December 5, 1986
DELTA KAPPA EPSILON (NEW YORK), THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON, POCH, CHRISTOPHER, BACHA, MICHAEL, TROY, CHRISTOPHER L., TURGIS, BRUCE E. AND ZACHEA, KEVIN; THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON V. EVANS, CORBIN S., DALLESANDRO, NICHOLAS, BACHA, JR., MICHAEL, THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON, AND ITS INDIVIDUAL MEMBERS AS OF SEPTEMBER 25, 1982: BRUCE BALTERA, EUGENE CAMPOSANO, LOUIS D'ONOFRIO, WILLIAM J. FUREY, PETER JIRAK, DAVID R. JONES, RICHARD J. KEATING, BOB MAYER, GLENN P. MAYKISH, MICKY MCCLURE, KEN MURPHY, WILLIAM SCOTT O'NEIL, MICHAEL F. O'SULLIVAN, ANTHONY D. PACARO, CHRISTOPHER F. POCH, STEPHEN T. SCHMIDT, CHRISTOPHER L. TROY, BRUCE E. TURGISS, TIMOTHY F. VALLACE, PAUL VANDEVENTER, CHRISTOPHER J. WACKERMAN, PETER J. WYNNE, KEVIN C. ZACCHEA; TROY, CHRISTOPHER L. V. EVANS, CORBIN S. AND D'ALLENSANDRO, NICHOLAS, ANNE FASSETT, APPELLANT; BUCKLEY, JOHN L., JR., ADMINISTRATOR OF THE ESTATE OF BUCKLEY, MONICA T., DECEASED V. POCH, CHRISTOPHER F., TROY, CHRISTOPHER L., TURGISS, BRUCE, ZACCHEA, KEVIN, HOFFEND, DANIEL, DELTA KAPPA EPSILON DOUGHERY HALL, DELTA KAPPA EPSILON OF NEW YORK V. THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON, AND ITS INDIVIDUAL MEMBERS AS OF SEPTEMBER 25, 1982: BRUCE BALTERA, EUGENE CAMPOSANO, LOUIS D'ONOFRIO, WILLIAM J. FUREY, DANIEL J. HOFFEND, PETER JIRAK, RICHARD J. KEATING, BOB MAYER, GLENN P. MAYKISH, MICKY MCCLURE, KEN MURPHY, WILLIAM SCOTT O'NEIL, MICHAEL F. O'SULLIVAN, ANTHONY D. PACARO, CHRISTOPHER F. POCH, STEPHEN T. SCHMIDT, BRUCE E. TURGIS, TIMOTHY F. VALLACE, PAUL VANDEVENTER, CHRISTOPHER J. WACKERMAN, PETER J. WYNNE, KEVIN C. ZACCHEA; POCH, CHRISTOPHER F., TROY, CHRISTOPHER L. V. EVANS, CORBIN S., D'ALLENSANDRO, NICHOLAS AND WYNNE, PETER J., JOHN L. BUCKLEY, ADMINISTRATOR OF THE ESTATE OF MONICA T. BUCKLEY, DECEASED, APPELLANT; (FASSETT, ANNE V. DELTA KAPPA EPSILON (NEW YORK), THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON, POCH, CHRISTOPHER, BACHA, MICHAEL, TROY, CHRISTOPHER L., TURGIS, BRUCE E. AND ZACHEA, KEVIN; THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON V. EVANS, CORBIN S., DALLESANDRO, NICHOLAS, BACHA, JR., MICHAEL, HOFFEND, DANIEL,) THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON, AND ITS INDIVIDUAL MEMBERS AS OF SEPTEMBER 25, 1982: ROBERT J. ACKERMAN, BRUCE BALTERA, THOMAS C. BROCKWELL, EUGENE CAMPOSANO, KEVIN CONNOR, JOSEPH F. DELANEY, LOUIS D'ONOFRIO, RICHARD J. DULCEY, DANIEL M. FARRELL, SEAN P. FLANAGAN, WILLIAM J. FUREY, PAUL A. GENTILE, DANIEL J. HOFFEND, PETER JIRAK, DAVID R. JONES, RICHARD J. KEATING, ATTILA A. KOC, BOB MAYER, GLENN P. MAYKISH, MICKY MCCLURE, STEVEN M. MCEVOY, JOHN J. MCGEE, THOMAS M. MULROY, KEN MURPHY, RONALD A. NAUMAN, WILLIAM SCOTT O'NEIL, MICHAEL F. O'SULLIVAN, ANTHONY D. PACARO, CHRISTOPHER F. POCH, HENRY ROHRER, STEPHEN T. SCHMIDT, JOSEPH A. TORRISI,(CHRISTOPHER L. TROY,) BRUCE E. TURGISS, TIMOTHY F. VALLACE, PAUL VANDEVENTER, CHRISTOPHER J. WACKERMAN, JAMES T. WILSON, PETER J. WYNNE, KEVIN C. ZACCHEA; (TROY, CHRISTOPHER L. V. EVANS, CORBIN S. AND D'ALLENSANDRO, NICHOLAS, BRUCE TURGISS, APPELLANT); BUCKLEY, JOHN L., JR., ADMINISTRATOR OF THE ESTATE OF BUCKLEY, MONICA T., DECEASED V. POCH, CHRISTOPHER F., TROY, CHRISTOPHER L., TURGISS, BRUCE, ZACCHEA, KEVIN, BACHA, MICHAEL, JR., HOFFEND, DANIEL, DELTA KAPPA EPSILON DOUGHERY HALL, DELTA KAPPA EPSILON OF NEW YORK V. THE VILLANOVA CHAPTER OF DELTA KAPPA EPSILON, AND ITS INDIVIDUAL MEMBERS AS OF SEPTEMBER 25, 1982: ROBERT J. ACKERMAN, BRUCE BALTERA, THOMAS C. BROCKWELL, EUGENE CAMPOSANO, KEVIN CONNOR, JOSEPH F. DELANEY, LOUIS D'ONOFRIO, RICHARD J. DULCEY, DANIEL M. FARR ELL, SEAN P. FLANAGAN, WILLIAM J. FUREY, PAUL A. GENTILE, DANIEL J. HOFFEND, PETER JIRAK, DAVID R. JONES, RICHARD J. KEATING, ATTILA A. KOC, BOB MAYER, GLENN P. MAYKISH, MICKY MCCLURE, STEVEN M. MCEVOY, JOHN J. MCGEE, THOMAS M. MULROY, KEN MURPHY, RONALD A. NAUMAN, WILLIAM SCOTT O'NEIL, MICHAEL F. O'SULLIVAN, ANTHONY D. PACARO, CHRISTOPHER F. POCH, HENRY ROHRER, STEPHEN T. SCHMIDT, JOSEPH A TORRISI, BRUCE E. TURGIS, TIMOTHY F. VALLACE, PAUL VANDEVENTER, CHRISTOPHER J. WACKERMAN, JAMES T. WILSON, PETER J. WYNNE, KEVIN C. ZACCHEA; POCH, CHRISTOPHER F., TROY, CHRISTOPHER L. V. EVANS, CORBIN S., D'ALLENSANDRO, NICHOLAS AND WYNNE, PETER J., BRUCE TURGISS, APPELLANT
On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Nos. 84-4613, 84-4624.
BEFORE: ADAMS, STAPLETON, and GARTH, Circuit Judges
The four cases before this court arise out of a tragic accident whose fact pattern is disturbingly common. In the early morning hours of Sunday, September 26, 1982, seventeen year old Anne Fassett, nineteen year old Monica Buckley and eighteen year old Corbin Evans were involved in a traffic accident when Evans, while driving his car, collided with a pickup truck operated by Nicholas D'Allessandro. Evans, Fassett, and Buckley had just left a fraternity sponsored party where Evans had allegedly consumed an indeterminate quantity of alcohol. Monica Buckley was killed in the accident, and Anne Fassett was rendered a quadriplegic.
Anne Fassett brought a diversity action in the Federal District Court for the Eastern District of Pennsylvania against Christopher Poch, Bruce Turgiss, Kevin Zacchea, Christopher Troy and Michael Bacha. John Buckley, Jr., the administrator of the estate of Monica Buckley, brought a similar suit against defendants Poch, Turgiss, Zacchea, Troy and Daniel Hoffend.*fn1 The two cases (before this court as appeals 85-1652 and 85-1653) were consolidated for purposes of trial before the Honorable Louis c. Bechtle. Fassett and Buckley sought to hold the named defendants liable for the injuries they suffered under Pennsylvania tort law.
The named defendants filed a series of cross claims against each other, and they also impleaded a number of third party defendants. Corbin Evans and Nicholas D'Allessandro, the drivers of the two vehicles, were joined as third party defendants in both actions.
In the Fassett action, Daniel Hoffend was joined as a third party defendant, and defendant Michael Bacha impleaded individual members of the Villanova Delta Kappa Epsilon fraternity.
Similarly, in the Buckley action, Christopher Troy impleaded Michael Bacha and numerous individual members of the Villanova Delta Kappa Epsilon fraternity.
Many of these first and third party defendants filed motions for summary judgment. The district court directed Fassett and Buckley (as well as any defendants who raised claims against third parties) to submit written "offers of proof" to explain the basis of their theory of liability against each of the defendants. These offers of proof were designed to assist the court in ruling on the summary judgment motions. Appendix at 80. After the written offers of proof were submitted, the court held a hearing at which it allowed these offers of proof to be supplemented orally.
The offers of proof alleged that Evans had been drinking while in the apartment leased by defendants Michael Bacha, Kevin Zacchea, Christopher Troy, and Bruce Turgiss, and that these four defendants had agreed to allow their apartment to be used as the site for a fraternity party where alcohol would be served to approximately 200 minors. More specifically, it was alleged that Troy was an organizer of the party and that he served as one of the bartenders. It was alleged that Turgiss was a "passive organizer" of the party and that he had worked the door.*fn2 It was alleged that Bacha, who was not a member of the Villanova Delta Kappa Epsilon fraternity, nevertheless acted in concert with his fellow roommates and invited the fraternity to use his apartment for a party during which intoxicants were served to minors.
It was alleged that Poch was the president of the fraternity and an organizer of the party. Additionally, it was alleged that he was one of the people who drove into Maryland to purchase alcohol for the party. Although Hoffend was not at the party, it was alleged that he was the treasurer of the fraternity and that he wrote a blank check to be used for the purchase of the alcohol consumed at the party.*fn3
The district court concluded that, as a matter of Pennsylvania law, a defendant would have had to have physically served (i.e. directly handed) an alcoholic beverage to Evans in order to be civilly liable. Therefore, as to each individual defendant, unless it was specifically alleged that he had acted as a bartender or otherwise served alcohol to guests on the night in question, the court on September 18, 1985 granted summary judgment in his favor.*fn4
Troy was the only remaining first party defendant in both cases. Rather than proceed to trial against Troy alone, Fassett and Buckley, pursuant to Fed. R. Civ. P. 41(a)(1), filed a stipulation of dismissal without prejudice against Troy. Because Troy was the sole remaining first party defendant, Fassett and Buckley assumed that this action would dispose of all outstanding claims (against both Troy and the third party defendants he had named) and thereby render the district court's earlier order final for purposes of appeal.
Fassett filed a timely notice of appeal from the district court's order of September 18, 1985, which had granted summary judgment in favor of Poch, Bacha and Zacchea, and which had dismissed the complaint against Turgiss. On the same day, Buckley also filed her notice of appeal, in which she stated that she was appealing the order granting summary judgment to all of the first party defendants in her suit and the other "granting summary judgment in favor of Michael Bacha, dismissing the third party complaint as to all of the remaining third party defendants . . ." Appendix at 575.
It is apparently on the basis of this latter statement in Buckley's notice of appeal that the third party defendants were originally considered to be parties to this appeal. The vast majority of the third party defendants filed motions for dismissal with this court. These motions were granted by a motions panel of this court "without prejudice to defendants' rights to reinstate third party complaints in the event the district court's orders are reversed."*fn5 Because the appeals against the third party defendants were dismissed, we did not consider any briefs which had previously been field by them. As a consequence, no third party defendants appeared at oral argument of these appeals.
After the record was complete for purposes of appeal, Fassett and Buckley filed a joint motion, pursuant to Fed. R. App. P. 10(e), to augment the record on appeal with, inter alia, certain portions of the deposition testimony of one Christopher Wackerman. Wackerman testified that, on the night in question, he had seen defendant Bruce Turgiss serving alcohol to party guests. This deposition was not filed of record at the time the district court rendered its final judgment.
By order dated January 14, 1986, the district court granted the motion to augment the record. Consolidated appeals numbered 86-1102 and 86-1103 raise Bruce Turgiss' separate claim against Fassett and Buckley, that the district court erred in ordering this augmentation of the record on appeal with material that was not before the district court when its final decision was rendered.
Before considering the arguments raised by Fassett and Buckley, we address sua sponte our jurisdiction. Although the parties have not briefed the issue, we cannot ignore matters that bring into question the existence of federal jurisdiction. Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 398, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979). Therefore, we must determine whether Fassett and Buckley's voluntary dismissal of the claims against the remaining original defendant Troy, left plaintiffs with a final appealable order.
Judge Bechtle's order entered September 18, 1985 (granting judgment in favor of all first party defendants except Troy) was not a final order when entered. The order became final, however, when on September 23, 1985, the complaints against Troy were dismissed. This dismissal left no outstanding issues or parties before the district court. Therefore, the notices of appeal, filed on October 15, 1985 were timely and effective notices of appeal from the September 18th order which had become final.
the dissent raises the possibility that the dismissal of the complaint against Troy, which was styled as being "without prejudice," may not have effectively and finally disposed of all parties. We cannot agree.
In the present case, although all parties had stipulated to a dismissal without prejudice against Troy, the two-year Pennsylvania statute of limitations had already run as of the time of Troy's dismissal. The automobile accident occurred on September 26, 1982, and the two-year statutory period for filing the claim had run as of September 26, 1984. See 42 Pa. Cons. Stat. Ann. § 5524(2) & (7). Therefore, when Fassett and Buckley dismissed their causes of action against Troy, on September 23, 1985, their actions against Troy were effectively barred. Because Fassett and Buckley retained no viable cause of action against Troy, we conclude that the dismissal, which was nominally without prejudice, was for our purposes, a final dismissal. See Carr v. Greene, 516 F.2d 502 (5th Cir. 1975) (holding that the running of the statute of limitations made a "without prejudice" dismissal final for purposes of 28 U.S.C. § 1291).
Although this court has, in dictum, expressed displeasure over what it terms "indirect attempts" at avoiding the finality rule, see, e.g., Sullivan v. Pacific Indemnity Co., 566 F.2d 444, 445 (3d Cir. 1977), we do not believe that, under the circumstances outlined above, this case presents such a problem. Certainly, we will not permit an indirect review of interlocutory rulings that may not be subject to direct review. But it would be anomalous to hold that a plaintiff had no right to appeal the dismissal of all but one of his claims after that one claim not initially dismissed, had thereafter been voluntarily and finally abandoned.*fn6
As Judge Wallace, writing for the court in Anderson v. Allstate Insurance Co., 630 F.2d 677, 681 (9th Cir. 1980), stated, after citing numerous authorities which hold to the same effect as we hold here, "These cases provide clear examples of giving a practical rather than a technical construction to the finality rule, without sacrificing the considerations underlying that rule. There is no danger of piecemeal appeal confronting us if we find jurisdiction here, for nothing else remains in the federal courts."
The dissent argues, however, that the order was not final because a statute of limitations defense must be affirmatively pleaded.*fn7 We find this argument unpersuasive. We assume that Troy would fail to plead a statute of limitations defense only if he were unaware of its availability. We believe that the mere theoretical possibility that Fassett and Buckley will reinstate an untimely cause of action in a federal forum, and that Troy would fail to plead a statute of limitations defense if so named, is so unrealistic in the posture of the present case, that it cannot operate to divest this court of appellate jurisdiction.
Indeed, even if we were to accept the reasoning of the dissent, which we do not, that a dismissal without prejudice of a claim that could never have been timely refiled is not a final disposition of that claim, we would still hold that we are vested with jurisdiction in this case.
In Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983), this court held that, except in a few very specific situations,*fn8 a notice of appeal form a non-final order will take effect when, due to subsequent events, the previous non-final order is rendered final. Even assuming arguendo, that the dismissal without prejudice on September 23, 1985, was not itself sufficient to render the September 18th order final, the representations of counsel made during oral argument were more than sufficient to constitute a "subsequent event" which rendered the September 18th order a final one.
At oral argument, counsel for Fassett and Buckley informed us that they had a pending action in state court against Troy. They dismissed their federal claim against Troy without prejudice in order to prevent Troy from pleading an effective res judicata defense to the action in state court, not to reinstitute the federal suit against him. Counsel for Fassett and Buckley conceded that any rights they once had against Troy could not be reasserted in a federal forum because of the statute of limitations bar, and indeed they represented that they had no intention of reinstating any such federal action.
The dissent focuses on that portion of the oral argument where we explored the matters leading up to the dismissal of Troy without prejudice. However, the colloquy that took place at oral argument was far more extensive than that to which the dissent refers. taken in full context, the tapes of oral argument reveal that:
(1) originally certification for an interlocutory appeal was sought from the district court but was denied;
(2) Troy was dismissed without prejudice because there was concern that an immediate "with prejudice" dismissal might affect the pending state action;
(3) the statute of limitations had run prior to Troy's dismissal;
(4) the action could not be reinstated against Troy because of the bar of the statute;
(5) if we were to dismiss the appeal, Fassett and Buckley would dismiss against Troy with prejudice; and
(6) as a pragmatic matter, no action in any event would have been brought against Troy because of the trial expense involved and the limited insurance under which Troy was covered.
Thus, taken in full context, there was no question but that Fassett and Buckley were "standing upon" Troy's dismissal. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (an order which dismisses a complaint without prejudice is final and appealable if plaintiff declares his intention to take no further action). By standing upon Troy's dismissal, no doubt remained as to the finality of the September 18th order.
Therefore, even if the entry of a dismissal without prejudice after the statute of limitations had already expired was not itself sufficient to render the September 18th order a final one, that order would have become final when counsel renounced their claims against Troy. Under Fed. R. App. P. 4(a)(2) and the Cape May Greene reasoning, the "premature" notices of appeal filed on October 15, 1985 would have become effective upon the final abandonment of the claims against Troy, and appellate jurisdiction would then have vested in this court.
We are satisfied that under the circumstances present here, we have jurisdiction. Were we to hold otherwise, the very substantial claims of the plaintiffs would be immunized from judicial review forever.
A federal district court sitting pursuant to diversity jurisdiction must apply the choice of law rules of the state in which it is located. Klaxon Co v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1942). The district court concluded that Pennsylvania has the most significant contacts with the events giving rise to this lawsuit, 625 F. Supp. at 330 n.8, and this holding is unchallenged on appeal. We therefore look to Pennsylvania ...
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