motion or, in the alternative, for certification of my order under 28 U.S.C. § 1292(b). On November 8, 1979, I heard reargument pursuant to defendant's motion. For the reasons set forth below, I conclude that my order of May 22 should be amended.
Before I turn to the merits, it may be helpful if I say something further on a preliminary question which I discussed briefly in my May 22 opinion -- the authority of a judge to disturb a ruling made by the judge to whom a case was previously assigned.
In my prior decision, I relied on Ryans v. Blevins, 159 F.Supp. 234 (D.Del.), aff'd per curiam 258 F.2d 945 (3d Cir. 1958), which I felt to be substantial authority for departing in this instance from the well-established rule in this Circuit that "a judge may not overrule a prior decision of another judge of the same court in the same case." Jurgenson v. National Oil & Supply Co., et al., 63 F.2d 727, 729 (3d Cir. 1933). Additional support for departing from the rule is to be found in the observations of the Court of Appeals, sitting en banc, in TCF Film Corp. v. Gourley, 240 F.2d 711, 713-14 (3d Cir. 1957):
... there may be exceptional circumstances under which the rule is not to be applied. Such circumstances exist when the judge who made the original decision is not available to consider the application to rehear and reverse his decision. If the judge who made the decision... resigns from the court he obviously is no longer available to reconsider it and such reconsideration must perforce be by another judge if it is to be had at all. Id. 714.
With respect to the merits, the first question to be addressed is whether I erred in overturning Judge Fogel's ruling that defendant was not liable for the cost of removing the junkyard debris. Defendant insists that I erred in looking to the law of negligence rather than to custom in the junkyard business to determine whether its failure to remove junk-car debris by the end of the tenancy breached an obligation to plaintiff imposed by the lease. Defendant argues that the use of a negligence norm imports tort doctrine into a contract suit. But the argument fails to take account of the governing rule announced by the Pennsylvania Supreme Court over eighty years ago: "Generally in the absence of an express covenant on the subject the law implies a covenant on the part of the lessee so to treat the demised premises that they may revert to the lessor unimpaired except by usual wear and tear, and uninjured by any willful or negligent act of the lessee." Earle v. Arbogast & Bastian, 180 Pa. 409, 416-17, 36 A. 923, 923 (1897); see Hardware Mutual Ins. Co. of Minn. v. C.A. Snyder, Inc., 137 F.Supp. 812, 814 (W.D.Pa.1956); see also 22 P.L.E. § 237.
Accordingly, I decline to amend my order on the issue of liability for accumulated debris.
In my decision of May 22, 1979, I also concluded that Judge Fogel's failure to enter findings on the claims for holdover rent and/or loss of use of purchase monies had been an oversight "which Judge Fogel would have been required to correct had he still been on the bench when plaintiff's motion was filed," Memorandum of May 22, 1979, at pp. 51-52, and I re-opened the judgment to correct that oversight. In its motion for reargument, defendant contends that (1) these claims had not in fact been litigated, and (2) I improperly ventured outside the record in reaching the conclusion that I did. In the alternative, defendant argues that, to the extent that the two claims were litigated, Judge Fogel's silence as to these claims must be deemed a finding of fact against plaintiff. In opposition, plaintiff argues that these claims had been put before Judge Fogel in the Pre-Trial Order (Proposed Findings of Fact), at pp. 24 (P32), 25 (PP35, 37) and 28 (P5), and in the post-trial proposed findings. Plaintiff's Brief in Support of Proposed Findings of Fact and Conclusions of Law, Appendix A, at pp. 15-17 (PP47-59) and 21 (P6). However, plaintiff has not shown, by way of attempted substantiation of the somewhat delphic proposed findings, that at any point in the ten-day trial there was any significant exploration of the issue of holdover tenants, as opposed to holdover debris.
Accordingly, I have concluded that the presentation of these two damage claims at the trial before Judge Fogel did not place them in so clear a focus as to warrant my concluding that (1) the claims were actually litigated, and (2) Judge Fogel erred in not ruling on them. It was, therefore, inappropriate for me to re-open the record as to these claims. I will vacate that portion of my May 22 order.
These decisions leave only the amount of damages for junkyard debris clean-up still to be determined in this case. At the reargument, the parties gave differing estimates of the time that the remaining proceedings would take if my May 22 order were allowed to stand. Today's modification of the May 22 order should mean that the hearing on damages will be materially shorter than the several days estimated by defendant. At any rate, I am not persuaded that appellate review at this juncture would "materially advance the ultimate termination of the litigation," 28 U.S.C. § 1292(b), or that the issues possess the "uniqueness, exceptionality, or extraordinary importance" that would warrant appellate review now. In re Japanese Electronic Products Antitrust Litigation, MDL 189 (E.D.Pa., August 4, 1979), slip opinion at 11. Accordingly, I will not certify this order under § 1292(b).