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Kushner, Marvin and Kushner v. Winterthur Swiss Insurance Co.

decided: April 30, 1980.

KUSHNER, MARVIN AND KUSHNER, DOLORES, HUSBAND AND WIFE, APPELLANTS
v.
WINTERTHUR SWISS INSURANCE COMPANY, EMHART A.G. AND EMHART CORPORATION AND HILL REFRIGERATION DIVISION OF EMHART INDUSTRIES



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-2221)

Before Aldisert, Weis and Garth, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

The Federal Rules of Appellate Procedure and the rules of this court set forth certain requirements to be observed by litigants pressing appeals in this court. This appeal requires us to decide what sanctions should be imposed, first, under our Rule 21*fn1 when the requirements for briefs and appendices have not been observed, and second, under Rule 54(b), Federal Rules of Civil Procedure, when the order from which an appeal is taken indicates that it "adjudicates . . . the rights and liabilities of fewer than all the parties," but appellants have represented that the appeal is from a final judgment "in accordance with 28 U.S.C. 1291 (sic)."

Appellants filed a complaint sounding in diversity in the district court, seeking compensation for personal injuries suffered in an automobile collision that occurred in Zurich, Switzerland on August 2, 1977. Named as defendants were Emhart A.G., a Swiss corporation, and Hill Refrigeration Division of Emhart Industries, a New Jersey corporation, both wholly owned subsidiaries of Emhart Corporation, a Connecticut company that was also named as a defendant. The fourth defendant named was Winterthur Swiss Insurance Company, a New York corporation doing business in Switzerland and the liability insurance carrier for Emhart A.G.

All defendants filed motions to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. The motion of defendant Emhart A.G. was based upon lack of personal jurisdiction. Winterthur also moved to dismiss for lack of personal jurisdiction, and additionally on the basis that no direct action could be sustained against Winterthur Swiss Insurance Company under Pennsylvania or Swiss law. On August 16, 1979, the district court granted the motions of Emhart A.G., Emhart Corporation, and Winterthur. The court denied the motion to dismiss presented by Hill Refrigeration and ordered it to file an answer. On September 6, 1979, the remaining defendant, Hill Refrigeration, filed interrogatories, a notice of deposition, and its answer to the complaint. On September 17, 1979, notice of appeal was received and filed in the district court, and on September 19, 1979, a copy of the notice of appeal was received by this court.

I.

The rules of this court, supplementing the Federal Rules of Appellate Procedure, have been effective in their present form since September 1, 1978. Third Circuit Rule 21(2)(A)(g) and Rule 32(a), Federal Rules of Appellate Procedure, provide in relevant part:

The front covers . . . of the briefs and of appendices, if separately printed, shall contain: . . . (5) the names and addresses of counsel representing the party on whose behalf the document is filed.

On December 21, 1979, a document was filed with the Clerk entitled: "BRIEF FOR PLAINTIFFS-APPELLANTS, MARVIN AND DOLORES KUSHNER APPENDIX." Contrary to the requirements of this rule, the names and addresses of counsel were not set forth on the cover; indeed, this information appears nowhere in the document.

Third Circuit Rule 10(3) provides:

Contents of Appendix. As required by Rule 30(a), Federal Rules of Appellate Procedure, the appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, or findings; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. In addition, the appendix shall contain: (5) a table of contents with page references; (6) the notice of appeal and (7) the memorandum or opinion of any trial court subject to review. If the court by order has dispensed with the requirement of an appendix, items (1), (3), (6) and (7) shall be included in appellant's brief. See also Rule 21(2)(A)(a).

Contrary to the requirements of Rule 10(3)(1) and Fed. R. App. P. 30(a)(1), the appendix does not contain the relevant docket entries in the proceedings below. Contrary to the requirement of Rule 10(3)(5), the appendix is not paginated; instead, it takes the form of a collection of exhibits with each segment bearing an introductory letter of the alphabet. And contrary to the requirement of Rule 10(3)(6), the appendix does not contain the notice of appeal.

The Federal Rules of Appellate Procedure govern the processing of appeals, and are the product of much careful thought by the Advisory Committee on Appellate Rules, the Committee on Rules of Practice and Procedure, the Supreme Court, and the Congress. They set forth the requirements a litigant must observe if the merits of the appeal are to be considered properly by the United ...


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