decided as amended august 1 1974.: July 18, 1974.
Appeal from the United States District Court for the Middle District of Pennsylvania, (D.C. Civil No. 71-23).
Biggs, Adams and Rosenn, Circuit Judges. Resubmitted Seitz, Chief Judge, Biggs, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Seitz, Chief Judge (dissenting).
This case presents the issue of appealability of sanctions imposed by the district judge for failure to comply with discovery orders. The original jurisdiction is stated in the complaint to be as follows: "This Court has jurisdiction of the claim of plaintiff for relief which involves damages in excess of Ten Thousand Dollars ($10,000.00); and which arises under the laws of the United States, to wit: Title 35, U.S. Code, Sections 281-287, 289 and 292; and Title 28, Sections 1331, 1338 and 1355."
Plaintiff-appellant Cromaglass Corporation (Cromaglass) sued the defendant-appellees, Ferm, Sechler, and Plast-A-Form Corporation alleging patent infringement, false marking, and unfair competition, in relation to the manufacture and sale of aerobic household sewage treatment units. The district court concluded on defendants' motion that Cromaglass' alleged failure to answer certain interrogatories warranted imposition of sanctions against it and ordered that a number of facts be taken as established, in favor of the defendants, in accordance with Rule 37(b) (2) (A) and that Cromaglass be precluded from supporting its claims or introducing certain designated matters in evidence in accordance with Rule 37(b) (2) (B). The court also made a finding of civil contempt against Cromaglass and its attorney Pattison and assessed against them as reasonable expenses and counsel fee the sum of $4,000.
Judge Muir filed his opinion, 344 F. Supp. 924, on June 27, 1972, and the order referred to is as follows:
"United States District Court For the Middle District of Pennsylvania
Cromaglass Corporation, Plaintiff vs. Carl Ferm, Fred R. Sechler and Plast-A-Form Corporation, Defendants
In accordance with the Opinion filed this day, It is Ordered and Adjudged that:
1. The Defendants' amended motion for imposition of sanctions on Plaintiff for failure to answer Interrogatories 20, 21, 24 and 25 as directed by the court's order of March 22, 1972, is granted.
2. The following facts shall be taken to be established for the purposes of this action in accordance with the claims of the Defendants.
2.1 Carl Ferm acquired no confidential or specialized knowledge or information respecting the fabrication or sale of aerobic sewage treatment equipment while in the employ of The Cromar Company, Plaintiff's predecessor.
2.2 There is no confidential or specialized knowledge or information of the Plaintiff involved in the fabrication of Defendants' ...