Colombo v. Johns-Manville Corp.

Decision Date19 November 1984
Docket NumberCiv. A. No. 82-0685.
Citation601 F. Supp. 1119
CourtU.S. District Court — Eastern District of Pennsylvania


Justine Gudenas, James R. Moyles, Philadelphia, Pa., for plaintiffs.

Arthur Makadon, Philadelphia, Pa., for Raybestos-Manhattan, Inc.

Byron L. Milner, Bennett, Bricklin, Saltzburg & Fullem, Philadelphia, Pa., for Nicolet, Inc.

Peter P. Liebert, 3rd, Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for Fibreboard Corp.

Andrew J. Trevelise, Malcolm & Riley, West Chester, Pa., for The Celotex Corp.

Stewart C. Crawford, Swarthmore, Pa., for Delaware Insulation Co.

Francis E. Shields, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for Amatex Corp.

Lise Luborsky, Duane, Morris & Heckscher, Philadelphia, Pa., for D.A.R. Industrial Products, Inc.

Robert St. Leger Goggin, Philadelphia, Pa., for Johns-Manville Corp., Johns-Manville Sales Corp.

Edward J. David, Philadelphia, Pa., for Pittsburgh Corning Corp.

Dudley Hughes, Philadelphia, Pa., for Unarco Industries, Inc.

Joseph M. O'Neill, Philadelphia, Pa., for Armstrong World Industries, Inc.

Charles J. Kalinoski, Edward Greer, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for GAF Corp.

Joseph H. Foster, White & Williams, Philadelphia, Pa., for Forty-Eight Insulations, Inc.

Barbara Pennell, Philadelphia, Pa., William J. Spriggs, Washington, D.C., for Eagle-Picher Industries, Inc. John F. Ledwith, Philadelphia, Pa., for Keene Corp.

Peter J. Lynch, Philadelphia, Pa., for Owens-Illinois Glass Co.

Joan K. Garner, Asst. U.S. Atty., Philadelphia, Pa., Robert N. Kelly, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for U.S.A.

Kevin C. McCullough, Philadelphia, Pa., for Pittsburgh Corning Corp.

Walter L. McDonough, Philadelphia, Pa., for Pacor, Inc.


LOUIS H. POLLAK, District Judge.


Plaintiff George Colombo alleges that, while an employee of the United States at the Philadelphia Naval Shipyard, he was exposed to asbestos-containing products manufactured or distributed by defendants, and that this exposure caused a number of severe injuries. Mr. Colombo alleges that he may have suffered some of his exposure to asbestos particles while working on vessels owned by the United States. Defendant Pittsburgh-Corning's third-party complaint seeks indemnity or contribution from the United States for any damages that plaintiff may recover from Pittsburgh-Corning in this action. Pittsburgh-Corning raises eight distinct legal theories in support of its claim for indemnity or contribution.

The United States has moved to dismiss Pittsburgh-Corning's third-party complaint, or in the alternative for summary judgment. Eagle-Picher Corporation, another defendant, requested leave to file a brief and participate in oral argument in opposition to the United States' motion. That leave was granted because Eagle-Picher has pending in this case a motion for leave to file a third-party complaint substantially identical to Pittsburgh-Corning's third-party complaint.

Briefing the United States' motion involved preparation of considerable amounts of material. The parties requested, and obtained, several extensions and also leave to file reply and surreply memoranda. After completion of briefing, I heard argument on July 5, 1984. At that time, the United States raised an issue concerning the sixth of Pittsburgh-Corning's claims which no party had to that point adequately briefed. Accordingly, I permitted the United States, Pittsburgh-Corning, and Eagle-Picher additional time to file supplemental memoranda on this issue. This opinion resolves the issues raised by the United States' motion. In addition, the Opinion and the accompanying Order necessarily resolve the motions of Pittsburgh-Corning and Raymark for leave to file third-party complaints.

A. Timeliness of Pittsburgh-Corning's Third-Party Complaint

Federal Rule of Civil Procedure 14(a) permits any defending party to serve a third-party complaint. "The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than ten days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action." Fed.R.Civ.P. 14(a).

Pittsburgh-Corning filed its original answer to plaintiff's complaint on April 16, 1982. Pittsburgh-Corning did not move for leave to file its third-party complaint until June 23, 1983. No party objected to Pittsburgh-Corning's motion, so I granted that motion as unopposed on July 18, 1983. However, this court's Local Rule of Civil Procedure 22(a) provides:

Applications pursuant to F.R.Civ.P. 14 for leave to join additional parties after the expiration of the time limits specified in that rule will ordinarily be denied as untimely unless filed not more than ninety (90) days after the service of the moving party's answer. If it is made to appear, to the satisfaction of the court, that the identity of the party sought to be joined, or the basis for joinder, could not, with reasonable diligence, have been ascertained within said time period, a brief further extension of time may be granted by the court in the interests of justice.

E.D.Pa.R.Civ.P. 22(a).

The language of Local Rule 22(a) strongly suggests that I erred in granting Pittsburgh-Corning's motion for leave to file an amended complaint when I did so on July 18, 1983. In fact, a three-judge panel of this court, on which I sat, came to precisely that conclusion with respect to an identical motion filed by Pittsburgh-Corning on the same day — June 23, 1983 — in a different asbestos case. Lovallo v. Pittsburgh Corning Corp., 99 F.R.D. 627 (E.D.Pa. 1983). Nevertheless, developments since July 18, 1983 lead me to conclude that I should neither (1) vacate my Order of that date permitting the filing of Pittsburgh-Corning's third-party complaint, as untimely filed.

The Lovallo panel did not render its Opinion until October 24, 1983. By that time, Pittsburgh-Corning's third-party complaint had been served three months before. See Third-Party Return of Summons (filed September 1, 1983). The United States moved to dismiss, or, in the alternative, for summary judgment on, that third-party complaint on September 26, almost a full month before the Lovallo decision. The United States' memorandum in support of its motion raised Pittsburgh-Corning's timeliness in a footnote, but the United States argued the merits of its motion for 56 pages supplemented with hundreds of pages of exhibits. The United States having moved, Pittsburgh-Corning had the right to respond, which it did at great length. The parties have devoted enormous effort to filing extensive, thorough, and helpful briefs on the issues raised by the United States' motion. Moreover, at argument the United States did not press its Local Rule 22(a) argument with any force.

Having improvidently granted Pittsburgh-Corning's motion for leave to file a third-party complaint in the first place, I cannot now responsibly vitiate the massive efforts expended on the merits of the United States' motion by dismissing Pittsburgh-Corning's third-party complaint on a technicality. The rules grant me discretion not to apply Local Rule 22(a)'s strict time requirement in such an instance. Local Rule 22(a) only provides that a motion for leave to file a third-party complaint will "ordinarily" be denied if it comes late. E.D.Pa.R. Civ.P. 22(a). This is no "ordinary" case. Moreover, Federal Rule 6(b) permits me to enlarge the time set by Local Rule 22. Fed.R.Civ.P. 6(b)(2). Accordingly, I will treat Pittsburgh-Corning's third-party complaint as if it were timely filed.

This conclusion creates a question concerning defendants Raymark Industries, Inc. and Eagle-Picher, Inc. On August 4, 1983, Raymark filed a motion for leave to file a third-party complaint identical in all pertinent respects to Pittsburgh-Corning's. On August 22, I granted that motion as uncontested. However, on September 8, 1983, I amended my August 22 Order because, in the interim, I had learned of the pendency of Lovallo, a case which appeared to present the same issue.1 Under the order as amended on September 8, Raymark could file its third-party complaint in this case if the three-judge court in Lovallo permitted Raymark to file its identical third-party complaint in this case. Thus, Raymark's motion for leave to file a third-party complaint in this case was keyed to the Lovallo decision.

On the other hand, Eagle-Picher's motion for leave to file a third-party complaint against the United States has been keyed to the resolution of the United States' motion to dismiss Pittsburgh-Corning's third-party complaint in this case. Eagle-Picher filed its motion for leave to file a third-party complaint on September 19, 1983. On September 26, the United States filed its motion to dismiss the Pittsburgh-Corning third-party complaint. Eagle-Picher requested that I retain its motion under advisement pending resolution of the motion to dismiss, but that I grant Eagle-Picher leave to brief and argue in opposition to the United States' motion. I granted Eagle-Picher's request.

In my view, the resolution of Raymark's motion for leave to file a third-party complaint, as well as the resolution of Eagle-Picher's parallel motion, should follow the result reached on the United States' motion to dismiss Pittsburgh-Corning's complaint in this case, and not the result reached on Raymark's and Eagle-Picher's motions in Lovallo. Ideally, I would have anticipated Lovallo's result before the United States had moved to dismiss Pittsburgh-Corning's complaint. As I think it now prudent to permit Pittsburgh-Corning's complaint to remain filed and to be tested by the United...

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  • Wallace v. Ryan-Walsh Stevedoring Co., Inc.
    • United States
    • U.S. District Court — Eastern District of Texas
    • March 9, 1989
    ...___ U.S. ___, 108 S.Ct. 1476, 99 L.Ed.2d 705. An inter-zone conflict giving rise to pre-emption existed in Colombo v. Johns-Manville Corp., 601 F.Supp. 1119 (E.D.Pa.1984). In Colombo an employee of a shipyard owned by the United States sued various manufacturers of asbestos-containing produ......
  • All Maine Asbestos Litigation (PNS Cases), In re
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 30, 1985
    ...a "private individual." Applying FECA would therefore be facially inconsistent with the language of the FTCA. Colombo v. Johns-Manville Corp., 601 F.Supp. 1119, 1128 (E.D.Pa.1984). Accord Roelofs v. United States, 501 F.2d 87, 92-93 (5th Cir.1974) (state workers' compensation system, includ......
  • Eagle-Picher Industries, Inc. v. U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 10, 1988
    ...Eagle-Picher Indus., Inc. v. United States, 657 F.Supp. 803 (E.D.Pa.1987), the subject of this action, and Colombo v. Johns-Manville Corp., 601 F.Supp. 1119 (E.D.Pa.1984), which formed the basis for the decision in Eagle-Picher. In Eagle-Picher, the court denied the United States' motion to......
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    • May 19, 1986
    ...subjecting manufacturer to the risk of tort liability "turns indemnity on its head."). Id. at 248. Accord, Colombo v. Johns-Manville Corp., 601 F.Supp. 1119, 1139-40 (E.D.Pa.1984). Also, the quoted statement of Judge Friendly in Zapico applies with equal vigor here. (See p. 156, Consequentl......
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