Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1964, No. 4423, in case of Pasquale Fiumara v. Texaco, Inc., Sinclair Refining Company, Humble Oil & Refining Company et al.
A. E. Hurshman, for appellant.
Henry T. Reath, with him Paul B. Wells, of the New York Bar, and Duane, Morris & Heckscher, for Texaco, Inc., appellee.
Robert W. Sayre, Frank R. Clampitt, of the New York Bar, and Saul, Ewing Remick & Saul, for Sinclair Refining Company in its own right and as successor by merger to Richfield Oil Corporation of New York, appellee.
Miles W. Kirkpatrick, Henry T. Hartmann, of the New York Bar, and Morgan, Lewis & Bockius, for Humble Oil & Refining Co., appellee.
John T. Clary, for Gulf Oil Corporation, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts took no part in the consideration or decision of this case.
Pasquale Fiumara, [Fiumara], the owner of a gasoline station, on August 5, 1964, filed a petition in the Court of Common Pleas No. 5 of Philadelphia County for a rule to show cause why a complaint he proposed to file against Texaco, Inc., Sinclair Refining Company, Humble Oil and Refining Company, Gulf Oil Corporation and Richfield Oil Corporation of New York, [Oil Companies], "shall not remain within the exclusive jurisdiction of the Court [of Common Pleas of Philadelphia County]." The complaint, not filed but attached to Fiumara's petition,*fn1 charged the Oil Companies with a common law conspiracy in restraint of trade.*fn2 The court granted the rule and directed a stay of all proceedings in the meanwhile. Two days prior to the return day of the rule, the Oil Companies removed
the action to the United States District Court for the Eastern District of Pennsylvania upon the ground that exclusive jurisdiction was vested in the Federal Court. At that time, the Oil Companies filed a bond.*fn3 This bond was conditioned that the Oil Companies would "pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed".
On June 14, 1965, on motion to remand by Fiumara, the Federal Court, speaking through Judge Van Dusen, remanded the action to the Court of Common Pleas No. 5 of Philadelphia County.
In the meantime, on March 2, 1964, the Oil Companies had instituted an equity action in the United States District Court for the Eastern District of Pennsylvania wherein it was sought "to enjoin [Fiumara] and his representatives from prosecuting any claim, cause of action, question or fact, which was or could have been litigated in two prior actions decided by this [Federal] court." A hearing on this request for injunctive relief was set for April 30, 1964, at which time Judge Higginbotham refused to issue the preliminary injunction: Texaco, Inc. v. Fiumara, 232 F. Supp. 757, E.D. Pa. (1964). The refusal to issue a ...