Earl Warren: Number 28, Provident Tradesmens Bank and Trust Company Administrator of the Estate of John R. Lynch etcetera, Petitioner, versus George M. Patterson, Administrator of the Estate of Donald Cionci et al. Mr. Adler.
Avram G. Adler: May it please the Court. Mr. Chief Justice and justices of the Supreme Court, this is a case involving two very important issues. First, the scope and orbit of the declara -- the federal declaratory judgment action and two, the reach and scope of Federal Rule of Civil Procedure 19 and its subsequent clarification in the new rule of 19 as it went into effect on July 1st, 1966. The facts of this case are not in dispute and are fairly simple. An automobile driven by an individual by the name of Cionci traveling at high speed across the median strip and struck a vehicle operated by Thomas Smith. The Cionci vehicle had as passengers the Lynch and John L. Harris. Cionci, Smith and Lynch were all killed. Cionci was without any assets. Cionci and Lynch had borrowed the car from one Dutcher, who was the name assured of an insurance policy issued by Lumbermens Mutual Casualty Company, who I shall call Lumbermens here after. The primary issues as to whether coverage was to be accorded Cionci was one whether -- there was no question that consent had been given. The only question was whether the geographical orbit of the consent has been exceeded. In as much as -- there was some question originally as to whether Cionci was the driver, this is now but admitted and is resolved. The declaratory judgment action was originally brought on the two bases as to determine that Cionci was the driver and to determine the coverage of the insurance policy. A suit was brought in the United States District Court in -- for the Eastern District of Pennsylvania by the Provident Tradesmen and Trust Company as administrators of the estate of Lynch against the estate of Cionci. Lumbermens did not defend that equal judgment was entered, the issue was subsequently settled, and the settlement was approved at which point Lumbermens did enter into the hearing and the judgment now exist for $50,000 for the estate of Lynch against the estate of Cionci. In addition, actions were brought in Delaware County which is a county contiguous to Philadelphia by the estate of Smith and John L. Harris who was not killed. Those actions have never gotten beyond the pleading stage even though in those actions Dutcher is represented by counsel furnished to him by the insurer, Lumbermens. The -- a declaratory judgment action was then brought by Provident Tradesmen Bank and Trust Company to determine whether or not Cionci was insured under the permissive use clause of the insurance policy. This was important because without the coverage actions against Cionci would be a mere academic exercise and just would be no funds, Cionci is dead and there were no assets. Lumbermens then moved to dismiss for failure to join an indispensable party naming John L. Harris and the estate of Thomas W. Smith as such. The actions were then amended to bring them in and the action went -- then went forward. At no point thereafter was any motions made or the issue raised as to Dutcher being an indispensable party until the Court of Appeals raised it sua sponte at the argument after the case had gone to verdict and during argument on other issues. At the trial, the question of the interest of Dutcher came up under the Pennsylvanian so-called Dead Man's Rule which has -- Justice Goodrich reviews in detail in Wright versus Wilson is a holdover from the old vouch -- the old concept that a man who had some interest or no matter how remote or contingent was being nabbed to be able to tell the truth in a cause of action. We still preserve the Pennsylvania Dead Man's Rule and during the brief -- the colloquies preceding their trial. It was contended by counsel for the estate of Lynch that Dutcher had such an interest as would make him incompetent under the Pennsylvania Dead Man's Rule and it was contended by Lumbermen that he did not had such an interest. The lower court ruled that Dutcher was incompetent. I should explain in this case, at this prosecuted case despite the fact that there had been an attempts made at pretrial procedure to determine the amount of insurance. This was resisted by Lumbermens and we had to deal with philosophical concepts rather than the actual amount so that we -- that's why the Court's make allusions to finite limits. It was contended that the interest of Dutcher was such as to render him incompetent under the Dead Man's Rule because they're being finite limits. Dutcher being a party defendant to the actions in the Delaware County that this would influence his decision such as to make him incompetent under the Pennsylvania Dead Man's Rule. And of course it was contended by Lumbermens to the contrary. The action with -- Dutcher did testify at the trial because as to Harris he was not incompetent. The jury rendered a verdict in that Cionci was operating the automobile within the geographical scope of permission. It found Dutcher's testimony not credible as to the Court in the -- in ruling on the post trial motions. There was a directed verdict for the estate of Lynch and the estate of Smith in as much as the Pennsylvania rule, there is a presumption that the driver of the vehicle, the driving with this permission of the owner and there was no testimony for the contrary as to those estates. When the case came on to the Court of Appeals, the issue of indispensable party having been raised sua sponte the Court then did not rule for some 18 months and then had reargued and subsequently rendered the decisions which had brought us into the Court today. The majority opinion if I may characterize it, have it so briefly is that the Dutcher is an indispensable party in as much as his interest will be effected in as much as he is a defendant in the Delaware County cases.
Speaker: (Inaudible)
Avram G. Adler: And they stopped right there. They did not make any further inquiry. They didn't follow the purport of the new trends as to Rule 19. I won't propose in this short time to trace the history of the indispensable party concept. This was done brilliantly by Professor Reid and Professor (Inaudible), it was originally a doctrine born in equity in which equity would withhold its grace from -- unless all the parties were before it unless it could do substantial or total justice. However, this concept when he transmigrated into the legal side of the Court then became a tool of legal oppression rather than of help. And as a result of the Article of Greed and Hazard, a tentative rule was proposed and circulated to setup various criteria if the Court should consider under Rule 19 before a case was dismissed under the indispensable party concept. A research instructor at Harvard by the name of Fink (ph) then wrote a contrary article saying that the indispensable party concept was one of substantive law and beyond the reach of the federal rules of civil procedure. These articles were all before the committee which tool the new Rule 19 and in an unusually lengthy notes and comments in the new Rule 19. It is clear that they rejected the concept, I think, advance the arguments of greed and hazard and set forth minimum criteria which should have been followed by a Court before dismissing under the indispensable party concept. It is the complaint of the petitioner here that the Court of Appeals in the majority opinion did not do this. And if I may just examine the various criteria by which they could have say this judgment and it is a difficult case. It was a case that previous inquiries have been done and the issue of coverage is crucial. The new Rule 19 says the first factor is what does judgment bring -- to mean to the absentee, Dutcher. If anything, it is clearly to his advantage because he gets a second -- if we accept the fact that he has an interest. He gets a second opportunity in as much as he's not bound by the judgment. But had the judgment been adverse to the petitioner then we would have been bound. Dutcher in this action had everything to gain and nothing to lose. If he won, these foreclosed the petitioners. If he lost, he still had a second opportunity and this of course was fully cognizant -- fully aware -- was within the contemplation of the respondent. The second pragmatic factor and the rule maker -- the committee who fashioned the rule used the word pragmatic repeatedly and it is not as that respondent says in it's a brief, a conclusionary fact. It is a seeking fact, it is an initial fact. It is the -- what is good and best for the parties, all the parties. The second pragmatic factor is highly important. The interest of Dutcher was highly remote and contingent and therefore the Court could have and should have shaped the relief. They could have very easily conditioned the judgment by merely saying, we will affirm the judgment. We will not find Dutcher an indispensable party. We won't even consider it if the parties here agree to limit their claims against all defendants, Dutcher or Cionci to the policy limits which have now been admitted to be $100,000. Had this been done this case would've stopped right there. I -- as I have said in my brief, I am authorized and I have been authorized to do just that and accept such a conditional one. And then we don't have -- I have to consider the interest of Dutcher one bit. Yet, this was never afforded the petitioners. The interest of Dutcher never had to arise to the dignity of an indispensable party concept had the Court merely followed the second pragmatic factor which new Rule 19 sets forth as minimum criteria. I'd like at this point -- because it's mentioned in the respondent's brief, to explain the inconsistencies if such there be and I hope to show that there is not between claiming the interest of Dutcher so as to preclude him from testifying under the Pennsylvania Dead Man's Rule and arguing here that is in -- in his interest is remote and contingent. Under Pennsylvania law, remoteness and contingency as long as the interest is pecuniary and adverse does not preclude him from being found incompetent under the Pennsylvania Dead Man's Rule. The best case to cite that is and I've chosen an extreme case is Alcorn versus Cook which is cited in the brief, where the husband of a legatee without any showing that she might not be able -- that there might not be sufficient funds was precluded from testifying. Not only was there a remoteness and contingency as to whether there would be sufficient funds for the legatee. But there was remoteness as to the husband's interest because he would have to survive the wife in order to have his interest brought into play. Nevertheless the -- under Pennsylvania law the husband was found incompetent to testify under the Pennsylvania Dead Man's Rule. Now that's not so, where you have the indispensable party concept. There the interest must be direct and crucial. And we submit that it's not in this case. It is significant that this -- as I point out in my brief that the Delaware County cases have never gotten out of the pleading stage even after this decision. They have lain dormant there for some eight years and it is significant that counsel for Dutcher is furnished by the respondent here in Lumbermens Mutual Casualty Company. They have done nothing to resolve Dutcher's interest. In their brief, they say, well, the estate of Lynch could have brought these actions to the Court. This is not so as far as this petitioner is concerned. The personal representative of the estate of Lynch in this action is not the defendant in the Delaware County cases as I have pointed out in my brief. The plaintiffs in those cases had their own personal representative for the estate of Lynch appointed again for the purposes of reaching the insurance statute and no action was brought against the estate of Lynch as such by its actual personal representative which was Provident Tradesmen Bank and Trust Company. The third factor which was advanced by the advisory committee is whether an adequate judgment can be rendered in the absence of Dutcher. We submit that it can. The crucial issue was resolved which is the permission of Dutcher. Dutcher testified at this trial. This is not a case of someone who's -- who was not present. He came into Court. He testified. He said, I didn't give them the necessary permission, the jury rejected his testimony. The fourth factor based by the advisory committee looks to the practical effect of the dismissal and there I asked this Court to look to the minority opinion, the dissenting opinion in this case. We have now -- this has been 8 years in the Courts. The issue has been resolved. To trudge back again is a terrible burden, especially in the light of the fact that a judgment can be rendered which makes Dutcher's interest absolutely known which is to say, we will uphold the judgment if the plaintiffs agree to confine all their claims against both Dutcher and Cionci to the policy rights. Dutcher then has no interest at all and has no cause to complain. The only one then who has a cause to complain is the respondent who wants a second chance to litigate this issue. They've had their day in Court and they want to litigate it again. The Court unfortunately after finding Dutcher and then this defensible party then went on and said that the lower court abused its discretion in entertaining the declaratory judgment action. It made one very crucial error in this determination. It assumed that the actions in Delaware County were the same as the actions in the federal court and this is not so. The actions in Delaware County, no state court actions were actions by the estate of Smith and living plaintiff Harris against the estate of Cionci, the estate of Lynch, and Dutcher. The insurer, respondent is not a party to the action. By Pennsylvania law the question of insurance can't even be brought up in those actions. There would be no inkling to the trier of fact in those actions that there was any insurance involved. And the Court of Appeals completely overlooks the very important thing that this declaratory judgment action is not only proper but we believe it would have been a -- an abuse of discretion to refuse to entertain it because the -- a single crucial issue is here being determined which changes an academic exercise into a very real and vital thing. And I might also point out that this declaratory judgment action also benefits Dutcher because as were shown in the action by the estate of Lynch, Lumbermens never defended that action. If this judgment is upheld then Lumbermens will vigorously defend against the plaintiff's actions in the Delaware County case thus, limiting the -- or attempting to limit the exposure of Cionci and to preserve what is left for Dutcher. I might point out that the case against Dutcher in the Delaware County cases based upon the record which we have here is very naked and very remote. Dutcher handed the keys and lent the car to Cionci and Lynch. There's no other connection with the case. He wasn't present during the accident. In the defendant's brief, they has say, well, maybe the brakes were bad and there is an allegation and the complaint that brakes were bad. But if the testimony in the court below, nothing was ever said about brakes, I don't submit however that that's a controlling issue in the light of the arguments I've made here before. If I may Mr. Chief Justice, may I reserve the rest of my time?
Earl Warren: Mr. Harvey.
Norman Paul Harvey: Mr. Chief Justice, members of the Court. If we may consider initially the comments made by counsel with respect to the error of Judge Kalodner in the Court of Appeals, Judge Kalodner did not mistake when he said that all of these matters could be decided in Delaware County, Common Pleas Court. Judge Kalodner is well aware of the fact that one does not try coverage actions and tort actions at the same time in Pennsylvania. And I think a clear reading of his opinion indicates that what he was saying was that every single person that should be a party to this action was present in Delaware County and all of the actions could have been brought there and tried there and decided there. And it would not have been necessary to bring any separate declaratory judgment action either in the state court or the federal court for the simple reason that upon obtaining a verdict in the state court in the negligence action, a garnishment proceeding could immediately have been brought against the Lumbermens Mutual Casualty Company. And at the rate at which matters moved in Delaware County, this whole matter would have decided about five or six years ago. If for the purpose of its own strategy the petitioner here wanted to maneuver this entire litigation in the fashion in which it has been maneuvered. Then it would seem essential that he should fall if -- even if it were said that he is falling on a technicality because it's of his own manufacture. Now, assuming without deciding or without contending that the majority opinion would seem to indicate perhaps that the Court has gone beyond its rule making power or at least that is the way to induct minority seem to want to treat it. It's submitted that irrespective of how one views Rule 19, this case is properly dismissed by the majority because under the most liberal interpretation of Rule 19, this case does not meet the criteria enunciated by this Court, enunciated in Rule 19 and if you will by (Inaudible) and the other scholarly writers of law review articles. In this case, Dutcher is -- if he is -- if anything appears to Dutcher, he's deprived of 50% of the coverage he build up. If that's not the situation and that he is in no way bound by this judgment to which he was not a party then the Lumbermens Mutual Casualty Company has a potential exposure above the amount of its policy to the extent that it has to under this decision of the -- from which the appeal was taken to the Court of Appeals would have more liability for payment of money that he never contracted for. Because if Dutcher us not bound by the District Court judgment that which says that Lumbermens must pay 50% or $50,000 of its coverage he then can say to the Lumbermens Mutual Casualty Company in the event of verdicts against him in Delaware County, you can't take any credit for that $50,000 because I wasn't there. I wasn't a party. Therefore, you'll have to pay whatever you paid for Cionci and whatever above that is necessarily to satisfy any judgments against me. Now the contention that Dutcher doesn't stand in any danger is very unrealistic because testimony can be brought in at any time that would show that there was an agency relationship. Also, testimony can be presented in the tort actions that there was something wrong with his automobile. Any proofs along those lines would be consistent with the pleadings in the case. The fact that up to this time no one knows of any such witnesses isn't controlling because certainly in our trial experience, we've seen witnesses come that had never been expected long after -- all of discovery proceedings were completed. Appear over weekends after interrogatories in the supplemental interrogatories. So Dutcher does have a potential liability in the Delaware County action. Now --
Speaker: I think you've told the -- in this action -- decision (Inaudible) suppose the District Court could've (Inaudible) there was no limitation to the execution on the judgment to (Inaudible).
Norman Paul Harvey: That was suggested by Judge Freeman in his dissenting opinion. If the Court were to enter a -- an order tailored to this case in which it said now the Lynch's estate or Provident Tradesmen cannot execute on this judgment until Dutcher's liability is decided in the other cases. It's entirely possible and likely necessary in order to protect the entire situation. For actions to be broad in which a contrary result is sought because with Dutcher as a plaintiff in Delaware County before a jury, it's very likely that a judgment can -- a verdict and subsequent judgment can be obtained which will hold that Cionci is not entitled to coverage under Lumbermens policy. So that -- what this Court said in the Pacific Casualty case would then be a reality and there's nothing that any decree that's entered by the Court of Appeals, there's nothing that it can do to prevent a judgment in Delaware County completely different than the judgment here with respect to the coverage owing Cionci.
Byron R. White: Was there some reason why Dutcher couldn't have been joined involuntarily?
Norman Paul Harvey: There was no --
Byron R. White: What if -- let's assume that Dutcher had moved to intervene, was -- would there have been juris -- would then you proper and jurisdiction there (Voice Overlap) --
Norman Paul Harvey: I don't -- he --
Byron R. White: -- he could've been a party here alright, couldn't he?
Norman Paul Harvey: I don't think there would have been any problem if someone had moved to bring him in --
Byron R. White: Doesn't the Court under the rules has power to order a defendant to be -- or party to be joined, this plaintiff was coming in?
Norman Paul Harvey: Yes. There wouldn't have been any diversity between Cionci and Dutcher.
Byron R. White: Well, I just want to know -- was there some reason why Dutcher couldn't be made a party to this case?
Norman Paul Harvey: I would think Your Honor if the parties --
Byron R. White: What I'm really asking --
Norman Paul Harvey: -- had wanted to bring him in, they could have brought him in.
Byron R. White: Why then? Why wouldn't the Court of Appeals then considered dismissing the case or to enjoin as party?
Speaker: Wouldn't there be any diversity?
Norman Paul Harvey: There wouldn't be any diversity then between Dutcher and Cionci. That a main claim recovery just between Cionci and Dutcher, Cionci was the driver of the automobile and Dutcher was the owner and the primary question is who -- which of those two is entitled to recovery to the policy and there would be no diversity between them.
Hugo L. Black: Would you mind telling me who should do in this lengthy case?
Norman Paul Harvey: In the federal court, sir?
Hugo L. Black: Yes.
Norman Paul Harvey: In the federal court, the Provident Tradesmen Bank and Trust and so forth, having been named administrator of the estate of a man named Lynch who was riding in the car brought the declaratory judgment action against the estate of Donald Cionci who was the driver and the Lumbermens Mutual Casualty Company. Later on, the --
Hugo L. Black: Of course, declaratory judgment to do what?
Norman Paul Harvey: They've brought this declaratory judgment action to declare the coverage of the Lumbermens' policy was available to Donald Cionci.
Hugo L. Black: Was that before judgment had been obtained against Cionci or had one?
Norman Paul Harvey: One judgment had been obtained against Cionci in the federal court before this declaratory judgment action was brought --
Hugo L. Black: The judgment still outstanding?
Norman Paul Harvey: Yes, sir.
Hugo L. Black: And this Court here wanted to get through with all these before the whole case dismissed?
Norman Paul Harvey: Not the judgment action, no, sir. That --
Hugo L. Black: What did they all --
Norman Paul Harvey: -- that's a separate action. The action in which the $50,000 judgment was obtained is not touched by the matter now before Your Honors. That was an action sounding in tort --
Hugo L. Black: But they ought -- declaratory judgment action dismissed, isn't it?
Norman Paul Harvey: They dismissed the declaratory judgment action.
Hugo L. Black: Why?
Norman Paul Harvey: I think the reasoning of the majority was that in fact Dutcher had a substantive right to be a party since he was in the party and said, his interest --
Hugo L. Black: Well, then why is this case be dismissed?
Norman Paul Harvey: Sir?
Hugo L. Black: Why should the case be dismissed if he had a substantive right to be a party?
Norman Paul Harvey: Because he wasn't a party.
Hugo L. Black: He wasn't a party but when they sent it back why couldn't they have him made a party if that was the issue?
Byron R. White: That's right.
Norman Paul Harvey: I don't know whether anyone thought of doing that certainly --
William J. Brennan, Jr.: Well, I (Voice Overlap) --
Norman Paul Harvey: -- the minority didn't decide --
Hugo L. Black: Why couldn't they think about it, the whole case to dismiss or to dismiss by the Circuit Court? And here's a judgment that they want to find out if he's liable to -- should (Inaudible) he's liable. And is your judgment one that whence for the insurance company by having the whole case dismissed by the majority here?
Norman Paul Harvey: If the case is dismissed the advantage --
Hugo L. Black: Who do you represent? The insurance carrier --
Norman Paul Harvey: The insurance carrier. If the case is dismissed the advantage the insurance carrier is that there won't be contrary judgments in different jurisdictions interpreting the policy in this particular case differently. If the action that was brought -- the declaratory judgment action that was brought and the result achieved in a District Court is permitted to stand then in that case it will be said that the Lumbermens has to give coverage to Cionci. But if an action is brought in Delaware County and raises the coverage question, it can very well be decided exactly the contrary.
Hugo L. Black: You mean a new action?
Norman Paul Harvey: Yes, sir.
Hugo L. Black: How many years has it been since this thing started?
Norman Paul Harvey: The accident happened in 1959. First, there were suits started out --
Hugo L. Black: You have two several automobile accident?
Norman Paul Harvey: Well, that's what it was sir. It was an automobile accident --
Hugo L. Black: The lawyers have managed to make it pretty complicated, haven't they?
Norman Paul Harvey: I don't think the lawyers did it sir.
Hugo L. Black: Who did it?
Norman Paul Harvey: I think the fact that there wasn't the -- a necessary diversity in the federal court action in order to enable the jointer of Dutcher --
Byron R. White: Well, Dutcher (Voice Overlap) --
Norman Paul Harvey: -- is what caused the problems.
Byron R. White: Who were the parties? Who were the parties in the District Court --
Norman Paul Harvey: In the --
Byron R. White: -- in this case?
Norman Paul Harvey: In the District Court?
Byron R. White: Yes.
Norman Paul Harvey: There was the estate of Lynch --
Byron R. White: Alright.
Norman Paul Harvey: -- and that's represented by Provident Tradesmen. Then there was a personal representative of another injured -- of a deceased party and an injured party. Those three people were the plaintiffs.
Byron R. White: And those are all citizens of Pennsylvania?
Norman Paul Harvey: Yes, sir.
Byron R. White: And who is the defendant?
Norman Paul Harvey: The defendant was the Lumbermens Mutual Casualty Company, a corporation formed in Illinois and having a principal place of business there. The estate of Cionci which originally had a Pennsylvania representative but then later on got a Jersey representative so --
Byron R. White: But what if they were to make Dutcher an involuntary plaintiff?
Norman Paul Harvey: I beg your pardon sir?
Byron R. White: What if Dutcher had been an involuntary plaintiff or just a plaintiff?
Norman Paul Harvey: Against the Lumbermens? There wouldn't be -- there be diversity as to Lumbermens but not as to Cionci.
Byron R. White: Even after he was a -- even after an out of state administrator takes on him?
Norman Paul Harvey: Maybe I was -- there would have been diversity with the out of state administrator --
Byron R. White: Well, then --
Norman Paul Harvey: -- between Dutcher --
Byron R. White: By the time the Court of Appeals got the case then there could've been complete diversity between plaintiffs and defendants if Dutcher were a plaintiff?
Norman Paul Harvey: If Dutcher were a plaintiff, there could have been.
Byron R. White: And the (Voice Overlap) --
Norman Paul Harvey: -- but they never --
Byron R. White: -- certainly -- and certainly, he had a plaintiff's interest in this case. I mean, he belong as much on one side as another?
Norman Paul Harvey: That's correct. But the difficulty is the -- from the standpoint of people who brought the action was that if they made Dutcher a party, they would have a different situation with respect to the interest.
Byron R. White: I know, maybe but rather than dismiss action when you've got an indispensable party, why wouldn't the Court just order him to join?
Norman Paul Harvey: Well, then I would think sir that the matter would --
Byron R. White: Weather the Rule 19 (a) says, if he has not been so joined the court shall order that he be made a party.
Norman Paul Harvey: But that was never done sir.
Byron R. White: Oh, I know, but I was wondering why the Court of Appeals didn't do it?
William J. Brennan, Jr.: I mean, isn't that a question before us so they're not -- the Court of Appeals should've done that in light of the rule?
Norman Paul Harvey: I think it is properly before the Court --
William J. Brennan, Jr.: And we could say that he should, that'd be the end of the case, wouldn't it?
Norman Paul Harvey: No, I think then that we'd have to try the case on that theory.
Byron R. White: What theory? That doesn't change a theory.
Norman Paul Harvey: Oh, I think Dutcher would then have a right to be represented by counsel so that --
Byron R. White: Oh, I agree with you.
Norman Paul Harvey: Sir?
Byron R. White: I agree with you.
Norman Paul Harvey: Well, and he wasn't represented by --
William J. Brennan, Jr.: You wouldn't dismiss the action then. You just go ahead and try the declaratory judgment theories, wouldn't you?
Norman Paul Harvey: Yes. Just try the declaratory judgment --
William J. Brennan, Jr.: That shouldn't take very long?
Norman Paul Harvey: It didn't at the last trial (Voice Overlap) --
Byron R. White: Oh, it's already been tried out anyway?
Norman Paul Harvey: Sir?
Byron R. White: It's already been tried out at another case in the federal court with Dutcher as a witness.
Norman Paul Harvey: Well, that has no bearing on the fact sir.
Byron R. White: (Inaudible)
Norman Paul Harvey: That Dutcher had no counsel and was not a party. I would agree with Your Honor that if he could be joined as a plaintiff and given an opportunity to appear with counsel in the case tried that would probably be a solution.
Byron R. White: Doesn't the rule order the Court to do that?
Norman Paul Harvey: I wouldn't think that it really ordered the Court to do that, not necessarily --
William J. Brennan, Jr.: (Inaudible) shall be made a party, isn't that directed to the Court?
Norman Paul Harvey: Maybe that would have been for the District Court to do but I don't think the Court of Appeals can take the action which has already been tried --
William J. Brennan, Jr.: Why didn't the Court of Appeals sent it back to the --
Norman Paul Harvey: The District Court --
William J. Brennan, Jr.: -- District Court with direction to do that?
Norman Paul Harvey: I think that could have been done.
William J. Brennan, Jr.: We could do that too.
Norman Paul Harvey: I should think so too.
Hugo L. Black: What statute of limitation is on this kind of a case?
Norman Paul Harvey: As far as the coverage sir?
Hugo L. Black: This kind of a lawsuit.
Norman Paul Harvey: I would --
Hugo L. Black: Declaratory judgment?
Norman Paul Harvey: I would think that it'd be in Pennsylvania 20 years. It's a contract under seal. The question is a contractual of question so far as coverage is concerned. They could -- the rule in Pennsylvania is that a contract under seal is certainly good at least for 20 years in the statute of limitation within the breach would be bad.
Hugo L. Black: What was the insurance company's defense to this case?
Norman Paul Harvey: I beg your pardon sir?
Hugo L. Black: What was the insurance company's defense in this case?
Norman Paul Harvey: In the --
Hugo L. Black: Factual defense, I'm not talking about a technical (Voice Overlap) --
Norman Paul Harvey: In the judgment -- in the declaratory judgment action?
Hugo L. Black: Yes.
Norman Paul Harvey: The defense was that Cionci did not have permission to go down to media with Dutcher's automobile. Cionci having been given permission to go from Brentmore to Ardmore which isn't really a long walk --
Hugo L. Black: Was Dutcher in the car?
Norman Paul Harvey: Oh, no.
Hugo L. Black: He wasn't in the car?
Norman Paul Harvey: No, sir.
Byron R. White: Is Lumbermens' principal office in Pennsylvania?
Norman Paul Harvey: No, sir. Chicago, Illinois.
Byron R. White: What's Lumbermens citizenship with the purposes of this case?
Norman Paul Harvey: Illinois.
Byron R. White: That's the only place?
Norman Paul Harvey: Well, for diversity purposes.
Byron R. White: Yes.
Norman Paul Harvey: It's Illinois, sir.
Byron R. White: That's all?
Norman Paul Harvey: It's found in Illinois. Its and Illinois -- it's --
William J. Brennan, Jr.: Yes, but isn't there --
Norman Paul Harvey: The principal place of business is in Illinois.
William J. Brennan, Jr.: I know of that. Isn't there some new statute which makes it possible for Illinois Corporation nevertheless with diversity purposes be a citizen somewhere else, no?
Norman Paul Harvey: Yes. Your Honor, I think it's referring to the principal place of business test.
William J. Brennan, Jr.: Yes.
Norman Paul Harvey: But I say the principal place of business is Illinois.
Hugo L. Black: Judge Foreman dissent in this case?
Norman Paul Harvey: Judge whom sir?
Hugo L. Black: Did Judge Foreman dissent?
Norman Paul Harvey: He was not on this Court.
Hugo L. Black: Who did the dissent?
Norman Paul Harvey: The dissent was by a Judge Freedman and there was concurrence but no opinion by Judge Ganey. The other five were unanimous in their holding and the opinion was by Judge Kalodner.
Hugo L. Black: What did Judge Freedman found, what statement?
Norman Paul Harvey: (Inaudible) Pennsylvania.
Hugo L. Black: What was this law, the law of Pennsylvania? How -- what was -- it tried, the law of Pennsylvania?
Norman Paul Harvey: The question that was tried -- that was argued before Judge Freedman was Pennsylvania law so far as the evidence rule was concerned -- the evidence rule involved and other ramifications of permission but his decision is primarily on Rule 19. And in addition to that, he makes some comments about the Pennsylvania Rule which we don't agree with but that's enough before you.
Hugo L. Black: He indicated that the he thought the case shouldn't be dismissed but he's drawn that, isn't it?
Norman Paul Harvey: I beg your pardon sir?
Hugo L. Black: He indicated pretty strongly that he thought under the Pennsylvania law, the case shouldn't be dismissed?
Norman Paul Harvey: No, I think he was really indicating that under Rule 19 it shouldn't be dismissed.
Hugo L. Black: Well, whatever it was he couldn't have thought of it?
Norman Paul Harvey: Yes, sir.
Earl Warren: We'll recess now.