wasting time or unless it is considered that a lawsuit is something other than a sacred proceeding for the immediate determination of the true facts in which endeavor both counsel and the judge have equal obligation to facilitate and expedite', and oral argument being discretionary with the Court and not required by due process, and the Court in the exercise of its discretion concluding that oral argument in the instant matter is not necessary or advisable, however much the Court personally would derive intellectual pleasure and diversion therefrom, if it were not that this is a Court in a congested metropolitan center with a crowded docket of over 1000 cases awaiting trial, so that the application of judicial manpower to more doubtful and difficult matters is an urgent necessity.
'NOW THEREFORE IT IS ORDERED that the objections of said defendant filed heretofore on October 31, 1961, to plaintiff's interrogatories be and the same are sustained; and said defendant's motion to dismiss as to said defendant heretofore filed on October 19, 1961, be and the same hereby is granted, and the said action is dismissed with respect to said defendant, American Ladder Corporation.'
All that is said in this order is correct. No acts or omissions in Pennsylvania giving rise to the plaintiff's cause of action are alleged.
All that is alleged is a sale by defendant Ladder Corp. to W. T. Grant Co. 'for distribution in and about Allegheny County, Pennsylvania' (Par. THIRD A of Complaint). Manifestly this means distribution by the Grant Co. in the normal course of retail sales. See 375 Pa. at 425, 100 A.2d 425.
There is also an allegation that the ladder 'had been designed, manufactured and distributed by American Ladder Corp. * * * acting through its officers, agents, servants and employees'. (Par. SIXTH). It is not said that such action by said defendant was in Pennsylvania. The same it true of paragraph NINTH.
It is nowhere alleged that the Grant Co. was the Ladder company's agent. Companies desiring the benefits of retail price-fixing to avoid the Antitrust Laws often make such agency agreements, though it of course means that the manufacturer is subject to suit by reason of the agent's acts. United States v. General Electric Co., 272 U.S. 476, 484, 47 S. Ct. 192, 71 L. Ed. 362 (1926). But there is no such allegation of agency here.
Moreover the specifications of negligence against the Ladder company in the complaint show that defective design and manufacture were relied on. Such acts of negligence obviously, just as in the Rufo case, were not performed in Pennsylvania.
After the Court's order of November 22, 1961, had been made, there came to the attention and knowledge of the Court a purported amendment to the complaint, filed November 21, 1961, undertaking to allege an express warranty.
These were ordered 'stricken off as untimely filed' by order dated November 22, 1961, and stamped as filed on November 27, 1961.
The amendment was out of time for two reasons: first, it came after the Court had ruled upon the motion to dismiss; second, it was not consented to nor had leave of court been obtained as required by Rule 15(a) F.R.C.P.
The same order likewise for the same reason struck off additional interrogatories filed by plaintiff on November 21, 1961.
A motion to reconsider the order of November 22, 1961, filed by plaintiff on November 22, 1961, was denied by order of November 27, 1961, for the reason that the Court found no merit in it, having just decided the case adversely to plaintiff.
The same order of November 27, 1961, also denied a motion for reargument before a three-judge court filed on November 22, 1961, for the reason that no such procedure is known to the Rules or practice of this Court; nor was the occasion one for convening a statutory three-judge court under statutory provisions such as 28 U.S.C.A. §§ 2281, 2284, 2325.
Moreover, it appears from the file that an appeal from this Court's order of November 22, 1961, was taken on November 29, 1961, but was dismissed as premature by the Court of Appeals on April 26, 1962. This Court's order of November 22, 1961, therefore now remains in force as the law of the case. United States v. Davis, 3 F.Supp. 97, 98-99 (S.D.N.Y.1933).
Finally, if it should ever be established that this Court's order of November 22, 1961, was in any respect erroneous, such error will be harmless, inasmuch as the effect thereof will then have been merely to direct a separate trial of the claim against one of several defendants, as authorized by Rule 42(b) F.R.C.P.
Accordingly, after careful re-examination of plaintiff's contentions we remain fully convinced that they are entirely unmeritorious and that this Court's order of November 22, 1961, was and is correct, and should not be vacated.
AND NOW, to wit, this 31st day of December, 1962, after argument, IT IS ORDERED that plaintiff's motion, filed October 12, 1962, to vacate this Court's order of November 22, 1961, granting motion to dismiss as to defendant American Ladder Corp., be and the same hereby is denied and dismissed; and that the said order of November 22, 1961, shall stand and remain in full force and effect as the considered judgment of the Court and as the law of the case.
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