Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-1996

Dayhoff Inc v. HJ Heinz Co
Precedential or Non-Precedential:

Docket 95-3404,96-3250




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Recommended Citation
"Dayhoff Inc v. HJ Heinz Co" (1996). 1996 Decisions. Paper 159.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/159


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                      Nos. 95-3404 and 96-3250


                          DAYHOFF INC.,
                   a California corporation;

                                       Appellant

                                v.

           H.J. HEINZ CO., a Pennsylvania corporation;
           HEINZ ITALIA S.p.A., an Italian corporation;
            HEINZ DOLCIARIA S.p.A., formerly known as
             SPERLARI S.p.A., an Italian corporation;
             SPERLARI s.r.l., an Italian corporation;
                  and HERSHEY FOODS CORPORATION,
                    a Delaware corporation.



        On Appeal from the United States District Court
            for the Western District of Pennsylvania
               (D.C. Civil Action No. 93-cv-01794)


                    SUR PETITION FOR REHEARING
                      BEFORE ORIGINAL PANEL
                   ORDER AMENDING SLIP OPINION


       BEFORE:   GREENBERG, ALITO, and MCKEE, Circuit Judges

         The petition for rehearing filed by the appellees, H.J.
Heinz Co., Heinz Italia S.p.A., Heinz Dolciaria S.p.A., Sperlari,
s.r.l. and Hershey Foods Corporation, in the above captioned
matter having been submitted to the judges who participated in
the decision of this court and the panel having determined to
grant the petition but only to the extent of amending the panel
opinion.
         It is hereby ordered that the slip opinion in the above
case filed June 24, 1996, be amended to the end that the
incomplete paragraph at the bottom of the page shall end eight
lines from the bottom at the end of the sentence concluding "may
be distinguished from that before us." At that point two
paragraphs reading as follows shall be inserted:
              Further, this case presents a different
         issue than those we addressed in Barrowclough
         v. Kidder, Peabody & Co., Inc., 

         (3d Cir. 1985), overruled on other grounds
         by Pritzker v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 

(3d Cir. 1993),
and Pritzker v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 

(3d Cir. 1993).
In Barrowclough, we upheld the enforcement of
an arbitration clause in an action between a
fired employee and his former employer,
applying the agreement not only to the
plaintiff's claims against his employer, but
also to his claims against additional, non-
signatory defendants. However, in
Barrowclough, the plaintiff had signed an
agreement with the New York and American
Stock Exchanges that required him to submit
all disputes "arising out of [his] employment
or the termination of [his] employment" to
arbitration. 

The non-signatory
defendants, who were directly tied to the
plaintiff's former employer, did not object
to arbitration. 

Moreover, the
contingent beneficiaries under the
plaintiff's deferred compensation plan, who
joined in the suit as plaintiffs, claimed no
present entitlement to the deferred
compensation and pressed no claims separate
from his. 

held that their
"inchoate and derivative claims should not
entitle them to maintain separate litigation
in a forum that has been waived by the
principal beneficiary." 

Barrowclough thus presented a vastly
different factual scenario from the case
before us.

     Likewise, our holding in Pritzker does
not alter our decision here. In that case,
we reaffirmed the idea that "[b]ecause a
principal is bound under the terms of a valid
arbitration clause, its agents, employees,
and representatives are also covered under
the terms of such 

. We also held there that an arbitration
agreement between pension plan trustees and a
securities broker applied to the broker's
sister corporation that acted as the broker's
advisor and that allegedly participated
knowingly in breaches of fiduciary duties
owed to the plan. Even though the sister
corporation had not signed the arbitration
agreements, we applied agency logic in
finding that the sister corporation's
interests were directly related to, if not
predicated upon, the broker's conduct and
that the trustee's claims against it were
therefore subject to compulsory arbitration.
         Clearly, this agency theory is not applicable
         to the facts before us.

         Following the insertion of the foregoing two paragraphs
the incomplete paragraph shall resume with the words "We also
point out" but these words shall be the beginning of a new
complete paragraph.

                               BY THE COURT:

                               /s/ Morton I. Greenberg


                                         Circuit Judge

DATED:   July 24, 1996