Justia Federal District Court Opinions

After filing the complaint in this case in May 1974, the firm originally representing plaintiff withdrew and new counsel was substituted in June 1974. Plaintiff filed a motion for summary judgment in July 1974 and defendant filed a motion for summary judgment in October 1974, supported by affidavits. Thereafter, on October 25, 1974, the firm which originally represented plaintiff (Hodge, Sheen & Finch) moved to intervene as a party defendant.¹

In a memorandum filed March 18, 1975, the district court ruled:

(1) the law firm of Hodge, Sheen and Finch is granted permission to intervene;

(2) summary judgment for defendant will be granted; and

(3) appropriate pleadings should be filed on behalf of plaintiff and intervenor within 30 days.

The order granting the summary judgment was not entered until April 10, 1975.² On May 6, 1975, the intervenor filed a notice of appeal from the order granting summary judgment in favor of the defendant. Then, on November 21, 1975, the defendant insurance company filed a motion to dismiss the appeal.

Under these circumstances, it is clear that a cause of action by plaintiff against intervenor had been recognized by the court on March 18, 1975, and was pending when the judgment of April 10 was entered. For this reason, the April 10 judgment was not an appealable judgment. See F.R.Civ.P. 54(b); Allis Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir. 1975). For the foregoing reasons, the appeal will be dismissed.