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COLOMBO v. JOHNS-MANVILLE CORP.

November 19, 1984

George A. and Mary Rose COLOMBO
v.
JOHNS-MANVILLE CORPORATION, et al. PITTSBURGH CORNING CORPORATION v. UNITED STATES of America



The opinion of the court was delivered by: POLLAK

 I. INTRODUCTION

 Plaintiff George Colombo alleges that, while an employee of the United States at the Philadelphia Naval Shipyard, he was exposed to asbestos-containing products manufactures or distributed by defendants, and that this exposure caused a number of severe injuries. Mr. Colombo alleges that he may have suffered some of his exposure to asbestos particles while working on vessels owned by the United States. Defendant Pittsburgh-Corning's third-party complaint seeks indemnity or contribution from the United States for any damages that plaintiff may recover from Pittsburgh-Corning in this action. Pittsburgh-Corning raises eight distinct legal theories in support of its claim for indemnity or contribution.

 The United States has moved to dismiss Pittsburgh-Corning's third-party complaint, or in the alternative for summary judgment. Eagle-Picher Corporation, another defendant, requested leave to file a brief and participate in oral argument in opposition to the United States' motion. That leave was granted because Eagle-Picher has pending in this case a motion for leave to file a third-party complaint substantially identical to Pittsburgh-Corning's third-party complaint.

 Briefing the United States' motion involved preparation of considerable amounts of material. The parties requested, and obtained, several extensions and also leave to file reply and surreply memorandum. After completion of briefing, I heard argument on July 5, 1984. At that time, the United States raised an issue concerning the sixth of Pittsburgh-Corning's claims which no party had to that point adequately briefed. Accordingly, I permitted the United States, Pittsburgh-Corning, and Eagle-Picher additional time to file supplemental memoranda on this issue. This opinion resolves the issues raised by the United States' motion. In addition, the Opinion and the accompanying Order necessarily resolve the motions of Pittsburgh-Corning and Raymark for leave to file third-party complaints.

 II. UNITED STATES' MOTION TO DISMISS PITTSBURGH-CORNING'S THIRD-PARTY COMPLAINT, OR FOR SUMMARY JUDGMENT

 A. Timeliness of Pittsburgh-Corning's Third-Party Complaint

 Federal Rule of Civil Procedure 14(a) permits any defending party to serve a third-party complaint. "The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than ten days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action." Fed.R.Civ.P. 14(a).

 Pittsburgh-Corning filed its original answer to plaintiff's complaint on April 16, 1982. Pittsburgh-Corning did not move for leave to file its third-party complaint until June 23, 1983. No party objected to Pittsburgh-Corning's motion, so I granted that motion as unopposed on July 18, 1983. However, this court's Local Rule of Civil Procedure 22(a) provides:

 
Applications pursuant to F.R.Civ.P. 14 for leave to join additional parties after the expiration of the time limits specified in that rule will ordinarily be denied as untimely unless filed not more than ninety (90) days after the service of the moving party's answer. If it is made to appear, to the satisfaction of the court, that the identity of the party sought to be joined, or the basis for joinder, could not, with reasonable diligence, have been ascertained within said time period, a brief further extension of time may be granted by the court in the interests of justice.

 E.D.Pa.R.Civ.P. 22(a).

 The language of Local Rule 22(a) strongly suggests that I erred in granting Pittsburgh-Corning's motion for leave to file an amended complaint when I did so on July 18, 1983. In fact, a three-judge panel of this court, on which I sat, came to precisely that conclusion with respect to an identical motion filed by Pittsburgh-Corning on the same day -- June 23, 1983 -- in a different asbestos case. Lovallo v. Pittsburgh Corning Corp., 99 F.R.D. 627 (E.D.Pa. 1983). Nevertheless, developments since July 18, 1983 lead me to conclude that I should neither (1) vacate my Order of that date permitting the filing of Pittsburgh-Corning's third-party complaint, as untimely filed.

 The Lovallo panel did not render its Opinion until October 24, 1983. By that time, Pittsburgh-Corning's third-party complaint had been served three months before. See Third-Party Return of Summons (filed September 1, 1983). The United States moved to dismiss, or, in the alternative, for summary judgment on, that third-party complaint on September 26, almost a full month before the Lovallo decision. The United States' memorandum in support of its motion raised Pittsburgh-Corning's timeliness in a footnote, but the United States argued the merits of its motion for 56 pages supplemented with hundreds of pages of exhibits. The United States having moved, Pittsburgh-Corning had the right to respond, which it did at great length. The parties have devoted enormous effort to filing extensive, thorough, and helpful briefs on the issues raised by the United States' motion. Moreover, at argument the United States did not press its Local Rule 22(a) argument with any force.

 Having improvidently granted Pittsburgh-Corning's motion for leave to file a third-party complaint in the first place, I cannot now responsibly vitiate the massive efforts expended on the merits of the United States' motion by dismissing Pittsburgh-Corning's third-party complaint on a technicality. The rules grant me discretion not to apply Local Rule 22(a)'s strict time requirement in such an instance. Local Rule 22(a) only provides that a motion for leave to file a third-party complaint will "ordinarily" be denied if it comes late. E.D.Pa.R.Civ.P. 22(a). This is no "ordinary" case. Moreover, Federal Rule 6(b) permits me to enlarge the time set by Local Rule 22. Fed.R.Civ.P. 6(b)(2). Accordingly, I will treat Pittsburgh-Corning's third-party complaint as if it were timely filed.

 This conclusion creates a question concerning defendants Raymark Industries, Inc. and Eagle-Picher, Inc. On August 4, 1983, Raymark filed a motion for leave to file a third-party complaint identical in all pertinent respects to Pittsburgh-Corning's. On August 22, I granted that motion as uncontested. However, on September 8, 1983, I amended my August 22 Order because, in the interim, I had learned of the pendency of Lovallo, a case which appeared to present the same issue. *fn1" Under the order as amended on September 8, Raymark could file its third-party complaint in this case if the three-judge court in Lovallo permitted Raymark to file its identical third-party complaint in this case. Thus, Raymark's motion for leave to file a third-party complaint in this case was keyed to the Lovallo decision.

 In my view, the resolution of Raymark's motion for leave to file a third-party complaint, as well as the resolution of Eagle-Picher's parallel motion, should follow the result reached on the United States' motion to dismiss Pittsburgh-Corning's complaint in this case, and not the result reached on Raymark's and Eagle-Picher's motions in Lovallo. Ideally, I would have anticipated Lovallo's result before the United States had moved to dismiss Pittsburgh-Corning's complaint. As I think it now prudent to permit Pittsburgh-Corning's complaint to remain filed and to be tested by the United States' motion, I think equity demands equivalent treatment for other third-party plaintiffs in this case.

 B. Pittsburgh-Cornings Claims

 Pittsburgh-Corning's third-party complaint is divided into eight more-or-less separate claims for relief. I describe them briefly here before addressing the merits of the United States' motion to dismiss, or for summary judgment. *fn2"

 1. Negligent Failure to Warn of Seller

 Pittsburgh-Corning brings its first claim for contribution under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Pittsburgh-Corning alleges that the United States sold raw asbestos to Pittsburgh-Corning which Pittsburgh-Corning incorporated in products it sold in turn to plaintiff's employers. Pittsburgh-Corning alleges that the United States negligently breached its duty to warn potential buyers and users of that raw asbestos of the "potential dangers, hazards and risks of harm from exposure to asbestos." Third-Party Complaint paras. 5-10. Pittsburgh-Corning has taken the position that this claim arises out of an obligation imposed by Pennsylvania law.

 2. Strict Liability of Seller

 Pittsburgh-Corning's second claim is also one for contribution under the Federal Tort Claims Act. In its second claim, Pittsburgh-Corning alleges that, under Pennsylvania law, the United States is strictly liable to it for plaintiff's damages because the United States sold Pittsburgh-Corning an unreasonably dangerous product which Pittsburgh-Corning later resold and to which plaintiff was later exposed.

 3. Implied Warranty of Fitness for Intended Purpose

 Pittsburgh-Corning's third claim alleges that, in the course of selling asbestos to Pittsburgh-Corning, the United States impliedly warranted that asbestos' safety and its fitness for its intended purpose. Pittsburgh-Corning contends that if plaintiff can establish Pittsburgh-Corning's liability to him, then the United States will have breached this implied warranty and must indemnify Pittsburgh-Corning. This claim arises under contract law and this court allegedly has jurisdiction under 28 U.S.C. § 1346(a)(2), a section of the Tucker Act.

 4. Implied Warranty from Specifications

 Pittsburgh-Corning's fourth claim alleges that all work performed at the Philadelphia Naval Shipyard, during the course of which plaintiff was allegedly exposed to Pittsburgh-Corning's products, complied with specifications promulgated by the United States. Pittsburgh-Corning alleges that, in issuing these specifications, the United States impliedly warranted that asbestos-containing products used pursuant to those specifications would not injure those products' intended users. Pittsburgh-Corning therefore seeks indemnification from the United States for any breach of that warranty; plaintiff's recovery in this case would allegedly constitute such a breach. Like the third claim, this claim arises under contract law and this court allegedly has jurisdiction under 28 U.S.C. § 1346(a)(2), a section of the Tucker Act.

 5. Negligence as a Controller of Work Site

 Pittsburgh-Corning's fifth claim seeks indemnity in tort based upon a range of alleged breaches of the United States' duty to exercise ordinary care in the management of asbestos-containing products at the Philadelphia Naval Shipyard. Pittsburgh-Corning alleges that the United States negligently specified the characteristics of the products which it ordered, that the United States negligently failed to warn its employees about those products' hazards, and that the United States negligently failed to supervise the use of those products at the shipyard. As this claim is based upon Pennsylvania tort law, Pittsburgh-Corning brings it under the Federal Tort Claims Act.

 6. Negligence as Employer and Shipowner

 Pittsburgh-Corning's sixth claim for relief seeks to recover for the United States' negligence (1) as Mr. Colombo's employer, and (2) as the owner of vessels on which Mr. Colombo allegedly worked. The claim against the United States as an employer arises under Pennsylvania tort law and largely overlaps Pittsburgh-Corning's fifth claim for relief. The claim against the United States as vessel owner assertedly arises under federal maritime law, which imposes a duty of ordinary care upon vessels. Both, however, are asserted against the United States through the Federal Tort Claims Act.

 7. Good Samaritan Doctrine

 Pittsburgh-Corning's seventh claim for relief seeks contribution under Pennsylvania tort law. Pittsburgh-Corning alleges that the United States engaged in a course of study and regulation of the use of asbestos. Pittsburgh-Corning contends that this course resulted in the assumption by the United States of a duty to exercise ordinary care in its regulation of asbestos products. Pittsburgh-Corning alleges that the United States breached that duty of ordinary care and therefore must contribute under the Federal Tort Claims Act to any recovery which plaintiff may receive from Pittsburgh-Corning.

 8. Failure to Warn About Tobacco

 Pittsburgh-Corning's eighth claim is a subsidiary aspect of its seventh claim. Specifically, Pittsburgh-Corning alleges that the United States breached the ordinary duty of care which it had assumed to warn plaintiff about the synergistic ...


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