Thomas F. Traud, Jr., Allentown, for appellant.
Cody H. Brooks, Scranton, Teel, Stettz, Shimer & DiGiacomo, Stanley E. Stettz, Easton, for appellees the Central R.R. Co. of N. J.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, notes his dissent.
Appellant filed a complaint in trespass and assumpsit against appellees*fn1 on May 6, 1974. Appellees filed an answer and new matter, and appellant filed a reply to new matter. Extensive discovery was undertaken, a pre-trial conference was held on December 9, 1974, and the case was listed to be tried in January, 1975. Shortly after appellant filed notice that the deposition of the trustee and other senior officials of appellees would be taken on December 26, 1974, appellees, on December 24, filed a petition for stay of proceedings. The petition was predicated upon a reorganization proceeding commenced on March 22, 1967, by appellee Central Railroad Company of New Jersey pursuant to section 77 of the Bankruptcy Act, 11 U.S.C. § 205, and pending in the United States District Court for the District of New Jersey. In language paralleling the provisions of section 77(j) of the Act, 11 U.S.C. § 205(j), paragraph eight of
the District Court's order of March 22, 1967, approving the petition for reorganization provided that
[a]ll persons and all firms and corporations . . . hereby are restrained and enjoined . . . from commencing or continuing any proceeding against the Debtor, whether for obtaining or for the enforcement of any judgment or decree or for any other purpose, provided that suits or claims for damages caused by the operation of trains, buses, or other means of transportation may be filed and prosecuted to judgment in any court of competent jurisdiction . . .
The lower court, presumably*fn2 concluding that appellant's claims did not fall within the proviso contained in 11 U.S.C. § 205(j) and incorporated in the District Court's order, granted the stay. The propriety of the stay depends upon whether the damages that appellant has alleged were "caused by the operation of trains" within the meaning of the proviso.
Appellant, who had been employed by appellee*fn3 since 1942, was forced to retire because of medical difficulties in October, 1972. At the time of his retirement, appellant was Division Sales Manager of appellee, responsible for appellee's sales activities in a large area ...