The opinion of the court was delivered by: TROUTMAN
instituted this action against nineteen asbestos manufacturers and alleged they are responsible for various injuries which he suffers by virtue of his exposure to their products. One such defendant is Raymark Industries, Inc. (Raymark), plaintiff's former employer. Upon Raymark's motion, we concluded that the exclusivity provisions of Pennsylvania's Workmen's Compensation Act, 77 P.S. 1 et seq., barred most of the action against the employer. Plaintiff now moves for entry of final judgment pursuant to Fed. R. Civ. P. 54(b) or for certification under 28 U.S.C. § 1292(b). We deny the motion for the reasons set forth below.
Fed. R. Civ. P. 54(b) states in relevant part that
when more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment.
Motions under Fed. R. Civ. P. 54(b) are addressed to the trial court's sound discretion. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10-11, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980); Dudo v. Schaffer, 93 F.R.D. 524, 530 (E.D. Pa. 1982). Prior to the exercise thereof, however, three conditions must be met.
First, there must be multiple claims or multiple parties. Second, there must be a final decision "resolving" the rights and liabilities of "at least one party". Third, there must be a finding that there is no just reason for delay. Chamberlain v. Harnischfeger Corp., 516 F. Supp. 428, 429-30 (E.D. Pa. 1981).
The first of these conditions, the presence of multiple claims or multiple parties has clearly been met. However, because the second requirement, a final decision resolving the liabilities of one party, Raymark, has not been met, we deny the motion. Specifically, our order granting Raymark's motion resulted in the dismissal of only a portion of the complaint as to it.
The requirement that judgment entered under Rule 54(b) be supported by a decision which conclusively defines the rights and liabilities of at least one party or at least one "claim", evolves from the plain meaning of Rule 54(b). It is "generally accepted" that the word "claim", as used in the Rule, contemplates "one legal right growing out of a single transaction or series of related transactions". Acha v. Beame, 570 F.2d 57, 62 (2nd Cir. 1978). Thus, a complaint which seeks to vindicate a single right through multiple remedies states but "a single claim for relief" within the meaning of Rule 54(b). Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743, 47 L. Ed. 2d 435, 96 S. Ct. 1202 n. 4 (1976). Accord, Cmax, Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961). One method of determining whether a complaint presents either a single "claim" or multiple "claims" against a party is to determine whether recovery under one legal theory requires proof of "different facts" than are required to prove a second theory also advanced. Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1316 (9th Cir. 1979).
In the case at bar, our prior order dismissed portions of the complaint against Raymark on the theory that plaintiff could not directly maintain a cause of action in negligence against his employer. The order thus resulted in the dismissal of plaintiff's claims against Raymark which were grounded in negligence, breach of warranty and strict liability. The ruling left intact plaintiff's claims against Raymark which sound in intentional misconduct.
The primary elements of proof necessary to recover on the dismissed negligence claims require a showing that Raymark manufactured a product which resulted in harm to plaintiff. The only additional fact which plaintiff must prove with respect to the portion of the claim still at bar, also against Raymark, is the element of intent, i.e., that Raymark knew that its products could cause harm to plaintiff and that they purposefully failed to so advise him.
The element of "intent", present in plaintiff's remaining counts against Raymark, requires proof of some facts different from those that are required to prove plaintiff's dismissed negligence and breach of warranty claims. However, the core of operative facts surrounding plaintiff's proofs on the intentional tort counts is the same as that which exists with regard to the dismissed counts. Cf., Poe v. John Deere Co., 695 F.2d 1103, 1106 (8th Cir. 1982)(In determining whether a second "claim" is barred for res judicata purposes the subsequently filed suit need not track the first one with "mathematical precision".)
Accordingly, we conclude that the degree of consanguinity between the dismissed portions of the complaint and the remainder thereof is so close as to compel the conclusion that plaintiff has, within the meaning of Rule 54(b), presented only one "claim" against Raymark. RePass v. Vreeland, 357 F.2d 801, 805-06 (3d Cir. 1966). Because portions thereof are still pending, we may not enter judgment under the Rule. This conclusion is further supported by the precept that judgment under Rule 54(b) shall be granted neither "routinely" nor as a mere "accommodation to counsel". Great American Trading Co. v. I.C.P. Cocoa, Inc., 629 F.2d 1282, 1286 (7th Cir. 1980).
Plaintiffs' motion, although captioned as one under Rule 54(b), also argues that our decision to dismiss portions of the complaint against Raymark involves a "controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal . . . may materially advance the ultimate termination of the litigation". 28 U.S.C. § 1292(b). General Public Utilities Corp. v. United States, 551 F. Supp. 521, 531 ...