Petition for Writ of Certiorari — Ball v. Joy Technologies, Inc.

In The

Supreme Court of the United States

October Term, 1991

’

RODNEY D. BALL, SR.; HARLESS V. BELCHER;

JUNIOR F. BILLINGS; LYNN S. COMBS;

RONALD J. DAVIS; THEODORE H. HARRIS;

JERRY W. HOLMES; EDDIE D. KIRK; LARRY E.

OLIVER; GERALD H. PROFFITT; DONALD R. ROLEN;

FRANK E. ROOP, JR.; JESSIE F. STAMPER;

ROGER L. TAYLOR; HORACE G. WHITE, JR.;

JOHNNIE WILLIAMS; ROBERT E. THOMPSON;

GENEVA A. THOMPSON; WILLIAM R. LEVITT;

SHIRLEY LEVITT,

Plaintiffs-Appellants,

V.

JOY TECHNOLOGIES, INCORPORATED,

formerly JOY MANUFACTURING COMPANY,

a Pennsylvania Corporation,

Defendant-Appellee.

.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

*

James A. MCKOWEN

HuNT & WILSON

#7 Players Club Drive

Charleston, West Virginia 25311

(304) 344-9651

Counsel of Record for Plaintiffs-Appellants

COCKLE LAW BRIEF PRINTING CO.,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a federal court sitting in diversity, and

asked to determine a novel issue of state law, should hold

that a state claim which has not been recognized by that

jurisdiction’s own courts, constitutes a settled question of

law, which will not be disturbed absent the most compel-

ling of circumstances.

2. Whether the lower court erred in holding that the

law of West Virginia and Virginia would not permit

recovery of damages for medical surveillance costs and

emotional distress resulting from exposure to, and bodily

absorption of, toxic chemicals.

ii

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE PETITION....... 4

1. A Conflict Of Authority Has Developed

Among The Federal Circuits Concerning The

Proper Approach To Resolving Novel Issues Of

| gS Pre rr Teer rer ere errr rer ey 4

2. This Case Involves An Important Question Of

Federal Law With Significant Implications For

Forum Shopping And Federal Removal....... 6

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APPENDIX

A. Opinion Of The United States Court Of

Appeals For The Fourth Circuit - August 5,

rane e mem gets: App 1

B. Order Of The United States Court Of Appeals

For The Fourth Circuit - December 12,

C. Judgment Order Of The United States District

Court For The Southern District Of West Vir-

ginia - September 18, 1990.............. App. 11

ili

TABLE OF AUTHORITIES

Cases:

Ayers v. Jackson Township, 106 N.J. 557, 525 A.2d

SG

Barth v. Firestone Tire & Rubber Co., 673 F.Supp.

ES EE PT TERETE

Blankenship v. General Motors Corp., 406 S.E.2d 781

ee ee LS guy b o05-60 ose des sees es

General Electric Co. v. Knight, 111 S.Ct. 1584 (1991)

Gerardi v. Nuclear Utility Services, Inc., 149 Misc.2d

657, 566 N.Y.S.2d 1002 (1991)

Paoli Railroad Yard PCB Litigation, 916 F.2d 829 (3d

aaa os aN ew b ea od bec decesss

Paul v. Watchtower Bible & Tract Soc. of New York,

819 F.2d 875 (9th Cir. 1987)

Salve Regina College v. Russell, 499 U.S. ; oat

wae. fair, 113 L.Ed.2d 190 (1991) ....

Tritle v. Crown Airways, Inc., 928 F.2d 81 (4th Cir.

1990)

Walker v. Griffith, 626 F.Supp. 350 (W.D.Va. 1986)

Washington v. Union Carbide Corp., 870 F.2d 957

ee uw ivc ns anus eecs cess:

Watkins v. Big John Salvage Co., Civil Action No.

OT DO)

STATUTE:

28 U.S.C. § 1254.....

MISCELLANEOUS:

Uooup.Ct.R. 13.1 .....

Page

oo

erry 3

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Plaintiffs Rodney D. Ball, et al., petition the court for

a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fourth Circuit in this case.

+

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit (App. 1 - 8) is unreported. The opinion

of the United States District Court for the Southern Dis-

trict of West Virginia is reported at 755 F.Supp. 1344.

S

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit (App. 1 - 8) was entered on August

5, 1991. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254 pursuant to this Court’s Rule 13.1 allowing

90 days for filing a petition for a writ of certiorari.

>

STATEMENT OF THE CASE

These consolidated cases concern the question of

how federal courts sitting in diversity should address

novel issues of state law. The plaintiffs, who filed suit in

the United States District Court for the Southern District

of West Virginia, sought to determine their right, under

West Virginia, and, in some cases Virginia law, to recover

compensation for medical surveillance costs and the emo-

tional distress resulting from their exposure to, and

absorption of, toxic chemicals.

The defendant in these cases, Joy Manufacturing

Company (now Joy Technologies, Inc.), is a Pennsylvania

Corporation which operated a number of facilities at

which mining equipment motors using polychlorinated

biphenyls (PCB’s) were repaired and serviced.

Eighteen of the 20 plaintiffs in these consolidated

cases have worked at either or both of the corporate

defendant's facilities in Bluefield, West Virginia and Blue-

field, Virginia. During their employment, as a result of

the defendants’ wrongful misconduct, they were occupa-

tionally (and in some cases, nonoccupationally) exposed

to, and absorbed, various toxic chemicals, including poly-

chlorinated biphenyls (PCBs), dioxins, furans, tri-

chloroethylene (TCE), and 1, 1, 1 trichloroethane. These

present and former employees seek to recover compensa-

tion for emotional distress, and for the costs of medical

surveillance necessitated by their increased risk of devel-

oping cancer and other serious illnesses. They do not seek

damages for increased risk, per se, or for any present

illnesses. Their claims involve questions of first impres-

sion under the law of both West Virginia and Virginia.

Two of the 20 plaintiffs in these consolidated cases

are spouses of past or present employees of the defendant

corporation. Mrs. Levitts’ claims are limited solely to loss

of consortium. Mrs. Thompson, who was exposed to toxic

chemicals brought home on her husband's body, clothing

and personal effects, seeks to recover for emotional dis-

tress and the cost of medical surveillance, as well as loss

of consortium.

In August, 1990, the trial court informed the parties

that it would grant defendants’ motion for summary

judgment. Shortly thereafter, plaintiffs filed a motion to

certify questions of West Virginia law, and a motion to

reconsider and/or amend judgment.

On September 18, 1990, the trial court entered a

judgment order granting summary judgment in favor of

the defendant, and dismissing plaintiffs’ cases. In an

associated memorandum order and opinion, the Court

also denied plaintiffs’ motion to certify questions of state

law, and plaintiffs’ motion to reconsider and/or amend

judgment.

Plaintiffs’ notice of appeal was filed on or about

October 1, 1990. On November 19,1990, prior to any brief-

ing or argument, plaintiffs filed a motion to certify ques-

tions of West Virginia law, together with a supporting

memorandum. This motion was denied by an Order

entered on December 12, 1990. On August 5, 1991, the

Fourth Circuit entered an Order affirming the judgment

of the trial court. Although the Fourth Circuit's

unpublished opinion is not considered binding precedent

under the Fourth Circuit’s internal operating procedures

(1.0.P.) 36.5, 36.6, it has, and will, affect decisions in the

lower federal courts of that circuit. See Watkins v. Big John

Salvage Co., Civil Action No. 84-0145-C(s) (N.D.W.Va.)

(denying motion to certify questions of state law in a case

involving exposure to toxic chemicals).

°

REASONS FOR GRANTING THE PETITION

1. A Conflict Of Authority Has Developed Among The

Federal Circuits Concerning The Proper Approach

To Resolving Novel Issues Of State Law.

In recent years, the United States Court of Appeals

for the Fourth Circuit has repeatedly held “that a state

claim which has not been recognized by that jurisdic-

tion’s own courts constitutes a settled question of law

which will not be disturbed by this court absent the most

compelling of circumstances.” Tritle v. Crown Airways,

Inc., 928 F.2d 81, 84 (4th Cir. 1990) (per curiam). Accord

Washington v. Union Carbide Corp., 870 F.2d 957, 962 (4th

Cir. 1989). This very conservative approach to resolving

state law questions of first impression has been employed

even when a case has been filed in state court by the

plaintiff, and removed to state court by the defendant. See

Tritle v. Crown Airways, Inc., supra.

Other appellate courts, including the Ninth Circuit,

however, have continued to recognize that “[flederal

courts are not precluded from affording relief simply

because neither the State Supreme Court nor the state

legislature has enunciated a clear rule governing a partic-

ular type of controversy.” Paul v. Watchtower Bible & Tract

Soc. of New York, 819 F.2d 875, 879 (9th Cir. 1987). Federal

courts may act even in the absence of “clearly established

state law,” and, where appropriate, “advance beyond

existing state court precedent.” /d.

In the case at bar, the trial court relied heavily on

Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir.

1989) and the then unpublished opinion in Tritle v. Crown

Airways, Inc., 928 F.2d 81 (4th Cir. 1990), see 755 F.Supp. at

1372-73, even though the Supreme Court of Appeals of

West Virginia has. earned a reputation as a very liberal,

progressive court, see Walker v. Griffith, 626 F.Supp. 350,

353 (W.D.Va. 1986) (concluding that West Virginia courts

would recognize a cause of action sounding in negligence

against a tavern owner who continued to serve an intoxi-

cated patron) (court noted that West Virginia had “been

in the forefront of adapting the common law to meet

today’s needs” and had shown a “willingness . . . to

expand the common law in the absence of specific legisla-

tive guidance”); Blankenship v. General Motors Corp., 406

S.E.2d 781, 782 (W.Va. 1991) (court referred to its “whole-

sale updating of our tort law in the 1970’s” and observed

that it was obvious that “West Virginia’s personal injury

law has moved light years away from the doctrines

applied in McClung” (a 1971 federal decision applying

West Virginia law)), and the majority of jurisdictions

addressing the issue have allowed the recovery of dam-

ages for medical surveillance costs. See, e.g., In Re Paoli

Railroad Yard PCB Litigation, 916 F.2d 829, 849-52 (3d Cir.

1990); cert. denied sub nom, General Electric Co. v. Knight,

111 S.Ct. 1584 (1991); Barth v. Firestone Tire & Rubber Co.,

673 FSupp. 1466 (N.D.Cal. 1987); Ayers v. Jackson Town-

ship, 106 N.J. 557, 525 A.2d 287 (1987); Gerardi v. Nuclear

Utility Services, Inc., 149 Misc.2d 657, 566 N.Y.S.2d 1002

(1991).

The trial court’s conservative assessment of West Vir-

ginia and Virginia law was upheld by the circuit court,

which also cited to Washington v. Union Carbide Corp., 870

F.2d 957 (4th Cir. 1989).

In Salve Regina College v. Russell, 499 U.S. , 111

S.Ct. 1217, 113 L.Ed.2d 190 (1991), this court addressed

the standard of review to be used by federal appellate

courts in appeals from district court determinations of

state law. These consolidated cases provide an oppor-

tunity to address an equally important question concern-

ing the proper approach for district courts to employ in

resolving unsettled questions of state law in diversity

cases.

2. This Case Involves An Important Question Of Fed-

eral Law With Significant Implications For Forum

Shopping And Federal Removal.

As the court observed in Paul v. Watchtower Bible &

Tract Soc. of New York, 819 F.2d 857, 879 (9th Cir. 1987):

Were we able to invoke only clearly established

state law, litigants seeking to protect their rights

in federal courts by availing themselves of our

diversity jurisdiction would face an inhospitable

forum for claims not identical to those resolved

in prior cases. Equally important, a policy by the

federal courts never to advance beyond existing

state court precedent would vest in defendants

the power to bar the successful adjudication of

plaintiffs’ claims in cases with novel issues;

defendants could ensure a decision in their

favor simply by removing the case to federal

court. Congress, in providing for removal, cer-

tainly did not intend to provide such a weapon

to defendants.

CONCLUSION

For the foregoing reasons, the petition for

writ of certiorari should be granted.

Respectfully submitted,

James A. McCKowen*

Hunt & WiLson

#7 Players Club Drive

Charleston, West Virginia 25311

(304) 344-9651

*Counsel of Record

APPENDIX

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App. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Ropney D. BAL, Sr; HARLEss

V. BELCHER; JUNIOR F.

Bittincs; LYNN S. Comgss;

RONALD J. Davis; THEOoDpoRE H.

Harris; JERRY W. Homes;

Eppie D. Kirk; Larry E. Ontver;

GERALD H. Prorritt; DONALD R.

Roven; FRANK E. Roop, Jr.;

Jessie F. Stamper; Rocer L.

Taytor; Horace G. Wuirte, Jr.;

JOHNNIE WituaAms; Rosert E.

THOMPSON; GENEVA A. THOMPSON;

WituiaAM R. Levitt; Siirgtey Levitt,

No. 90-1537

Plaintiffs-Appellants,

V.

Joy TECHNOLOGIES, INCORPORATED,

formerly Joy Manufacturing

Company, a Pennsylvania

Corporation,

Defendant-Appellee.

ee

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.

Elizabeth V. Hallanan, District Judge.

(CA-87-268-1, CA-88-133-1, CA-88-1691-1)

Argued: May 8, 1991

Decided: August 5, 1991

App. 2

Before WILKINSON, Circuit Judge, CHAPMAN, Senior

Circuit Judge, and HILTON, United States District Judge

for the Eastern District of Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Hilton wrote the

opinion, in which Judge Wilkinson and Senior Judge

Chapman joined.

COUNSEL

ARGUED: James Anthony McKowen, HUNT &

WILSON, Charleston, West Virginia, for Appellants.

Dennis Charles Sauter, JACKSON & KELLY, Charleston,

West Virginia, for Appellee. ON BRIEF: Robert L. Stew-

art, Jr, JACKSON & KELLY, Charleston, West Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See I.O.P. 36.5 and 36.6.

OPINION

HILTON, District Judge:

The plaintiffs in this consolidated action are eighteen

former employees of the defendant Joy Technologies, Inc.

and two spouses of former employees. The plaintiffs

allege that while employed at the defendant’s corporate

facilities in Bluefield, West Virginia, and Bluefield, Vir-

ginia, they were wrongfully exposed to and absorbed

various toxic chemicals. The district court granted Joy’s

motion for summary judgment finding that the plaintiffs

had not sustained any physical injury from their exposure

App. 3

to toxic chemicals and having suffered no physical injury,

the common law of West Virginia and Virginia would not

allow them to recover damages for emotional distress or

the costs of medical surveillance. The plaintiffs appealed.

Finding no error in the granting of summary judgment in

favor of Joy Technologies, we affirm.

I.

The defendant Joy Technologies, Inc. (hereinafter

“defendant” or “Joy”) began to manufacture and sell

mining equipment in 1965. The mining equipment manu-

factured by Joy contained electric motors that used poly-

chlorinated biphenyls (hereinafter “PCBs”) as a coolant.

In December of 1968, Joy purchased the Hart Electric

building in Bluefield, West Virginia. Joy utilized the facil-

ity in Bluefield to repair and rebuild the motors used in

the mining equipment it manufactured. The defendant

used a vapor degreaser on the motors that contained

trichloroethylene (hereinafter “TCE”).

In 1975, Joy began construction on a new facility in

Bluefield, Virginia. Joy transferred its manufacturing and

repair operations to the new plant in 1988. Joy utilized a

new vapor degreaser that contained 1,1,1 tri-

chloromethane at the Bluefield, Virginia facility. The tear-

down and cleaning of motors continued at the Bluefield,

West Virginia plant until September 1980. Joy’s Bluefield,

West Virginia facility was subsequently sold to Elwin

Aliff.

The Bluefield, West Virginia plant was tested for PCB

contamination in October, 1985. In January, 1986, the

Environmental Protection Agency (hereinafter “EPA”)

App. 4

conducted an inspection of the West Virginia site. On

February 20, 1986, the EPA issued a Superfund Cleanup

order to Elwin Aliff and Lin-Elco Corporation of which

Aliff was president. Aliff retained Remcor, Inc. to conduct

a clean-up of the site. The clean-up effort generated pub-

licity revealing that Joy employees had been exposed to

toxic chemicals.

On March 17, 1987, sixteen former employees of Joy

filed suit in the United States District Court for the South-

ern District of West Virginia (Ball, et al. v. Joy Manufactur-

ing Company, Civil Action No. 1:87-0268). The Ball case

was consolidated by court order on August 10, 1989, with

Thompson v. Joy Technologies, Inc., Civil Action No.

1:88-0133, and Levitt v. Joy Technologies, Inc., Civil Action

No. 1:88-1691. (The consolidated action included twenty

plaintiffs, eighteen of whom were former employees of

Joy at either the Bluefield, West Virginia, or Bluefield,

Virginia site, while the other two plaintiffs were spouses

of former employees. The plaintiffs alleged that while

employed at Joy’s corporate facilities in Bluefield, West

Virginia, and Bluefield, Virginia, they were wrongfully

exposed to and absorbed various toxic chemicals includ-

ing PCBs, dioxins, furans, TCE, and 1,1,1 tri-

chloromethane. Plaintiffs claimed that their exposure to

such toxic chemicals constituted a physical injury and

scught to recover damages for their resultant emotional

distress and for the costs of medical surveillance

allegedly necessitated by their exposure.

On September 18, 1990, the district court granted

summary judgment for the defendant Joy Technologies.

The district court found that the plaintiffs claimed their

exposure to toxic chemicals was an injury in and of itself

App. 5

and that none of the plaintiffs alleged that they sustained

any physical injuries apart from their exposure. The dis-

trict court concluded that the mere exposure to toxic

chemicals did not constitute a physical injury. Having

suffered no physical injury, the district court ruled that

the common law of West Virginia and Virginia would not

allow the plaintiffs to recover damages for emotional

distress or the costs of medical surveillance.

II.

The plaintiffs claim that their exposure to toxic chem-

icals and the increased risk of developing cancer and

other diseases resulting from such exposure constituted

an injury that would entitle them to recover damages for

emotional distress. The plaintiffs contend on appeal that

the district court erred in holding that damages for emo-

tional distress could not be recovered.

Courts in West Virginia and Virginia have recognized

that damages for emotional distress may be recovered in

three specific instances: (1) where the emotional distur-

bance results from an actual physical injury caused by the

impact or occurrence of the tort; (2) where there is no

initial impact or injury but physical injury thereafter

results as the causal effect of the defendant's wrong; and

(3) where there is no impact or physical injury but emo-

tional disturbance results from an intentional or wanton

wrongful act caused by the defendant. Monteleone v. Coop-

erative Transit Co., 36 S.E.2d 475, 478 (W. Va. 1945); Hughes

v. Moore, 197 S.E.2d 214, 219 (Va. 1973). Except for the

intentional infliction of emotional distress, damages for

App. 6

emotional distress may not be recovered under West Vir-

ginia or Virginia law absent a finding of physical injury.

Monteleone, 36 S.E.2d at 478; Hughes, 197 S.E.2d at 219.

The mere exposure of the plaintiffs to toxic chemicals

does not provide the requisite physical injury to entitle

the plaintiffs to recover for their emotional distress.

Numerous courts have held that exposure to hazardous

substances does not constitute a physical injury. See

Adams v. Johns-Manville Sales Corp., 783 F.2d 589, 593 (5th

Cir. 1986) (rejecting plaintiff's claim for mental distress

damages under Louisiana law because he failed to estab-

lish that he sustained an injury from his exposure to

asbestos products); Plummer v. Abbott Laboratories, 568 F.

Supp. 920 (D.R.I. 1983) (finding that plaintiffs’ ingestion

of diethylstilbestrol that allegedly increased the risk of

contracting cancer did not per se constitute a physical

injury under Rhode Island law); Sypert v. United States,

559 F. Supp. 546 (D.D.C. 1983) (concluding that because

the plaintiff had suffered no physical injury from his

exposure to tubercle bacilli, he could not recover mental

distress damages under Virginia law); Eagle-Picher Indus-

tries, Inc. v. Cox, 481 $.2d 517 (Fla. Dist. Ct. App. 1985)

(holding that Florida law did not recognize inhalation of

asbestos as a physical injury); Payton v. Abbott Laborato-

ries, 437 N.E.2d 171 (Mass. 1982) (plaintiff's in utero

exposure to diethylstilbestrol was not a physical injury or

harm under Massachusetts law).

Plaintiff urges this court to expand the law of torts in

West Virginia and Virginia and recognize exposure to

toxic substances as a physical injury. The Erie doctrine

permits federal courts “to rule upon state law as it pres-

ently exists and not to surmise or suggest its expansion.”

App. 7

Washington v. Union Carbide Corp., 870 F.2d 957, 962 (4th

Cir. 1989). Because the law of West Virginia and Virginia

requires physical injury before a plaintiff may recover

damages for emotional distress, the district court was

correct in concluding that the exposure of the plaintiffs to

toxic chemicals did not constitute an injury that would

entitle them to recover damages for emotional distress.

IIT.

The plaintiffs also claim that the district court erred

in holding the costs of medical surveillance could not be

recovered. In their claim for medical surveillance costs,

plaintiffs seek to recover the costs of periodic medical

examinations designed to monitor their health and facili-

tate early detection of disease caused by their exposure to

toxic chemicals.

A claim for medical surveillance costs is simply a

claim for future damages. Plaintiff correctly points out

that the law of West Virginia allows the recovery of the

reasonable value of future medical expenses necessitated

by the defendant’s wrong. See, e.g., Jordan v. Bero, 210

S.E.2d 618, 637 (W. Va. 1974). However, such relief is only

available where a plaintiff has sustained a physical injury

that was proximately caused by the defendant. Jordan, 210

S.E.2d at 637; Long v. City of Weirton, 214 S.E.2d 832, 860

(W. Va. 1975); accord Hailes v. Gonzales, 151 S.E.2d 388, 390

(Va. 1966). Plaintiffs have not demonstrated that they are

suffering from a present, physical injury that would enti-

tle them to recover medical surveillance costs under West

Virginia or Virginia law.

App. 8

Plaintiffs have proffered several public policy argu-

ments for allowing individuals to recover the costs of

medical monitoring where there has been no manifesta-

tion of physical injury. We agree with the district court

that such considerations are better left to the respective

legislatures and highest courts of West Virginia and Vir-

ginia.

For the foregoing reasons, the disposition of the case

below is

AFFIRMED.

App. 9

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-1537

RODNEY D. BALL, SR., ET AL.,

Appellants,

versus

JOY TECHNOLOGIES, INC.,

Appellee.

ORDER

We have considered the motion of appellants to cer-

tify certain questions of law to the Supreme Court of

Appeals of West Virginia and the response thereto. We

are of opinion the motion should be denied.

It is accordingly ADJUDGED and ORDERED that the

said motion to certify certain questions of law to the

Supreme Court of Appeals of West Virginia shall be, and

the same hereby is, denied.

App. 10

With the concurrences of Judge Murnaghan and

Judge Wilkinson.

/s/ H. E. Widener, Jr.

For the Court

A True Copy: Teste:

John M. Greacen, Clerk

By Cheryl Hughes

Deputy Clerk

James Anthony McKowen, Esq.

HUNT & WILSON

7 Players Club Drive

P. O. Box 2506

Charleston, WV 25329

App. 11

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

RODNEY D. BALL, SR., et al.,

ieee Civil Action

V. No. 1:87-0268

JOY MANUFACTURING CO.,

a Pennsylvania Corporation,

Defendant.

and

ROBERT E. THOMPSON and

GENEVA ANN THOMPSON,

— Civil Action

V. No. 1:88-0133

JOY TECHNOLOGIES, INC.

(formerly Joy Manufacturing

Company), a Pennsylvania

Corporation,

Defendant.

and

WILLIAM R. LEVITT and

SHIRLEY LEVITT, Civil Action

Plaintiffs, settle aiaiti

V.

JOY TECHNOLOGIES, INC., a

Delaware Corporation, (formerly

Joy Manufacturing Company, a

Pennsylvania Corporation),

Defendant.

App. 12

JUDGMENT ORDER

In conformity with the Order entered herein of even

date herewith, it is ORDERED and ADJUDGED that judg-

ment shall be entered in favor of the Defendant and

against the Plaintiffs.

The Clerk is directed to remove this action from the

docket of this Court and to mail a certified copy of this

Order to counsel of record.

IT IS SO ORDERED this 18th day of September, 1990.

ENTER:

/s/ Elizabeth V. Hallanan

ELIZABETH V. HALLANAN

United States District Judge