APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, D.C. Civil Action No. 72-1113.
Staley, Gibbons and Weis, Circuit Judges.
This is an appeal in a diversity case from an order which (1) denied defendant's motion to dissolve a foreign attachment, (2) denied defendant's motion to dismiss the complaint, (3) denied defendant's motion to transfer to another venue, and (4) denied defendant's motion to stay the case pending arbitration. The case commenced with the filing of a Praecipe and Complaint in Foreign Attachment in the Court of Common Pleas of Allegheny County. The plaintiff, McCreary Tire & Rubber Company (McCreary), a Pennsylvania corporation, sued CEAT, S.p.A. (CEAT), an Italian corporation, for alleged breaches of a distributorship contract and Mellon Bank, N.A. (Mellon), garnishee. CEAT filed a petition for removal to the United States District Court for the Western District of Pennsylvania. CEAT then made three alternative motions. It moved to dissolve the foreign attachment on the ground that at the time of service of the writ Mellon had none of its property in Mellon's custody; it moved to dismiss the complaint; and it moved for an order transferring the case to the United States District Court for the District of Massachusetts, where a prior action by McCreary against CEAT is pending, and in which CEAT has made a general appearance. It also moved for a stay of the within action so as to permit arbitration of the dispute in accordance with the terms of the contract upon which McCreary sued. The court denied each motion, denied a motion for a certification pursuant to 28 U.S.C. § 1292(b) and denied a motion for reconsideration. This appeal followed.
It is undisputed that a suit by McCreary against CEAT on essentially the same claims is pending in the United States District Court for the District of Massachusetts, that in the Massachusetts case CEAT has made a general appearance, that the Massachusetts district court ordered arbitration in accordance with the contract and stayed the suit pending arbitration and that the order compelling arbitration has been affirmed by the Court of Appeals for the First Circuit, McCreary Tire & Rubber Co. v. CEAT, S.p.A., No. 73-1138 (1st Cir. July 11, 1973).*fn1 At oral argument we were advised by counsel for McCreary and CEAT that the arbitration proceeding had actually commenced.
In this court McCreary moved to dismiss the appeal. Another panel on March 13, 1974 referred that motion to the panel which would hear the appeal on the merits. At the outset, therefore, we dispose of the motion to dismiss the appeal. The order appealed from, while embodied in a single document, embraces four separate subject matters which must be treated separately.
A. The Motion to Dissolve a Prejudgment Foreign Attachment
Paragraph one of the order provides "Defendant's Motion to Dissolve Foreign Attachment be and hereby is denied." The foreign attachment was made pursuant to Rules 1255 and 1258 of the Pennsylvania Rules of Civil Procedure. In United States v. Estate of Pearce, 498 F.2d 847 (3d Cir. 1974), the court en banc held unanimously that an order denying a motion to vacate a sequestration pursuant to 10 Del. C. § 366 was an interlocutory order unappealable under 28 U.S.C. § 1291, and the other eight active judges declined my invitation to treat such an order as the functional equivalent of an injunction or appointment of a receiver appealable under 28 U.S.C. § 1292(a). There is no basis for distinguishing Delaware foreign sequestration and Pennsylvania foreign attachment. Paragraph one is interlocutory and unappealable.
B. The Motion to Dismiss the Action
It is settled that denial of a motion to dismiss is unappealable. E.g., Fleming v. Berardi, 441 F.2d 732 (3d Cir. 1973) (per curiam); Commonwealth of Pennsylvania v. Brown, 373 F.2d 771, 776 (3d Cir. 1967); see Catlin v. United States, 324 U.S. 229, 236, 89 L. Ed. 911, 65 S. Ct. 631 (1945).
An order transferring an action pursuant to 28 U.S.C. § 1404(a) or refusing to make such a transfer is interlocutory and unappealable under § 1291. All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952). Limited review may be available by way of mandamus to review a transfer motion which the district court could not properly have made, Solomon v. Continental American Life Insurance Co., 472 F.2d 1043, 1045-46 (3d Cir. 1973), and a discretionary appeal pursuant to § 1292(b) may be available, see Katz v. Carte Blanche Corp., 496 F.2d 747, slip op. at 7-13 (3d Cir. 1974). But ...