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December 22, 1961

ALLIED PETRO-PRODUCTS, INCORPORATED, formerly Allied Petroleum Corp.

The opinion of the court was delivered by: LORD, III

The plaintiff's main, if not only, office is located at 1445 City Line Avenue, Montgomery County, Pennsylvania, in this District, but the plaintiff's plant at which the defalcations occurred is in Jacksonville. Most, if not all, of the defalcating employes are residents of the Jacksonville area. The plaintiff's officers, bookkeeper, accountants, investigators and books are all in the Philadelphia area. It further appears that the defalcating employes are necessary witnesses, eleven of whom will be produced by the plaintiff at trial.

 Plaintiff's supplemental affidavit sets forth in some detail the cost to it of trial in Florida, totalling $ 8,153.85, part of which is an estimation of increased counsel fee. This total includes the transportation and maintenance expenses of eleven persons, the same number as plaintiff states will be produced here from Florida. However, from an examination of plaintiff's two affidavits most, if not all, of the eleven persons going to Florida will be required to stay for the entire duration of the trial, whereas those coming here would not. In any event, the cost to plaintiff of trial in Florida over and above the cost in Philadelphia varies between $ 3,800. and $ 6,800., not counting increased counsel fee.

 Defendant's position is this: The loss, if any, was occasioned by the dishonest acts of plaintiff's employes. If plaintiff recovers from defendant, then defendant would be entitled to recover from the employes by virtue of its subrogation rights. Its sole reason for seeking removal to Florida is to permit it to join the defalcating employes as third-party defendants. Thus, says defendant, its rights will be better preserved and a multiplicity of suits will be avoided.

 There are persuasive and appealing arguments on both sides.

 For the defendant, it can certainly be said that the ability to implead a third party is an important consideration. Fein et al. v. Public Service Coordinated Transport, 1958, D.C.E.D.Pa., C.A. No. 23658, 165 F.Supp. 370, Kirkpatrick, J. It seems clear that at least as to loss caused by identifiable employes, *fn1" the proof required to sustain this plaintiff's burden would be identical to the proof which the defendant would be compelled to advance in a separate action against the employes to recover for its loss. In other words, if the plaintiff is successful in this action the defendant would automatically be entitled to a judgment against the identifiable employes if they were joined as third-party defendants. However, if they were not so joined, another jury in Florida in a separate suit against the employes might, on the same proof, find against the bonding company, for the case here between this plaintiff and this defendant alone would not be res judicata as to the employes.

 In Caldwell Manufacturing Co. v. Unique Balance Co., 1955, S.D.N.Y., 18 F.R.D. 258, at page 267, the Court said:

 However, the ability to implead is not the only factor to be considered. Indeed, in Fein, supra, where the case was transferred from Philadelphia to Camden to permit a third-party joinder, Judge Kirkpatrick said:

 '* * * The plaintiff has cited a number of cases in which somewhat similar applications for transfer were denied. In each of them, although the matter of bringing in a third party defendant was one of the factors, the question of comparative convenience of the two forums was the controlling consideration.

 'In the case at bar, the question of comparative convenience is nonexistent. The Camden courthouse is not over half an hour's ride from the Philadelphia courthouse.

 '* * * there is nothing whatever by way of convenience of the parties to outweigh that consideration. * * *'

 Here, there is not only substantial inconvenience, but substantial expense involved from plaintiff's standpoint. In addition, unlike a negligence case, plaintiff has paid in premiums for the protection it now seeks. Its right to this protection is, of course, resisted and defendant now says, in effect, not only that it contests plaintiff's claim, but that it wants to do it at increased expense to plaintiff and away from plaintiff's choice of forum. An unconditional transfer, we think, would not be fair and that which is not fair is not in the interest of justice.

 In Hokanson v. Helene Curtis Industries, Inc., 1959, S.D.N.Y., 177 F.Supp. 701, at page 703, speaking of a motion ...

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