RePass v. Vreeland, No. 15297.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: STALEY and FREEDMAN, Circuit , and COHEN
• Citation: 357 F.2d 801
• Parties: Paul E. RePASS, Appellant, v. Albert L. VREELAND and Leonard G. Brown, Individuals, and Vreeland & Brown, a New Jersey Partnership in the Practice of Law.
• Docket Number: No. 15297.
• Decision Date: 31 January 1966

357 F.2d 801 (1966)

Paul E. RePASS, Appellant,
v.
Albert L. VREELAND and Leonard G. Brown, Individuals, and Vreeland & Brown, a New Jersey Partnership in the Practice of Law.

No. 15297.

United States Court of Appeals Third Circuit.

Submitted on Briefs November 4, 1965.

Decided January 31, 1966.

357 F.2d 802

Milton Diamond, Highland Park, N. J., for appellant.

John A. Willette, East Orange, N. J. (Williams, Willette & Berlin, East Orange, N. J., Donald L. Berlin, East Orange, N. J., on the brief), for appellees.

Before STALEY and FREEDMAN, Circuit Judges, and COHEN, District Judge.

STALEY, Circuit Judge.

This appeal comes before us from the entry of partial summary judgment by the district court under 28 U.S.C. Rule 54(b).¹ Because we hereinafter determine that this court lacks jurisdiction to consider this appeal, we do not reach the provocative questions of state law which bear on the merits. We wish to note at the outset that any discussion of the facts herein should have no bearing on the disposition of this case on its merits or on any appeal that may follow.

A short recital of the complex factual background of this case is necessary, especially since the facts span two separate but closely related suits. The plaintiff in this action, Paul E. RePass, a medical doctor and radiologist, purchased an X-ray machine in the 1930's and used it for a number of years. The machine was sold after he entered the Navy in 1942. After his discharge from the service, he was informed sometime between 1946 and 1947 that he was suffering from a condition of his left hand known as X-ray dermatitis, the cause of which he attributed to a defect in the machine he had purchased in the thirties. A worsening of this condition resulted in a biopsy of skin tissue in 1959, which disclosed the existence of malignancy. This necessitated the immediate amputation of one of plaintiff's fingers and other parts of his left hand.

Dr. RePass then contacted an attorney in Denver, Colorado, and inquired as to the possible liability of the manufacturer

357 F.2d 803

of the X-ray machine. Because it was doubtful that service could be obtained on the manufacturer in Colorado, and because the manufacturer was believed to be a New Jersey corporation, or at least was registered to do business there, the case was referred to the defendants, Albert L. Vreeland and Leonard G. Brown, New Jersey lawyers who engaged in the practice of law as partners in the firm of Vreeland & Brown. Although the case was allegedly referred to the defendants in mid-1960, a complaint was not filed against the corporate successors in interest to the manufacturer of the machine until August 7, 1961. The facts as they occurred between mid-1960 and August, 1961, are contested and are of little relevance here with the exception that plaintiff alleges that in the interim he was required to expend large sums of money, other than attorney's fees, in order to prosecute the action. The district court, however, granted the motion of the manufacturer's successors in interest for summary judgment on the grounds that even if Dr. RePass' cause of action did not accrue until February 9, 1959 (the date of the biopsy), the New Jersey two year statute of limitations, N.J.Stat.Ann. 2A:142, had expired prior to the commencement of the action.²

Shortly thereafter, plaintiff filed this suit against Vreeland and Brown, both as individuals and as partners in the firm of Vreeland & Brown. The complaint contained three counts alleging: (1) that the defendants had negligently permitted the statute of limitations to expire before commencing the action; (2) that although the defendants knew or should have known that the statute would expire on February 9, 1961, they negligently failed to so inform the plaintiff so that he might retain another attorney to file suit; (3) that since defendants had failed to personally notify plaintiff until May of 1961 that the statute had run on his suit against the manufacturers, he was not apprised of their negligence until that time; and therefore his cause of action against them did not accrue until that time.

At the pre-trial stage of the proceedings, the defendants moved for partial summary judgment on the grounds that plaintiff had sustained no loss by the late filing of the complaint. Defendants argued that the statute of limitations against the manufacturer of the X-ray machine had run long before they had received the case. The district court granted the motion and ruled that "since this disposition of the case * * * for all practical purposes eliminates from the trial plaintiff's major damage claim, it included in its * * * order, at plaintiff's request and pursuant to Rule 54(b) of the Federal Rules of Civil Procedure its * * * determination that final judgment be entered in favor of the defendants on the statute of limitations issue." (Emphasis supplied.) It is from this judgment that plaintiff has appealed.

Although we are without the benefit of oral argument on the jurisdictional issue and the question is not discussed in the briefs, we believe the result is abundantly clear without the aid of any elaborate discussion. The simple process of construing the complaint is persuasive of the result we reach. In his brief the plaintiff-appellant states that the complaint in essence charges that the defendants negligently permitted the statute of limitations to expire and that they negligently induced and caused the appellant to waste considerable time, effort and money in reliance on their professional competency. Thus, appellant reads his complaint as alleging two causes of action: one for negligence and the other for negligent misrepresentation.

With this we do not agree. Stripped of its form, the complaint alleges in the alternative that defendants either negligently permitted the statute to run or negligently failed to inform the plaintiff that it would run unless suit was filed. The...