Borelli v. City of Reading, 75-1789

• Citation: 532 F.2d 950
• Decision Date: 31 March 1976
• Docket Number: No. 75-1789,75-1789
• Parties: Mrs. Carmella M. BORELLI, Appellant, v. CITY OF READING et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 950

532 F.2d 950

Mrs. Carmella M. BORELLI, Appellant, v. CITY OF READING et al., Appellees.

No. 75-1789.

United States Court of Appeals Third Circuit.

Argued Feb. 3, 1976.

Decided March 31, 1976.

William R. Mosolino, Orwigsburg, Pa., for appellant.

Robert T. Miller, Charles H. Weidner, Stevens & Lee, Reading, Pa., for appellees, City of Reading and Redevelopment Authority of the City of Reading.

Carl Strass, Robert A. Kerry, Dept. of Justice, Washington, D. C., Walter Kiechel, Jr., Acting Asst. Atty. Gen., Washington, D. C., Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., William J. McGettigan, Asst. U. S. Atty., Philadelphia, Pa., for appellee, Dept. of H.U.D.

Before SEITZ, Chief Judge, and VAN DUSEN and WEIS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

Settled policy in the federal courts discourages piecemeal appeals and, so, generally recourse may be had to appellate tribunals only when final orders are the subject of review. While the inevitable exceptions exist, none are applicable to the appellant here. Accordingly, we must dismiss this appeal from orders dismissing the complaint without prejudice and denying plaintiff's motion for summary judgment.

With the aid of funds supplied by the Commonwealth of Pennsylvania and the United States Department of Housing and Urban Development, the Redevelopment Authority of Reading began work on a project to rehabilitate part of the downtown area. The plaintiff, who owns her home in the redevelopment area, opposed the proposed changes in her neighborhood and filed suit in the district court. She asked for injunctive and declaratory relief, contending that H.U.D. failed to comply with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. After the parties had served and answered interrogatories, both sides moved for summary judgment. The district court ruled that the defendants' motion insofar as "they allege plaintiff's lack of standing is granted and the complaint will be dismissed without prejudice." Plaintiff's motion was denied. The plaintiff did not file an amendment to her complaint but instead took this appeal from both adjudications.

The defendants' motion for summary judgment in substance alleged that they had conformed to the applicable legal requirements, that plaintiff was bound by reason of res judicata because of a ruling in a suit filed in the state court, and that she lacked standing to sue. The district court passed only upon the last contention, noting that in her complaint plaintiff did not assert "injury in fact" within the scope of N.E.P.A., nor did she allege irreparable injury in requesting injunctive relief.

The question of standing is generally determined from the face of the complaint, Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir. 1974). If the averments are not sufficient, the trial court may require the plaintiff to supply further particularized allegations of fact by amendment to the complaint or by affidavits. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Although the district court's order did not mention amendment, an implicit invitation to amplify the complaint is found in the phrase "without prejudice." ¹

Generally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. Only if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable. Azar v. Conley, 480 F.2d 220 (6th Cir. 197...