Panichella v. Pennsylvania Railroad Company

• Decision Date: 12 February 1958
• Docket Number: No. 12292.,12292.
• Citation: 252 F.2d 452
• Parties: Nicola PANICHELLA v. PENNSYLVANIA RAILROAD COMPANY, Appellant (Warner Brothers Pictures, Inc., a Corporation).
• Court: U.S. Court of Appeals — Third Circuit

252 F.2d 452 (1958)

Nicola PANICHELLA v. PENNSYLVANIA RAILROAD COMPANY, Appellant (Warner Brothers Pictures, Inc., a Corporation).

No. 12292.

United States Court of Appeals Third Circuit.

Argued December 17, 1957.

Decided February 12, 1958.

John David Rhodes, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellant.

J. Lawrence McBride, Pittsburgh, Pa. (Dickie, McCamey, Chilcote & Robinson, Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

On this appeal we find it appropriate to consider a procedural question raised by the election of the trial judge to enter an order under Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.,¹ making the disposition of a third-party claim immediately appealable while the principal claim to which that third-party claim is incidental remains undecided.

The original plaintiff, Nicola Panichella, who is not a party to this appeal, sued his employer, the Pennsylvania Railroad, for negligent injury under the Federal Employers' Liability Act, 45 U. S.C.A. § 51 et seq. Panichella claimed that an injurious fall on a sidewalk abutting premises of Warner Brothers Pictures, Inc., had been caused, in whole or in part, by negligence of the Railroad. The defendant Railroad then brought the landowner, Warner Brothers Pictures, Inc., into the suit through a third-party complaint asserting that fault of Warner was such a responsible cause of the accident as entitled the Railroad to contribution. As third-party defendant, Warner moved for summary judgment against the Railroad. As principal defendant, the Railroad moved for summary judgment against Panichella. Both motions were based upon a release which Panichella had given to Warner reciting that for and in consideration of $1,375 Panichella released "Warner Brothers Pictures, Incorporated, and his, her, their and its successors and assigns, heirs, executors, administrators, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting, and to result, from a certain accident which happened on or about the 14th day of December, 1950, for which I have claimed the said Warner Brothers Pictures, Incorporated, to be legally liable, which liability is hereby expressly denied." 150 F.Supp. 79, at 80

The district court dealt with both motions in a single opinion ruling that this release of Warner "and all other persons * * * from any and all claims" growing out of the accident did not bar Panichella's F.E.L.A. claim arising out of the accident in question against the Railroad. At the same time, the court ruled that the release did bar claims against Warner for contribution as well as claims charging Warner with primary liability. Accordingly, the motion of the Railroad for summary judgment was denied and the primary claim of Panichella against the Railroad now awaits trial in the district court. Warner, however, was granted summary judgment relieving it of any liability over on the Railroad's third-party claim against it.

Thereafter, acting under Rule 54(b), the district court made "an express determination that there is no just reason for delay" in entering forthwith an appealable final judgment, and undertook to enter such a judgment, rather than leaving the question of liability over for appellate review with all other contested matters after trial disposition of the entire litigation.

The discretion which Rule 54(b) confers upon a trial judge is not absolute. "Any abuse of that discretion remains reviewable by the Court of Appeals." See Sears, Roebuck & Co. v. Mackey, 1956, 351 U.S. 427, 437, 76 S.Ct. 895, 901, 100 L.Ed. 1297. Cf. Cold Metal Process Co. v. United Engineering & Foundry Co., 1956, 351 U.S. 445, 452, 76 S.Ct. 904, 100 L.Ed. 1311; Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 2 Cir., 1957, 243 F.2d 795, 796. However, the Supreme Court has not suggested any guide to judgment whether a 54(b) order reflects a proper exercise of discretion. This is our first consideration of that problem.

We start with the familiar and generally accepted conception that Section 1291 of Title 28 of the United States Code, limiting the normal jurisdiction of courts of appeal to the reviewing of final judgments, has jurisprudential significance beyond mere technicality. It is an authoritative application and implementation of a basic and persisting policy against piecemeal appeals. See Cobbledick v. United States, 1940, 309 U.S. 323, 324-326, 60 S.Ct. 540, 84 L.Ed. 783. Rule 54(b) attempts to make a reasonable accommodation between that policy and those problems of the timing of review which have been accentuated by the liberalized joinder of claims, counterclaims, cross-claims and third-party claims in one law suit, as permitted and encouraged by the present Rules of Civil Procedure. See Dickinson v. Petroleum Conversion Corp., 1950, 338 U.S. 507, 511-512, 70 S.Ct. 322, 94 L.Ed. 299.

Thus, the procedure contemplated by Rule 54(b) is usually more than a formality. Perhaps it can properly be viewed as mere formality, albeit an essential prerequisite of immediate appeal, in those cases where it is clear that the disposition of a portion of the litigation has been such as would clearly have constituted an appealable final judgment under Section 1291 of Title 28 before the adoption of the Rules of Civil Procedure. But otherwise and ordinarily an application for a 54(b) order requires the trial judge to...