Attorney Pentecost Secures Win in Third Circuit Court of Appeals

Earlier this week, William B. Pentecost, Jr., partner and Chair of the General Liability Practice Group in Pittsburgh and Co-Chair of the firm’s Transportation Law Practice Group, secured a win for our client, American Wind, before the United States Court of Appeals for the Third Circuit.

In R and C Oilfield Services, LLC v. American Wind Transport Group, LLC, Case No. 21-2742, R&C was ordered by the United States District Court for the Western District of Pennsylvania to arbitrate its dispute with American Wind and, seventeen months later, told the District Judge that it had no plans to do so.  As a result, R&C’s case was dismissed with prejudice for failure to prosecute. 

On appeal, R&C sought review of both the dismissal order and the interlocutory order compelling arbitration, notwithstanding that it took no action to seek interlocutory review as permitted under the Federal Arbitration Act and steadfastly refused to proceed to arbitration.  R&C argued that the decision of the United States Supreme Court in the case of New Prime v. Oliveira, 139 S. Ct. 532 (2019), should be expanded to hold that arbitration clauses are unenforceable in the transportation industry.

Interlocutory orders generally “merge” into the final judgment or order and usually can be reviewed on appeal from the final order.  Where the final order is one dismissing the case for failure to prosecute, however, interlocutory orders typically do not merge.  Accordingly, the Third Circuit held that prudence counseled against merging the interlocutory order with the final order.  As a result, the Third Circuit concluded that the interlocutory order was not part of the final order, so there was no jurisdiction on appeal to review it.

As to the dismissal order, the Third Circuit held that the district court did not abuse its discretion in dismissing the case, and affirmed in a 3-0 decision authored by Judge Patty Shwartz, joined by Judges Jane Richards Roth and Cheryl Ann Krause.


If you have any questions about this case, please contact Bill Pentecost at wpentecost@c-wlaw.com or (412) 563-2500.