UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
July 3, 1975
DELAWARE RIVER PORT AUTHORITY and Volkswagen of America, Inc., jointly, severally and/or in the alternative Volkswagenwerk Aktiengesellschaft v. MODJESKI AND MASTERS-AMMANN AND WHITNEY ENGINEERS, joint venture, and William Dix. Joseph KOZIKOWSKI, Jr., et al. v. DELAWARE RIVER PORT AUTHORITY et al.
The opinion of the court was delivered by: BROTMAN
BROTMAN, District Judge.
On August 9, 1970 Joseph Kozikowski, Sr., while operating a Volkswagen automobile on the Walt Whitman Bridge between the states of Pennsylvania and New Jersey, became involved in a head-on collision with one William Dix. Lucie Kozikowski and her three minor children were passengers in her husband's automobile at the time of the accident.
Joseph Kozikowski, Sr. instituted suit against the Delaware River Port Authority (hereinafter referred to as DRPA or the Authority), which operated the bridge, and Volkswagen of America, Inc., and Volkswagenwerk Aktiengesellschaft (hereinafter jointly referred to as Volkswagen) the distributor and manufacturer respectively of the automobile. (Civil Action No. 1166-71). Jurisdiction is alleged to exist by virtue of diversity of citizenship between the parties. 28 U.S.C. § 1332.
Kozikowski alleges, inter alia, that defendant DRPA was negligent in its design, construction, maintenance and control of the bridge. Further he alleges, inter alia, that defendant Volkswagen designed, manufactured and distributed a defective automobile. In addition, a complaint, which generally makes the same allegations, was filed against the defendants by Lucie Kozikowski, individually and as guardian ad litem for the three minor Kozikowski children. (Civil Action No. 1875-71). By order of the court the two actions were consolidated.
Defendant DRPA filed a third party complaint against Modjeski and Masters-Ammann and Whitney Engineers, joint venture. The third party complaint alleges that DRPA entered into a contract with the third party defendant on September 24, 1952. The contract provided that the third party defendant was responsible for the design, inspection, and supervision of construction of the bridge, as well as the testing of materials used in its construction. By virtue thereof DRPA alleges that it should be indemnified for any loss it might suffer, should plaintiff prevail on its cause of action.
At this pretrial stage in the proceedings, three motions are before the court for decision. The first question raised is whether the court has jurisdiction over this case, and if so, on what basis. Should the court decide it has jurisdiction, it then must decide plaintiff's motion to strike defendant DRPA's defense of immunity from suit and the third party defendant's motion for summary judgment based upon the Statute of Limitations, N.J.S.A. 2A:14-1.1.
The court raised the jurisdictional issue sua sponte. Plaintiffs are all residents of Pennsylvania. Defendant DRPA is a bi-state agency created by virtue of a compact entered into between the Commonwealth of Pennsylvania and the State of New Jersey. N.J.S.A. 32:3-1 et seq. ; 36 P.S. § 3503. This compact was approved by Congress, as required by the United States Constitution, Article I, § 10, cl. 3. 47 Stat. 308; 66 Stat. 738.
Because DRPA is incorporated in both Pennsylvania and New Jersey, and plaintiff is a citizen of Pennsylvania, a question arises as to whether the complete diversity requirement of Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806) has been met.
The court, in response to its question, determines that diversity jurisdiction exists under the forum doctrine first recognized by the Supreme Court in Chicago & Northwestern Ry. Co. v. Whitton, 80 U.S. (13 Wall.) 270, 20 L. Ed. 571 (1872). In Whitton, supra, suit was brought in Wisconsin by an Illinois citizen against a corporation which had been incorporated in both Wisconsin and Illinois. A unanimous Court rejected the challenge to diversity jurisdiction, stating:
But it is said, and here the objection to the jurisdiction arises, that the defendant is also a corporation under the laws of Illinois, and, therefore, is also a citizen of the same state with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defendant is a corporation, and as such a citizen of Wisconsin by the laws of that state. It is not there a corporation or a citizen of any other state. Being there sued it can only be brought into court as a citizen of that state, whatever its status or citizenship may be elsewhere. (emphasis in original) Id. at 283.
See also Muller v. Dows, 94 U.S. 444, 447-48, 24 L. Ed. 207 (1876).
The forum doctrine provides "that for jurisdictional purposes a multi-state corporation must be regarded in each state of its incorporation as solely domesticated therein so that in consequence a citizen of another state can sue such a corporation under the diversity jurisdiction in a state where it is incorporated, even though the corporation is also organized under the laws of the state of the plaintiff's citizenship." Seavey v. Boston & Maine R. R., 197 F.2d 485, 487 (1st Cir. 1952), cited with approval in Jacobson v. New York, N. H. & H. R. Co., 206 F.2d 153, 154-55 (1st Cir. 1953), aff'd mem. 347 U.S. 909, 74 S. Ct. 474, 98 L. Ed. 1067 (1954).
Stated more simply, the forum doctrine applies where a citizen of X sues a corporation incorporated in X and Y in Y.
Although the Supreme Court has never overruled the forum doctrine, some commentators have questioned the doctrine's continuing validity in light of a 1958 amendment by Congress to the Judicial Code. 1 Moore's Federal Practice (MFP) (2nd Ed.) §§ 723.50-723.58; Wright, The Law of Federal Courts (2nd Ed.) § 27; Note, 72 Harv.L.Rev. 391, 394-395 (1958). That amendment provides, in pertinent part:
For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business . . . . 28 U.S.C. § 1332(c) (emphasis added).
Essentially, the argument made is that "any State" means every state. Consequently, it is argued that a corporation should be treated as a citizen of each state in which it is incorporated. MFP, supra.
But, in the one case subsequent to the 1958 amendment which specifically decided whether the forum doctrine continued to be a viable doctrine, it was held that the 1958 amendment did not abrogate the doctrine. Hudak v. Port Authority Trans-Hudson Corp., 238 F. Supp. 790 (S.D.N.Y.1965). See also Majewski v. New York Central Railroad Company, 227 F. Supp. 950 (W.D.Mich.1964). Hudak, supra, presented jurisdictional facts nearly identical to those pleaded in the instant case. In Hudak, supra, plaintiff, a resident of New Jersey, brought suit in the Southern District of New York against Port Authority Trans-Hudson Corp. (PATH), a subsidiary corporation of the Port of New York Authority (the Authority). The Authority, like the DRPA, is a body corporate which was created by virtue of a Congressionally approved compact between the States of New Jersey and Pennsylvania.
The Hudak court, supra at 792, rejected the interpretation given the 1958 amendment to 28 U.S.C. § 1332 by Moore and others, stating:
There was no consideration by Congress of the multiple incorporation problem; the sole interest of Congress was in preventing a corporation sued in the state of its principal place of business from removing to the federal court on the ground, valid before the 1958 amendment, that it was incorporated in another state. 104 Cong.Rec. 12683-12690 (1958); 2 U.S.Code Cong. & Ad.News (1958) pp. 3099-3136. It may also be noted that the 1958 amendment uses the phrase "any State" as opposed to "every State"; had Congress used "every State" the meaning would be clear but "any State" is equivocal to say the least. See Friedenthal, New Limitation on Federal Jurisdiction, 11 Stan.L.Rev. 213, 238 (1959). But see id. at 240 n. 136. See also Note, 48 Iowa L.Rev. 410, 421-422 (1963); Note, 58 Colum.L.Rev. 1287, 1299 (1958). Contra, Cowen, Federal Jurisdiction Amended, 44 Va.L.Rev. 971, 975 (1958); Note, Harv.L.Rev. 391, 394-395 (1958).
See also Jaconski v. McCloskey, 167 F. Supp. 537, 540 (E.D.Pa.1958); Fitzgerald v. Southern Railway Co., 176 F. Supp. 445, 446 (S.D.N.Y.1959). Continuing, the Hudak court noted:
[Absent] any evidence of an intent by Congress to change pre-existing law, there seems no reason for a District Court to put aside that law so clearly established. In the case at bar, there are no considerations of policy or otherwise to make that course desirable. . . . There is nothing forced or technical or of historical accident in the incorporation of Path in New York as well as New Jersey. Path exists by virtue of a voluntary agreement between New York and New Jersey; it has important property here; its principal place of business is here. Plaintiff is an individual citizen of New Jersey. There is diversity jurisdiction . . . 238 F. Supp. at 792.
This court is similarly disinclined to repudiate the forum doctrine. Accordingly, it holds that § 1332 vests it with jurisdiction to hear this case.
Consequently the question whether this court also has federal question jurisdiction,
because the construction of a Congressionally approved compact necessarily involves a federal question, need not be considered here.
The DRPA asserts (in its second separate defense) that it is immune from suit:
The design, construction, maintenance and control of the Bridge in question was a discretionary act of a body politic of the Commonwealth of Pennsylvania and the State of New Jersey, which action is not subjected to test by the Judicial Branch of Government either by way of a tort action or otherwise . . . .
The compact contains a "sue and be sued" clause.
The issue to be resolved, therefore, is whether this clause operates as a waiver of any claim of immunity from suit. This issue must be resolved according to federal law.
In Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S. Ct. 785, 3 L. Ed. 2d 804 (1959) the Supreme Court had before it a "sue and be sued" clause in an interstate compact approved by Congress. The Court held that the Commission and its sponsoring states, had, by entering into the Congressionally approved compact, waived any immunity from suit that it might otherwise assert. Petty, supra at 280, 79 S. Ct. 785. The Court noted, supra, that the compact was "approved by Congress in 1949 . . . in an era when the immunity of corporations performing governmental functions was not in favor in the federal field." Id. The DRPA was also approved by Congress in the same era.
Further, the Court in Petty, supra at 277-278, 79 S. Ct. 785, paid particular attention to a proviso in the compact virtually identical to that found when Congress approved the compact involved here. That latter proviso conditioned Congressional approval, providing that "nothing therein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters, or any commerce between the States . . . ." 66 Stat. at 747. Acceptance of this condition by Pennsylvania and New Jersey barred any later claim of immunity, as the following language from Petty, supra at 281-282, 79 S. Ct. at 790, makes clear:
The States who are parties to the compact by accepting it and acting under it assume the conditions that Congress under the Constitution attached. So if there be doubt as to the meaning of the sue-and-be-sued clause in the setting of the compact prior to approval by Congress, the doubt dissipates when the condition attached by Congress is accepted and acted upon by the two States.
Consequently, the "sue and be sued" clause operates as a waiver of any claim of immunity from suit.
Finally, the third party defendant's motion for summary judgment against defendant DRPA based upon the Statute of Limitations, N.J.S.A. 2A:14-1.1 must be decided.
Briefly stated, the undisputed facts are these. On September 10, 1952 the joint venture submitted to DRPA a proposal for performing certain engineering services in connection with the design and supervision of construction of the Walt Whitman Bridge. On September 24, 1952 the DRPA by resolution accepted the proposal. The joint venture completed its work on May 16, 1957. Final payment was made on January 21, 1959. At no time since that date has the joint venture performed any work on the bridge or otherwise controlled or maintained the bridge.
The accident which is the subject matter of this lawsuit occurred on August 9, 1970. The consolidated actions were filed on August 5, 1971 (Civil Action No. 1166-71) and December 15, 1971 (Civil Action No. 1875-71) respectively. N.J.S.A. 2A:14-1.1 provides:
No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for any injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.
Although this statute took effect on May 18, 1967, it applies to construction completed before that date. Salesian Society v. Formigli Corporation, 120 N.J.Super. 493, 502-503, 295 A.2d 19, 24-25 (Law Div.1972), aff'd 124 N.J.Super. 270, 306 A.2d 466 (App.Div.1973).
Initially it must be determined whether a bridge is "an improvement to real property." Under Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938) this issue must be decided in accordance with state law. In Freeholders of Monmouth v. Red Bank & Holmdel Turnpike Co., 18 N.J.Eq. 91, 94 (1866) the Court said: "a bridge, like a castle, is land." (emphasis in original). A "bridge" was defined in Muench v. Medford Lakes Company et al., 101 N.J.Super. 263, 268, 244 A.2d 141, 144 (App.Div.1968), certification denied, 52 N.J. 495, 246 A.2d 454 (1968) as
a structure erected over a depression or obstacle, as over a river, chasm, roadway, railroad, etc., carrying a roadway for passengers, vehicles, etc., Webster's New International Dictionary (2d ed. 1950). (emphasis added)
A bridge is part of the highway or road to which it is connected. Whitall v. Freeholders of Gloucester, 40 N.J.L. 302, 305 (1878). Recently, it has been stated that "road construction is an improvement to real property within the meaning of N.J.S.A. 2A:14-1.1. Rosenberg v. North Bergen, 61 N.J. 190, 198, 293 A.2d 662 (1972)." Richards v. Union Building and Construction Corp., 130 N.J.Super. 127, 129-130, 325 A.2d 831, 832 (App.Div.1974). A bridge being, in legal effect, the same as a road, Whitall, supra, a bridge is "an improvement to real property" within the meaning of N.J.S.A. 2A:14-1.1.
It is clear that this action has been brought more than ten years after the joint venture completed its work. This third party defendant is therefore entitled to summary judgment as a matter of law. F.R.Civ.Proc. 56(c).
Counsel shall prepare and submit the appropriate orders.