T. Ryan, Deceased; and Joseph H. Hirshhorn.
Decision Date18 May 1956
Docket NumberNo. 11878.

233 F.2d 371 (1956)

Anne Livingston BEHR, Appellant,
v.
MINE SAFETY APPLIANCES COMPANY, a corporation of the State of Pennsylvania, Carbon Monoxide Eliminator Corporation, a corporation of the State of Delaware; Catalyst Research Corporation, a corporation of the State of Maryland; George H. Deike; William P. Yant; John F. Beggy; John T. Ryan, Jr.; W. Denning Stewart; Potter Bank & Trust Co., Executor of the Estate of Howard Zacharias, Deceased; and John T. Ryan, Jr., and John F. Beggy, Administrators of the Estate of John T. Ryan, Deceased; and Joseph H. Hirshhorn.

No. 11878.

United States Court of Appeals Third Circuit.

Argued April 16, 1956.

Decided May 18, 1956.

Rehearing Denied June 19, 1956.


Paul Ginsburg, Pittsburgh, Pa., for appellant.

Sherman T. Rock, Pittsburgh, Pa., for Joseph H. Hirshhorn.

Paul E. Hutchinson, Pittsburgh, Pa., for all appellees except Hirshhorn.

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

From a judgment of dismissal entered by the trial judge in the Western District of Pennsylvania the plaintiff appeals. The defendants now move to dismiss the appeal on the ground that it was not timely taken, that the timeliness of

233 F.2d 372
the appeal is jurisdictional and that the Court has no power therefore to proceed further in the case. Fed.Rules Civ.Proc. rule 73(a), 28 U.S.C.; Raughley v. Pennsylvania Railroad, 3 Cir., 1956, 230 F.2d 387; 7 Moore, Federal Practice ¶ 73.09 6 (2d ed.1955)

There are several defendants. All of them are involved in the same set of facts except defendant Hirshhorn. This defendant was never served in Pennsylvania and upon motion it was ordered November 16, 1955, that the complaint as to Hirshhorn be dismissed on the ground that the court lacked jurisdiction over his person. The appeal from this dismissal was noted February 16, 1956. Unless there is something involved in the point plaintiff makes about the alleged disqualification of the judge for prejudice, the appeal from the dismissal of Hirshhorn is obviously untimely and requires no more discussion.

On this same November 16, 1955, the attorney for the plaintiff filed a petition to all the judges of the Western District of Pennsylvania to disqualify the Honorable Rabe F. Marsh, Jr. as trial judge. The list of docket entries does not show the time of day when this petition was filed, but since it comes later in the list of docket entries than the order dismissing Hirshhorn, we conclude that it was filed later than that order.1

On November 21 Chief Judge Gourley of the Western District of Pennsylvania filed an order refusing the petition to disqualify Judge Marsh and assigned the matter to him for disposition. Two days later Judge Marsh denied the petition to disqualify. On December 1 plaintiff, again seeking to have Judge Marsh disqualified, filed an affidavit of prejudice. 28 U.S.C. § 144 (1952). On December 7 plaintiff made a motion to Chief Judge Gourley to have the case assigned to another judge...

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22 practice notes
  • United States v. Boffa, Crim. A. No. 80-36.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 19, 1981
    ...Supp. 509 affidavit and its timeliness. United States v. Townsend, 478 F.2d 1072, 1073 (C.A.3, 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (C.A.3, 1956). In passing on the recusal affidavit on the grounds of personal bias and prejudice, the facts alleged in the affidavit mu......
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 1974
    ...disqualify me from hearing the instant case. United States v. Townsend, supra, 478 F.2d at 1073; Behr Mine Safety Appliances Co., 233 F.2d 371, 372 (3d Cir.), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Only the filing of a timely and sufficient affidavit will result in ......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 9, 1958
    ...each. The mere filing of such an affidavit does not automatically disqualify the judge. Behr v. Mine Safety Appliances Co., 3 Cir., 1956, 233 F.2d 371, 372, certiorari denied 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237. The judge has a duty, In re Greene, 3 Cir., 1947, 160 F.2d 517, 518, to e......
  • Sperry Rand Corporation v. Pentronix, Inc., Civ. A. No. 43109
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 11, 1975
    ..."The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A.3), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Disqualification results only from the filing of a timely and sufficient a......
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22 cases
  • United States v. Boffa, Crim. A. No. 80-36.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 19, 1981
    ...Supp. 509 affidavit and its timeliness. United States v. Townsend, 478 F.2d 1072, 1073 (C.A.3, 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (C.A.3, 1956). In passing on the recusal affidavit on the grounds of personal bias and prejudice, the facts alleged in the affidavit mu......
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 1974
    ...disqualify me from hearing the instant case. United States v. Townsend, supra, 478 F.2d at 1073; Behr Mine Safety Appliances Co., 233 F.2d 371, 372 (3d Cir.), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Only the filing of a timely and sufficient affidavit will result in ......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 9, 1958
    ...each. The mere filing of such an affidavit does not automatically disqualify the judge. Behr v. Mine Safety Appliances Co., 3 Cir., 1956, 233 F.2d 371, 372, certiorari denied 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237. The judge has a duty, In re Greene, 3 Cir., 1947, 160 F.2d 517, 518, to e......
  • Sperry Rand Corporation v. Pentronix, Inc., Civ. A. No. 43109
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 11, 1975
    ..."The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A.3), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Disqualification results only from the filing of a timely and sufficient a......
  • Request a trial to view additional results

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