Eugene P. Moore v. Sylvania Electric Products, Inc., A Corporation v. Keystone Electric Construction Co., Third Party, 454 F.2d 81, 3rd Cir. (1972)
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Scribd Government DocsEugene P. Moore v. Sylvania Electric Products, Inc., A Corporation v. Keystone Electric Construction Co., Third Party, 454 F.2d 81, 3rd Cir. (1972)
Uploaded by
Scribd Government Docs454 F.
2d 81
Eugene P. MOORE, Appellant,
v.
SYLVANIA ELECTRIC PRODUCTS, INC., a corporation
v.
KEYSTONE ELECTRIC CONSTRUCTION CO., Third Party
Defendant.
No. 19560.
United States Court of Appeals,
Third Circuit.
Argued Dec. 9, 1971.
Decided Jan. 6, 1972.
Cyril D. Brain, Pittsburgh, Pa., for appellant.
John G. Gent, Quinn, Plate, Gent Buseck & Leemhuis, Erie, Pa. (Robert
G. Huhta, Erie, Pa., on the brief), for appellee.
Before McLAUGHLIN, ALDISERT and JAMES ROSEN, Circuit
Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Plaintiff's diversity action appeal from the district court's direction of a verdict
for defendant questions whether the court erred in failing to find a prima facie
case of liability and in refusing to consider an alleged violation of the
Pennsylvania Health and Safety Act of May 18, 1937, P.L. 654, 43
Pa.Stat.Anno. Sec. 25-1, et seq. The appeal also raises the question of abuse of
discretion in pretrial rulings.
Plaintiff, an electrician, alleged that he was injured when he fell three feet from
a ladder after being overcome by "noxious fumes" while working in a room
under construction for Sylvania Electric. He introduced testimony that the room
was hot, was poorly ventilated, and that there were odors from fresh paint and
from the installation of floor tiling. Although Sylvania owned the property, it
had let the construction work to a prime contractor, an electrical contractor, and
a heating contractor. Thus, we do not reach the issue of whether plaintiff's
evidence was sufficient to prove proximate cause because we are convinced
that plaintiff failed to prove that Sylvania was sufficiently in control of the
premises so as to impose liability for negligence. Fisher v. United States, 441
F.2d 1288 (3d Cir. 1971); Crane v. I. T. E. Circuit Breaker Co., 443 Pa. 442,
278 A.2d 362 (1971); Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189
A.2d 271 (1963).
3
Plaintiff argues that his trial counsel was not sufficiently familiar with the case
at the time he entered his appearance fifteen months after plaintiff's prior
counsel filed the complaint. It is his contention that although a pretrial hearing
had already been conducted, new counsel's request for additional time for
discovery should have been granted. We find no merit to this argument. We
note that the court did in fact permit a supplemental pretrial statement to be
filed on October 28, 1970, and conducted a supplemental pretrial conference on
November 4, 1970. We can find no abuse of discretion here.
At trial plaintiff sought to impose liability on two grounds-a statutory violation
suggesting negligence per se and common law negligence. Contending that the
trial court erred in preventing him from introducing the provisions of the
Pennsylvania Health and Safety Act, supra, appellant infers that this exclusion
constituted prejudicial error "because it forced him to rely on general principles
of common law negligence by denying him the benefit of Pennsylvania's timehonored rule that a violation of a statute may be negligence per se upon which
liability may be grounded if such negligence is the proximate and efficient
cause of the incident. Kaplan v. Philadelphia Transportation Co., 404 Pa. 147,
171 A.2d 166 (1961)." Millard v. Municipal Sewer Authority, 442 F.2d 539,
541 (3d Cir. 1971). This argument, however, is without merit. At pretrial,
plaintiff represented that he would not be relying upon a violation of a statute to
prove negligence:
5 Court: [A]nd as I understand it, there is no allegation of violation of ordinances
The
like Department of Labor regulations or any other statutory or quasi-statutory
regulations.Plaintiff's Counsel: No. Because I anticipated that probably I would get
into some difficulty.
6
Although now asserting that he is not bound by this position because of a
change in trial counsel, we believe that the dictates of orderly trial procedure
compel him to adhere to those theories he adopted at pretrial. F.R.C.P. 16
states:
7 court shall make an order which recites . . . the agreements made by the parties
The
as to any of the matters considered, and which limits the issues for trial to those not
disposed of by admissions or agreements of counsel; and such order when entered
controls the subsequent course of action, unless modified at the trial to prevent
manifest injustice.
8
Whether to admit evidence supportive of a theory not disclosed during pretrial
is a matter peculiarly within the discretion of the trial judge. In Ely v. Reading
Co., 424 F.2d 758 (3d Cir. 1970), this court stated:
9 of the main purposes of the pretrial conference is to formulate the issues to be
One
litigated to aid the parties in preparation for trial. If counsel are permitted to change
the positions taken at pretrial obviously the effectiveness of this procedure is
destroyed. For this reason the pretrial order is generally binding on the parties. It
cannot be modified without the permission of the court and a showing of manifest
injustice. The decision of whether or not to permit a change is within the discretion
of the trial judge. Appellate interference with this discretion should be kept at a
minimum. It should only be exercised where there is a clear abuse of discretion.
10
424 F.2d at 763-764. See also Wounick v. Hysmith, 423 F.2d 873, 874 (3d Cir.
1970). There was no abuse of discretion in this case.
11
Putting aside this question of estoppel, we find that the court did not err in
refusing to consider the substantive provisions of the Pennsylvania Health and
Safety Act. In Millard v. Municipal Sewer Authority, supra, 442 F.2d at 541,
we noted that this Act is not self-executing, and that "Matulonis v. Reading
Railroad Co., 421 Pa. 230, 219 A.2d 301, 303 (1966) requires a plaintiff who
relies on the provisions of the Pennsylvania General Safety Act of 1937 'to
establish that the Department of Labor and Industry had established and
promulgated . . . rules and regulations [placing the Act into operation], and that
defendant had violated the statute by failing to comply with the said rules and
regulations."'
12
If indeed such rules and regulations exist, plaintiff made no offer to introduce
them.
13
We have carefully considered all other contentions presented in this appeal and
find them to be devoid of merit.1
14
The judgment of the district court will be affirmed.
14
The judgment of the district court will be affirmed.
In any event, we perceive a jurisdictional problem in the complaint. It is proper
for this court to inquire into the jurisdictional prerequisites sua sponte.
Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449 (3d Cir. 1964); F.R.C.P.
12(h) (3). Title 28 U.S.C. Sec. 1332(a) provides that district courts shall have
original jurisdiction in diversity actions. Section 1332(c) provides that a
corporation shall be deemed to be a citizen of the state in which it is
incorporated and in which it has its principal place of business. The court has
not read this jurisdictional prerequisite in the disjunctive, but rather, has
required complaints to include allegations of both the place of incorporation and
the principal place of business of the corporate parties. Guerrino v. Ohio
Casualty Insurance Co., 423 F.2d 419 (3d Cir. 1970). The complaint here lacks
any allegation as to where appellee maintains its principal place of business
Kane v. Ford Motor Co., 450 F.2d 315, 317 (3d Cir. 1971).
