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Hanna v. Philadelphia Asbestos Co.

decided: August 27, 1984.

SAMUEL HANNA AND THERESA HANNA. ADMINISTRATRIX OF THE ESTATE OF SAMUEL HANNA, AND PARENTS AND NATURAL GUARDIANS OF MAUREEN HANNA, APPELLEES
v.
PHILADELPHIA ASBESTOS COMPANY, PHILADELPHIA ASBESTOS COMPANY T/A PACOR, INC. AND PACOR, PACOR, INC., APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania

Garth and Sloviter, Circuit Judges and Fisher, District Judge.*fn*

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge.

This case presents, in a somewhat different procedural context, the same issues as those in In re Pacor, Inc. v. Higgins, 743 F.2d 984, also decided today. For much the same reasons, therefore, we affirm.

I.

Theresa Hanna, as Administratrix of the Estate of Samuel Hanna, brought a products liability-personal injury action against the Philadelphia Asbestos Co. (trading as "Pacor") in the Pennsylvania Court of Common Pleas in September, 1976, seeking damages due to exposure to asbestos. In December, 1977, Pacor impleaded Johns-Manville Corporation, the alleged manufacturer of the asbestos, as a third party defendant. Manville subsequently filed a chapter 11 reorganization bankruptcy petition on August 26, 1982, and on April 22, 1983.*fn1 Pacor filed a Petition for Removal in the bankruptcy court for the Eastern District of Pennsylvania, seeking to remove the Hanna-Pacor action, along with the Pacor-Manville third party action, to federal court. At the same time, Pacor moved to transfer venue of the controversy to the Southern District of New York, to be joined with the rest of the Manville bankruptcy administration.

Hanna moved to remand her action against Pacor to state court, citing equitable considerations of time and convenience. The bankruptcy court, however, denied the motion, and granted Pacor's motion to transfer venue of the entire Hanna-Pacor-Manville controversy to the Southern District of New York. Hanna then sought review of the bankruptcy court's determination in the district court. After a hearing, the district court found that the equities of the situation weighed in favor of remanding the matter to state court, where it would be tried more expeditiously and conveniently. The district court, evidencing uncertainty as to the exact procedural posture of the case, stated in its opinion:

To the extent that this is considered an appeal from the bankruptcy judge's decision, I will reverse that decision. To the extent it is considered to be a review of a termination [sic] by the bankruptcy judge, I will in reviewing it determine that the order should not be entered and in reviewing the application for remand, determine that the remand is proper.

Tr. at 51, App. at 112. It therefore ordered the removed Hanna-Pacor action remanded to the Pennsylvania Court of Common Pleas. It is from this order that Pacor appeals.

II.

A.

Pacor's principal contention is that the district court had no jurisdiction to review the bankruptcy court's order transferring venue to the Southern District of New York. It claims that the transfer order should be construed as an order "denying remand," thus making it unreviewable under 28 U.S.C. ยง 1478:

(a) A party may remove any claim or cause of action in a civil action, other than a proceeding before the United States Tax Court or a civil action by a Government unit to enforce such governmental unit's police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action.

(b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order under this subsection remanding a claim or cause of action, or a decision not ...


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