Opposition Brief — Antonioli v. Lehigh Coal & Navigation Co.

fushema Court, B.S.

Mare th Sf

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MAR i” Iste

IN THE ; / MAQHAEL pop: K, 3P, CLERK

Supreme Court of the Unite States

- October Term, 1971. ot :

: No. 71-1102.

RENO ANTONIOLI and ALBERT GIST, Individually and.

on Behalf of Others Adversely Affected

and

THE SOUTH JERSEY TEXAS SEPLOTERS

EEE,

Putdioncrs,

v. af

LEHIGH COAL AND NAVIGATION COMPANY

and LEHIGH & NEW ENGLAND RAILROAD,

LEHIGH & NEW ENGLAND RAILWAY,

THE CENTRAL RAILROAD COMPANY

‘OF NEW JERSEY, .

one? Respondents.

On Petition for a Writ of Certioréri to the United States

Court of Appeals for the Third Circuit.

BRIEF IN OPPOSITION.

Artuur R. Lirrietox,

“ “Warren M. Lappon,”

. 2107 The Fidelity Building,

Philadelphia, Pa. 19109

Martruew J. Bropericx,

a s 1600 Three Penn Center Plaza,

4 o ' . Philadelphia, Pa. 19102

ae Attorneys for Respondents.

Morean, Lewis & Bocxtvus, : 3

Decuert, Price & Ruoaps, \

Of Counsel.

a

national, 711 So. 50th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215

we

Se ee ete eee eee

‘OpINions BELOW Eee dy ete ecaceas Pee soe eomales os

GouNTER-STATEMENT OF QUESTIONS -PRESENTED ...... ar

CouNTER-STATEMENT OF STATUTES INVOLVED un wees tate

(CounTER-STATEMENT OF .THE eer oc eeaath aeu ines

ARGUMENT .....3...... ce Mee Meer pee Srrertae

I. All of the Questions for Review Relating to the De-

scription of the Class and the Treatment of Its

Members Were Not Raised, Briefed, or Argued

in the Courts Below and Are: Thus Barred From —

Consideration. by. This Court .............. thts

or The Actions of the Courts ‘Belew in Defining the

| Class and Dealing With Its Members ‘Were Cor-

a? rect and in No Way Violated Due Process’ of

| St Beano AR ttre 7 oa PEO tact ee

III. It Was Proper to Look to the State Statute of Limi-

tations in Determining. eee the Claims Were

Se eee eee oer A eon eer

IV. Since the Petitioners Were Completely Affected < as of

the Date of ‘Consolidation, Their Claims Accrued

by That Date With’ Respect to Laches puea wanes

V. There Are No Circumstances Present Which War-

| - rant This Court’s Granting Review of Petitioners’

| "Writ of. Certiorari. ............6.0006. tae ake

CONCLUSION ......... Pere ELA Lh dame ket Ewe cowunce2 a

10

11

12

la

fy

nda deine Sans ete Merge ot

- ‘TABLE OF CASES CITED.

California v. Taylor, 353 U.S. 553 (1957) Veer: eoere 7

| Clemens v: Central Railroad Company of New Jersey, 399 F.

2d 82 3 (3d Cir. 1968), cert. denied, 393 U. S. 1023 (1969) 2,4

Duignan v. United States, 274 U. S. 2 ee : 7

Gutierrez v. Waterman S. S. Corp., 373 U. S. 206 (1963) . 7

Holmberg v. Armbrecht, 327° U. i EL Lo ets 10

Lawn v. United States, 355: U. S. 339 CIS) nis an aE Ae

Neely v. Eby Construction Co., me U.. 8. 3h7 (1967) ee 7 4

Pollard v. United States, 352 U. S. 354 be 3 eee eee ae re

_Rebérts v. Lehigh and New England Railway Company, 211

F. Supp. 379 (E. D. Pa. 1962), aff’d.; 323 F. 2d 219

(3d. Cir, 1963)... 2 keene eee eee ee ee ete ee ees eine S

Russell v. Todd, 309 U. S. 280 (1940) ...... NEL.

Tyrrell v. District of Columbia, 243° U. a (1917) Spohn eB, Pa

STATUTES AND RULES CITED.

= e a ok a . ‘Page

‘Interstate Commerce Act, Section 5(2)(f), 49 U. S. C.

§ 5(2) (i), 54 Stat. 898, 906-907. .......-- eee ee eee 3, 11

Federal Rules of Civil Procedure, Rule 23 ..........-- ue enie:

IN THE a

Supreme Court. of the. United States

_ Ocroser a 1971.

s ; xt c

"No. 71-1102.

RENO ANTONIOLI xp ALBERT GIST, InpivibuaLLy

: AND ON BEHALF OF OTHERS ADVERSELY AFFECTED

AND

THE SOUTH JERSEY TEXAS EMPLOYEES |

ASSOCIATION, |

Petitioners,

Vv.

LEHIGH COAL AND NAVIGATION COMPANY axp

_. LEHIGH & NEW ENGLAND RAILROAD, LEHIGH

& NEW ENGLAND RAILWAY, THE CENTRAL

RAILROAD COMPANY OF NEW JERSEY,

—

. ‘On Perition ror a Writ or CERTIORARI TO THE UNITED

Srares Court or APPEALS FOR THE THIRD CIRCUIT. .

BRIEF IN: OPPOSITION.

s

|

Brief in Opposition

bo

OPINIONS BELOW.

The. opinion ‘of the Court of Appeals (Appendix to

Petition, la-l4a) is not yet reported. The opinion of the

District Court (Apptndix to Petition, 15a-32a) is un-

_ reported. The opinion of the Court of Appeals in the prior

_ ease, Clemens v: Central Railroad Company of New Jersey,

is reported at 399 F, 2d 825 (3d Cir. 1968), cert. denied, 393

~~ U.S. 1023 (1969).. The. opinion of the Court of Appeals in’

the prior case, ‘Roberts v. Lehigh and New England Rail-

way, is reported at 323 F. 2d 219 (sd Cir. 1963). .

_ COUNTER. STATEMENT. OF QUESTIONS

PRESENTED.

eetos

* 1. Are issues the } proper subject of review ‘by this

Court ‘where those ‘issues were. never: raised, briefed, or

argued : below, and where petitioners: have not presented

exceptional circumstances which might justify this soak Ss

review of issues not raised below? ;

, 2. Was not the Court of Appeals correct in_ affirming

the District Court’s handling of the class action #

_ 3. Was not the Court of Appeals correct in affirming

the District. Court’s decision that petitioners’ claims | are.

time bat red? ;

4. Should this Court exercise its. discretion. in. favor

of granting review on a writ of certiorari where:

‘(a) the decision of the Court of Appeals was not

in conflict with a decision of anptner court of appeals

on the same matter ;

(b) the Court of Appeals has decided ho question

of fedéral law which has not already been settled by

this Court;

| Brief in Opposition : aoa

i

— (e): the decision @f the Court of Appea Is is in no

way in, conflict with an applicable decision of this

~ Court; and

- (d) there is not the lightest suggestion that ‘the

Court of Appeals or District Court departed in any:

way from the usual and accept 1 course of judicial

proceedings? i 7

COUNTER-STATEMENT OF STATUTES INVOLVED.

(1) Section 5(2) (f) of the Interstate Commerce Act,

—49:U. S. C. §5(2)(f), 54 Stat. 898, 906-907. (Appendix to i

Petition, 18a).

COUNTER. STATEMENT OF THE CASE. |

On September 26, 1961, the Interstate Commerce Cake.

mission approved the abandonment by the Lehigh and New

England Railroad Company (Railroad) of its trackage ex-

cept for some forty miles the acquisition of which by defend- |

- ant Lehigh and New England Railway Company (Railway) -

was concurrently approved. In approving the applications,

the ICC prescribed the so-called ‘‘New Orleans’’ conditions

for the payment of severance pay to. er ees affected by

the abandonment. -

In 1962, the same plaintiffs that comprise baace IIT |

of the complaint in the’instant case,. former employees of

Railway, filed their first complaint in the prior case: of.

Roberts v: Lehigh and New England Railway Company, 211

_F. Supp. 379 (E. D. Pa. 1962), aff’d., 323 F. 2d 219 (3d Cir. ,

1963). In that case, the plaintiffs complained of manda-

- tory retirement agreements entered into between the Rail-

- way and certain brotherhoods. It was — that the

-

4 retey

- > | bed

we . ee . oS ae athe aunt ee ee ee ee ae

is :

is Ss Brief in Opposition -

agreements were invalid and that the plaintiffs were wrong- 3

fully deprived of severance pay. by, reason of their retire-

ments under the invalid agreements. The District Court

upheld the validity of the retirement agreements and. the

Court of Appeals affirmed. Id. © _ :

In 1964, the plaintiffs represented in en III insti-

tuted -suit, accepting their retirement as. final and seeking

Zz damages for breach of contract. By nem, that suit :

- was dismissed without prejudice. ~.

_ In 1965, the plaintiffs represented in Geait III in-

stituted a third suit seeking the same damages as they had

in the second suit, but raising a new theory alleging that

in conflict with the 1961 order of the Interstate Commerce

Commission. In August, 1968, the Court of Appeals below

decided that plaintiffs’ claims were barred by the doctrine

of res judicata. Clemens v. Central Railroad Company of

—New Tersey, 399 F. 2a 8I5-(3a Cir. 1968), cert. denied, 393

U. §. 1023 (1969).

On November 4, 1968, Reno Antonioli, by his attorney,

and on behalf of others adversely affected, filed Counts

_Iand Il of the instant suit.After certiorari was denied in

Cleniens on January 13, 1969 (393 U. S. 1023), Count III

was added to the complaint by amendment. |

: Count I plaintiffs consist of a class of workers of the

o Railroad on the January, 1959 payroll who were furloughed

prior to the effective date of the consolidation, November

1, 1961 (Appendix t to Petition, 4a-5a). Plaintiffs in Count’

II consist of 22 former employees of Railroad who were

retired at the time of the consolidation (Appendix to Peti-

tion, 7a). Count III consist of the plaintiffs in the earlier

‘eases of Roberts and Clemens, supra. Plaintiffs in Counts

I and II sought «an-injunction to compel arbitration of their

claims for displacement and severance benefits under =

IGC Protective Order. . ‘

a ee ee

=

din tire

: 4

Sry Brief in Opposition . : ‘5 '

On Jannary29, 1969, petitioners’ motion for prelim-

“inary injunction was denied... On March 6, 1969, petitioners’ :§

motion for declaratory judgment in Counts I and II was" E

' denied. _-

- . «On.June 24, 1969, -pétitioners nioved for ‘Summary

Judgment.’ ~ ‘

‘On October 27, 1969, the District. Court idtala -that .

within sixt(60) days petitioners ‘‘must finish all diseqvery.. ” [ .

on the issue of’ whether this matter can be maintained as a .

class actign under. Rule 28 of the Federal Rules-of Civil

' Procedure’’ and found atthe expiration of said sixty (60) F |

_ days petitioners “‘must Specify « precisely: the class (they. . §-

‘ j 3

' discovery, record i in this case.’’

Subsequently, petitioners filed a brief in support of the

class action under Rule 23 in, which they tated that the péti-

_ tioners in Count I numbered 569 persons; Count II ‘‘con-

sisted of 22 men and Count ILI, 30 men’. In conclusion, -

_ petitioners stated ‘‘that the requirements of Rule 2° nave

been met to institute this as a class action. + ah

On March 3, 1970, respondents filed their Motion for .

Summary Judgment. mee =

On December 30, 1970, the District Court found as a

matter of law that petitioners’ claims in Counts I and IT

a —

1. Petitioners’ brief in support of summary j , filed on -

' September 25, 1969, states inter alia “the disputes in ounts I and II

are simply that some workers were furloughed in anticipation of the

. transaction approved by the ICC and hence deprived of displacement

~ compensation, (Count I) and other workers were given less

sation than that ordered by the ICC Order of September 26, 961

(Count II)”. See also opinion below, footnote 6 © Careet to

Petition, 4a):

_ 2."In a letter dated October 5, 1971, to the Court of haben

stated : “Count 1 consists of §28 people on the pa

the carrier atthe tne of he merger egies 4

:

ee

6 - —_—__.._ Brief in Opposition

were ‘“barred by time . . . whether the statute of limita-

tions or the doctrine of laches is applied . .-. because it .

. would be inequitable to require defendants to ‘defend

_ against these claims’’ (Appendix to Petition, 26a).. With

respect to Count II,’ the District Court also granted re-

spondents’ motion for summary judgment beeause peti-

tioners had knowingly waived their rights under the ICC.

Order by signing releases in exchange for aan sum sever-

ance benefits.®

On November 30, 1971, the Court of Appeals affirmed

the Order of*the District Court with respect to Counts I

and II, and amended that Order to enter judgment for re-_

spondents on Count IIT (Appendix to Petition, 14a).

3. The District Court’s order of December 30, 1970, permitted *

petitioners to amend their complaint to name.a Loree gary 2 esentative

of Count II. Albert Gist was subsequently added. (Appendix to

Petition, 29a).

,. | Brief in Opposition ee.

ARGUMENT.

| I. All of the Questions for Review Relating to the Descrip- -

\ ss tion of ‘the Class and the Treatment of Its Members.

; .» ‘Were Not Raised, Briefed, or Argued in the Courts

; Below and Are Thus Barred From Consideration by

This Court. — Tas

, Petitioners. present a variety of arguments in which

they allege that the District Court erred in its management —

of this class action. Deferring for the moment considera-

tion of the lack of merit in such arguments, this is the first

- + mention ef the ‘‘class action issues’’ petitioners now seek 5

et: t} . C Q ti f. x } y t} . C ; . ‘i

must have been urged and briefed in the courts below.

Neely v. Eby. Construction Co., 386 U. S. 317, 330 (1967); |

Lawn v. United States, 355 U. S. 339, 362 n. 16 (1958) ; F

' California v. Taylor, 353 U. S. 553, 572 n. 2 (1957). Neither —

_ the opinion of the District Court nor the opinion of the

Court of Appeals everi mentioned ‘‘class action issues’’.*

Furthermore, it cannot seriously be contdndet?’ that the .

present case presents such ‘‘exceptional’’ circumstances as FE

<a would justify this Court’s review of issues not raised below. fo

See Duignan v. United States, 274 U.S. 195, 200 (1927), and

cases cited therein; see, e.g., Gutierrez v. Waterman S. S.

Corp., 373,U. S. 206, 209 (1963) ; Pollard v. United States,

352 U. S. 354, 359 (1957). To permit petitioners to raise a

questions before this Court.which were never considered

below would renew and perpetuate litigation that by all

rights should have been terminated at its inception.

-4. Even if one or both of the opinions of the courts below had '

mentioned or discussed the “class action” questions raised for the f.

first time in this petition, review of those questions by this Court

-. would still not be justified. See, e.g., Tyrrell v. District of Colum-

_ bia, 243 U. S. 1,4 (1917). |

‘

— as 'e

te WR afi se Rate et OY orien ores

8 _.. Brief in Opposition

II. The Actions of the Courts Below in Defining the Class

and Dealing With Its Members Were Correct and in

No Way Violated Due Process of Law.

Even if _petitioners had raised their ‘‘class action’

arguments in the.courts below, those arguments are without

- merit and do not warrant review by this Court.

- Petitioners we1e afforded ample opportunity to clarify

or add to the class by amending their pleadings. More than.

_ one year prior to the District Court’s granting of a sum-

mary judgment, they were ordered to complete discovery .

and specify precisely the class they sought to represent.

Furthermore, petitioners have no standing to complain of

any delays in the preliminary class action determinations

since they themselves moved for summary judgment. There

-is no suggestion of prejudice to, or inadequate representa-

Nowhere do the petitioners allege that the representa-

tion by the named parties of the interests of the absent

parties was in any way inadequate. Where the members

of the class were represented by competent counsel and

where the outcome of the case depended solely upon ques-

tions of law which were fully considered by both of the

courts below, it cannot credibly be argued that the interests |

of those absent members of the: class were not adequately

protected: ©

Petitioners also argue that the final order of the Dis-

trict Court failed to ‘‘describe those whom the courts found

to be members of the class’’ (Petition at 8). It suffices to

say that examination of record before the District Court,

its opinion, and its order show quite clearly those whom the

court found to be members of the class. The Court of Ap-

peals certainly found no deficiency in the description of

the class (Appendix to Petition, 4a-5a). And, according to

their answers to Interrogatories, Briefs, and Correspond-

© Brief in Opposition AR SF:

ence with the Court of Appeals, neither did the petitioners

(Appendix to Petition, 4a-5a, nn..4-7).. , a ee

The notion that certain employees were prejudiced by -

being excluded from the class is fallacious. No legal

. theories to support a cause of action in favor of those em-

ployees were ever forthcoming (Appendix to Petition, 4a,

. n.&).. And, more significantly, had those employees been

covered by the District Court’s order, they would not

‘ simply have been delayed in pursuing “their purported

causes of action, but would have been, as a matter of law,

absolutely foreclosed from doing so by the Court’s sum-

mary judgment. .In adeisies, ‘net only did petitioners fail

to raise this argument in the courts below, they unequivo-

cably abandoned it by letters to the Court of: Appeals

(Appendix to Petition, 4a, m. 4) and to opposing counsel.

By letter dated May 3, 1971, Lawrence J. Richette, counsel

—

“for petitioners,

all of my Motions subsequent te the Jedge’s Order of

December 30, 1970" (Respomderi.’ Appendix, la). The

motions abandoned included, ® © ©" others, petitioners’

motion to take depositions a wet’ eer request to file an

amended complaint after (he — ©" by the Court for

doing so had expired.

The record leaves no dowbt thei the District Court's

definition of the class was proper and that its members

were adequately represented.

III. It Was Proper to Look to the State Statute of Limita-

tions in Determining Whether the Claims Were Time

. Barred.

The Courts below were entirely correct in holding that:

‘Tt would be inequitable to require defendants to

_ defend against these claims, most of which involve

stated inter afer, thet- “‘t have abandoned—

g ey Shel & Mee a eAeeL | ——

mrei.oe 9 e,

wry

Bp tree rey mer RRR TINTRREIR ES TIT

10 an, Brief in Opposition

facts even more than six (6) years old, at this late

date.’’® a,

Petitioners’ effort to gain review based on an alleged

erroneous application of: the Pennsylvania Statute of

Limitations is without merit since the courts below followed

the mandate of this Court and merely looked to the statute

as ‘‘relevant in determining whether they [petitioners]

have inexcusably slept on their rights’’ (Appendix to Peti-

tion, 25a); Holmberg v. Armbrecht, 327 U. S. 392, 396

(1946) ; Russell v. Todd, 309 U. S. 280, 288-89 (1940).

IV. Since Petitioners Were Completely Affected as of the

Date of Consolidation, Their Claims Accrued by That

Date With Respect to Laches.

The courts below found that it would ‘‘be inequitable

to require defendants to defend against. [petitioners’]

claims.”’ (Appendix to Petition; 26a) Questions raised by

petitioners with respect to when their cause of action arose

are controlled by equitable considerations. In an equitable

action, the date the eause of action arose must be considered. poate

" in the context of the substantial period of time during which

petitioners failed to assert any claim; and it is quite proper

to-use the Pennsylvania six year statute of limitations as a

frame of reference in evaluating petitioners’ unwarranted

delay. toctenee |

Moreover, in examining the time lapse in the instant

case the Court of Appeals correctly concluded that any

breach of duty by defendants occurred when petitioners

were furloughed or retired. It was then that their equitable

5. The District Court went on to observe that, “It seems reason-

ably clear that this count [Count I] was included because counsel

came across some facts and a theory while engaged in related litiga-

tion which were new ideas to him but: which had actually been pur--

sued by many of these employees immediately after the consolida-

tion” (Appendix to Petition, 26a). |

Brief in Opposition’ 11.

Prod

cause of action arose. Petitioners in Count I were allegedly

furloughed prior to consolidation, November 1, 1961, and

they knew then that their jobs were affected.. Petitioners

in Count II were retired as of November 1, 1961, and they

knew then their jobs were affected. The Courts below were

correct in holding that the equitable period of limitations

commenced to run when petitioners were ‘affected. Since

petitioners were totally affected on November 1, 1961 or

prior thereto. the courts below properly concluded that it

would be inequitable to suspend the operation of the equi-

table period of limitations for the protective, period.

____"Phe—vonsiderations_governing—review—on—cortiorati

V. There Are No Circumstances Present Which Warrant

This Court’s Granting Review of Petitioners’ Wat of.

Certiorari.

clearly militate in the present case against this Court’s

granting petitioners’ writ of certiorari. No aspect: of the

decision of the Court of Appeals was in conflict with a

decision of this Court nor was it in conflict with a decision

of another court of appeals. The questions of federal law

decided by the Court of Appeals have already been settled

by the applicable decisions of the Court. And finally, the

actions of both the District Court and Court of Appeals

were in keeping with the highest standards of the judicial ——

process. This is not a case in which review by this Court

is necessary or warranted.

12 - oe Brief in Opposition

' CONCLUSION. ®

For the reasons stated above, the Petition for a Writ |

of Certiorari should be denied.

Respectfully submitted,

ArtHur R. LITTLETON,

‘MattHEw J. BRopDERIcK,

Warren M. Lappon,

Attorneys for Respondents.

Of Counsel: _

Morean, Lewis & Bocktus.

Decuert, Price & Rxoaps,

2

‘RESPONDENTS’ APPENDIX. >

Enc.

; (la).

(Letterhead of) :

LAWRENCE J. RICHETTE ;

Attorney at Law &

11th Floor 1420 Walnut Street | 4

| Philadelphia, Pa. 19102 ‘

_KIngsley 6-6500 LOetT P

| ur es May 3,1971

Matthew J. Broderick, Esq. - . E

16th Fl, Three Penn Center Plaza f

Philadelphia, Pa. 19102 3

Arthur R. Littleton, Esq. q

3 2107 The Fidelity Bldg.. ;

____.. __ Philadelphia, Pa.19109—____

"Re: Reno Antonioli, et al. vs. Lehigh - .

Coal and Navigation Company, et al. : ;

_ Gentlemen : | .

You will find enclosed the appellants’ brief and appendix. .. 4

You will note that the appendix is somewhat different from :

the original statement I mailed to you. 4

————f fave not enclosed the Summary Judgment. Motion as T 7

thought that was superfluous and further, I have abandoned . |

all of my Motions subsequent to the Judge’s Order of =

December 30, 1970. : ;

' .

Very truly yours,

7S ; L. J. Ricuerre. E |

LJR :mkd on E