Opposition Brief — Hanlin v. Martin

FILED

No. 98-482 OCT 2 1 1998

OFFICE OF THE CLERK

In The SUPREME COURT. U.S.

Supreme Court of the United States

October Term, 1998

¢

JOHN G. HANLIN,

Petitioner,

VS.

JERLE H. MARTIN, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

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CuHristorpHer S:-ONvernitt, Esquire

Attorney I.D. #07013

HARTMAN UNDERHILL &

BRUBAKER LLP

221 East Chestnut Street

Lancaster, PA 17602

(717) 299-7254

Counsel for Respondents

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

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF THE

QUESTIONS PRESENTED

Is the order of the Court of Appeals of the Third

Circuit quashing Petitioner’s appeal as interlocu-

tory ripe for review by this Court?

Do the issues presented by Petitioner merit con-

sideration by this Court?

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TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE QUESTIONS PRE-

ETRE ws bby n'0d pach eean seats eR beke hae eree i

COUNTERSTATEMENT OF THE CASE ............ 1

REASONS FOR DENYING THE WRIT............. 2

I. The Order of the Court of Appeals for the Third

Circuit Quashing Petitioner’s Appeal as Interlocu-

tory Is Not Ripe for Review by this Court....... 2

Il. The Issues Presented by the Petition for Cer-

tiorari Do Not Merit Review by this Court .... 3

CAV RAPEMIES wc ccccaucues kod aleGunae eee eenENenn 6

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TABLE OF AUTHORITIES

Page

CASES

Bauer v. Commerce Union Bank, 859 F.2d 438 (6th

I i 4

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

941, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)............ 3

RuLEs:

TE CSA Vina b aka ickciccetessscuseuners 3

ns iis ine Sp os odd d noe baa niedsoneces 2

COUNTERSTATEMENT OF THE CASE

This case arises out of the breach of an agreement

entered into by Petitioner and his mother, Merle E.

Hanlin, on September 19, 1994, pursuant to which Peti-

tioner promised to pay his mother the sum of $ 100,000.00

in installments, A copy of the Agreement is attached

hereto as Appendix A. When Petitioner failed to make the

payments as scheduled, suit was instituted against him in

the Court of Common Pleas of Franklin County, Pennsyl-

vania. Petitioner then removed the case to the U.S. Dis-

trict Court for the Middle District of Pennsylvania.

Merle E. Hanlin died on May 26, 1997. Mrs. Hanlin

named Petitioner, her oldest son, executor of her estate.

This put him, as the lower.court noted, “in the curious

position of legal representative of the Plaintiff in a law-

suit in which he, is also the Defendant.” (Petitioner’s

Appendix A-2.) Since Petitioner was not about to pursue

a case against himself on behalf of the estate, Mrs.

Hanlin’s other two children, Respondents, filed a motion

with the lower court to have themselves substituted as

Plaintiffs. As Petitioner correctly notes, Respondents

sought to act “on behalf of the Estate of Merle E. Hanlin

and on behalf of themselves.” (Petition, p. 2) Respondents

wish to act on behalf of the estate to recover whatever

amounts had not been paid to their mother before her

death and on behalf of themselves because Paragraph 3 of

the Agreement provided that upon their mother’s death,

if the entire obligation had not been paid, the remaining

payments were to go to them.

The District Court granted the motion pursuant to

Federal Rule of Civil Procedure 25(c). That order was

appealed to the U.S. Court of Appeals for the Third

Circuit. On a motion by Respondents the Third Circuit

quashed the appeal on the grounds that it was interlocu-

tory. (Petitioner’s Appendix C.) Petitioner’s petition for

rehearing was denied, (Petitioner’s Appendix D.) The

Petition for Writ of Certiorari to this Court followed. This

brief is written in opposition thereto.

+

REASONS FOR DENYING THE WRIT

I. The Order of the Court of Appeals for the Third

Circuit Quashing Petitioner’s Appeal as Interlocu-

tory Is Not Ripe for Review by this Court.

Rule 11 of the rules of this Court provides as follows:

A petition for writ of certiorari to review a

case pending in a United States court of appeals,

before judgment is entered in that court, will be

granted only upon a showing that the case is of

such imperative public importance as to justify

deviation from normal appellate practice and to

require immediate determination in this Court.

See 28 U.S.C. § 2101(e).

Rule 11, Rules of the Supreme Court of the United States.

This case is even weaker than a case contemplated by

Rule 11. Not only has judgment not been entered in the

Court of Appeals, the appeal has been dismissed. No

reason has been advanced by Petitioner that constitutes,

“a showing that this case is of such imperative public

importance as to justify deviation from normal appellate

practice and to require immediate determination in this

Court.” It is submitted, therefore, that the Petition for

Certiorari is simply premature.

II. The Issues Presented by the Petition for Certiorari

Do Not Merit Review by this Court.

Petitioner appears to argue that this case falls under

Rule 10(c), Considerations Governing Review on Cer-

tiorari, of this Court. Petitioner argues that the Third

Circuit, “has decided an important federal question in a

way that conflicts with the relevant decisions of this

court.” (Rule 10(c)) Petitioner argues that the decision of

the Third Circuit to quash the appeal as interlocutory is

in conflict with the decision of this Court in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221,

93 L.Ed. 1528 (1949). Petitioner is mistaken in his under-

standing of Cohen.

Cohen governs, “that small class which finally deter-

mines claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied

review and too independent of the cause itself to require

that appellate consideration be deferred until the whole

case is adjudicated.” 337 U.S. at 546. In Cohen, a New

Jersey statute provided that in stockholders’ derivative

suits plaintiffs could be liable for the reasonable expenses

and attorneys’ fees of the defense and cou!d be required

to post security before proceeding with the case. The

lower court held that the state statute did not apply to

stockholders’ derivative suits in federal court. The court

of appeals reversed. This Court affirmed. It is obvious

that the posting of security is separate and independent

from the merits of the case. It is also obvious that if the

question of security was not addressed at the outset of

the case, and was delayed until the conclusion of the case,

the protection of the corporate defendant would be lost.

Such considerations are not present in the instant

case. The interests of the estate of Merle E. Hanlin and the

interests of the Respondents are inseparable from the

merits of the case. Respondents are the only persons with

an interest in seeing the estate of their mother recover

from their brother, the Petitioner. They also have an inter-

est in recovering against their brother on their own

behalf. Their claims are not, “separable from, and collat-

eral to, rights asserted in the action.” Their rights are

central to the case. Moreover, they are the only persons,

other than Petitioner, with standing to pursue the claims.

It is inconceivable that Petitioner will pursue the case

against himself.

In quashing the appeal, the Third Circuit cited Bauer

v. Commerce Union Bank, 859 F.2d 438 (6th Cir. 1988). The

Bauer case involved whether or not a trustee in bank-

ruptcy should be substituted as plaintiff in a lawsuit

brought by the bankrupts. The district court allowed the

substitution. The Sixth Circuit affirmed stating, “other

courts of appeals have held that orders substituting par-

ties or permitting parties to intervene are interlocutory

and non-appealable. See, Prop-Jets, Inc. v. Chandler, 575

F.2d 1322, 1325 (10th Cir. 1978); In re: Sylvania Electric

Products, 220 F.2d 423, 424 (1st Cir. 1955); 7C C. Wright, A.

Miller & M. Kane, Federal Practice Procedure, Sec. 1962 (2d

ed. 1986).” 859 F.2d at 440. Respondents submit that as in

Bauer the order in this case substituting parties is inter-

locutory and nonappealable.

Petitioner also misstates the decision of the District

Court. Petitioner repeatedly states that, “the order deter-

mines whether the property interests of Plaintiff Merle E.

Hanlin under an agreement for payment of $100,000.00

(“Agreement”) has been transferred to Respondents and

is no longer asset of the Plaintiff and of her estate. . . . The

order of the District Court resulted in immediate transfer

of Plaintiff’s property interest under the Agreement for

$100,000.00 to Respondents.” (Petition p. 7.) An examina-

tion of the District Court’s opinion discloses that these

statements are not true. The petition to substitute Jerle H.

Martin and James E. Hanlin as plaintiffs specified two

interests: (1) the interest of the Estate of Merle E. Hanlin

in the amount due Mrs. Hanlin before her death on May

26, 1997, and (2) the interests of Jerle H. Martin and James

E. Hanlin for amounts due them after Mrs. Hanlin’s

death.

This distinction was recognized by the District Court,

The District Court held that Mrs. Hanlin’s claim was not

extinguished by her death. “Movants assert and Defen-

dant does not deny, that Plaintiffs claim is not extin-

guished by her death. The court agrees.” (Petitioner’s

Appendix, A-4.) However, because the agreement under

which suit was originally brought provided that upon

Mrs. Hanlin’s death the remaining payments went to

Respondents, they also had a direct interest in pursuing a

claim against Petitioner. The lower court stated the fol-

lowing:

Courts have found that an involuntary

transfer of an interest by reason of the death of a

party is to be analyzed solely according to Rule

25(c). (Citation omitted.) The transfer of interest

in the instant situation, however, came about

voluntarily due to the Agreement rather than

solely by reason of Plaintiff’s death. The Agree-

ment provides for the transfer of Plaintiff’s

interest to Movants upon Plaintiff’s death. The

instant suit was filed prior to Plaintiff’s death,

and thus the transfer of interest to Movants

occurred during the pendency of the suit. There-

fore, the court finds Rule 25(c) the appropriate

mechanism by which to substitute Movants for

Plaintiff in the instant situation.

(Petitioner's Appendix, A-7-8.)

Respondents respectfully submit that none of the

issues raised by Petitioner are issues worthy of consider-

ation by this Court at this time. The case before the

District Court should be allowed to continue and the

issues resolved.

CONCLUSION

This case does not merit further review by this Court.

For the reasons stated above, the Petition for Certiorari

should be denied.

Respectfully submitted,

CHRISTOPHER S. UNDERHILL, Esquire

Attorney [.D. #07013

HARTMAN UNDERHILL &

BruBAKER LLP

Attorneys for Respondents

221 East Chestnut Street

Lancaster, PA 17602

(717) 299-7254

App. 1

APPENDIX

THIS AGREEMENT

MADE the 19th day of September, in the year nine-

teen hundred and ninety-four (1994);

BETWEEN John G. Hanlin, First Party, AND Merle E.

Hanlin, Second Party.

WITNESSETH: WHEREAS, First Party is the son of

Second Party and is indebted to her in the amount of One

Hundred Thousand ($100,000.00) Dollars;

AND WHEREAS, First Party and Second Party have

agreed to settlement of this obligation in the manner

hereinafter set forth.

NOW KNOW ALL MEN BY THESE PRESENTS, that

First Party and Second Party, intending to be legally

bound, agree as follows:

1. First Part will pay off the above obligation to

Second Party in monthly installments of Three Thousand

($3,000.00) Dollars each, First Party to pay Second Party

the sum of Three Thousand ($3,000.00) Dollars on Octo-

ber 1, 1994 and a like sum on the first (1st) day of each

month thereafter until said obligation of One Hundred

Thousand ($100,000.00) Dollars is fully paid.

2. As long as First Party complies with the terms of

this Agreement, no interest will be due on this obligation.

3. Should Second Party die before the aforesaid

obligation is fully paid, Second Party will continue pay-

ments thereon to Second Party’s children, Jerle E. Martin

and James E. Hanlin, in equal shares.

App. 2

4. If Second Party has any debts at the time of her

death, First Party shall fully pay the same, and should

she not have resources to pay her funeral expenses, First

Party shall pay the same.

This Agreement shall be binding on the heirs, execu-

tors, administrators and assigns of each party.

IN WITNESS WHEREOF, First Party and Second

Party have caused this Agreement to be duly executed

the day and year first above written:

WITNESS:

/s/ Illegible /s/ John G. Hanlin (SEAL)

John G. Hanlin First Party

/s/ Rudolf Wertime /s/ Merle E. Hanlin (SEAL)

Merle E. Hanlin Second Party