Opposition Brief — Northway Coin-Clean, Inc. v. Borg-Warner Corp.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 1815

NORTHWAY COIN-CLEAN, INC.

Petitioner,

~ V.

BORG-WARNER CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

CLAYTON A. SWEENEY

THOMAS L: VANKIRK

BUCHANAN, INGERSOLL, RODEWALD,

KYLE & BUERGER

Attorneys for Respondent

1800 Oliver Building

Pittsburgh, Pennsylvania 15222

—— — —E——— a =

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 1S219

INDEX TO BRIEF

PAGE

Counter-Statement of Question Presented for Re-

ee ies hai oi wibeneveasnlinasaaneacciasiws 1

Counter-Statement of Case ........0....0.....65ccccccceceteeeeees 2

Argument of Respondent ..........0.000....0cccccceeeeceecteeeees 6

SN eg I ad assy Liveksooendaees 10

TABLE OF CITATIONS

CASES

Hartmann v. Time, Inc., 166 F.2d 127 (3d Cir. 1947),

cert. denied, 334 U.S. 838 (1948)... 7

Hines v. Seaboard Air Line Railroad Company, 341

if & Be ge Se) Ee eee oeeereee 8

RULES

Federal Rules of Civil Procedure:

I NN acres ceca ctiscnnsscnetatessucenaraseindvceauensieteis 5

ge aE Pr eae RD ADR RPT SO 4,5, 8

RAREST PESO RSOR ep ts CIe PRE ey RR E ARER eM AD 5

I ee eat ak ca pasar a upeuuaaoes 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 1815

NORTHWAY COIN-CLEAN, INC.

Petitioner,

Vv.

BORG-WARNER CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

COUNTER-STATEMENT OF QUESTION

PRESENTED FOR REVIEW

Has a petitioner been deprived of property without

due process of law when a United States District Court

granted Summary Judgment against it on the duel

grounds that its cause of action was barred by the ap-

plicable Statute of Limitations and its cause of action

had previously been dismissed with finality by another

United States District Court?

Counter-Statement of Case.

COUNTER-STATEMENT OF CASE

The petition seeks a review of a judgment order

entered by the United States Court of Appeals for the

Third Circuit on November 20, 1973. The judgment order

affirmed an order entered on January 11, 1973 by Judge

R. Dixon Herman of the United States District Court for

the Middle District of Pennsylvania granting respond-

ent’s Motion for Summary Judgment at Civil Action

No. 72-301 (App. 10-11). The United States Court of

Appeals for the Third Circuit denied rehearing on Jan-

uary 3, 1974 (App. 12).

The action for which review is sought was brought

by petitioner, Northway Coin-Clean, against respondent,

Borg-Warner Corporation (App. 18-21). Although this

was the first time that the action had been brought

in the Middle District of Pennsylvania, the United

States District Court for the Western District of

Pennsylvania had previously had an opportunity to

adjudicate the identical claim at Civil Action No. 66-

865 (hereinafter referred to as “the Western District ac-

tion”). A detailed account of the Western District ac-

tion must be presented since petitioner’s claim, in its

Petition for Writ of Certiorari, is that it was denied due

process of law by reason of the United States Court of

Appeals for the Third Circuit’s affirmance of the District

Court’s holding that “...the action has already been

dismissed with finality at Civil Action No. 66-865 by the

United States District Court for the Western District of

Pennsylvania” (App. 57).

On or about August 1, 1962 petitioner purchased

from a distributor certain Norge coin-operated laundry

and dry cleaning equipment manufactured by respondent

Counter-Statement of Case.

and opened its business known as Northway Cleaning

Village (App. 19). On July 19, 1966, petitioner filed its

Complaint initiating the Western District action (App.

22). That Complaint alleged that respondent had

breached its warranties and made fraudulent misrepre-

sentations to the petitioner in connection with the sale

to petitioner of the aforementioned coin-operated dry

cleaning equipment.*

For the two years following the filing of the Com-

plaint, discovery was undertaken by both petitioner and

respondent by means of depositions and interrogatories

(App. 22). Because this lengthy discovery period dis-

closed that it was impossible to determine the basis of

petitioner’s alleged cause of action, attorneys for both

parties conferred with the Court on November 7, 1968

in order to establish a pretrial procedure which would

compel petitioner to state the basis for its cause of action

and allow respondent a brief period of discovery there-

after (App. 23). On November 18, 1968, the Court filed

an order (which was prepared by attorneys for peti-

tioner) providing, inter alia, that petitioner complete its

discovery within 60 days and file a narrative written

statement of the facts within 70 days from November 18,

1968 (App. 23).

Petitioner still did not file its pretrial narrative

statement when required, and, on April 1, 1969, respond-

ent’s attorneys requested that petitioner file said state-

ment (App. 25). Rather than file a pretrial narrative

statement, petitioner filed, on April 4, 1969, a Motion to

*This fact was appropriately documented in the

United States Court of Appeals for the Third Circuit but

cannot be documented from the appendix attached to

petitioner’s Petition for Writ of Certiorari.

iaaidebsaaiiincbaaei ss sae Sass |

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Counter-Statement of Case.

Transfer rajuesting that the action be removed to the

Middle District of Pennsylvania (App. 25). Respondent

then filed, on April 7, 1969, a Motion to Dismiss under

Rule 41(b) of the Federal Rules of Civil Procedure (App.

25). Following argument on these two motions, the Court,

on April 16, 1969, ordered (1) that petitioner’s Motion

to Transfer be denied; and, (2) that respondent’s Motion

to Dismiss be denied but if petitioner failed to file its

narrative statement by September 16, 1969 the Court,

upon proper notice, would dismiss the action with preju-

dice (App. 25-26).

When petitioner had still not complied with the dead-

line, respondent, two weeks after the expiration of said

deadline, filed on September 30, 1969 a Motion to Dis-

miss with prejudice (App. 22-27). On October 1, 1969

the Court ordered the Western District action dismissed

“without prejudice” ( App. 28).

Respondent heard nothing more about the Western

District action until June 24, 1970 at which time peti-

tioner filed a Motion for Transfer of Proceedings under

Section 1407 of the Judicial Code with the Judicial Panel

on Multidistrict Litigation.* Since no action was pending,

the Panel took no action on the Motion. Two days later

petitioner filed a Motion to Vacate Order which requested

that the Court set aside the order of October 1, 1969

which dismissed the action without prejudice (App. 29).

On September 8, 1970 Judge Rabe B. Marsh, who

presided over all of the proceedings in the Western Dis-

*This fact was appropriately documented in the

United States Court of Appeals for the Third Circuit but

cannot be documented from the appendix attached to

petitioner’s Petition for Writ of Certiorari.

Counter-Statement of Case.

trict action, held a hearing on petitioner’s Motion to

Vacate (App. 31). At this hearing, it was admitted

by counsel for petitioner that the case was based on a

cause of action for fraud and deceit, and that, at the

time of the argument, the period prescribed by the stat-

ute of limitations had expired (App. 33). Following ar-

gument Judge Marsh denied petitioner’s Motion to Va-

cate by an order dated September 8, 1970 (App. 56). No

appeal was ever taken from this order in spite of the

fact that Judge Marsh made it clear that the dismissal

was with prejudice (App. 53).

On June 7, 1972, almost ten years after the petitioner

purchased the equipment and eight years after its busi-

ness was sold, petitioner filed this lawsuit in the Middle

District of Pennsylvania (App. 18). The Complaint set

forth the same cause of action which was alleged in

the Complaint filed in the Western District action filed

on July 19, 1966.

On July 24, 1972 respondent filed a Motion to Dis-

miss and a Motion for Summary Judgment pursuant to

Rules 12(b) (6), 41(b) and 56 of the Federal Rules of

Civil Procedure.* These motions were based on the

facts that (1) the period prescribed by the Statute of

Limitations had expired; (2) the ruling of Judge Marsh

was final and barred the Middle District action by virtue

of the doctrine of res judicata; and (3) the United States

District Court for the Middle District of Pennsylvania

could not overrule the United States District Court for

the Western District of Pennsylvania, a court of con-

*This fact was appropriately documented in the

United States Court of Appeals for the Third Circuit but

cannot be documented from the appendix attached to

petitioner’s Petition for Writ of Certiorari.

iv rumen

Te SE Cw L ae ete a ee

Argument of Respondent.

current jurisdiction.* Judge R. Dixon Herman, who

presided over the Middle District action, granted re-

spondent Summary Judgment on two grounds: (1) be-

cause the action was barred by the Statute of Limita-

tions and, (2) because the action had already been

dismissed with finality at Civil Action No. 66-865 by

the United States District Court for the Western Dis-

i lvania (App. 57). The United States

Court of Appeals for the Third Circuit affirmed Judge

Herman’s order and later denied rehearing (App. 10-12).

Petitioner now seeks a Writ of Gertiorari solely on the

ground that it was denied due \process because the

United States Court of Appeals for the Third Circuit

treated the dismissal of the Western, District action as

a dismissal with prejudice.

ARGUMENT OF RESPONDENT

There are no special or important reasons for granting

petitioner’s petition for writ of certiorari.

Respondent cannot argue with the proposition

set forth in petitioner’s Petition for Writ of Certiorari

that the Supreme Court of the United States should

rectify the situation when a person is denied due process

of law. Petitioner, however, has not been denied due

process.

Petitioner has overlooked the fact that the United

States District Court for the Middle District of Penn-

sylvania granted respondent’s Motion for Summary

*This fact was appropriately documented in the

United States Court of Appeals for the Third Circuit but

cannot be documented from the appendix attached to

petitioner’s Petition for Writ of Certiorari.

Argument of Respondent.

Judgment on the following two grounds and the United

States Court of Appeals for the Third Circuit affirmed

the decision on both grounds: (1) the action had been

dismissed with finality in the United States District

Court for the Western District of Pennsylvania and, (2)

the applicable Statute of Limitations barred petitioner’s

action. Thus, even assuming that petitioner is correct

in its contention that both courts erred in determining

that petitioner’s cause of action had been dismissed

with finality, the United States District Court for the

Middle District of Pennsylvania still properly granted

respondent Summary Judgment because petitioner’s

claim is barred by the Statute of Limitations. The de-

fense of the Statute of Limitations was properly raised

in a Motion for Summary Judgment filed prior to the

time of the Answer and the United States District Court

for the Middle District of Pennsylvania properly granted

Summary Judgment when it found that petitioner’s

claim was barred by the Statute of Limitations. Hart-

mann v. Time, Inc. 166 F.2d 127 (3d Cir. 1947), cert.

denied, 334 U.S. 838 (1948).

Moreover, the claim of error raised in petitioner’s

Petition for Writ of Certiorari does not merit considera-

tion by this Court. The United States Court of Appeals

for the Third Circuit did not hold that a dismissal with-

out prejudice is a final dismissal thus invoking the doc-

trine of res judicata. Rather the United States Court of

Appeals for the Third Circuit decided that, based on the

unique facts of this case, petitioner’s cause of action had

been dismissed with finality and could not be raised again

because of the doctrine of res judicata.

While it is true that the initial dismissal of the

Western District action was “without prejudice” the

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Argument of Respondent.

Court’s subsequent order and the transcript of the hear-

ing on the Motion to Vacate leads to the inescapable con-

clusion that the refusal to grant the Motion to Vacate

effected a dismissal with prejudice. At the hearing Judge

Marsh acknowledged that he had dismissed this action

without prejudice although he indicated that he did not

understand why he had dismissed it without prejudice

a 32). It is clear from the record that during the

co of the hearing on the Motion to Vacate, Judge

Marsh knew that the only avenue open to petitioner to

bring its action at that time was through a reopening

of the proceedings in the Western District. Petitioner’s

counsel told the Court that the period prescribed by the

Statute of Limitations had expired. Thus, when Judge

Marsh denied the Motion to Vacate, he knew that the

litigation was permanently barred. Petiticner’s counsel

made it abundantly clear to Judge Marsh that no further

litigation could be brought anywhere. The dismissal of

the Motion to Vacate effectively turned Judge Marsh’s

41(b) dismissal into a dismissal with prejudice.

Petitioner’s Motion to Vacate in the Western Dis-

trict action was based upon Rule 60(b) of the Federal

Rules of Civil Procedure. The denial of that motion was

a final, appealable order. Hines v. Seaboard Air Line Rail-

road Co., 341 F.2d 229 (2d Cir. 1965). When the peti-

tioner, after learning that Judge Marsh’s dismissal was

intended to be with prejudice, did not appeal from Judge

Marsh’s order denying its Motion to Vacate, the judg-

ment became final and was a bar to any future action.

Petitioner does not deny that the same issues were raised

in the Western District action as were raised in the in-

stant action. Thus, the United States Court of Appeals

for the Third Circuit correctly affirmed the order of

Argument of Respondent.

the United States District Court for Middle District of

Pennsylvania which granted respondent’s Motion for

Summary Judgment based on the doctrine of res judi-

cata.

The United States Court of Appeals for the Third

Circuit did not render any decision which is in conflict

with the decision of another Court of Appeals on the

same matter; it did not decide an important state or ter-

ritorial question in a way that conflicts with applicable

state or territorial law; it did not decide an important

question of federal law which has not been previously

settled by the Supreme Court of the United States; it

did not decide a federal question that conflicts in any

way with applicable decisions of the United States Su-

preme Court: and it did not depart from accepted and

usual procedures such as would call for the exercise of

the United States Supreme Court’s power of supervision.

For the above reasons this Court must deny peti-

tioner’s Petition for Writ of Certiorari.

10

Conclusion.

CONCLUSION

Petitioner’s Petition for Writ of Certiorari does not

raise any questions which call for a determination by the

Supreme Court of the United States. Therefore, this

Court must deny petitioner’s Petition for Writ of Cer-

tiorari.

Respectively submitted,

SEER EERE EEE RHEE EERE EE HEE E HEHEHE HEHEHE EEE H EEE EEE EE EEE HESS

SERRE EER H EEE TEETH EEE EEE REE H EE EH EEE EE EEE EEE HEHEHE EEES

BUCHANAN, INGERSOLL, RODEWALD,

KYLE & BUERGER

1800 Oliver Building

Pittsburgh, Pennsylvania 15222

Attorneys for Respondent.