Sunderland v. City of Philadelphia, 77-1956

• Decision Date: 09 May 1978
• Docket Number: No. 77-1956,77-1956
• Citation: 575 F.2d 1089
• Parties: Charles SUNDERLAND v. CITY OF PHILADELPHIA and Philadelphia Gas Works and United Gas Improvement Company a/k/a UGI Corporation, Philadelphia Facilities Management Corporation. Appeal of PHILADELPHIA GAS WORKS and Philadelphia Facilities Management Corporation.
• Court: U.S. Court of Appeals — Third Circuit

Page 1089

575 F.2d 1089

Charles SUNDERLAND v. CITY OF PHILADELPHIA and Philadelphia Gas Works and United Gas Improvement Company a/k/a UGI Corporation Philadelphia Facilities Management Corporation Appeal of PHILADELPHIA GAS WORKS and Philadelphia Facilities Management Corporation.

No. 77-1956.

United States Court of Appeals Third Circuit.

Argued March 28, 1978.

Decided May 9, 1978.

Gerald A. Inglesby, Richard D. Solo, Solo, Padova & Lisi, Philadelphia, Pa., for appellants.

William Goldstein, Paul M. Goldstein, Goldstein & Goldstein, Philadelphia, Pa., for appellee.

Before ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

In this diversity action for property damage and personal injuries resulting from a gas explosion, the jury returned a verdict against defendants Philadelphia Gas Works and Philadelphia Facilities Management Corporation in the total amount of $35,000. Judgment was entered in that amount. Thereafter the defendants filed an inartfully drawn motion to alter or amend the judgment. In that motion they called to the court's attention the fact that Philadelphia Gas Works had paid to American Mutual Insurance Company $7,500 on account of the latter's subrogation claim against the defendants. The subrogation claim arose out of a payment of $10,000 to the plaintiff Sunderland by American Mutual Insurance Company. That $10,000 payment represented the policy limit under a casualty policy covering the property destroyed in the explosion. Probably because the moving papers made no express reference to Rule 60(b)(5) of the Federal Rules of Civil Procedure, the district court denied relief.

Rule 60(b)(5) provides that upon a party's motion the district court may relieve that party from a final judgment on the ground that the judgment has been satisfied. Sunderland does not dispute that on account of his loss he received $10,000 from American Mutual Insurance Company. Nor does he dispute that Philadelphia Gas Works paid $7,500 to the carrier on its subrogated claim. Nevertheless, he resists the defendants' effort to receive credit against the judgment for the $7,500 which was paid. But the only reason he suggests for not granting the defendants relief under Rule 60(b)(5) is that they failed to specify that rule in their post-judgment motion. Since a Rule 60(b)(5) motion is not subject to a specific time limitation, such a motion could be made even now. There is no reason, therefore, why we...