David PETRUCELLI; Tracy A. Petrucelli, Husband and Wife v. BOHRINGER AND RATZINGER, GMBH Ausdereitungsanlagen; Jake Diel Construction Machine, Inc.; Teco Electric and Machine Company, Ltd. v. EXCEL RECYCLING & MANUFACTURING, INC., Third-Party Defendant, David Petrucelli and Tracy A. Petrucelli, Appellants.
No. 94-1425
United States Court of Appeals, Third Circuit
Decided Feb. 1, 1995
Sur Petition for Rehearing Feb. 28, 1995
46 F.3d 1298
Warren E. Voter, J. Michael Kunsch (argued), Sweeney, Sheehan & Spencer, Philadelphia, PA, for appellee Bohringer and Ratzinger, GMBH Ausdereitungsanlagen.
Christopher C. Fallon, Jr., Josh M. Greenbaum (argued), Cozen & O‘Connor, Philadelphia, PA, for appellee Jake Diel Const. Machine, Inc.
Before: BECKER, COWEN and GARTH, Circuit Judges.
COWEN, Circuit Judge.
This appeal arises from an order dismissing a personal injury suit without prejudice after the plaintiff failed to serve a summons upon the defendant within 120 days of filing the complaint as required by
I.
A. Factual Background
Plaintiff David Petrucelli (“Petrucelli“)1 was employed by American Fuel Harvester in East Bangor, Pennsylvania, where he was involved in recycling demolition materials. The recycling process consisted of obtaining materials from demolished buildings, and dumping the material into an impact rotor crusher machine (“rotor crusher“). The rotor crusher chopped and pulverized the material into smaller pieces which were then discharged from the bottom of the rotor crusher. The material was discharged through a transition chute to a vibrating feeder, and then to a hopper on the discharge conveyor. All of the component parts of the recycling machine, including the rotor crusher, were ordered by American Fuel Harvester from defendant Jake Diel Construction Machinery, Inc. (“Jake Diel“).
Jake Diel designed and manufactured the recycling machine and later assembled it on the premises of American Fuel Harvester. Many of the component parts of the recycling machine, including the transition chute, the vibrating screen, the machine chassis, the control booth, and the discharge conveyor, were made by Jake Diel. Jake Diel bought for incorporation into the recycling machine other components, such as the rotor crusher made by defendant Bohringer & Ratzinger (“Bohringer“). Although the rotor crusher and the discharge conveyor were all part of the same recycling machine, there were three independent components between the rotor crusher and the discharge conveyor. From the recycling machine‘s control booth, most of the various conveyor belts could be individually turned on and off, but from that vantage point, most or all of the discharge conveyor could not be seen. Bohringer did not participate in the decisions regarding the design or the location of the control booth and its operating controls.
On August 8, 1989, while working with the recycling machine, Petrucelli noticed that the conveyor was not functioning properly. One of his co-workers went to the control booth to turn off the machine. After the machine was turned off, Petrucelli attempted to dislodge some wire caught in the roller of the discharge conveyor of the recycling machine. While performing this task, one of his co-workers turned on the recycling machine. Petrucelli‘s left arm was torn off after being pulled into the conveyor mechanism.
B. Procedural History
Petrucelli filed a complaint on April 1, 1991, and thereafter an amended complaint in the United States District Court for the Eastern District of Pennsylvania. In the amended complaint, Petrucelli asserts claims for negligence, strict products liability, breach of warranty, misrepresentation, and punitive damages. Petrucelli enlisted the aid of Attorney Process Service (“APS“) to assist in serving process upon the defendants. He informed APS that the nameplate on the
On July 25, 1991, Petrucelli sent a copy of the summons and complaint and a copy of a Notice of Acknowledgment of Receipt of Summons and Complaint to the Secretary of State of Oklahoma, who received these documents on July 29, 1991. On March 19, 1992, the Secretary of State of Oklahoma issued a certificate of proof of service which stated that it had been served as the agent for “Jake Diehl (sic) Construction and Machinery Co.” on August 5, 1991. The certificate of service also indicated that on August 7, 1991, the Secretary of State of Oklahoma sent the summons and complaint to an address in Hereford, Texas, via certified mail, return receipt requested, but that the letter had been returned undelivered on August 14, 1991. However, Petrucelli contends that in August of 1991, he communicated with the offices of the Secretary of State of Oklahoma by telephone, and was verbally assured by someone in that office that Jake Diel had been served via certified mail.
Meanwhile, Bohringer impleaded Excel Recycling & Manufacturing, Inc. (“Excel“) as a third-party defendant, believing that Jake Diel had legally changed its corporate name to Excel.2 After Jake Diel failed to respond, Petrucelli, in May of 1992, moved for a default judgment against Jake Diel or alternatively to extend time for service. Both of these motions were denied, resulting in the dismissal of Jake Diel from these proceedings as a direct defendant.3
Defendant Bohringer subsequently moved for summary judgment.4 Petrucelli opposed Bohringer‘s motion and filed a motion seeking to compel Bohringer: (1) to answer the interrogatories that Excel had served on Bohringer; and (2) to produce the documents that Excel had previously demanded of Bohringer. The district court granted summary judgment in favor of Bohringer and denied Petrucelli‘s motion.
Petrucelli appeals the orders of the district court: (1) denying his motions for default judgment against Jake Diel or, alternatively, to extend the time for service on Jake Diel; (2) granting summary judgment in favor of defendant Bohringer; and (3) denying Petrucelli‘s motion to compel discovery from Bohringer. We will affirm the orders of the district court.
II.
A. Denial of Motion for Default Judgment
Petrucelli argues that the district court erred by not granting his motion for a default judgment against Jake Diel. Assuming that proper service of process was effected on Jake Diel, we can reverse the district court only if we find that it abused its discretion in denying the motion for a default judgment. See Farzetta v. Turner & Newall, Ltd., 797 F.2d 151, 153 (3d Cir. 1986). Insofar as this issue pertains to whether Jake Diel was properly served, our standard of review is plenary. Stranahan Gear Co. v.NL Industries, Inc., 800 F.2d 53, 56 (3d Cir. 1986). See also Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 481 (3d Cir. 1993) (“We exercise plenary review over issues concerning the propriety of service under Federal Rule of Civil Procedure 4.“). We note that if a default judgment had been entered when there had not been proper service, the judgment is, a fortiori, void, and should be vacated. Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985).
Petrucelli filed the complaint on April 1, 1991. Pursuant to former
B. Denial of Motion to Extend Time for Service
Petrucelli next argues that the district court should have granted his alternative motion for an extension of the 120-day limit to serve Jake Diel, pursuant to
Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court‘s own initiative with notice to such party or upon motion.
As of December 1, 1993,
Initially, we question whether
Determining that
Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Initially, we find that the plain language of the rule itself explains that in all cases, the court has the option of dismissing the action or extending time for service. The fact that the word “shall” is used along with the disjunctive “or” in the first clause indicates that the court has discretion to choose one of these options. As an exception to this general provision, the second clause notes that if good cause exists, the district court has no choice but to extend time for service. Thus, the logical inference that can be drawn from these two clauses is that the district court may, in its discretion, extend time even absent a finding of good cause.
Next, we find that the Advisory Committee note on the
The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff‘s failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.
We hold that as a result of the rule change which led to
The Advisory Committee note provides some guidance as to what factors the district court should consider when deciding to exercise its discretion to extend time for service in the absence of a finding of good cause. Although the list is not exhaustive, the Committee explained that, “[r]elief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if
We hold that a district court may not consider the fact that the statute of limitations has run until after it has conducted an examination of good cause. If the district court determines that good cause does not exist, only then may it consider whether the running of the statute of limitations would warrant granting an extension of time. We emphasize that the running of the statute of limitations does not require the district court to extend time for service of process. Rather, absent a finding of good cause, a district court may in its discretion still dismiss the case, even after considering that the statute of limitations has run and the refiling of an action is barred.8
We begin our inquiry into the proper resolution of this case by determining whether the district judge was correct in concluding that Petrucelli failed to establish good cause for not serving Jake Diel in a timely manner. Petrucelli contends that he has shown good cause for his failure to serve Jake Diel within the required time. We review the district court‘s determination that good cause has not been shown for abuse of discretion. Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3d Cir.), cert. denied, 484 U.S. 965 (1987); Braxton v. United States, 817 F.2d 238, 242 (3d Cir. 1987).9
Petrucelli argues that the following circumstances constitute good cause: (1) he was under the mistaken belief that the defendant had been served since he spoke to someone in the Office of the Secretary of State of Oklahoma via telephone and was verbally assured that proper service was effected; and (2) he was told by APS that Jake Diel could not be served in Texas, but could only be served in Oklahoma. Petrucelli maintains that his and APS’ errors in serving Jake Diel are attributable to the confusion caused by the change in the corporate name from Jake Diel to Excel.
Petrucelli, however, made several inexcusable errors. First, he unreasonably
We have previously held that reliance upon a third party or on a process server is an insufficient basis to constitute good cause for failure to timely serve, and is also an insufficient basis for granting an extension of time to effect service. Braxton, 817 F.2d at 242. We have also held that “half-hearted” efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff‘s case being time-barred due to the fact that the statute of limitations on the plaintiff‘s cause of action has run.” Lovelace, 820 F.2d at 84. Even when delay results from inadvertence of counsel, it need not be excused. Id. Further, we have previously cautioned that, “the lesson to the federal plaintiff‘s lawyer is not to take any chances. Treat the 120 days with the respect reserved for a time bomb.” Braxton, 817 F.2d at 241 (citation omitted).11
The facts of this case are quite similar to Lovelace, where we found that it was inappropriate for plaintiff‘s counsel to rely upon verbal assurances of the process server where counsel was not in possession of any written proof of service. 820 F.2d at 84-85. Here, Petrucelli relied on the verbal assertions of an individual in the Office of the Secretary of State of Oklahoma. He failed to inquire further when the acknowledgment form was not received. Petrucelli cannot rely upon his belief that the defendant had been served when he had in hand no proof or indication of service. We conclude that the district court did not abuse its discretion in ruling that Petrucelli has not shown good cause for failing to timely serve the defendant.
Next, the district court must consider whether any other factors warrant extending time even though good cause was not shown. Because
Although the district
C. Granting of Summary Judgment in Favor of Defendant Bohringer & Ratzinger
We exercise plenary review over the district court‘s grant of summary judgment and apply the same test employed by the district court. United States v. Capital Blue Cross, 992 F.2d 1270, 1271-72 (3d Cir. 1993). Summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law.
It is well established that federal courts sitting in diversity must apply the substantive law of the state whose law governs the action. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Griggs v. BIC Corp., 981 F.2d 1429, 1431 (3d Cir. 1992). All parties agree that the substantive law of Pennsylvania applies to this litigation.
Petrucelli asserts a claim for: (1) negligence; (2) strict liability for failure to warn and/or design defect; (3) misrepresentation; (4) breach of express and implied warranties of fitness for purpose and merchantability; and (5) punitive damages.13 In order for Petrucelli to prevail on this appeal, he must point to evidence which establishes every element of at least one of the above claims.
In order to defeat summary judgment on the negligence claim, Petrucelli must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) failure to conform to such standard; (3) a causal connection between the failure to conform and an injury; and (4) actual loss or damage. Griggs, 981 F.2d at 1434 (emphasis added). A claim for strict products liability has two elements: (1) that the product is defective; and (2) that the defect was a proximate cause of the injuries. Id. at 1432 (emphasis added). In order to prevail on a claim of misrepresentation, Petrucelli must prove: (1) justifiable or reasonable reliance; and (2) a causal connection between the representations and the alleged harm. Gunsalus v. Celotex Corp., 674 F. Supp. 1149, 1159 (E.D. Pa. 1987) (emphasis added).
All three of the above claims require a causal connection between the wrongful act and the alleged harm. As we have noted, Bohringer manufactured the rotor crusher, but Petrucelli‘s arm was amputated in the discharge conveyor. Although the rotor crusher and the discharge conveyor were both part of the same recycling machine, there were three independent components between the rotor crusher and the discharge
The district court properly made findings that Petrucelli has offered no evidence of an express warranty. As such, we will only consider the claim of breach of implied warranties of fitness and merchantability. An implied warranty of fitness for a particular purpose applies “[w]hen the seller at the time of contracting has reason to know: (1) any particular purpose for which goods are required; and (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods.”
Petrucelli alleges that the rotor crusher was defective since (1) it lacked adequate warning systems which would alert, by sounding an alarm or a bell, personnel in the proximity of the recycling machine prior to the machine actually starting movement and (2) the design and location of the control booth did not allow adequate visibility of the component parts of the recycling machine.
Under Pennsylvania law, it is recognized that a manufacturer‘s duty to warn is limited when it supplies a component of a product that is assembled by another party and the dangers are associated with the use of the finished product. Jacobini v. V. & O. Press Co., 527 Pa. 32, 39, 588 A.2d 476, 478 (Pa. 1991) (citing Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 9, 564 A.2d 1244, 1248 (1989)). The court in Jacobini reasoned that the manufacturer of the component part cannot be expected to foresee every possible risk that might be associated with the use of the completed product and to warn of dangers in using that completed product. Id. at 40, 588 A.2d at 480.
Nevertheless, it is possible under certain circumstances for a component manufacturer to be held liable for a failure to warn. For example, in one case, a plaintiff was severely injured after diving into a shallow pool. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 112 (3d Cir. 1992). He contended that the pool and the replacement pool liner were defective because they did not have depth markers or “No Diving” warnings. In holding the pool liner manufacturer liable, we concluded that since the pool liner manufacturer knew that its product would ultimately be incorporated into a pool, the potential risk of failing to affix warning labels was reasonably foreseeable. Id. at 118.
Thus, the question before us is whether it is reasonably foreseeable to a component manufacturer that failure to affix warning devices to its product would lead to an injury caused by another component part, manufactured by another company, and assembled into a completed product by someone other than the initial component manufacturer. We conclude that Bohringer could not be expected to foresee that failure to affix alarms or bells on the rotor crusher would lead to someone being injured by the discharge conveyor, another component part of the recycling machine. Thus, we do not accept Petrucelli‘s argument that Bohringer had a duty to warn about the dangers of rotor crusher. Therefore, Petrucelli has failed to prove the rotor crusher was defective for failure to warn of possible injury.
Next, Petrucelli argues that there was a design defect because the control booth was placed in a such a manner that a full view of the discharge conveyor was obstructed. We do not agree. Petrucelli has offered no evidence refuting Bohringer‘s position that it did not manufacture the control booth and did not provide mechanisms to
D. Denial of Motion to Compel Discovery
Petrucelli argues that the district court erred by not allowing him to adopt, as his own, the discovery request that Excel as third-party defendant served upon Bohringer.15 Petrucelli contends that he was implicitly given permission to adopt the interrogatories and request for production of documents that Excel served on Bohringer because no objections were filed to his attempted adoption. Furthermore, he speculates that if his motion to compel had been granted, he would have discovered the evidence necessary to preclude the grant of summary judgment in favor of Bohringer.
In order to succeed on a motion to compel discovery, a party must first prove that it sought discovery from its opponent.
The district court concluded that Petrucelli failed to comply with
We apply the abuse of discretion standard when reviewing orders regarding the scope and conduct of discovery. Beard v. Braunstein, 914 F.2d 434, 447 (3d Cir. 1990) (citations omitted). After a thorough review of the record, we conclude that the district court did not abuse its discretion in denying
III.
A default judgment against Jake Diel could not be entered since the complaint was never served. Thus, we will affirm the order of the district court denying plaintiff‘s motion seeking a default judgment. We will also affirm the decision of the district court which concluded that Petrucelli has failed to demonstrate good cause in not timely serving Jake Diel. However, in light of
BECKER, Circuit Judge, Concurring and Dissenting.
I agree that summary judgment was properly granted to Bohringer and Ratzinger, and that the motion to compel discovery was properly denied, and hence I join in Parts IIA, C & D of the majority opinion. I also agree that the motion for default judgment was properly denied. I cannot, however, join fully in Part IIB because I believe that good cause to extend the time for service of process beyond 120 days was present in this case, and hence I would remand with instructions to grant the 120 day extension.1
In determining whether Petrucelli has set forth a showing of good cause, the majority measures the action of Petrucelli and his counsel against the principles laid down in Lovelace and Braxton. See Lovelace v. Acme Markets, Inc., 820 F.2d 81 (3d Cir. 1987), cert. denied, 484 U.S. 965 (1987); Braxton v. United States, 817 F.2d 238 (3d Cir. 1987). Those cases also involved instances where plaintiff‘s failure to properly execute service resulted from counsel‘s ill-advised reliance on representations made by an employed process server. Braxton, 817 F.2d at 242 (“The facts, therefore, present a scenario of unexplained delinquency on the part of the process server and lack of oversight by counsel.“); Lovelace, 820 F.2d at 84 (finding “misplaced reliance upon the word of the specially-appointed process server“). In my view, additional factors which present a clearer showing of good cause take this case out of the Braxton/Lovelace category, and more closely align it with our later opinion in Consolidated Freightways v. Larson, 827 F.2d 916 (3d Cir. 1987), cert. denied, 484 U.S. 1032 (1988).
In defining the scope of the “good cause” exception, we have equated it with the concept of “excusable neglect” of
II.
By all accounts, Petrucelli has acted in good faith. In addition, Petrucelli has provided two reasonable bases, of a type not present in either Braxton or Lovelace, for his counsel‘s noncompliance: (1) his counsel‘s difficulty in locating the defendant, Jake Diel Corporation, now Excel (“Jake Diel“) within 120 days resulted from the corporation‘s recent name change to Excel; and (2) the office of the Secretary of State of Oklahoma had informed counsel that service of the defendant could be effectuated through that office.
Petrucelli and his counsel were initially under the impression that Jake Diel was a Texas Corporation. App. at 66. However, when they were unable to find a listing for Jake Diel in Texas, they turned their attention to the records of the neighboring state of Oklahoma. App. at 61-70. When they made inquiry, officials in the office of the Oklahoma Secretary of State stated that Jake Diel was listed to do business in Oklahoma and that service could be effected through their office as Jake Diel‘s agent. App. at 33. The Oklahoma officials also stated to counsel that their records reflected that Jake Diel had been ousted by the Secretary of State of Texas on 11/1/91 for failure to file the necessary reports. App. at 32. In response, Petrucelli‘s counsel acting through process server, APS International, Ltd., effected mail service upon the Secretary of State of Oklahoma, who shortly thereafter informed them that Jake Diel had been served via certified mail. App. at 33. It was only after the 120 day time period had run that Petrucelli‘s counsel realized that the defendant had not in fact been validly served through the Oklahoma Secretary of State. App. at 34; 67-68.
The majority contends that “the record is barren” of any correspondence with the Oklahoma Secretary of State to support Petrucelli‘s contention of excusable neglect. Maj. Op. at 1306-07. I disagree. Attached to this dissent is a certificate from the Oklahoma Secretary of State received by Petru-
In my view, the conduct of Petrucelli‘s counsel is more analogous to the conduct of counsel in Consolidated Freightways Corp. v. Larson, 827 F.2d at 919, than in Braxton or Lovelace. In Consolidated Freightways we distinguished both Braxton and Lovelace and found that the district court had abused its discretion by failing to find excusable neglect where an attorney‘s clerical error resulted in a failure to file a timely notice of appeal, holding that such an error was excusable neglect since,
counsel‘s error was not the result of professional incompetence; that counsel is not attempting to create a facile excuse by which to extend the time for appeal, indeed counsel gained no advantage by the misdirection; and that the type of human error here involved, though certainly avoidable, is neither readily foreseeable nor capable of anticipation by counsel.
Consolidated Freightways, 827 F.2d at 919-20. I find this analysis to be applicable here. Petrucelli‘s counsel‘s failure to locate the defendant within 120 days, while avoidable, was not sufficient to justify denying Petrucelli his day in court. See Wright & Miller, supra, at
Essentially, the reason Petrucelli was unable to properly effectuate service was that the defendant had changed its name from Jake Diel to Excel. The question of the role of a defendant‘s name change in a finding of good cause was not addressed by the Brax-
Petrucelli‘s counsel, acting through APS International, searched the Texas corporate records for a Jake Diel Corporation and understandably was not able to locate the address of the re-named defendant. App. at 66. The Consolidated Freightways panel distinguished Braxton on similar grounds—the presence of a good faith effort on the part of counsel to comply with the procedural time limit. See Consolidated Freightways, 827 F.2d at 921 (“Unlike the attorney in Braxton, counsel in this matter made substantial good faith efforts to comply.“); see also PaineWebber Inc. v. Hartman, 921 F.2d 507 (3d Cir. 1990) (reversing a district court‘s denial of an extension of time as an abuse of discretion where “the notice of appeal was untimely despite counsel‘s diligent efforts at compliance“).
Moreover, the facts of this case present an even more compelling instance of excusable neglect than even Consolidated Freightways, for there the failure to file a timely appeal was the result of a clerical error made by counsel or someone under counsel‘s control. In this case, the plaintiff was misled into believing that service could be made in Oklahoma not only by their hired process server, but by the Oklahoma Secretary of State, who indicated that service of process could and had been made on the defendant through that office. In support of this reliance, Petrucelli points to his statement to the district court during the 120 day period that Jake Diel had been served, made in connection with his request for an extension of time in order that proper service could be effectuated under international law upon the German-based defendant, Bohringer & Ratzinger. App. at 141-45.
In addition, defendant Jake Diel was not prejudiced, because it had actual notice of the commencement of the litigation through the service of the cross-claim by the co-defendant, Bohringer & Ratzinger. The First Circuit has recognized the danger of applying the service of process time period “harshly and inflexibly,” in the absence of prejudice to the defendant. U.S. v. Ayer, 857 F.2d 881, 885-86 (1st Cir. 1988) (“Congress, we believe, intended
III.
For the foregoing reasons, I conclude that the district court erred in failing to extend for good cause the time for service. As I see it, the majority gives a narrow and wooden reading of good cause which might deny the plaintiff, who lost his left arm in an accident involving Jake Diel‘s machine, from pursuing his claim against a defendant who had actual notice of the suit. As Justice Black reminded us, some 40 years ago, the “principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts.” Order Adopting Rules of the U.S. Supreme Court, 346 U.S. 945, 946 (April 12, 1954). Considering the substantial good faith efforts of Petrucelli‘s counsel to serve the defendant in this action, I believe that good cause to extend the time for service of process beyond 120 days is present. I would therefore reverse and remand with instructions to grant an extension of 120 days within which to effect service on defendant Jake Diel. To that extent, I respectfully dissent.
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
CERTIFICATE OF PROOF OF SERVICE
I, the undersigned Secretary of State of the State of Oklahoma, do hereby certify that I am by the laws of said State the custodian of the records of the State of Oklahoma relating to Service of Process upon the Secretary of State‘s Office as Service Agent, and am the proper officer to execute this certificate.
I FURTHER CERTIFY that on the 5th day of August 1991 the following styled action was accepted in this Office as Service Agent for: Jake Diehl Construction and Machinery Co. District Court/ U.S. District Court of Eastern District of Pennsylvania
I FURTHER CERTIFY that the above mentioned styled action was mailed to Jake Diel Construction Machinery, Inc., P.O. Box 1207, Hereford, Texas 79045 by Certified Mail Number 123635 on the 7th day of August 1991 Return Receipt Requested, by depositing the same in the United States mail on the 7th day of August 1991
I FURTHER CERTIFY that said service was delivered/undelivered by the United States Postal Service as evidenced by the attached
In testimony whereof, I have hereunto set my hand and affixed the Great Seal of the State of Oklahoma at the City of Oklahoma City this 19th day of March 1992.
By [Signature]
Secretary of State
Feb. 28, 1995.
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, SAROKIN and GARTH *, Circuit Judges.
The petition for rehearing filed by appellants having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
* As to panel rehearing.