ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 92-00858)
Before: Hutchinson, Nygaard and Seitz, Circuit Judges
The primary issue on appeal is whether under the Interstate Commerce Act, 49 U.S.C. § 10101 et seq., consignees must pay a common motor carrier for shipment of goods received even though the consignees had paid the shipper-consignor for the freight charges and the carrier delivered the goods under a bill of lading marked "prepaid." The district court concluded that under these circumstances the carrier was precluded from collecting freight charges from the consignees. We will affirm.
EF Operating Corporation is a common motor carrier which has its tariffs on file with the Interstate Commerce Commission. Tex-Ark Joist Company requested EF Operating to transport shipments of steel joists and attachments from its facilities in Lebanon, Pennsylvania to various locations in and out of the state. After completing the deliveries, EF Operating asked for payment, but Tex-Ark refused to pay. Later, as a result of a Chapter 11 bankruptcy, Tex-Ark had no money to pay its unsecured creditors, including EF Operating.
EF Operating then requested payment from consignees of Tex-Ark, including S.S. Fisher Steel Corporation and M.P. Flaherty Associates, Inc. When the consignees refused to pay because they had already paid the freight charges to Tex-Ark, EF Operating sued in federal district court under the Interstate Commerce Act. All the consignee-defendants eventually settled, except Fisher and Flaherty.
EF Operating moved for summary judgment, contending that the Interstate Commerce Act required the defendants to pay. Fisher and Flaherty cross-moved for summary judgment, contending that they had already paid the freight charges to Tex-Ark as indicated by "prepaid" marks on the freight bills and delivery tickets attached to the bills of lading. The district court denied EF Operating's motion and granted summary judgment for Fisher and Flaherty. EF Operating appeals.
Before we reach the merits of the summary judgment, we must confront a jurisdictional matter. Along with its summary judgment motion Flaherty also moved the district court to dismiss the complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court did not explicitly rule on this motion. Instead, it ruled in favor of Flaherty on the merits; at the same time it ruled in favor of another defendant, American Buildings Company, which had raised the same jurisdictional defense. The logical Conclusion to be derived from this is that the district court decided against Flaherty on the jurisdictional issue, albeit implicitly.
Although EF Operating appeals from the final order granting summary judgment for the appellees, Flaherty did not file a cross-appeal to contest the personal jurisdiction issue. Rather, it contests the issue in response to EF Operating's appeal. Unlike subject matter jurisdiction, which may be raised by any party or court at any time, see Wright & Miller, 5A Federal Practice and Procedure, § 1391 at 764-75 (1990), parties must affirmatively raise a personal jurisdiction defense in a timely manner under Federal Rules of Civil Procedure 12(g) and 12(h)(1), lest it be deemed waived. Id. § 1391 at 741-44; Myers v. American Dental Ass'n, 695 F.2d 716, 720 (3d Cir. 1982).
It is axiomatic that any party contesting an unfavorable order or judgment below must file an appeal. It is also well established that an appellee may, without taking a cross-appeal, support the judgment as entered through any matter appearing in the record, though his argument may attack the lower court's reasoning or bring forth a matter overlooked or ignored by the court. United States v. American Ry. Express Co., 265 U.S. 425, 44 S. Ct. 560, 564, 68 L. Ed. 1087 (1924); Colautti v. Franklin, 439 U.S. 379, n.16, 99 S. Ct. 675, 686, 58 L. Ed. 2d 596 (1979); Schweiker v. Hogan, 457 U.S. 569 n.24, 102 S. Ct. 2597, 2607, 73 L. Ed. 2d 227 (1982). This is simply a corollary to the rule that a reviewing court may affirm the lower court's decision on any basis. Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988); Johnson v. Orr, 776 F.2d 75, 83 n.7 (3d Cir. 1985). A grant of summary judgment and a dismissal for lack of personal jurisdiction, however, are wholly different forms of relief. Lucas v. Gulf & Western Indus., Inc., 666 F.2d 800, 805 (3d Cir. 1981). The latter is a dismissal without prejudice, whereas the former is a ruling on the merits which if affirmed would have preclusive effect. Id. By seeking dismissal of the complaint for lack of personal jurisdiction, Flaherty is not seeking to support the summary judgment on different grounds. Cf. Reserve Ins. Co. v. Brokerage Surplus Corp., 570 F.2d 487, 491 (3d Cir. 1978); Bullard v. Sercon Corp., 846 F.2d 463, 467-68 (7th Cir. 1988). Rather, it seeks to vacate the summary judgment. Lucas, 666 F.2d at 805. Thus, where an appellant files an appeal seeking review of a summary judgment for the appellee, the appellee must cross-appeal to contest the district court's adverse ruling on ...