Opposition Brief — Newman v. Consolidation Coal Co.

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| i FEB 28 1996

No. 95-1219 bs CLERK

In The

Supreme Court of the United States

aos

October Term, 1995

GEORGE NEWMAN,

Petitioner,

vs.

CONSOLIDATION COAL COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JAMES R. MILLER

Counsel of Record

DICKIE, MCCAMEY & CHILCOTE

Attorneys for Respondent

Two PPG Place, Suite 400

Pittsburgh, Pennsylvania 15222-5402

(412) 281-7272

os (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

QUESTIONS PRESENTED FOR REVIEW

SHOULD THE THIRD CIRCUIT COURT OF

APPEALS HAVE ISSUED A PETITION FOR WRIT

OF MANDAMUS TO THE DISTRICT JUDGE

REQUIRING HIM TO GRANT THE

PETITIONER’S MOTION TO ADOPT THE

FINDINGS OF THE JURY AS THE FINDINGS OF

THE COURT WHERE SUCH ACTION WOULD

DICTATE THE RESOLUTION OF FACTUAL

FINDINGS COMMITTED TO THE DISTRICT

JUDGE AND BE IN CONTRAVENTION OF THIS

COURT'S PRIOR PRECEDENTS?

SHOULD THE THIRD CIRCUIT COURT OF

APPEALS HAVE ISSUED A WRIT OF

MANDAMUS TO THE DISTRICT JUDGE IN A

LIMITATION OF LIABILITY ACTION

DIRECTING HIM TO ADOPT THE JURY

FINDINGS OF NEGLIGENCE AND

UNSEAWORTHINESS FROM A_ SEPARATE

ACTION IN STATE COURT AGAINST THE

VESSEL OWNER AND IN FAVOR OF THE

PETITIONER, WHERE THE PETITIONER HAD

EXPRESSLY STIPULATED IN THE LIMITATION

PROCEEDING AND IN ACCORDANCE WITH

STANDARD ADMIRALTY PRACTICE THAT THE

VESSEL OWNER COULD LITIGATE ALL ISSUES

RELEVANT TO THAT PROCEEDING

NOTWITHSTANDING ANY FINDING OR

RULING IN THE STATE COURT ACTION?

RESPONDENT’S RULE 29.6 STATEMENT

There are no subsidiaries which are not wholly owned

by Consolidation Coal Company. The following are parent

companies of Consolidation Coal Company:

Rheinbraun US GmbH

Rheinbraun AG

RWE AG

DuPont Energy Company

E.I. du Pont de Nemours and Company

TABLE OF CONTENTS

Questions Presented for Review .........-.+++++++:

Respondent’s Rule 29.6 Statement PTT TTS

ESE REE AS

I Oo cde wie ee aeaueaqece

ES ES SSE DENSE PO EEO TPE ET EEE EE

Reasons Why The Petition Should Be Denied ........

Il.

The Petition Should Be Denied Because it

Requires Rulings on the Merits of this Case Which

Are Committed to the Province of the District

Judge as Fact Finder, Repudiation of Prior Rulings

of the Court, and a Matter That Was Discretionary

on the Part of the Third Circuit Court of Appeals.

‘6 owe 68 6h OS SO CASO TDeSEAaawecoeseseeceeooesee

The Third Circuit Court of Appeals Did Not Err In

Denying Petitioner’s Petition for Writ of

DEARGOMINS. 2... cc ccc ccc ccccccccccscesece

A. Petitioner cannot satisfy the extremely

stringent standard for the issuance of Writ of

EERE OES SEE TOT LE EE

B. Petitioner is bound by his Stipulation that all

issues relevant to exoneration or limitation

would be litigated in this action. .........

Contents

C. Jury findings may not be used in resolving

limitation or exoneration issues. ........

1. Limitation of Liability..............

2. Exonerationfrom Liability .........

D. Petitioner waived any rights to having tue jury

findings employed for any aspect of

limitation proceeding. .........sesececs

E. Petitionerisnotentitledtoa jury trial de novo

in the limitation proceeding. ............

COMCINOME: » as 10 ik RISE Sse Sale FS OER k Oks

TABLE OF CITATIONS

Cases Cited:

Allied Chemical Corp. v. Daiflon, Inc., 449 U.S.33 (1980)

Beacon Theater, Inc. v. Westover, 359 U.S. 500(1959) .

Carter v. Sea Land Services, Inc., 816 F.2d 1018 (Sth Cir.

LOBED ic on ibeks cave chewed ncennn cee teeeena

Complaint of Great Lakes Dredge & Dock Company, 1995

WL318007 CLD. BL): 6.6 WTO ss

Page

9,10

arr sa: -~-~-—S~

Contents

Page

Complaint of Port Arthur Towing, 42 F.3d316 ........ 14

Coryell v. Phipps, 317 U.S.406(1943) .............. 18

Dimick v. Schiedt, 293 U.S. 474(1935) .............. 26

Edwards v. Arizona, 451 U.S.457 (1981) ............ 25

Ex Parte Green, 286 U.S. 437 (1932) ........... 8, 13,14,24

Faretta v. California, 422 U.S. 806 (1975) ........... 24

Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963)

Sp RR REE a eT a Mears ORDO en Sa ML SE 17

Gorman v. Cerasia, 2 F.3d 519 (3d Cir. 1993) .........

52 elsebebG en clbubulaescnticeares 12, 13, 14, 16, 19, 28

In re Complaint of Dammers & Vanderheide & Sheepvaart

Maats Christina B.V., 836 F.2d 750 (2d Cir. 1988)

Be PET a a Sen, WO “FPR EE PD ne Remar ye eee 12, 17,28

In Re Matter of Texaco, Inc., 847 F. Supp. 457 (E.D. La.

1994), rev’don other grounds, Texaco, Inc. v. Williams,

BEE Pe a NO) ns eh 6 dwt esesenavcaee 22,23

In Re M/V Sunshine II, 808 F.2d 762 (11th Cir. 1987) ... 19

In Re Pasquariello, 16 F.3d 525 (3d Cir. 1994) ........ 10

Kerr v. United States District Court for the Northern

District of California, 426 U.S.394 (1976) ........ 8,9, 11

Contents

Page

La Buy v. Howes Leather Company, 352 U.S. 249 (1957)

eked s mab bbe wed ticket a kas phan 9

Langnes v. Green, 282 U.S.531(1931) ............. 8,12, 13

Magnolia Marine Transport Company, Inc. v. LaPlace

Towing Corp., 964 F.2d 1571 (Sth Cir. 1992) ..... 12, 13,14

Odeco Oil & Gas Company v. Bonnette, 4F.3d 401 (5th Cir.

SEP epee ny ely ome ye tpy: y Mee ue pes sea Re eens 15

Port of Pascov. Pacific Inland Navigation Company, 324

Fe re re BOGS ais ec tk cit ei ciead ad 19, 20, 21

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ......... 9

Schnecktoth v. Bustamonte, 412 U.S.218 (1973) ...... 26

Traveler’s Int’l A.G. v. Robinson, 982 F.2d 96 (3d Cir.

PE bis ols die Chi ee AR GA ES 10

Waring v. Clarke, 46 U.S. (5 How.) 441 (1847) ........ 17

Will v. United States, 389 U.S. 90 (1967) ............. 10

Withrow v. Cornwell, 845 F. Supp. 784 (D. Kansas 1994)

Sok val ele Pa wdld be havea th Coens eee eee oaks 26

vii

Contents

Page

Statutes Cited:

PERE Sh oer kcsces neea nse cdstececieans 13

aes RAG MEIN: coves cap cen ctv Coes aise waren ates 2

MEME nooo odvas cog ecathenteseeeuaseceas 2

I at Seika ken py bd 0% 00s bao 0eek Kop 2

United States Constitution Cited:

aie sod sha bac see svaeeee 7, 16,26, 28

Other Authority Cited:

Grant Gilmore & Charles L. Black, Jr., The Law of

Admiralty § 10-19 (2ded.1975) .............005. 14

APPENDIX

Appendix A — Order of the United States District Court

for the Western District of Pennsylvania Dated July 20,

RE ae tk ou ckweaRRKO db RaW Rw ANA Re aceres ce la

Appendix B — Response to Claimants’ Motion to Vacate

or to-Dissolve Injunction and to Stay and Supporting

RO rer heey rr Pee 4a

sii

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Consolidation Coal © Company

(“Consolidation”) respectfully requests that this Court deny

the Petition for Writ of Certiorari seeking review of the

United States Court of Appeals for the Third Circuit’s denial

of Petitioner’s petition to that court for Writ of Mandamus

and dismissal of Petitioner’s appeal entered on November

29, 1995 (Pet. al-a2) at Nos. 95-3479 and 95-3491,

respectively, and the Third Circuit’s denial of Petitioner’s

Petition for Rehearing entered on December 27, 1995 at

those same numbers (Pet. a3).

STATEMENT OF THE CASE

Petitioner, filed an action against Consolidation in the

Court of Common Pleas of Allegheny County, Pennsylvania

at No. G.D. 90-00980 (“state court action”) in January

1990. In his Complaint, Petitioner sought recovery for

personal injuries that he allegedly sustained while in the

employ of Consolidation pursuant to the Jones Act, 46

U.S.C. § 688, and the doctrine of unseaworthiness under the

general maritime law.

On July 20, 1990, Consolidation commenced the

within action in the United States District Court for the

Western District of Pennsylvania seeking exoneration from

or limitation of its liability with respect to Petitioner’s state

court action under the provisions of the Limitation of

Liability Act, 46 U.S.C. § 181 et seq. See Pet. al4, entries

1-5. At the time of filing its Complaint, Consolidation

deposited with the district court a bond in the amount of

$120,000, in accordance with 46 U.S.C. § 185, representing

the value of Consolidation’s interest in the M/V Elizabeth

and Barge No. MC 1029, the vessels on which Petitioner.

claimed to have been working at the time of his accident.

Upon filing of Consolidation’s Complaint and in order

to protect the district court’s admiralty jurisdiction over this

matter, said court, through the Honorable Alan N. Bloch,

entered an Order on July 20, 1990 (Appx. A) which, among

other things, ordered on page 3 that the

institution or further prosecution of any and all

suits, actions, or legal proceedings against

Consol or the M/V Elizabeth or Barge No. MC

1029, arising out of or connected with the

aforesaid accident of April 27, 1989, except in

this proceeding for exoneration from or

limitation of liability be and the same hereby

are stayed and enjoined.

By its application, Judge Bloch’s order specifically enjoined

any further prosecution of the state court action which

Petitioner had previously filed.

After the parties had proceeded with discovery in the

present action for approximately six months, Petitioner, on

January 18, 1991, filed with the district court a Motion to

Vacate or Dissolve Injunction and to Stay (Pet. a46),

requesting that the district court lift the stay that it had

ordered on July 20, 1990 so as to allow Petitioner to pursue

his Jones Act and unseaworthiness claims in the state court

action. In so requesting the lifting of the court’s stay,

Petitioner agreed to stipulate that (1) the district court had

sole and exclusive jurisdiction of all issues relating to

Consolidation’s attempt to limit its liability in the present

action; (2) that no state court judgment would be res judicata

as to any limitation fact or issue in the present proceeding;

and (3) that Petitioner’s action would be confined to the state

court proceeding. See Pet. a47, 7 8.

Citing established admiralty practice, Consolidation

opposed the sought lifting of the stay in the present action,

contending that the stipulations offered by Petitioner were

insufficient to protect Consolidation’s interests. See Appx.

Agreeing with Consolidation’s opposition to

Petitioner’s Motion to Vacate, Judge Bloch ordered that the

requested lifting of the stay would only be granted if

Petitioner agreed to enter into stipulations which the district

court deemed would adequately protect Consolidation’s

interest in the present action. Pet. a8. On January 30,

1991, Petitioner acceded to the district court’s condition and

stipulated, inter alia, as follows:

1. The Claimants['} waive any claim of res

judicata based upon any judgment

obtained in the state court proceeding.

2. Consolidation Coal Company shall have

the right to litigate all issues relating to

its claims of limitation and exoneration

of liability in the present proceeding at

the above caption.

Pet. a50. On February 1, 1991, the district court lifted the

stay that it had imposed on July 20 of the previous year,

allowing Petitioner to pursue his Jones Act and

unseaworthiness claims in state court. However, Petitioner

was prevented from entering or enforcing judgment in the

state court action in view of the pending action for

exoneration from or limitation of liability.

Pet. al0.

In November 1991, the state court action proceeded to

trial and resulted in a jury verdict in favor of Petitioner in

the amount of $1,327,000. The jury found that

Consolidation was negligent under the Jones Act and that the

' Originally, Petitioner’s spouse had asserted claims in both the

present proceeding and the state court action. Said claims have since

been withdrawn.

vessel in question was unseaworthy. See Pet. a31. At the

same time, the jury found that Petitioner was 11.83 percent

contributorily negligent. After both parties’ cross-motions

for post-trial relief were denied, the trial court entered an

order molding the jury verdict to a damage award in favor

of Petitioner in the amount of $1,244,519.50.

Both parties took cross-appeals to the Pennsylvania

Superior Court where the Superior Court affirmed all

appealed issues except the trial court’s award of prejudgment

interest in favor of Petitioner. After the parties were denied

cross-applications for reargument before the Superior Court,

Cross-Petitions for allowance of appeal to the Pennsylvania

Court for Writ of Certiorari on the issues of prejudgment

interest and contributory negligence at No. 95-240, which

Petition was denied on October 10, 1995.

On June 15, 1995 Petitioner moved to have the

present action returned to active status in the district court so

that Consolidation’s claims for exoneration from or

limitation of liability may be litigated. He then filed a

Motion to Adopt the Findings of the Jury as the Findings of

the Court (Pet. a26) and Brief in Support urging that the

district court adopt what he perceives to be the findings of

the jury from the state court action. Consolidation filed a

response opposing said Motion (Pet. a20, entry 45), and on

August 4, 1995, Judge Bloch issued an order denying the

Motion (Pet. a4).

On or about September 2, 1995 Petitioner filed with

the Third Circuit Court of Appeals a Petition for Writ of

Mandamus, docketed at No. 95-3479, and what he claims

was a protective appeal with that same court on September

1, 1995, docketed at No. 95-3491, each challenging Judge

Bloch’s refusal to adopt the jury findings in the state court

action as binding determinations in the limitation case. In so

doing, Petitioner urged the Third Circuit to direct Judge

Bloch to act in contravention of conditions to which

Petitioner specifically stipulated and in disregard of

established admiralty practice. The Third Circuit denied

Petitioner’s Petition for Writ of Mandamus for failure of

“Petitioner to show a clear and indisputable right to the

Writ[,]” and dismissed his appeal for lack of jurisdiction, on

November 29, 1995. See Pet. p. al-a2. Petitioner’s Petition

for Rehearing before that same court was denied on

December 27, 1995.

REASONS WHY THE PETITION

SHOULD BE DENIED

I. The Petition Should Be Denied Because it

Requires Rulings on the Merits of this Case

Which Are Committed to the Province of the

District Judge as Fact Finder, Repudiation of

Prior Rulings of the Court, and a Matter

That Was Discretionary on the Part of the

Third Circuit Court of Appeals.

With his Petition, Petitioner seeks to have Judge Bloch

required to grant Petitioner’s Motion to Adopt the Findings

of the Jury as the Findings of the Court (Pet. a26). Such a

ruling, according to Petitioner, would result in Judge Bloch

taking the findings made by the jury in the state court action

that Consolidation was negligent and that the leaving line in

question or the vessel on which Petitioner worked was

unseaworthy, as binding determinations of fact in the

limitation action for the proposition that Consolidation had

privity or knowledge of the condition giving rise to

Petitioner’s injury and that Consolidation “unreasonably

failed to inspect the rope[.]” See Pet. a28, 4 6; a29, 4 18.

With Judge Bloch’s refusal to do so and the Third Circuit's

refusal to direct otherwise, Petitioner maintains that further

progression of the district court proceeding will result in a

reexamination of the jury’s findings in the state court action

and a denial of a jury trial in this suit, both purportedly in

violation of the Seventh Amendment to the United States

Constitution.

In making his claims in this regard, Petitioner argues

the merits of the exoneration and limitation proceeding’ and

in effect, presents his Motion to Adopt the Findings of the

Jury as the Findings of the Court, initially presented to Judge

Bloch, as if this Court is to decide the issue de novo. In

fact, with a Petition for Writ of Mandamus, the Appeals

Court is to review the action of the district court judge to

whom the requested writ is to be directed. On certiorari, if

granted, this Court is to review the decision of the Third

Circuit Court of Appeals. In addition, in his Petition to this

Court, Petitioner seeks to have firmly entrenched authority

of this Court as set forth in cases of Langnes v. Green, 282

U.S. 531 (1931) and Ex Parte Green, 286 U.S. 437 (1932)

“reexamined .. . and overruled.” Pet. 19.

The Writ of Mandamus has been used only “to

confine an inferior court to a lawful exercise of its

prescribed jurisdiction or to compel it to exercise its

authority when it is its duty to do so.” Kerr v. United States

District Court for the Northern District of California, 426

U.S. 394, 402 (1976). In requesting that this Court instruct

the Third Circuit Court of Appeals to grant his Petition for

Writ of Mandamus and thereby require Judge Bloch to grant

Petitioner’s Motion to Adopt the Findings of the Jury as the

Findings of the Court, Petitioner is seeking to impose a

? See e.g., Pet. 22 n.3, 27, 28. Petitioner’s Motion to Adopt the

Findings of the Jury as the Findings of the Court which serves as the

basis for his Petition for Writ of Mandamus expressly states this. See

Pet. a28 (“Consol’s privity and knowledge, actual or constructive, have

been found as facts by the jury at Consol’s own request.”); a29 (“The

jury’s finding that Consol unreasonably failed to imspect the rope

involved precludes a contrary finding. Therefore, that fact is established

for the purposes of this case.”)

decision on the factual merits of the limitation proceedings.

Such request is clearly beyond the appropriate use of

mandamus.

Moreover, a showing of error on the part of the

district court is not sufficient to justify the issuance of Writ

of Mandamus. See Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33, 35 (1980). Petitioner not only claims error on

the part of Judge Bloch, but also challenges the previous

authority of this Court, on which Petitioner admits Judge

Bloch’s decision was based. Based on this contention, there

is no Challenge to Judge Bloch’s “prescribed jurisdiction” or

“exercise . . . [of] authority” in denying Petitioner’s Motion.

Kerr, 426 at 402. Indeed, the relief sought by Petitioner is

not just a declaration of error on the part of Judge Bloch,

which in and of itself, is insufficient grounds for the issuance

of a Writ of Mandamus, Allied Chemical, 449 at 35; It is the

outright overturning of previous authority of this Court.

Such a request cannot be satisfied through the issuance of a

Writ of Mandamus.

Finally, notwithstanding the potential existence of the

elements necessary for the issuance of a Writ of Mandamus,

whether or not to issue the Writ was committed to the sound

discretion of the Third Circuit Court of Appeals. La Buy v.

Howes Leather Company, 352 U.S. 249, 260 (1957);

Schlagenhauf v. Holder, 379 U.S. 104, 111 n. 8 (1964).

Because Petitioner’s Petition for Certiorari involved

rulings on the merits in the instant proceeding, which are

committed to the authority of the district judge, because

Petitioners sought relief asks for this Court to repudiate its

prior rulings, and because the issuance of the Writ of

Mandamus was discretionary on the part of the Third Circuit

Court of Appeals in the first instance, the Petition should be

denied.

Il. The Third Circuit Court of Appeals Did Not

Err In Denying Petitioner’s Petition for Writ

of Mandamus.

A. Petitioner cannot satisfy the

extremely stringent standard for the

issuance of Writ of Manamus, _

It is well-settled that a writ of mandamus is reserved

for the most extraordinary situations and the use of this

“drastic” remedy is carefully circumscribed. Allied

Chemical, 449 U.S. at 34. An essential condition for the

granting of such a relief exists where the petitioner’s right to

the issuance of a writ is “clear and indisputable.” Will v.

United States, 389 U.S. 90, 96 (1967). While this Court has

held that the right to a jury trial where equitable claims are

asserted simultaneously with legal claims may justify a writ

of mandamus, see Beacon Theater, Inc. v. Westover, 359

U.S. 500 (1959), appellate courts have repeatedly held that

the “clear and indisputable” criterion is still essential to the

granting of a petition for writ of mandamus where denial of

the right to a jury trial is asserted. See Traveler's Int’l A.G.

v. Robinson, 982 F.2d 96, (3d. Cir. 1992); see also, In Re:

Pasquariello, 16 F.3d 525 (3d Cir. 1994). Moreover, where

there exists ambiguity as to whether the petitioner is entitled

to a jury trial, and such ambiguity must be resolved in favor

of the petitioner to award the request for relief, the Third

Circuit has held that the petitioner has not shown a clear and

indisputable right and therefore a writ of mandamus should

not issue. Pasquariello, 16 F.3d at 531. Even where a

claim for the writ of mandamus is colorable, it is within the

discretion of the Appeals Court to determine whether the

writ should issue. Kerr, 426 U.S. at 403.

As set forth below, there is entirely no legal basis

supporting Petitioner’s claim that the Third Circuit should

have issued a writ of mandamus directed to Judge Bloch.

However, irrespective of whether this Court should conclude

that Petitioner’s arguments are meritorious, which is denied,

there can be no conclusion that in view of the following that

Petitioner’s right to the relief that he seeks is “clear and

indisputable.” Accordingly, the Petition should be denied.

B. Petitioner is bound by his Stipulation

that all issues relevant to exoneration

or limitation would be litigated in

this action,

Petitioner expressly stipulated that the district court

would have exclusive jurisdiction for determining all issues

related to Consolidation’s Complaint for Exoneration From

or Limitation of Liability and that no fact found by a jury in

the state court action would serve as res judicata in the

present case. Pet. a50. Apparently mindful of the

Stipulation that he entered into, Petitioner attempted to

circumvent the conditions therein by denominating his

Motion presented to Judge Bloch as to one to “Adopt the

Findings of the Jury as the Findings of the Court.”

However, Petitioner’s use of this specious terminology in

order to assert res judicata was recognized by Judge Bloch

as being patently transparent and in complete contravention

of the stipulation.

Petitioner seeks to cavalierly jettison his stipulation on

which Judge Bloch and Consolidation relied in allowing and

agreeing to have the state court action proceed. The

stipulation arises from established admiralty practice and

cannot be so lightly regarded. First, that the district court,

as a federal court sitting in admiralty in an exoneration/

limitation action, has jurisdiction in the present action cannot

be gainsaid. It is not coincidence or serendipity which

creates jurisdiction in the district court. Instead, it is the fact

that Consolidation filed a Complaint for Exoneration from or

Limitation of Liability which can be filed only in a federal

court and can be heard only pursuant to said court’s

admiralty jurisdiction. See Langnes, 282 U.S. at 540.

Appeals courts have consistently held that such in

proceedings “the district court, sitting in admiralty without

a_ jury, determines ‘whether there was negligence; if there

was negligence, whether it was without privity or knowledge

of the owner; and if limitation is granted, how the

[limitation] fund should be distributed.’” Gorman v. Cerasia,

2 F.3d 519, 524 (3d Cir. 1993), quoting In re Complaint of

Dammers & Vanderheide & Sheepvaart Maats Christina

B.V., 836 F.2d 750, 755 (2d Cir. 1988) (emphasis added).

Petitioner’s stipulation was required by well-

established admiralty practice and not the result of a mere

whim of the parties. Specifically, courts sitting in admiralty

had historically struggled with reconciling the interests

underlying such claims as Jones Act negligence which, by

statute, may be tried before a jury, and protecting the

interests of the vessel owner who has filed a complaint for

exoneration from or limitation of liability. See Gorman 2

F.3d at 523-24 (3d Cir. 1993). Indeed, in the latter

situation, “[tJhe court’s primary concern is to protect the

shipowner’s absolute right to claim the [Limitation] Act’s

liability cap and to reserve the adjudication of that right in

the federal forum.” Magnolia Marine Transport Company,

Inc. v. LaPlace Towing Corp., 964 F.2d 1571, 1575 (Sth

Cir. 1992) citing Langnes, 282 U.S. at 543.

In order to reconcile the conflicts in the interests

between a party’s right to pursue his claims in the forum of

his choice pursuant to this “saving to suitors” clause of 28

U.S.C. § 1333 which preserves the right to a trial by jury

for certain claims, as against the admiralty court’s exclusive

jurisdiction over exoneration and limitation claims and

responsibility of insuring the vessel owner’s protection under

that statute, courts, beginning with this Court, have ruled

that in cases such as the present action,

when a single claimant brings an action against

each shipowner seeking damages in excess of

the value of the vessel [, . . .] the district court

must lift this stay provided that the claimant

stipulates that the admiralty court has exclusive

jurisdiction to determine all issues concerning

the owner’s limitation of liability under the

[Limitation] Act.

Gorman, 2 F.3d at 524, citing, inter alia, Ex Parte Green,

286 U.S. at 438-40 (1932) and Langnes, 282 at 540-44.

In implementing these procedures admiralty courts for

the past 60 years have developed--and required claimants to

enter into--stipulations which protect the vessel owner’s

rights and thus permit the admiralty court to lift the stay

created with the limitation proceeding. Such stipulations

include the waiver of any claim of res judicata relevant to

the issue of limited liability based on any judgment obtained

in the state court, and concession of the shipowner’s right to

litigate all issues relating to limitation in the federal

limitation proceeding. Gorman, 2 F.3d at 524-25 citing

Grant Gilmore & Charles L. Black, Jr., The Law of

Admiralty § 10-19, at 871 (2d ed. 1975).

The stipulation on which Petitioner now seeks to

renege was entered into voluntarily and arose effectively at

his request. Specifically, Petitioner sought to have the July

20, 1990 injunction imposed by the district court lifted so

that he could pursue the state court action. (Pet. a46). The

district court was, at that point, duty-bound to effectuate its

“primary concern” of preserving Consolidation’s right to the

incidents of the Limitation Act. See Magnolia Marine, 964

F.2d at 1575. Failure of the district court to impose

sufficiently restrictive conditions preserving Consolidation’s

rights would have constituted an abuse of discretion. See

Gorman, 2 F.3d at 523. At the same time, had Petitioner

not entered into a stipulation sufficient to protect

Consolidation’s rights, the district court would have been

bound to continue enjoining the state court action and try the

entire case without a jury. See, Ex Parte Green, 286 U.S.

at 440; see also, Complaint of Port Arthur Towing, 42 F.3d

at 316-317.

Accordingly, in order to pursue his state court action,

admiralty practice required Petitioner to agree to have

disregarded the findings of the jury in the state court action

for purposes of the issues in the present case. While

Petitioner bemoans the fact the issues of the present action

must be litigated ab initio, he stipulated to this result and

undoubtedly recognized the consequences of his request to

have the stay in this case lifted. As noted by the Fifth

Circuit Court of Appeals:

federal _limitati ting — thi

hard put to deny them. We must accede to this

choice if it is accompanied by stipulations fully

protecting Odeco’s [the vessels owner’s] right

to limit liability and agreeing to abide by an

admiralty court determination of the right to

limit.

Odeco Oil & Gas Company v. Bonnette, 4 F.3d 401, 404-

405 (Sth Cir. 1993) (emphasis added in part).

The established procedure with regard to exoneration

or limitation proceedings and related state court actions

recognizes the potential for identical issues to be raised in

both forums and seeks to insure that, to the extent those

questions are addressed in any state court proceeding, the

complainant in the exoneration or limitation action has the

express right to litigate the relevant issues raised in the

admiralty court. The Third Circuit Court of Appeals

recently reaffirmed this notion:

We agree with these courts that the potential

overlap between the factual questions raised in

the limitation proceeding (whether the maritime

mishap occurred “without privity or

knowledge” of the shipowner) and those to be

litigated in the state tort action (whether the

shipowner acted unreasonably) requires that a

claimant seeking to vacate the stay concede

both the district court’s exclusive jurisdiction to

decide all limitation issues and expressly agree

to waive any “claim of res judicata relevant to

the issue of limited liability based on any

judgment obtained in the state court.”

[Gilmore & Black, The Law of Admiralty,

§ 10-19, at 871.] It is clear that the relevant

waiver discussed is that of issue preclusion,

notwithstanding the reference in the cases to

“res judicata” .

Gorman, 2 F.3d at 528-29.

Petitioner devoted considerable discussion in his

arguments to the district court and Third Circuit, and does

so now in his Petition, to his contention that the factual

findings of the jury in the state court action preclude any

success in the limitation proceeding and suggests that should

the district court not be required to adopt those jury findings

as its own, then any factual findings of the district court in

the limitation action, presumably in favor of Consolidation,

would be inconsistent with that of the state court jury, and

therefore prohibited by the Seventh Amendment to the

United States Constitution. In this regard, Petitioner is

incorrect both legally and factually in his contentions. First,

state court action would not serve as res judicata in the

limitation case, and that Consolidation retained all rights to

have the district court decide issues in the limitation

proceeding (see Pet. a50), the factual findings of a jury may,

under no circumstances, be utilized by an admiralty court in

an exoneration and limitation proceeding.

Although Petitioner urges contrariwise, the cases that

he cites in support involve either maintenance and cure

claims appended to other maritime claims which may be

heard by a jury, or single cases in which equitable and legal

issues are raised; in all such cases the court had the jury and

non-jury issues before it. See Pet. 16, 19. Significantly,

Petitioner cites no authority in which the factual findings of

a jury in a state court action were utilized in determining

relevant factual issues in an exoneration or limitation

proceeding. Indeed, “[t]here is no right to a jury in actions

instituted in admiralty[.]” Dammers & Vanderheide, 836

F.2d at 754, citing Waring v. Clarke, 46 U.S. (5 How.) 441,

458-60 (1847).

Controlling rules of admiralty law are left primarily

for the United States Supreme Court. Fitzgerald v. United

States Lines Co., 374 U.S. 16, 20 (1963). In the

development of those rules with regard to exoneration and

limitation proceedings, this Court has not authorized the

application of jury findings in an exoneration or limitation

proceeding. Accordingly, the district court should not be

required to utilize the factual findings of the jury in the state

court action with regard to the present case.

ol Jury findings may not be used in

resolving limitation or exoneration

issues.

1. _—_ Limitation of Liability.

Under the guise of claiming denial of a jury trial,

Petitioner seeks to have the findings of negligence and

unseaworthiness made by the jury in the state court action

adopted by the District Court which Petitioner claims would

be dispositive of the “privity or knowledge” issue in the

limitation proceeding. See Pet. a26. With regard to the

limitation aspect of the present action, the findings of the

jury in the state court action have no bearing on the

determination of whether Consolidation had “privity or

knowledge” of the condition giving rise to Petitioner’s

injuries. As noted in the special interrogatories returned by

the jury in the state court proceeding (Pet. a31),

Consolidation was found to be negligent under the Jones Act

and was found-to have provided an unseaworthy vessel or

vessels which proximately caused Petitioner’s injuries. Such

findings, however, are prerequisites to the focal issue in a

limitation action; i.e., whether a managing officer of the

vessel owner had privity or knowledge of the condition

which caused the claimant’s injuries. See Coryell v. Phipps,

317 U.S. 406, 410-412 (1943). In fact, no such finding was

made by the jury in the state court action.

Petitioner’s argument that Consolidation should be

bound in the limitation proceeding by the finding of the jury

because it submitted issues with regard to its knowledge to

the jury is non sequitur. First, a vessel owner’s knowledge

for purposes of a determination of Jones Act negligence, as

contrasted with privity or knowledge of managing officers of

the vessel owner for purposes of limitation of liability, are

two completely separate determinations, the latter of which

to be made only by the admiralty court in the limitation case.

While Petitioner contends that the finding of negligence in a

State court action automatically translates to privity or

knowledge with regard to the limitation proceeding, such is

not the case.’

Assuming, arguendo, that the factual findings of the

district court may potentially conflict with those of the jury

in the state court action, the district court should nevertheless

be permitted to undertake its own review of the evidence

presented in this case. By way of example, in the Ninth

Circuit decision in Port of Pasco v. Pacific Inland

Navigation Company, 324 F.2d 593 (9th Cir. 1963),

following an explosion which damaged the dock of the

Claimant, the claimant initiated an action in state court in the

State of Washington. Thereafter, the owner of the vessel on

which the explosion occurred filed an action for limitation of

liability in the United States District Court for the Eastern

District of Washington. As in the present action, the parties

? In support of his position, Petitioner cites Gorman v. Cerasia, for

the proposition that “the factual findings of the state court jury would

apply in the ensuing limitation case in federal court....” Pet. p.25. In

fact, the Third Circuit did not state that the issue of privity or knowledge

should not be litigated in the admiralty court and decided de novo

therein.

The existence of Jones Act negligence and whether the vessel

owner had privity or knowledge of the condition which caused

Petitioner’s injuries are two completely different issues. Most

importantly, the Third Circuit’s comment was made in an action

involving a small pleasure craft owned and operated by the same

individual, and was based on the holding in Jn Re M/V Sunshine II, 808

F.2d 762, 765 (11th Cir. Tia tties ctecaten 0

situation not present here with an industrial barge and tugboat owned by

a large corporation with many layers of employees, supervisors and

managers. The alleged negligence of one or more of these classifications

of employees for purposes of limitations privity or knowledge can not be

equated with the acts of an owner/operator of a pleasure craft.

stipuiated that the stay issued by the admiralty court with

regard to the state court action would be lifted, and the

claimant could pursue the state court action; however, the

parties reserved to the admiralty court the right to adjudicate

the complainant’s right to limit its liability.

In the state court proceeding, the Superior Court of

the State of Washington found that the management of the

defendant vessel owner was negligent and knew or should

have known of the conditions and omissions which caused

the explosion. Jd. at 596-97 U.S.

Despite this specific finding implicating the privity or

knowledge of the complainant vessel owner, the admiralty

court, affirmed by the Ninth Circuit Court of Appeals, found

in direct contravention of the holding of the state court, thus

permitting the vessel owner to limit its liability. The Ninth

Circuit Court of Appeals countenanced this inconsistency

based on admiralty practice and the role of the admiralty

court in the limitation proceeding:

[T]he question of limitation of liability was

reserved for determination by the district court.

Id. at 598 (emphasis added). While the parties had

stipulated that the finding of the state court would be binding

upon them for purposes of liability and damages,‘ the Court

held that such a stipulation did not extend to the limitation

proceeding. Jd. at 599.

Petitioner contends that any finding of fact made by

the admiralty court in the present action inconsistent with a

finding by the jury in the state court proceeding would

contravene the Seventh Amendment to the United States

Constitution. However, to the extent inconsistent findings

would result (which is not necessarily the case) they would

be found in the context of separate issues, i.e., negligence/

unseaworthiness versus privity or knowledge of a vessel

owner. More importantly, Petitioner expressly stipulated

that the admiralty court would have exclusive jurisdiction to

determine the issues relating to exoneration from or

limitation of liability in this case irrespective of the factual

findings in the state court proceeding. See Pet. a50. As

noted in the Port of Pasco decision, inconsistencies in a state

court and admiralty action are inherent in the admiralty

procedure providing for a state court action to go forward

independently of the limitation proceeding. See Port of

Pasco, 324 F.2d at 599; see also, Complaint of Great

Lakes Dredge & Dock Company, 1995 WL318807 (N.D.III.)

*4. (“The potential for non-uniform results arising from

separate proceedings is an inherent part of admiralty practice

and is specifically contemplated under the Limitation Act.”)

* A similar stipulation was not made in the present action.

2. Exoneration from Liability.

The foregoing considerations are significant not only

for the limitation component of this action, but also by virtue

of the fact that Consolidation, in the present action, has

claimed the right to exonerate itself completely from

liability, as well as its right to limit its liability to the value

of the vessels involved in the Petitioner’s accident. As such,

Consolidation may litigate not only whether it had privity or

knowledge of the condition which caused Petitioner's

injuries, but also whether it has any liability for Petitioner’s

injuries:

[I]n a suit seeking exoneration from, and

al ively limitation of, lisbili ate

exoneration from liability inasmuch as, in the

event no liability is found, there is nothing to

limit.

In Re Matter of Texaco, Inc., 847 F.Supp. 457, 459

(E.D.La. 1994), rev’d on other grounds, Texaco, Inc. v.

Williams, 47 F.3d 765 (Sth Cir. 1995).

In Texaco, Inc. v. Williams, the United States District

Court for the Eastern District of Louisiana denied the claim-

ants’ motion to have the stay imposed on their state court

damage claims despite the claimants’ proffered stipulation to

have issues regarding limitation of liability litigated in the

admiralty court on the basis that the vessel owner had sought

both exoneration from and limitation of liability in that

court. In recognizing the denial of the claimants’ right to

jury trials in those state court actions, the district court noted

the preference that must be given to the vessel owner in the

exoneration and limitation action and that stipulations

providing that the admiralty court could litigate issues with

regard to limitation were insufficient to adequately protect

the vessel owner’s interests. See generally, In Re Matter of

Texaco , Inc., 847 F.Supp. at 459-462. Although the district

court was reversed on appeal, the Fifth Circuit did so only

after the claimants had stipulated that the admiralty court

would not be “bound by any decisions by other courts on

issues relating to limitation and exoneration.” Texaco, Inc..,

47 F.3d at 769 (emphasis in original).

Similar considerations underlie the Petitioner’s stipula-

tion in the present action. While Petitioner initially offered

to stipulate that the admiralty court would have “exclusive

jurisdiction of any and all issues relating to Consolidation’s

attempt to limit its liability . . . [and] that no state court

judgment will be res judicata as to any limitation fact or

issue in the limitation proceeding[,]” (Pet. 246-a47, { 8)

(emphasis added), Consolidation opposed the Petitioner's

Motion to Lift the Stay on the state court proceeding on the

basis that the proffered stipulation inadequately protected

Consolidation’s interests with regard to its claims for

exoneration. See Appx. B. pp. 10a-12a. Based on this

dispute, the district court ordered that it would lift the stay

prohibiting the prosecution of the state court action only if

Petitioner stipulated that Consolidation would “have the right

to litigate all issues relating to its claims of limitation and

exoneration of liability in the present proceeding[.]” (Pet

a9) (emphasis added).

Three days following the entry of this order,

Petitioner acceded to the requirements for the Stay to be

lifted, without objection or opposition. Specifically,

Petitioner stipulated that “Consolidation Coal Company shall

have the right to litigate all issues relating to its claims of

limitation and exoneration of liability in the present

proceeding at the above caption.” (Pet. a50) (emphasis

added). Based on this Stipulation, Judge Bloch lifted the -

Stay and permitted Petitioner to pursue the’ state court action.

(Pet. al0).

Had Petitioner not entered into the forgoing

Stipulation, his claims necessarily would have been litigated

in the present action. See Ex Parte Green, 286 U.S. at 440.

By virtue of the Stipulation, however, Consolidation retained

its right to litigate all issues with regard to exoneration or

limitation, without Petitioner raising any factual issue

decided in the state court action as res judicata in this case.

Again, despite Petitioner’s urging this Court to direct that

Judge Bloch adopt the findings of the jury in the state court

action, the clear effect of this request is to impose res

judicata and collateral estoppel against Consolidation, both

of which Petitioner stipulated not to do, and which settled

admiralty practice prohibits.

D. Petitioner waived any rights to

having the jury findings employed

for any aspect of limitation

proceeding.

Assuming, arguendo, that violation of Petitioner’s

Seventh Amendment rights are an issue, by entering into the

Stipulation of January 30, 1991, Petitioner waived any

protection which would otherwise be afforded by the Seventh

Amendment. It is well established that constitutional rights

may be waived if the waiver is voluntary, knowing, and

intelligent. Faretia v. California, 422 U.S. 806, 835 (1975).

Whether the waiver was voluntary, knowing, and intelligent

is to be determined from the facts and circumstances of a

particular case. Edwards v. Arizona, 451 U.S. 457, 482

(1981). It cannot be doubted that Petitioner’s Stipulation of

January 30, 1991 constituted a sufficient and binding waiver

of any right that he may have had against a court’s

reexamination of jury findings. Specifically, it was

Petitioner who moved in the district court to have the stay of

the state court proceeding lifted, and who stipulated that he

would waive any claim of res judicata in the state court

proceeding, and that Consolidation would have the right to

litigate “all issues” i e limitation < ;

The issue of the necessity for and content of

stipulations required for the admiralty court to lift the stay

on the state court action was specifically presented and

disputed in detail before the district court, prior to Petitioner

entering into the Stipulation. See Pet. a46, Appx. B, Pet.

a8, a50 and al0. Significantly, Petitioner never raised any

Seventh Amendment issue, did not challenge the stipulation

that the district court deemed necessary to permit the state

court action to. proceed, and voluntarily entered into that

stipulation.

Had Petitioner felt the stipulation required by the court

was objectionable, he certainly should have challenged it

then.’ Significantly, however, Petitioner raised no objection

* Petitioner is obviously well familiar with the opportunities for

appealing an interlocutory order—witness Petitioner’s appeal to the Third

Circuit at Docket No. 92-3734 concerning the district court’s November

20, 1992 order prohibiting execution on the judgment in the state court

action (Pet. al8, entries “w/35" and 37). In particular, Petitioner is

obviously familiar with the mechanism to seek appellate relief for the

at that time. It is only now, after he has been awarded a

jury verdict on his claims of unseaworthiness and Jones Act

negligence in the state court action that Petitioner seeks to

renege on his Stipulation and asks this Court to direct what

he was expressly forbidden to do, and what he expressly

agreed not to do. Petitioner’s assertion of Seventh

Amendment issues, after having previously waived them,

cannot now be asserted simply because it suits his fancy.

See Carter v. Sea Land Services, Inc., 816 F.2d 1018, 1021

(Sth Cir. 1987) citing Schnecktoth v. Bustamonte, 412 U.S.

218 (1973) (“Once a right, even a fundamental right, is

knowingly and voluntarily waived, a party has no

constitutional right to recant at will.”)®

Petitioner appears to equate the district court’s

intention to preside over a bench trial on all issues relating

to Consolidation’s Complaint for Exoneration From Or

Limitation of Liability as a deprivation of his jury trial rights

under the Seventh Amendment to the Constitution. To cure

this purported deprivation, Petitioner wishes to have the

district court ordered to adopt findings of the jury in the

state court action. However, not only is the procedure that

the district court intends to follow accepted in admiralty

purported denial of rights to a jury trial. See Petition for Writ of

Mandamus and Petitioner’s appeal of September 1, 1995 from the district

court’s August 4, 1995 order.

* Similarly, by entering into the January 30, 1990 Stipulation,

Petitioner consented to having any jury findings within the state court

action which may be relevant in the within proceeding “reexamined” .

See Withrow v. Cornwell, 845 F.Supp. 784, 785 (D.Kansas 1994), citing

Dimick v. Schiedt, 293 U.S. 474 (1935) (Additur imposed by court, with

consent of both parties, does not violate Seventh Amendment proscription

on reexamination of jury findings).

practice, but Petitioner expressly agreed to it through his

stipulation of February 1, 1991 (Pet. a50). Swiftly

backpedaling from his stipulation, Petitioner now states that

he did not agree to have the district court make factual

findings relevant to issues of exoneration and limitation in

the limitation proceeding notwithstanding the fact that they

may be inconsistent with findings of the jury in the state

court action. Pet. 22-23.

The stipulation could not be more clear. When

Petitioner stated that he would “waive any claim of res

judicata based upon any judgment obtained in the state court

proceeding[,]” Pet. a50 (emphasis added), what was

Petitioner waiving other than the potential claim that certain

facts which may be relevant in the exoneration or limitation

proceeding already been adjudicated in the state court action

by a jury and were thus binding in the present action?

When Petitioner agreed in his stipulation that

Consolidation would “have the right to litigate all issues

relating to its claims of limitation or exoneration of liability”

in the limitation proceeding (Pet. 29a) (emphasis added),

what else was he agreeing to but to be subject to a bench

trial on the merits of Consolidation’s exoneration and

limitation claims? The court, in permitting the state court

action to proceed, and Consolidation, in not opposing that

ruling, relied on Petitioner’s stipulation in these regards.” It

” As stated by the district court in its August 4, 1995 order:

Claimant’s attempt to have this Court adopt the state

court jury’s findings for purposes of the limitation

proceeding is directly contrary to his own stipulation.

In addition, in light of the stipulation, the claimant

is significant that Judge Bloch--who required the stipulation,

presided over the parties’ dispute over its wording, and lifted

the stay on the state court action, so interprets the effect of

the stipulation.

Accordingly, Petitioner’s contentions concerning

violations of the Seventh Amendment, to the extent any such

issues are implicated, have been voluntarily waived.

E. Petitioner is not entitled to a jury

trial de novo in the limitation

proceeding.

Petitioner lastly urges that should this Court not

instruct Judge Bloch to adopt the findings of the jury in the

state court proceeding, that it nonetheless direct that the

district court order a jury trial de novo. Petitioner

completely disregards the fact that complaints for

exoneration from and/or limitation of liability do not give

rise to a jury trial. Gorman, 2 F.3d at 524; Dammers &

Vanderheide, 836 F.2d at 755.

Petitioner attempts to contort the limitation

proceeding, and thus deprive the incidents that Consolidation

is entitled to under it by incorporating a jury into the

procedure so as to make factual determinations. As noted

previously, there is no such provision in the admiralty

cannot argue that the complainant waived its right to

litigate the limitation issues by proceeding in state

court; the complainant undoubtedly relied on the

claimant’s stipulation when it agreed to litigate in a

different forum. [Pet. a7.]

procedure to do such. Significantly, Petitioner cites no

authority for a jury to decide factual issues in a limitation

proceeding, where as here, the district court did not have an

independent jurisdictional basis for the claims of the

Petitioner.

Since Consolidation brought this action as a limitation

proceeding, Petitioner is not entitled to a jury trial, and

therefore, Petitioner’s request that this Court order such

should be denied. |

CONCLUSION

Accepted admiralty practice vindicates Judge Bloch’s

refusal to adopt the findings of the jury in the state court

proceeding for purposes of the issues in this limitation

action. Petitioner voluntarily agreed not to do what he is

asking this Court to do presently. In reliance on that

stipulation, the district court and Consolidation agreed to

allow the state court action to proceed. To the extent any

rights of Petitioner’s will be denied by the limitation action

proceeding, Petitioner has expressly waived those rights.

Even if Petitioner’s arguments to this Court are

accepted, Petitioner has not established a clear and

indisputable right to relief. At best there is ambiguity as to

whether Petitioner is entitled to invoke the jury findings of

the state court proceeding or whether Petitioner is entitled to

a jury trial in the present action, which ambiguity precludes

the establishment of a clear and indisputable right to have the

writ of mandamus issued.

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

James R. Miller

DICKIE, McCAMEY & CHILCOTE, P.C.

Two PPG Place, Suite 400

Pittsburgh, PA 15222-5402

Telephone: 412/281-7272

Counsel for Respondent

APPENDIX A — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA DATED JULY 20, 1990

Civil Action No. 90-1206

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMPLAINT OF CONSOLIDATION COAL COMPANY, as

Owner of the MOTOR VESSEL ELIZABETH and as Charterer

of BARGE NUMBER MC 1029, FOR EXONERATION FROM

OR LIMITATION OF LIABILITY

ORDER

AND NOW, this 20th day of July , 1990, upon consideration

of Consolidation Coal Company’s (“Consol”) Motion for

Approval of Limitation Bond and Stipulation for Costs and for an

Order Directing Issuance of the Required Notice and for

Issuance of an Injunction with respect to any and all losses,

damages, or injuries occasioned or incurred by any person or

resulting from an alleged accident involving George Newman,

which occurred on or about April 27, 1989 while he was

employed by Consol, and referred to in Consol’s Complaint for

Exoneration From or Limitation of Liability filed herein, and it

appearing to the Court that (1) the combined value of Consol’s

interest in the towboat M/V Elizabeth and Barge No. MC 1029

and their freight then pending was approximately $120,000.00,

(2) the claims which have been or may be asserted against Consol

may exceed the value of its interest in said towboat and barge and

the freight then pending, and (3) Consol filed a Limitation Bond

in the amount of $120,000.00 plus interest and has further filed

a Stipulation for Costs in the amount of $250.00, ITIS HEREBY

ORDERED that the Limitation Bond is approved; however, such

Appendix A

approval is without prejudice to the due appraisal of Consol’s

interest in said towboat M/V Elizabeth and Barge No. MC 1029

and their freight then pending, if so Ordered, and that in the

meantime, any party may apply to have the amount of the

Limitation Bond increased or diminished as the Court may

direct.

IT IS FURTHER HEREBY ORDERED that a notice in the

form attached hereto as Exhibit “A” shall issue out of and under

the seal of this Court, citing all persons, firms, and corporations

who have or allege to have claims for any and all losses,

damages, or injuries occasioned or arising out of the alleged

accident involving George Newman which occurred on or about

April 27, 1989, to file their respective claims with the Clerk of

this Court or be forever barred, and to serve copies of said claims

on Consol’s attorneys, Thomas A. Smock, Esquire and Leonard

Fornella, Esquire, on or before September 15, 1990, and to make

due proof of their claims as this Court may hereafter direct,

subject to the right of any such persons or concerns tocontrovert

or question said claims, with liberty also to such claimants who

have duly filed claims to answer the Complaint filed herein by

filing an Answer with the Clerk of this Court on or before

September 15, 1990.

IT IS FURTHER HEREBY ORDERED that pursuant to

Local Admiralty Rule (g)(3), the aforesaid public notice shall be

given by publication thereof in the Pittsburgh Press, published in

Pittsburgh, Pennsylvania, and that such notice shall be published

once a week for four successive weeks prior to the date fixed

herein for filing claims.

IT IS FURTHER HEREBY ORDERED that not later than

the date of the second publication, Consol shall mail or cause

Appendix A

copies of said notice to be mailed to every person or concern

known to have made any claim against them or against the

towboat M/V Elizabeth or Barge No. MC 1029, arising out of or

connected with the aforesaid accident which allegedly occurred

on on or about April 27, 1989.

IT IS FURTHER HEREBY ORDERED that the institution

or further prosecution of any and all suits, actions, or legal

proceedings against Consol or the towboat M/V Elizabeth or

Barge No. MC 1029, arising out of or connected with the

aforesaid accident of April 27, 1989, except in this proceeding

for exoneration from or limitation of liability, be and the same

hereby are stayed and enjoined.

IT IS FURTHER HEREBY ORDERED that service of this

Order shall be made by Consol or its designee.

s/ Alan N. Bloch

UNITED STATES DISTRICT JUDGE

APPENDIX B — RESPONSE TO CLAIMANTS’ MOTION

TO VACATE OR TO DISSOLVE INJUNCTION AND TO

STAY AND SUPPORTING MEMORANDUM OF LAW

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 90-1206

COMPLAINT OF CONSOLIDATION COAL COMPANY, as

OWNER of the MOTOR VESSEL ELIZABETH and as

Charterer of BARGE NUMBER MC _ 1029, FOR

EXONERATION FROM OR LIMITATION OF LIABILITY.

RESPONSE TO CLAIMANTS’ MOTION TO VACATE OR

TO DISSOLVE INJUNCTION AND TO STAY AND

SUPPORTING MEMORANDUM OF LAW

AND NOW comes Complainant, Consolidation Coal

Company (hereinafter “Consol”) by and through its undersigned

counsel, and hereby responds to the motion of Claimants,

George Newman and Suzanne M. Newman, to vacate or dissolve

injunction and to stay this proceeding, averring as follows:

RESPONSE TO MOTION

1. With respect to the averments contained in paragraph 1

of Claimants’ motion, it is admitted that Claimants have filed a

Complaint against Consol in the Court of Common Pleas of

Allegheny County, Pennsylvania (hereinafter “state court suit”),

seeking to recover damages under the Jones Act, 46 U.S.C.

Section 688, and also alleging the unseaworthiness of vessels. It

is also admitted that Claimants have also filed a formal claim in

this proceeding on the same bases. However, it is denied that

Claimants have asserted any affirmative claim for recovery

Appendix B

based on negligence under Section 5(b) of the Longshoremen

and Harborworker’s Compensation Act, 33 U.S.C. 905(b) in

their the state court suit, although such a formal claim has

ostensibly been made by Claimants in this proceeding.

2. With respect to the averments contained in paragraph 2

of Claimants’ motion, it is admitted that Mr. Newman was

involved in an accident on or about April 27, 1989 while

employed by Consol. The remaining averments contained in

paragraph 2 of Claimants’ motion are denied as stated.

3. With respect to the averments contained in paragraph 3

of Claimants’ motion, itis admitted that Claimants have filed suit

against Consol in the Court of Common Pleas of Allegheny

County, Pennsylvania at No. GD 90-00980, which was served

upon Consol on January 26, 1990. Consol is without knowledge

or information sufficient to form a belief as to the truth of

Claimants’ averment as to the date on which said suit was filed,

and thus said averment is denied.

4. The averments contained in paragraph 4 of Claimants’

motion are denied as stated. On July 20, 1990, Consol filed the

instant action seeking both exoneration from or limitation of

liability. It is admitted that on July 20, 1990, this Court entered

an Order in this action. However, the terms of that Order speak

for themselves, and thus no response to required.

5. With respect to the averments contained in paragraph 5

of Claimants’ motion, Consol avers that the terms of this Court’s

Order of July 20, 1990 speak for themselves, and thus no

response to Claimants’ attempt to paraphrase said Order is

required.

Appendix B

6. With respect to the averments contained in paragraph 6

of Claimants’ motion, it is admitted that Consol duly and timely

published, served and/or filed all advertisements, notices, proofs

and other documents or pleadings required by the statutes,

orders, rules and/or regulations applicable to this action.

7. The averments contained in paragraph 7 of Claimants’

motion are admitted in part and denied in part. It is admitted that

no claimants other than the Newmans have filed formal claims in

this action. However, it is denied that Mrs. Newman has any

legally cognizable claim for derivative consortium rights.

8. Consol avers that no response is required to the

averments contained in paragraph 8 of Claimants’ motion.

9. Consol avers that no response is required to the

averments contained in paragraph 9 of Claimants’ motion. In the

event a response is deemed to be required, then Consol avers that

it will be prejudiced by the granting of this motion if all required

stipulations are not made by Claimants. Consol further denies

that, if Claimants win a judgment in their state court suit less than

the limitation fund, this Court will not be required to take any

further action, since Consol’s action herein is not only for

limitation but also for exoneration from liability, and further

action may be necessary on the exoneration claim.

10. Consol avers that no response is required to the

averments contained in paragraph 10 of Claimants’ motion.

11. Theaverments contained in paragraph 11 of Claimants’

motion are denied as stated.

Appendix B

MEMORANDUM OF LAW IN RESPONSE TO

CLAIMANTS’ MOTION

Claimants’ motion to vacate or dissolve injunction and to

stay is actually two motions, and Consol will hereinafter discuss

the relative merits of these motions separately.

Claimants filed an action against Consol in the Court of

Common Pleas of Allegheny County, Pennsylvania at No. GD

90-00980 (state court suit), which was served on Consol on

January 26, 1990. Claimants allege in their state court suit that

George Newman was a seaman and that he was injured after

being involved in an accident on or about April 27, 1989 while

employed by Consol.

On July 20, 1990, Consol filed the instant action seeking

exoneration from or limitation of liability with respect to Mr.

Newman’s accident of April 27, 1989, pursuant to the provisions

of 46 U.S.C. Sections 181, et seq. At that time, Consol also filed

an appropriate Limitation Bond in the amount of $120,000.00,

representing the aggregate value of Consol’s interests in the

M/V Elizabeth and Barge No. MC 1029, the vessels on which Mr.

Newman claims to have been working at the time of his accident.

Upon the filing of Consol’s Complaint herein, and in order

to properly protect this Court’s admiralty jurisdiction over this

matter, this Court entered an Order on July 20, 1990 which,

among other things, ordered on page 3 that the

institution or further prosecution of any and

all suits, actions, or legal proceedings against

Consol or the M/V Elizabeth or Barge No.

MC 1029, arising out of or connected with the

Appendix B

aforesaid accident of April 27, 1989, except

in this proceeding for exoneration from or

limitation of liability, be and the same hereby

are stayed and enjoined.

Thus, this Court’s Order of July 20, 1990 effectively enjoined

any further prosecution of the state court suit which Claimants

had filed previously.

Consol subsequently published all required notices and

advertisements, and filed all required pleadings and proofs in

accordance with the applicable statutes, orders, rules and

regulations governing actions for exoneration from or limitation

of liability. Thereafter, the only claim filed in this proceeding

was one filed on behalf of the Newmans, Claimants herein.

Claimants now move this Court to vacate or dissolve the stay of

July 20, 1990 so that they may proceed with the prosecution of

their state court suit. Claimants have also asked this Court to

enter a stay as to all further proceedings in the instant action

wherein Consol seeks exoneration from or limitation of liability,

pending final resolution of the state court suit.

I. Claimants’ Motion to Vacate or Dissolve Injunction

In Langnes v. Green, 282 U.S. 531,51 S.Ct. 243, 75 L.Ed.

520 (1931) and in Ex Parte Green, 286 U.S. 437,52S.Ct. 602, 76

L.Ed. 1212 (1932), the Supreme Court announced that when a

petition for exoneration from or limitation of liability was

pending within the admiralty jurisdiction of a federal court, and

where the only claim in the limitation proceeding was filed by a

party who had previously filed a suit in a state court, then the

federal district court should dissolve its stay or injunction as to

the state court proceeding, but only if certain requirements were

first met.

Appendix B

Subsequent to the Green decisions, various federal courts

attempted to define precisely the factors which aclaimant must

first meet before the stay or injunction as to the state court

proceeding could be lifted. The result of those decisions was the

development of a rule requiring a claimant to file a series of

stipulations when seeking to lift a stay. These stipulations were

summarized by Professor Gilmere and Black in The Law of

Admiralty, Second Edition (1975), at pages 87 1-872, as follows:

The procedure which has been worked out

under the Green cases is as follows: a single

claim plaintiff who wishes to prosecute a

common law action after the shipowner has

filed a petition for limitation must

a) file his claim limitation

proceedings

b) where a stipulation for value has

been filed in lieu of the transfer of the

ship to a trustee, concede the

sufficiency in amount of the

stipulation;

c) consent to waive any claim of res

judicata relevant to the issue of

limited liability based on any

judgment obtained in the state court;

d) concede petitioner shipowners

right to litigate all issues relating to

limitation in the limitation

proceeding.

10a

Appendix B

(Citations omitted). See also, Complaint of Businelle Towing

Corp., 539 F.Supp. 609, 611 (M.D. La. 1982); S & E Shipping

Corp. v. Chesapeake and Ohio Railway Company, 678 F.2d 636,

643 (6th Cir. 1982); Newton v. Shipman, 718 F.2d 959, 962 (9th

Cir. 1983); Jefferson Barracks Marine Service v. Casey, 763 F.2d

1007, 1010 (8th Cir. 1985); Valley Line Company v. Ryan, 771

F.2d 366, 373 (8th Cir. 1985).

All of the courts which have addressed this issue are in

uniform agreement that stipulations a), b), and d), above, are

absolutely necessary before a stay of other proceedings may be

lifted. Admittedly, however, there is a question as to the

necessity of requirement b), that being that a claimant concede

the sufficiency of the amount placed in the limitation fund. The

split of authority with regard to this factor will be discussed more

fully below, after Consol discusses whether the stipulations

which have been made by Claimants herein at least satisfy the

other three requirements.

Requirement (a) — File a Claim in the Limitation Proceeding

Consol concedes that Claimants have filed a formal claim in

this action with respect to Consol’s Complaint seeking

exoneration from or limitation of liability, and therefore

Claimants have met this requirement.

Requirement (c) — Consent to Waive any Claim of Res

Judicata Relevant to the Issue of Limited Liability Based on

any Judgment Obtained in the State Court

In paragraph 8 of their motion, Claimants and their counsel

have agreed to “stipulate that no State Court judgment will be res

judicata as to any limitation fact or issue in the limitation

lla

Appendix B

proceeding.” Although this stipulation may seem to satisfy the

required res judicata waiver on first blush, Consol submits that

acloserreading suggests that the stipulation, as worded, does not

satisfy the requirement.

In the above regard, Claimant’s stipulation only concedes

that no state court judgment will be asserted as res judicata as to

any “limitation fact or issue” in the limitation proceeding.

However, the applicable decisions on this issue generally

require that aclaimant stipulate that “no res judicata arguments

will be made based upon any state court judgment.” Complaint

of Midland Enterprises, Inc., 886 F.2d 812, 814 (6th Cir. 1989)

(emphasis added). See also, In Re Red Star Barge Line, Inc., 160

F.2d 436, 438 (2d Cir. 1947) where the court required the

claimant to waive any claim of res judicata relevant to the issue

of limited liability and based on any judgment obtained in the

state court action.

Consol is not uncertain as to what Claimants mean or intend

when they limit their res judicata waiver to any “limitation fact

or issue.” While not intending to engage in semantical

gymnastics, Consol nevertheless would suggest that Claimants’

attempt to restrict their stipulation regarding res judicata only to

“limitation facts or issues” is too narrow in the face of the

decisional authorities which require a waiver of any claim of res

judicata with respect to any issue relevant to the proceeding.

Furthermore, Consol has sought both an exoneration from ora

limitation of its liability in this action. To the extent Claimants’

stipulation only applies to “limitation facts or issues”, but not to

issues relative to exoneration, then it does not properly protect

this Court’s admiralty jurisdiction over all issues in this

proceeding.

12a

Appendix B

Thus, to the extent that Claimants’ stipulation is an attempt

to waive res judicata, but only as to certain issues which may

arise in this proceeding, then the stipulation is unduly narrow,

and does not comport with the required language necessary to lift

the stay as to Claimants’ state court suit.

Requirement (d) — Concede Consol’s Right to Litigate all

Issues Relating to Limitation in the Limitation Proceeding

Claimants have stipulated in paragraph 8 of their motion

that this Court “has sole and exclusive jurisdiction of any and all

issues relating to Consol’s attempt to limit its liability arising

from Mr. Newman’ a aforesaid injuries. Generally speaking, this

stipulation would appear to satisfy the requirement necessary to

protect this Court’s admiralty jurisdiction to decide any and all

issues in this proceeding. However, the stipulation does not

specifically concede that Consol will have the continuing right

to litigate any and all issues relative to this proceeding; but

merely that this Court will have sole and exclusive jurisdiction

over those issues. Additionally, the stipulation does not

recognize that Ccnsol seeks herein both an exoneration from or

a limitation of its liability. If this Court were to formally and

affirmatively interpret Claimants’ stipulation as conceding that

Consol will continue to have the right, following the lifting of the

stay, to litigate any and all issues relative to exoneration or

limitation solely and exclusively within this Court, then this

particular requirement could be satisfied.

Requirement (b) — Concede the Sufficiency in

Amount of the Stipulation

Commensurate with the filing of its Complaint herein,

Consol filed an Affidavit of Value and a Limitation Bond

securing the value of the M/V Elizabeth and Barge No. MC 1029

13a

Appendix B

as an alternative to tendering the vessels themselves. The

limitation fund as to those vessels has been offered at the

combined aggregate value of $120,000.00. Part (b) of the

generally quoted four part test set forth in Gilmore and Black,

above, would therefore require Claimants herein to concede that

the $120,000.00 value of the vessels in the limitation fund is

sufficient and proper. Claimants have not made any such

stipulation or concession in their motion.

Consol candidly admits, however, that various district and

circuit courts are split in their determination of whether this

concession is absolutely required before a stay of a state court

action may be lifted. In that regard, certain courts addressing this

issue have cited generally the four part test set forth in Gilmore

and Black as being required in its entirety. See e.g., S & E

Shipping Corp. v. Chesapeake and Ohio Railway Company,

supra; Jefferson Barracks Marine Service v. Casey, supra;

Valley Line Company v. Ryan, supra; and In Re Red Star Barge

Line, Inc., supra. More specifically, in Complaint of Tropigas

Carriers, Inc., 603 F. Supp. 940 (S.D. Fla. 1985), the district

court, when lifting its stay, specifically ordered the claimant to

file a statement conceding the sufficiency and amount of the

stipulation for value filed by the shipowner in the limitation

action. Thus, a literal reading of the above decisions would

indicate that Claimants’ stipulation herein lacks the necessary

concession regarding the sufficiency of the value of the

limitation fund herein, and would therefore not support their

request to lift the stay.

On the other hand, there are number of decisions which

discuss in depth this particular requirement, and have rejected

the reasoning that a claimant must stipulate to the value of the

limitation fund before a stay may be lified. See, e.g, Complaint

l4a

Appendix B

of Midland Enterprises, Inc., supra.; In Re Mr. Wayne, 729

F.Supp 1124 (E.D. La. 1989); Kattelman v. Otis Engineering

Corp., 701 F.Supp. 560 (E.D. La. 1988); Complaint of North

Lubec Manufacturing and Canning Company, 647 F.Supp. 1132

(D. Me. 1986).

However, it is important to not that even in those decisions

holding that a claimant need not stipulate to the value of the

limitation fund, nevertheless, those courts have generally

required that the other stipulations which the claimant did make

include a concession, generally or specifically, that the

valuation issue remained exclusively an admiralty question and

was reserved fot determination by the federal court in the

limitation proceeding. See, e.g., Complaint of Midland

Enterprises, Inc., supra. at 817, where the court accepted the

claimant’s contention that she need not stipulate to the value of

the limitation fund itself, but must concede the exclusive right of

the district court to determine value. See also, Complaint of

Businelle Towing Corp., 539 F.Supp 609, 612 (M.D. La. 1982)

(“the determination of the amount of the fund to which [liability]

will be limited are hereby specifically reserved to this Court”);

Complaint of Cannon, 487 F.Supp 26, 28 (S.D. Fla. 1980) (“the

value of the vessel can be finally determined when, and if, this

Court is presented with the limitation of liability issue”).

In the instant action, Claimants have not conceded the

sufficiency of the value of the limitation fund offered by Consol.

Therefore, if this Court accepts the reasoning of those decisions

which require Claimant to specifically make such a concession

before the stay will be lifted, then obviously Claimants herein

have notcomplied with their requirement and the stay cannot be

lifted. -

15a

Appendix B

Alternatively, in the event this Court should, after review of

the applicable authorities, favor the reasoning of those decisions

which have not required a stipulation as to the value of the

limitation fund before lifting the stay, then Claimants herein

must nevertheless concede, in the stipulations which they do

make, that the exclusive right to determine the sufficient and

proper value of the limitations fund lies exclusively with this

Court.' Claimants herein have not specifically conceded that any

and all issues regarding the proper valuation of the limitation

fund or of the the M/V Elizabeth and Barge No. MC 1029 are

reserved exclusively for determination by this Court has sole

and exclusive jurisdiction over any and all issues relating to

Consol’s attempt to limit its liability. If this Court were to

formally and affirmatively construe that stipulation in broad

fashion so as to include a concession by Claimants that all

valuation issues are also reserved for exclusive determination by

this Court, the proferred stipulation may be sufficient.

Response to Claimants’ Third Stipulation

The third stipulation which Claimants and their counsel

make in paragraph 8 of their motion is that they “stipulate that

they will confine the Newmans’ action to the case pending in the

1. As this Honorable Court may recall, Claimants herein previously

challenged the value of the limitation fund insofar as the number of vessels to be

included was concerned. A hearing on Claimants’ motion in that regard was held

before this Court on December 21, 1990, after which Claimants’ motion to

increase the value of the fund by including the values of other barges in Consol’ s

empty fleet was denied. However, it is to be noted that under Rule F(7) of the

Supplemental Rules for Certain Admiralty and Maritime Claims, Claimants

may still challenge the aggregate $120,000.00 value which has been placed on

the M/V Elizabeth and Barge No. MC 1029, by requesting an appraisal of those

two vessels.

16a

Appendix B

Court of Common Pleas of Allegheny County, Pennsylvania.

Consol is currently not certain as to the exact meaning or intent

of this particular stipulation, since, on its face, it does not appear

to relate to any of the stipulations required by the authorities

discussed above. However, if this stipulation is an offer by

Claimants that they will not institute or pursue any other

proceedings against Consol in any other court or forum, then the

offer would be proper, since this Court’s stay should only be

lifted, if at all, to allow Claimants to pursue their previously filed

state court suit, but not to allow for the filing of or processing of

any other claims or actions.

On the other hand, in the event this stipulation is an attempt

to suggest that Claimants are only agreeing to proceed with their

state court suit, but are contesting whether they have any further

obligation to continue to proceed in the instant exoneration or

limitation of liability action, then Consol would suggest that this

stipulation is an improper attempt to restrict or confine these

proceedings. As the Court will note from a review of the various

decisions discussed above, the lifting of this Court’s stay against

Claimants’ state court suit does not in any manner act as a

dismissal of the instant action or otherwise moot this action. This

exoneration from or limitation of liability action will still remain

viable and must eventually be resolved and decided.

Even if This Court Should Vacate or Dissolve its

Stay, lt Should Only do so in Limited Fashion

In the event this Court should decide, upon proper

stipulation from Claimants, that the stay as to Claimants’ state

court suit should be vacated, dissolved or lifted, the blanket stay

may not be lifted in ita entirety. In that regard, the stay Order of

July 20, 1990 applies to any and all suits, actions or legal

17a

Appendix B

proceedings against Consol or the involved vessels arising out of

or connected with Mr. Newman’s alleged accident of April 27,

1989. This Court’s authority to lift its stay only extends to

allowing a single claim Claimant to pursue a previously filed

State court action involving the same incident. It does not,

however, allow for the lifting of the stay in order to permit the

filing or processing of any other claims by aclaimant or any other

person. Therefore, in the event this Court should decide to lift its

stay herein, its Order should be crafted only for the limited

purpose of allowing Claimants’ state court suit to proceed.

Secondly, even as to the lifting of the stay to allow

Claimants’ state court suit to proceed, this Court should allow the

Stay to continue in effect against the entry of any judgment

against Consol in Claimants’ state court suit, and as to any

consequent enforcement of any such judgment, pending the

outcome of this proceeding for exoneration from or limitation of

liability. See, e.g., In Re Mr. Wayne, supra, at 1130, where the

court ordered the stay lifted to allow the prosecution of the

claimant’s state court action, but continued the stay in effect

against entry of judgment and consequent enforcement of

recovery pending the outcome of the limitation proceeding. See

also, Complaint of Dammers & Vanderheide, 660 F.Supp. 153,

160 (S.D. N.Y. 1987), aff'd, 836 F.2d 750 (2d Cir. 1988). The

reason for continuing the stay against the entry and enforcement

of any judgment against Consol in the state court suit is to protect

this Court’s sole and exclusive admiralty jurisdiction over any

and all issues relevant to exoneration from or limitation of

liability.”

2. This Court may allow the entry of a defense judgment against

Claimants and in favor of Consol .n the state court suit.

18a

Appendix B

II. Claimant’s Motion to Stay the Instant Proceeding

As indicated above, Claimants have not only moved to lift

the stay against their pending state court action, but have also

moved this Court to stay the instant proceeding until after the

termination of their state court suit.

Gilmore and Black suggest, at page 872, that where a federal

court lifts its stay as to a state court suit, “the admiralty court

dissolves or modifies its Section 185 injunction to allow the civil

action to proceed, meanwhile holding the limitation proceeding

in abeyance until the result of the civil action is known. Some

district courts, when lifting their injunctions against state court

actions, have temporarily closed their limitation of liability files,

without prejudice, pending a request to re-open following the

conclusion of the state court proceeding, or have otherwise held

in abeyance any outstanding motions and pretrial matters

pending resolution of the state court proceedings. See,

Kattelman v. Otis Engineering, Corp., supra; In Re Mr. Wayne,

supra; Complaint of Tropigas Carriers, Inc., supra.

Nevertheless, Consol is not aware of any authority which

affirmatively requires this Court to stay the instant action if this

Court should allow Claimants to proceed in state court. In that

regard, it is to be noted that, in Complaint of Cannon, supra, at

29, the court lifted its injunction as to the state court proceeding

and stayed its own limitation action. However, that court also

ordered that, in the interim, the court “may take action on those

matters that are not subject to determination by the state court.”

Consol would respectfully submit that, ultimately, the

decision as to whether to impose a stay on all further proceedings

in the instant action rests solely within the discretion of this

19a

Appendix B

Court. The general rule is that the pendency of an action ina state

court is no bar to proceedings concerning the same or a similar

matter in a federal court having jurisdiction. Nevertheless, many

courts follow the rule that a federal district court has discretion

to stay proceedings on its own docket pending the outcome of a

similar suit instituted in a state court. The Supreme Court

recognizes this discretion; however, has indicated that its

exercise is justified only in exceptional circumstances. See,

discussion at Federal Procedure, L.Ed., Volume 1, Section

1:558. Factors affecting the decision to grant or deny a stay

include, among others, the order in which jurisdiction was

obtained, the similarities of the parties, the similarity of issues,

avoidance of piecemeal litigation and the convenience of the

forums. See generally, Federal Procedure, supra, at Sections

1:559-1:564.

Itis to be noted herein that, while the parties are the same and

the issues may appear to be similar on their face, the legal

theories and burdens of proof are different in this action as

opposed to those in Claimants’ state court suit. It should also be

noted that, although it is true that in the event Consol is

ultimately successful in obtaining a defense verdict in the state

court suit, no further action in this proceeding would be

necessary; nevertheless, in the event of a jury award in favor of

Claimants in state court, the parties would still return to this

Court for a determination of whether Consol should be

exonerated from and/or limited with respect to its liability.

Under these circumstances, this Court may wish tocontinue with

this proceeding presently, rather than waiting to proceed in the

future.

20a

Appendix B

Respectfully submitted,

POLITO & SMOCK, P.C.

By s/ Leonard Fornella

Leonard Fornella

Suite 400

Four Gateway Center

Pittsburgh, PA 15222

(412) 392-3500

Attorneys for Complainant,

Consolidation Coal Company

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.