Murray v. Commercial Union Ins. Co. (Commercial)

• Decision Date: 08 January 1986
• Docket Number: No. 85-1300,85-1300
• Citation: 782 F.2d 432
• Parties: 121 L.R.R.M. (BNA) 3073 Harry C. MURRAY and Jean M. Murray, Appellants, v. COMMERCIAL UNION INSURANCE COMPANY (COMMERCIAL), and American Employers Insurance Company, the Employers' Fire Insurance Company, the Northern Assurance Company of America, Commercial Union Life Insurance Company of America, Ind. and collectively known and t/a Commercial Union Assurance Companies. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 432

782 F.2d 432

121 L.R.R.M. (BNA) 3073

Harry C. MURRAY and Jean M. Murray, Appellants, v. COMMERCIAL UNION INSURANCE COMPANY (COMMERCIAL), and American Employers Insurance Company, the Employers' Fire

Insurance Company, the Northern Assurance Company of

America, Commercial Union Life Insurance Company of America,

Ind. and collectively known and t/a Commercial Union

Assurance Companies.

No. 85-1300.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

Rule 12(6) Jan. 8, 1986.

Decided Jan. 31, 1986.

Rudolph J. Di Massa, Di Massa Associates, Ltd., Philadelphia, Pa., for appellants.

Steven B. Feirson, George G. O'Brien, Dechert, Price & Rhoads, Philadelphia, Pa., for appellees.

Before ADAMS, SLOVITER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Plaintiffs, husband and wife, sued the husband's former employers after he was discharged from his position. The district court granted a motion to dismiss two counts of the complaint that are purportedly grounded in tort, and later entered summary judgment on the remaining breach of contract claim. Pursuant to earlier decisions of this Court and of state courts concerning the legal remedies available in Pennsylvania following the termination of an employment relationship, we will affirm.

I.

According to plaintiffs' complaint, Harry C. Murray was employed by defendants in 1976, to serve as Regional Fidelity and Surety Bond Manager in the companies' Philadelphia offices. No written contract of employment was entered into by the parties. Mr. Murray was dismissed in January 1983, and there is no statement in the record pointing to any specific reason for this action.

Plaintiffs filed a complaint in state court, setting forth three causes of action: for breach of an employment contract between Mr. Murray and defendants; for actions by the defendants committed "deliberately, wantonly and maliciously" and in "bad faith," warranting punitive damages, and for loss of consortium and other damages suffered by Mrs. Murray as a result of defendants' conduct.

Following removal of the case to federal court, the district court granted defendants' motion, based on Fed.R.Civ.P. 12(b)(6), to dismiss the second and third counts. Subsequently, the court granted summary judgment to defendants on the breach of contract count. Plaintiffs filed a timely appeal.

II.

A number of preliminary questions are presented concerning federal jurisdiction in this case. On February 27, 1984, defendants petitioned for removal to federal court, and plaintiffs offered no response. Although plaintiffs did not dispute federal jurisdiction until November 19, 1984, at which time they filed a motion to remand the action to state court, we recognize that challenges to the subject matter jurisdiction of a federal court may be raised at any time. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976).

In support of their jurisdictional argument, plaintiffs, who are Pennsylvania residents, first contend that there is not complete diversity between themselves and the defendant companies. Federal law provides that "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. Sec. 1332(c) (1982). Plaintiffs state that "while some of the policy-making powers and personnel are stationed outside Pennsylvania, the corporate defendant regularly conducted activities and provided services in the Philadelphia environs so as to destroy the required diversity...."

Plaintiffs appear to confuse the lenient requirements of personal jurisdiction with the more demanding inquiry required to determine a corporation's "principal" place of business for purposes of subject matter jurisdiction. A corporation may have "literally dozens of important places of business one of which we must pick out as the principal one because the statute says so." Kelly v. United States Steel Corp., 284 F.2d 850, 853 (3d Cir.1960). In ascertaining where the principal place of business is located, this Court examines the primary location of the entity's managerial and production functions. Id. at 854. Defendants submitted an affidavit of their assistant corporate counsel, attesting that the companies were incorporated and maintained principal places of business in states other than Pennsylvania. Plaintiffs provided no evidence to the contrary. Consequently, on this record diversity jurisdiction is established.

Second, the plaintiffs argue that federal court abstention is appropriate in this type of routine employment dispute. "Unless the constitutionality of a State statute is invoked," their brief declares, "the abstention doctrines dictate that the States be allowed to administer and enforce their own laws without intrusion from the Federal Courts." Such a position disregards the purposes of diversity jurisdiction, and has never been adopted by this Court. Congress provides federal jurisdiction where diversity of citizenship is present to prevent harm to defendants resulting from local prejudice in the application of state and federal law. Accordingly,

[r]enunciation of the duty of a federal district court to decide a controversy properly before it under the abstention doctrine is justifiable only in exceptional circumstances. Abstention is proper where a state determination of pertinent state laws may moot a federal constitutional issue, where there are difficult questions of state law bearing on policy issues of substantial public import which transcend the case at bar, and where, absent bad faith, harassment or a patently invalid state statute, the doctrine is invoked to restrain state criminal proceedings.

Blake v. Kline, 612 F.2d 718, 727 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). This case presents none of the exceptional circumstances referred to in Blake, and indeed involves issues of Pennsylvania state law that have been litigated in this Court several times. See, e.g., Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir.1983); Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221 (3d Cir.1984).

As a third assault on federal jurisdiction, plaintiffs urge that defendants' petition for removal was fatally defective in that it was verified by an attorney, and not by an official of each company. Where there is more than one defendant, however, the verification requirement of 28 U.S.C. Sec. 1441(a) (1982) is satisfied by the signature of all defendants' attorneys. Alexander v. Cox, 348 F.2d 894, 896 (5th Cir.1965); Greenspun v. Schlindwein, 574 F.Supp. 1038, 1040 n. 2 (E.D.Pa.1983).

Defendants also challenge a segment of this Court's appellate jurisdiction. They observe that plaintiffs' notice of appeal refers only to the district court's orders granting summary judgment on the contract claim, and not to the earlier orders dismissing the other two counts of the complaint. Defendants therefore insist that the Court has appellate jurisdiction only over the issues raised in the orders cited in the notice of appeal. See Fed.R.App.P. 3(c) (the notice of appeal "shall designate the judgment, order or part thereof appealed from ...."). Nevertheless, in their appellate briefs all parties addressed every issue presented to the district court, and in fact plaintiffs could not appeal the early dismissals of the second and third counts until the final judgment was entered. See Fed R.Civ.P. 54(b). In a similar situation, this Court recently favored a liberal approach in interpreting Rule 3(c), and held that an appeal of a summary judgment allowed appellate jurisdiction over the disposition of all claims in a complaint. Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1984); accord United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). Cf. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (appeal from a specified judgment or portion thereof does not present for review other judgments or portions of other judgments).

In sum, we have jurisdiction to review the district court's determinations concerning all three counts of the complaint, and now turn to that task.

III.

Plaintiffs' first cause of action alleged that Mr. Murray's employment was terminated "without cause," and that this action "constituted breach of defendant's obligations...." The district court ruled that defendants were entitled to summary judgment on this count as a matter of law, since Mr. Murray's employment was terminable at the will of either party, and under state law such employment may be terminated without cause. This ruling will be upheld if there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law. Wolk, supra, 728 F.2d at 224.

Pennsylvania law concerning breach of contract actions is clear that absent a statutory or contractual provision to the contrary, it is presumed that either party may end an employment relationship at any time, for any or no cause. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174, 176 (1974). The burden is on plaintiffs to overcome this presumption by demonstrating "facts and circumstances establishing some tenure of employment...." Cummings v. Kelling Nut Co., 368 Pa. 448, 84 A.2d 323, 325 (1951).

In an attempt to establish that Mr. Murray was employed for a term, and thus that his employment was not terminable at will, plaintiffs' complaint avers that Mr. Murray was assured employment until retirement age of 65. p 5(b). Mr. Murray's deposition testimony, however, showed otherwise. He conceded that a retirement age was not discussed at the time he was hired in 1976, and instead he referred repeatedly to assurances of a "future and lifetime career," and of employment for "[a]s long as I wanted and they wanted me and I was...