                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2002

Ferranti Intl PLC v. Jasin
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2612




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Recommended Citation
"Ferranti Intl PLC v. Jasin" (2002). 2002 Decisions. Paper 584.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/584


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                                                   NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                          No. 01-2612
                          ___________


                 FERRANTI INTERNATIONAL, PLC,
               (In administrative receivership);
                  FERRANTI INTERNATIONAL, INC.

                               v.

                        THOMAS P. JASIN,
                                    Appellant
                          ___________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania

 District Court Judge: The Honorable Franklin S. Van Antwerpen
                   (D.C. Civ. No. 98-CV-5412)
                          ___________

                    Argued on July 15, 2002

      Before: SCIRICA, ALITO, and FUENTES, Circuit Judges

              (Opinion Filed: September 18, 2002)
                          ___________

                                              Anna M. Durbin [Argued]
                                                   50 Rittenhouse Place
                                                   Ardmore, Pennsylvania, 19003-2276
                                                   Attorney for Appellant Thomas P. Jasin

                                                  Grant S. Palmer
                         Blank Rome Comisky & McCauley, LLP
                         One Logan Square
                         Philadelphia, Pennsylvania 19103
                         Attorney for Appellees

                                                    Howard Bruce Klein (argued)
                                                                                      Law Offic
                         1700 Market Street, Suite 2632
                         Philadelphia, PA 19103
                                   Attorney for Appellee


                    _______________________

                      OPINION OF THE COURT
                    _______________________

PER CURIAM:

     We write solely for the benefit of the parties who are well-familiar with the
circumstances of the case. Therefore, we begin with our legal analysis and will refer to
the facts of the case only as they bear upon our discussion of the issues.
     The District Court had subject matter jurisdiction over Ferranti’s motion for a
declaratory judgment based upon the diversity of the parties, 28 U.S.C. 1332. We have
jurisdiction over Jasin’s appeal based upon 28 U.S.C. 1291. We review a district
court’s decision that it was not necessary to hold a further evidentiary hearing for clear
abuse of discretion. Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d
470, 478 (3d Cir. 1978). We review a district court’s findings of facts regarding a claim
for breach of contract for clear error. See In re Coordinated Pretrial Proceedings in
Antibiotic Antitrust Actions, 676 F.2d 51, 54 (3d Cir. 1982).

    I. Should the District Court Have Taken Further Evidence
     Jasin first claims that the District Court clearly abused its discretion when on
remand, it denied Jasin’s motion to hold an evidentiary hearing regarding Ferranti’s
alleged breach of contract, instead limiting the scope of its deliberations to the evidence
that had been introduced at the first trial and the information in both parties’ briefs.
     It is well-established that a motion to reopen to submit additional proofs is
addressed to the sound discretion of the district court. Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 331 (1971); In re Chattanooga Wholesale Antiques, Inc.,
930 F.2d 458, 464 (6th Cir. 1991); Skehan v. Board of Trustees of Bloomsburg State
College, 590 F.2d at 478. In Skehan, this Court analyzed this issue, and determined that;
          (T)he grant or denial [of a motion to reopen] involves an exercise
     of discretion by the trial court; and because this court has a feel for the
     case that an appellate court can seldom have, the trial court’s ruling is
     subject to reversal only in a rare case where abuse is clearly shown.

Skehan, 590 F.2d at 478 (quoting 6A Moore’s Federal Practice P59.04(13) at

36-37 (2d ed. 1974)) (emphasis added).

     We have instructed that, in deciding whether to reopen a case, the district court
should be concerned with several factors: what burden, if any, will be placed on the
parties and their witnesses; what undue prejudice may result by not taking new
testimony; and what consideration should be given to judicial economy. Rochez Bros.
Inc. v. Rhoades, 527 F.2d 891, 894 n.6 (3d Cir. 1975); see also Skehan, 590 F.2d at 478
("A district court...should consider a motion to take additional testimony in light of all
the surrounding circumstances and grant or deny it in the interest of fairness and
substantial justice[.]").
     Here, the District Court considered Jasin’s motion for an evidentiary hearing on
the breach issue and found such a hearing "unnecessary." App. at 3A-B. It noted that
Jasin himself had "expressly raised the question of [Ferranti’s alleged] breach in his
answer to [Ferranti’s] initial request for declaratory judgment" and that therefore it had
been "clearly an issue for trial." Id. The court further noted that it had "put no limitation
on the evidence the parties were permitted to present. [A]s a result, the parties presented
extensive evidence in their non-jury trial before this Court with respect to [the] question
[of Ferranti’s alleged breach]." The District Court determined that Jasin’s "only request
pertaining to issues not litigated at trial asks for a hearing on [damages]." Because the
court ultimately ruled that Ferranti did not breach its agreement, it therefore found "that
such a hearing [on damages resulting from the alleged breach was] unnecessary." Id.
     Given the District Court’s analysis, we find that there is no basis for this Court to
determine that the District Court abused its discretion in deciding not to grant Jasin’s
motion to reopen the issue for presentation of further evidence. This is not one of the
"rare cases" where, for example, an intervening change in the law has prompted this
Court to remand with instructions to re-open the proof. See Skehan, 590 F.2d at 479
(noting that "a change in legal standards may warrant the reopening of a case where
additional testimony would be pertinent to the change of law."). Nor is it a case in
which a "deficiency of proof result[ed] from a misunderstanding among the parties and
the trial court." Rochez 527 F.2d at 895 (remanding to reopen the proof where "injury
ha[d] plainly been shown and liability ha[d] been conclusively established" but the
district court decided to use an alternative method of calculating damages after the
evidence had been closed).
     Neither can we find that the District Court’s refusal to hold the requested
evidentiary hearing violated the previous mandate of this Court, as Jasin seems to
suggest. See App. Br. at 22 (alleging that "[t]he purpose of this Court’s initial remand
has....been defeated."). It is clear from our prior Memorandum Opinion that we never
specifically mandated an additional trial or evidentiary hearing. Rather, we remanded
simply for "further proceedings consistent with this opinion." App. at 27A. Other than a
reference to a rather vague passage from the District Court’s original opinion, Jasin fails
to point out any language in our opinion that might support his position.
     This Court considered nearly identical circumstances in Skehan, in which
"neither [previous] opinion of this Court specifically instructed the district court to take
further evidence on any issue remanded to it for findings of fact." Skehan, 590 F.2d at
478. We held that "this Court’s failure to specify that further evidence should be taken
on remand could, at most, be construed as leaving a decision on the need to reopen the
record to the sound discretion of the trial court." Id. See also Rochez, 527 F.2d at 894
(failure of appellate court to instruct the district court to take further evidence indicates
that the question was left to the sound discretion of the trial court). Since Jasin cannot
point to any specific directive from this Court to reopen the proof, we find that the
District Court did not violate this Court’s mandate on remand.

     II. Did Ferranti Comply with the Settlement Agreement
     Jasin next argues that the District Court disregarded evidence in the record, when
it ruled on remand that Ferranti had not breached the settlement agreement. Specifically,
Jasin claims that the evidence establishes that Ferranti, in violation of the agreement; (1)
refused to make any efforts to correct Jasin’s W-2 forms, which would have allowed
Jasin to receive a tax refund for his insurance policy, previously paid by Ferranti; (2)
refused to conduct a good faith investigation into whether Jasin’s actual title was
"Senior Vice President," and; (3) refused to permit Jasin to tender the funds that would
have allowed him to recover his insurance policy.
     In reviewing the District Court’s factual findings regarding Ferranti’s alleged
breach, our task is restricted to a determination of whether those findings were clearly
erroneous. See In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions
676 F.2d at 54. This standard of review "does not permit an appellate court to substitute
its findings for those of the trial court. It allows only an assessment of whether there is
enough evidence on the record to support those findings." Scully v. U.S. WATS, Inc.
238 F.3d 497, 506 (3d Cir. 2001).
     Under the applicable law, the burden of proof in a contract action is upon the
party alleging breach, in this case Jasin. See East Texas Motor Freight v. Lloyd, 484
A2d 797, 801 (Pa. Super. 1984). Additionally, "the party having the burden of proof in
a contract matter must sustain it by a ’preponderance of the evidence.’" Snyder v.
Gravell, 666 A2d 341, 343 (Pa. Super. 1995).
     The District Court addressed Jasin’s claims and found that, regarding his
allegation that Ferranti "refuse[d] to adjust [Jasin’s] W-2 forms[,]" Jasin had
"mischaracterize[d] the language of the agreement." App. at 4A. The Court noted that
Ferranti had agreed in the settlement agreement to "do everything possible to legally
adjust [Jasin’s W-2 forms]." Id. The court characterized this as less than an outright
promise to change Jasin’s W-2 forms. It then determined that Jasin offered no evidence
"to contradict the testimony of multiple witnesses...showing that an investigation was in
fact made into [Jasin’s] tax status and that a determination was made that [Jasin’s] W-2
forms were accurately calculated." Id.
     In his reply brief to this Court, Jasin claims that a more "natural reading" of
Ferranti’s agreement is that Ferranti would "take action with the IRS to amend
the...forms if...legally possible to do." App. Rep. Br. at 6-8. However, not only does
Jasin offer no legal support for his conclusory statement, he fails to offer his own
rationale as to why this is a more natural reading. Because Jasin offers no rationale as to
why the this clause in the agreement should be differently interpreted, Jasin has failed to
meet his burden, and there is no basis on which to conclude that the District Court
clearly erred. See U.S. WATS, Inc. 238 F.3d at 501 ("That a different set of inferences
could be drawn from the record is not determinative. It is sufficient that the District
Court findings of fact could be reasonably inferred from the entire trial record.").
     Jasin’s claim that Ferranti failed to conduct a fair investigation into his title is
equally without merit. In its analysis, the District Court correctly observed that the
settlement agreement "only required that [Ferranti] investigate [Jasin’s] employment
status." App. at 5A (emphasis in original). The court further noted that Ferranti had
presented testimonial evidence that it had "thoroughly investigated Jasin’s title and
[was] unable to find any convincing proof that [substantiated Jasin’s claim.]." App. at
5A. Although Jasin had presented two documents (from the same person) that referred
to him as Senior Vice President, these "were only two among many others that did not
refer to [Jasin] as a senior vice president." Id. Since, on appeal, Ferranti presents no
convincing evidence contrary to the findings below, there is no basis on which to
conclude that the District Court clearly erred.
     Finally, Jasin claims that Ferranti breached the terms of their agreement when it
refused to permit Jasin to tender the funds that would have allowed him to recover his
insurance policy. The District Court examined Jasin’s claim and found it to be "entirely
without foundation." App. at 4A. The court determined that "[n]othing in this
testimony.... establishes definitively that such payments were ever attempted by
[Jasin] or rejected by [Ferranti]." Id. Alternatively, the Court pointed out that "even if
Ferranti did attempt to prevent Jasin from tendering such funds (which we find they did
not), they would have been powerless to do so." Id. The court reasoned that since Jasin
"could have [simply] tendered funds directly to his insurance company or through his
own counsel[,] he did not require Ferranti’s assistance [to do so]." Id.
     Jasin’s first attorney set forth the understanding between Ferranti and Jasin with
regard to Jasin’s insurance policy, in his letter of May 23, 1999 ( "Ferranti will hold the
policy until June 30th, and give Mr. Jasin until the end of business on that date, the right
to redeem it by paying Ferranti the policy’s cash value. If he fails to redeem the policy,
Ferranti agrees to present it to the insurance company for payment of the cash value
within 24 hours of the date that Jasin fails to redeem the policy."). It seems clear from
this language that Jasin did indeed need Ferranti’s assistance to redeem the policy, and
could not have simply tendered the funds "directly" to his insurance company, since
Ferranti was in possession of the policy, at least until June 30th. Therefore, the District
Court erred in this determination. Nevertheless, this error is harmless since the District
Court correctly determined, in the first instance, that nothing in the record establishes
that such payments were ever attempted by [Jasin] or rejected by [Ferranti].
     Neither party disputes that Ferranti had received a loan check in the amount of
$302,570 as partial payment intended to redeem Jasin’s insurance policy. Furthermore,
Jasin’s wife had testified that she had transferred the balance of the money required to
pay off the policy to their personal checking account, which would have allowed Jasin
to tender the payment directly to Ferranti.
     However, Jasin offers no further evidence to indicate that he ever actually
tendered the balance required for him to redeem the policy, approximately $24,000. At
oral argument, when asked about this directly, Jasin’s attorney could only offer that
Jasin "had tendered the vast amount of the money" required to redeem the policy. In
addition, she conceded that no one had testified that Jasin had been prevented from
tendering the balance by, for instance, mailing the balance to Ferranti. Given these
shortcomings in Jasin’s proof, we find that Jasin failed to meet his burden of
establishing by a preponderance of the evidence that Ferranti had breached the contract.
Therefore, we hold that the District Court was not clearly in error on this point. See
U.S. WATS, Inc. 238 F.3d at 501 ("Where there are two permissible views of the
evidence, the fact finder’s choice between them cannot be clearly erroneous.").
Accordingly, we affirm.
