UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: December 20, 1967.
EDMUND WINKLER, APPELLANT,
SAMUEL W. PRINGLE AND THE PENNSYLVANIA RAILROAD COMPANY, APPELLEES. EDMUND WINKLER, APPELLEE, V. SAMUEL W. PRINGLE AND THE PENNSYLVANIA RAILROAD COMPANY THE PENNSYLVANIA RAILROAD COMPANY, APPELLANT
Hastie, Freedman and Van Dusen, Circuit Judges.
Author: Van Dusen
VAN DUSEN, Circuit Judge.
These three appeals resulted from the filing on March 6, 1967, by appellant in Nos. 16757 and 16759 (hereinafter called petitioner) of a Petition for Renewal and Reopening of Proceedings instituted in the District Court in 1962 (a civil rights action filed as C.A. 62-808, W.D.Pa.), which had been finally determined by dismissal in 1964. See Winkler v. Pringle, 214 F. Supp. 125 (W.D.Pa. 1963), aff'd 324 F.2d 613 (3rd Cir. 1963), cert. den. 377 U.S. 908, 84 S. Ct. 1169, 12 L. Ed. 2d 178 (1964). A brief in support of the petition was filed May 9, and on May 24, 1967, the District Court signed its order (supported by an opinion), denying this petition, from which the appeal in No. 16757 was filed.*fn1
The above petition complains that the opinions dismissing the civil rights action in 1963 and 1964 did not pass on the merits of petitioner's complaint that the defendant-attorney attacked him as "a foreigner" (even though such attorney allegedly knew that he was a naturalized citizen), in a closing argument to the jury in a March 6, 1961, state court personal injury trial instituted by petitioner. It is too late to attack the rulings cited in the preceding paragraph which dismissed this civil action for lack of subject matter jurisdiction. See Silverman v. Constitution Life Insurance Company, 314 F.2d 944 (3rd Cir. 1963); 345 F.2d 177 (3rd Cir. 1965).*fn2 Cf. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Furthermore, such rulings are supported by this record.*fn3 It is unnecessary to elaborate on the concern and interest which all Federal Courts have that all citizens, whether naturalized or not, be accorded the rights of citizenship equally. As the Supreme Court of the United States has frequently pointed out, failure to apply "a constitutional guarantee" on the facts of any particular case does "not disparage [such guarantee] * * * in any manner." See Johnson v. State of New Jersey, 384 U.S. 719, 728, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), and cases there cited.
On June 19, 1967, petitioner filed in the District Court a document entitled Brief To Motion For Renewal (Document 23 in C.A. 62-808, W.D.Pa.), to which is attached a Motion For Issue of Subpoena and a Complaint. This 13-page document citing authorities was treated as a Petition for Reconsideration of the above-mentioned order dated May 24, 1967, and, together with all requests and motions contained in it, was denied by order of June 21, 1967, from which order the Notice of Appeal docketed in this court as No. 16759 was filed July 19, 1967. For the reasons stated above, the June 21 order, denying the application to reconsider the order dated May 24, 1967, to set a hearing on the Petition filed March 6, 1967, and to issue a subpoena directing the State Court judge to appear and testify to the statements made by the individual defendant in the State Court proceeding of March 6, 1961, must be affirmed. Also, this order must be affirmed insofar as it denied the request in the above-mentioned complaint for "assignment of another judge * * * for further adjudication of the presented petition and complaint," since no valid reason for such a request was given in this document or appears in the entire record.*fn4
On March 15, 1967, defendants filed in the above District Court action a motion requesting that petitioner be permanently enjoined from further litigating any of the issues in such action. No answer to this motion was filed by petitioner and, without notice, oral or written argument, or hearing, the District Court filed an order (dated 6/2/67), on its own initiative, denying such motion for a permanent injunction, saying, inter alia, "no authority in law has been cited or exists for authorizing an injunction such as here requested and * * * this is not within the procedures as set forth under federal law or the Federal Rules of Civil Procedure, * * *."*fn5 The corporate defendant has filed an appeal from such order, which is docketed as No. 16758.*fn6 Since defendants were entitled to notice and, at least (the allegations of their motion not being denied), an opportunity to present written arguments by brief or memorandum, the order of June 2, 1967, must be set aside. See Swindell-Dressler Corporation v. Dumbauld, 308 F.2d 267, 273-274 (3rd Cir. 1962); Sims v. Greene, 161 F.2d 87, 89 (3rd Cir. 1947).
The orders of the District Court at Nos. 16757 and 16759 will be affirmed and the order at No. 16758 will be remanded for further proceedings in accordance with the foregoing opinion. Petitioner's Motion for Issue of Judgment, filed in all three appeals, will be denied.