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December 31, 1962

Edward Russell HILTON, Plaintiff,
W. T. GRANT COMPANY, a corporation, et al., Defendants

The opinion of the court was delivered by: DUMBAULD

Stimulated by perusal of Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267 (C.A. 3, 1962), plaintiff has filed, on October 12, 1962, a motion to vacate this Court's order of November 22, 1961, granting a motion to dismiss with respect to one defendant (the New York manufacturer of the aluminum ladder purchased by plaintiff in Pennsylvania from defendant W. T. Grant Company and the alleged defects in which are claimed to have caused injury to plaintiff). The action remains pending with respect to defendant W. T. Grant Company and another defendant, Underwriters Laboratories, Inc. which is said to have tested and approved the allegedly defective article.

Unfortunately for plaintiff's position, the only thing in common between the Swindell-Dressler case and the case at bar is that both cases involve orders made by the writer of this opinion during the first period when he sat as Judge in charge of miscellaneous matters. (For a recent comment by Justice Musmanno as to the nature of 'miscellaneous' matters, see Smith v. Gallagher, 408 Pa. 551, 558, 185 A.2d 135 (1962)). The philosophy and policy of designating a member of the Court each month in rotation to handle such matters is that thereby the judges actively engaged in the trial of cases will not be deflected or diverted therefrom by reason of such miscellaneous business. Unfortunately during the above referred to period of service the theory did not work out as contemplated because at the same time that the writer of this opinion was serving in the capacity of 'miscellaneous Judge' he was also actually engaged in the trial of a 'protracted case' which was in itself a full time job. See Getty Oil Co. v. Mills, 204 F.Supp. 179 (W.D.Pa.1962). Consequently the accumulated miscellaneous matters had to be disposed of in summary fashion.

 It has been said that the chief virtue of a trial judge is decisiveness and promptness in disposing of pending cases. This quality is more important than the correctness of the determinations arrived at (although of course one does one's best to be right to the extent that experience, judgment, and available opportunities for research permit) since it is the primary function of the appellate courts to maintain the correctness of judicial output, and they have at hand the facilities for doing so.

 Of course what has been so often emphasized, especially by Mr. Justice Frankfurter, regarding the desirability of curtailing the time spent on routine business so that the courts can deal more adequately with the difficult cases that require abundant reflection, discussion, and study, does apply to some extent to trial courts as well as to appellate courts. Ex parte Republic Peru, 318 U.S. 578, 602-603, 63 S. Ct. 793, 87 L. Ed. 1014 (1943); Ferguson v. Moore McCormack Lines, 352 U.S. 521, 546-548, 77 S. Ct. 457, 1 L. Ed. 2d 511 (1957); Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 458-459, 79 S. Ct. 921, 3 L. Ed. 2d 935 (1959). Hence if promptness of disposition should characterize all activities of a trial judge, it should be manifested a fortiori in handling 'miscellaneous matters'.

 It does not follow, however, that every decision made during the period of Sturm und Drang above referred to was per se arbitrary, erroneous, or unconstitutional. So far as is now known, Swindell-Dressler is the only instance of action so drastic as to fall into that category.

 In Swindell-Dressler we undertook the impossible feat of consolidating a case pending in this District with one pending in another District, and of transferring it upon a bare inspeximus of the record, to that District for trial.

 In the case at bar the Court did not act ex mero motu suo, but upon a duly filed motion to dismiss. The action was pending in this jurisdiction and granting the motion did not involve any nullity by reason of extraterritorial exertion of power.

 Likewise with respect to the procedural due process point there is no similarity between the cases. In the case at bar the parties had and utilized ample opportunity to present their contentions for and against the motion. They were accorded due process of law. It is true that this Court's order of October 31, 1961, called for briefs rather than oral argument. But oral argument is not required in order to constitute due process. F.C.C. v. WJR, 337 U.S. 265, 275-276, 69 S. Ct. 1097, 93 L. Ed. 1353 (1949). Rule 78 F.R.C.P. specifically provides that to expedite judicial business an order such as that of October 31, 1961, may be made 'for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.' The practice of dispensing with oral arguments on motions except in complicated cases is recommended by eminent authorities. See Proceedings of the Seminar on Procedures for Effective Judicial Administration, 29 F.R.C. 191, 301.

 Pursuant to the order of October 31, 1961, plaintiff and defendants did file briefs, which were received by the Court on November 20, 1961. These briefs have been ordered to be filed as part of the record, in order to show the materials upon which the Court was entitled to rely and did rely in making the order of November 22, 1961. They will be discussed in connection with our re-examination of the merits of the case.

 Not being subject when the motion to vacate was made to the pressures which forbade oral argument when the original order of November 22, 1961, was made, we have had the benefit of copious oral argument and a 24-page brief by plaintiff in support of the motion to vacate. We have therefore entered into a complete re-examination of the issues involved in that order. We shall discuss the facts in chronological order.

 Plaintiff's complaint was filed on September 29, 1961. On the same day an order was procured for service upon defendant American Ladder Corp., a New York corporation, by service upon the Secretary of the Commonwealth in accordance with the provisions of 15 P.S. § 2852-1011(B).

 At argument plaintiff contended that the allegations of the motion for such service should have been accepted by the Court rather than the allegations of the complaint when considering the motion to dismiss. However, it is plain that the procurement of an order of court for service upon the Secretary of the Commonwealth is simply a step required by the Pennsylvania statute in order to effect service under said statute. Rule 4(d)(7) FRCP adopts the State practice. The statute requires the court to make such an order ministerially, upon the presentation of a petition alleging conduct of business within the Commonwealth by a corporation not qualified to do business within the Commonwealth. The Court is not required or authorized by the statute to make any determination with respect to the truthfulness of the allegations of the petition. Nor did Judge Gourley do so in his order of September 29, 1961, directing that service be made in the mode prescribed by the Pennsylvania statute.

 Accordingly it is clear that this petition and order became functus officio as soon as service was made pursuant to the terms thereof. Nothing contained in the petition or order was binding upon the Court when dealing with the motion to dismiss any more than would be the similar recitals in a Marshal's or Sheriff's return. Such prima facie recitals are not conclusive when an issue is actually raised and presented for judicial determination by the motion to dismiss.

 Service upon the other two defendants was effected by the Marshal in the usual manner at their places of ...

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