Kohr v. Raybestos-Manhattan, Inc.

TROUTMAN, District Judge,

concurring.

Of a deceased jurist, a distinguished speaker recently said:

*1077 “His ability to analyze a particular legal situation was most unusual. The microscope of his mind was so powerful, his own special focus so accurate, he could readily see the configurations that would ordinarily escape the attention of a lesser person.” (emphasis added).

Lacking such talents, this Court in Kohr v. Raybestos-Manhattan, Inc., 505 F.Supp. 159 (E.D.Pa.1981), approached the problem of predicting Pennsylvania law as regards the future adoption 'of the “dual capacity theory”. We there concerned ourselves primarily with the equitable considerations involved, being the principal issues treated in briefs submitted. The inequities, so heavily relied upon by this Court, incident to a contrary result have been recognized in the Panel opinion (pp. 1075 and 1076).

However, in presenting the issues to the Panel additional “configurations” have appeared, additional questions have been raised, additional authorities cited and additional considerations treated both by way of briefs filed and oral argument. These additional issues and their resolution by the Panel are persuasive. Equally important are the additional precedents cited to or independently discovered by the Panel establishing that at least six state courts and three federal courts have rejected the dual capacity doctrine (p. 1075). 1 Additionally, we agree that the Pennsylvania law “ought” to be declared and enunciated by the Pennsylvania courts as opposed to a federal court (p. 1076). We agree that the “actual formation” of Pennsylvania law should be the function of the Pennsylvania Legislature and/or the Pennsylvania courts (p. 1076). 2 We agree that the federal courts should not directly or indirectly, intentionally or inadvertently, become involved in a “policy-making role” (p. 1075), if such result can be avoided while at the same time discharging the “duty” resting upon the court in a given situation. The Panel opinion avoids this pitfall by applying what it defines as “the current law of Pennsylvania” (p. 1076).

Certain of the “configurations” thus treated by the Panel “escaped the attention of (this) lesser person” in reaching our conclusions in Kohr . Erroneously treating the equities of the situation as our primary compass, we ruled that the circumstances as then and there presented and briefed suggested that Pennsylvania would recognize the dual capacity doctrine and apply it to the situation at bar. Regrettably, the clam- or precipitated by the dual capacity issue eclipsed the fact that this Court previously denied defendant’s motion for summary judgment on other grounds in its initial opinion, reported at 87 F.R.D. 750 (E.D.Pa. 1980), and merely cited dual capacity as an additional basis for denial after defendant moved for reconsideration.

Consistent with the Panel opinion, this Court has previously strictly construed the statute. 3 The inn of inequities in which we previously found shelter was for the night only; it did not end the journey. The proceedings before the Panel have alerted us to the fact that there are substantial landmarks to guide us and that our heavy reliance upon the “compass” of inequities was misplaced.

For the reasons stated we concur in the Panel opinion and to that extent reverse our decision in Kohr . Our concurrence renders moot, we believe, defendant’s pending motion for certification of appeal to the Circuit Court. It does not affect our denial of defendant’s motion for summary judgment on other grounds.

. In Kohr we stated that “federal courts may assume that state law will follow the majority rule”. 505 F.Supp. 159, 162 (E.D.Pa.1981). We were then unaware of what now appears to be the “majority” rule as demonstrated in the Panel opinion (p/1075).

. We so stated in Kohr. 505 F.Supp. 159, 162 (E.D.Pa.1981).

. Dech v. Rouselle Corp., 512 F.Supp. 1024 (E.D.Pa.1981).