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May 28, 1981

HARNISCHFEGER CORPORATION and Arthur Phillips and Company, Inc.

The opinion of the court was delivered by: SHAPIRO


Plaintiff Barry S. Chamberlain, a citizen of New Jersey, brought this action in the Court of Common Pleas of Philadelphia County against defendants Harnischfeger Corporation ("Harnischfeger"), a Delaware corporation, and Arthur Phillips and Company, Inc. ("Phillips"), a Maryland corporation. Harnischfeger timely removed the case to federal court as a diversity action.

 Plaintiff's appeal from this decision was dismissed on December 11, 1980 by judgment order of the Court of Appeals for the Third Circuit, 636 F.2d 1207, stating:

It is ADJUDGED AND ORDERED that the appeal will be dismissed without prejudice to the right of appellant to apply to the district court for a determination and direction under F.R.C.P.54(b). However, we express no opinion as to whether the determination and direction should be made; this being a matter within the discretion of the district court. If the determination and direction are made, a new appeal may come before us on the present briefs and record supplemented to show subsequent proceedings.

 Now before the court is plaintiff's subsequent petition for direction of a final judgment for defendant Phillips and an express determination that there is no just reason for delay in order to allow immediate appeal of this court's Order dismissing Phillips pursuant to F.R.C.P. 54(b). *fn1" The petition is opposed by defendant Phillips. For the reasons which follow, the court will grant the petition.

 Three conditions must exist before a Rule 54(b) direction and determination may be made. The first condition, that multiple claims for relief or multiple parties are involved, clearly exists; this action is against two defendants. If there are multiple parties, there need only be one claim in the action. See, 10 Wright & Miller, Federal Practice and Procedure, § 2656 (1973); Eisenhower v. DiCiurcio, C.A. No. 79-4128 (E.D.Pa. November 17, 1980).

 The second condition, that there is a final decision resolving the rights and liabilities of at least one party, is also met. A dismissal for lack of personal jurisdiction disposes of the claim completely against that party. 10 Wright & Miller, Federal Practice and Procedure, § 2656 (1973); see, Bernardi Brothers, Inc. v. Pride Mfg., Inc., 427 F.2d 297 (3d Cir. 1970) (Rule 54(b) certification where some defendants dismissed for lack of personal jurisdiction).

  The third condition for a Rule 54(b) certification is that the court finds there is no just reason for delaying an appeal. A request that this determination be made is addressed to the discretion of the trial judge; the decision must depend on the facts of the particular case. See generally, 10 Wright & Miller, Federal Practice and Procedure § 2659 (1973). Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S. Ct. 1460, 64 L. Ed. 2d 1 (1980). In Curtiss-Wright, the Supreme Court relaxed the standard for certification of appeals under Rule 54(b) which had previously prevailed in this Circuit (see, Eisenhower, supra, at 7, and cases cited therein), by rejecting the view urged by defendant Phillips here, that certification is to be utilized only in the infrequent harsh case. *fn2" Rather, the Court stated that, "however accurate it may be as a description of cases qualifying for Rule 54(b) treatment, the phrase "infrequent harsh case' in isolation is neither workable nor entirely reliable as a benchmark for appellate review." Curtiss-Wright, supra, 446 U.S. at 12, 100 S. Ct. at 1467, 64 L. Ed. 2d 1. As noted in Eisenhower, supra, at p. 6, the "touchstone in this exercise of discretion is the interest of sound judicial administration."

 Weighing the factors in this case leads to a conclusion that sound judicial administration would be served by certification under Rule 54(b). The nature of the order makes clear that "no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Curtiss-Wright, supra, 446 U.S. at 11, 100 S. Ct. at 1466, 64 L. Ed. 2d 1 (a factor properly considered by the district court upon request for Rule 54(b) certification). Should the Circuit Court determine the jurisdictional issue presented at this time, it would not reappear post trial if an appeal were then taken.

 An appeal now also avoids the possibility of multiple trials. Plaintiff may now still litigate against Phillips in another judicial district but he will then be pursuing claims in two courts, with the possibility of inconsistent determinations in the trial courts and on appeal. *fn3" If plaintiff decides instead to appeal the dismissal of Phillips after trial, even if the dismissal were reversed on appeal, a second personal injury and products liability trial involving substantial repetition of factual matters would be necessitated. If the dismissal were affirmed, the statute of limitations may then prevent litigation against Phillips in Maryland. Of course, it is possible that plaintiff may prevail against defendant Harnischfeger and be satisfied with that judgment. In that eventuality, whether or not Phillips is liable will be moot. But that likelihood is insufficient in itself to outweigh plaintiff's present practical choice between two simultaneous trials in two jurisdictions or two successive trials in the same jurisdiction. Plaintiff's predicament commends certification.

 We have also considered the delay involved in not proceeding against defendant Harnischfeger while the appeal as to defendant Phillips is pending. However, plaintiff prefers this delay to the prospect of two trials and defendant Harnischfeger has not objected. The Court of Appeals has indicated in its Judgment Order that the appeal may come before it on the present briefs which will save time and effort. The expense of briefing this discrete issue of personal jurisdiction having already been undertaken, albeit due to plaintiff's premature appeal, it seems that appellate review of the court's determination as to defendant Phillips would now be appropriate.

 Upon careful consideration, we determine that appeal at this time promises the most efficient use of judicial resources with the least expense and hardship to all parties and there is no ...

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