We, Inc. v. City of Philadelphia

• Decision Date: 01 April 1999
• Docket Number: No. 97-1958,97-1958
• Citation: 174 F.3d 322
• Parties: 134 Ed. Law Rep. 757 WE, INC., t/a University Coin Laundry; William Schoepe, Jr., t/a University Pinball v. CITY OF PHILADELPHIA, Department of Licenses and Inspections; Rudolph M. Paliaga, Individually and In His Capacity as Director of Business Regulatory Enforcement of the Department of Licenses and Inspections for the City of Philadelphia; University of Pennsylvania; Maureen Rush, Individually and In Her Official Capacity as Director of Police Operations for the University of Pennsylvania University of Pennsylvania, a/k/a Trustees of the University of Pennsylvania and Maureen Rush, Appellants
• Court: U.S. Court of Appeals — Third Circuit

Page 322

174 F.3d 322

134 Ed. Law Rep. 757

WE, INC., t/a University Coin Laundry; William Schoepe Jr., t/a University Pinball v. CITY OF PHILADELPHIA, Department of Licenses and Inspections; Rudolph M. Paliaga, Individually and In His Capacity as Director of Business Regulatory Enforcement of the Department of Licenses and Inspections for the City of Philadelphia; University of Pennsylvania; Maureen Rush Individually and In Her Official Capacity as Director of Police Operations for the University of Pennsylvania University of Pennsylvania, a/k/a Trustees of the University of Pennsylvania and Maureen Rush, Appellants

No. 97-1958.

United States Court of Appeals Third Circuit.

Argued Sept. 14, 1998.

Decided April 1, 1999.

Ronald J. Shaffer (Argued), Stephanie Resnick, Fox, Rothschild, O'Brien & Frankel, Philadelphia, PA, for Appellees.

Roger F. Cox (Argued), Robert A. Burke, Jordana Cooper, Philadelphia, PA, for Appellants.

BEFORE: STAPLETON and ROTH, Circuit Judges, and LONGOBARDI, ^* District Judge

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The University of Pennsylvania ("the University") appeals from an order of the District Court denying its motion for summary judgment. The University premised its summary judgment motion on a claimed immunity from liability under the Noerr-Pennington doctrine. See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Before reaching the merits of the District Court's decision, we must determine whether a denial of a summary judgment motion that is predicated on Noerr-Pennington immunity constitutes a final, collateral order appealable under 28 U.S.C. § 1291. Because we conclude that such an order is not appealable under the narrow collateral order doctrine, we will dismiss for lack of jurisdiction.

I.

The appellee, We, Inc., is the owner and operator of two adjacent establishments, a coin laundry and a pinball arcade, located near the appellant University of Pennsylvania's dental school in West Philadelphia. This suit arises out of a Cease Operations Order that was issued to appellee by the City of Philadelphia after the University lodged numerous complaints with the City. The University alleges that, prior to the Order's issuance, appellee's businesses were a nuisance and a threat to public safety because they were the locus of a variety of disorderly and unlawful activities, including assaults, batteries, and curfew and truancy violations. Pursuant to this concern, the University repeatedly contacted the City of Philadelphia and urged action by the City to address what it perceived to be unlawful activity associated with the businesses. The University met with City representatives regarding its concern on several occasions and provided data gathered by the University Police to support its allegations.

Without first providing notice or an opportunity for a hearing, the City issued a Cease Operations order to the businesses and posted it on the premises in the presence of University police officers. Following the order's posting, We, Inc., filed suit against the City and the University under 42 U.S.C. §§ 1983 and 1985, alleging a deprivation of its property without due process. The City of Philadelphia settled the claims against them and the University moved for summary judgment, claiming immunity for at least some of its actions under the Noerr-Pennington doctrine. The District Court denied the University's motion after finding that, by participating in the posting and execution of the Cease Operations Order, the University defendants' conduct arguably went beyond the mere "petitioning" of government that the Noerr-Pennington doctrine is designed to protect. The University now appeals the District Court's denial of summary judgment.

II.

A.

Under 28 U.S.C. § 1291, appeals as of right are limited to "final decisions of the district courts." ¹ The denial of a motion for summary judgment ordinarily is not afinal order and, accordingly, is not normally appealable. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir.1992). Under the "collateral order" doctrine, however, a decision of a district court may be appealable as a "final decision" under 28 U.S.C. § 1291 if it (1) "conclusively determine[s]" the disputed question; (2) "resolve [s] an important issue completely separate" from the merits of the action; and (3) is "effectively unreviewable" on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). If the order at issue fails to satisfy any one of these requirements, it is not an appealable collateral order. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988); Christy v. Horn 115 F.3d 201, 204 (3d Cir.1997).

Since Coopers & Lybrand, the Supreme Court has repeatedly referred to the collateral order doctrine as "narrow," described the conditions for its applications as "stringent" and urged that it "should stay that way and never be allowed to swallow the general rule." See e.g., Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Midland Asphalt Corp., v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). We have followed this admonition and consistently construed the collateral order exception narrowly "lest the exception swallow up the salutary general rule that only final orders be appealed." Yakowicz v. Pennsylvania, 683 F.2d 778, 783 n. 10 (3d Cir.1982); see also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51 (3d Cir.1993). Moreover, strict construction of the collateral order doctrine is consistent with the longstanding congressional policy against piecemeal appeals that underlies the final judgment rule. See Lusardi v. Xerox Corp., 747 F.2d 174, 177 (3d Cir.1984).

To guard against the temptation to expand the doctrine's reach, the Supreme Court has instructed that "the issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs." Desktop Direct Inc., 511 U.S. at 868, 114 S.Ct. 1992; Christy, 115 F.3d at 204. This approach reflects the Court's insistence that the finality requirement of § 1291 must not be reduced to a case-by-case determination, see Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 439, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), and that courts consider appealability "without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted, by a prompt appellate court decision." Desktop Direct, 511 U.S. at 868, 114 S.Ct. 1992 (citation omitted). Thus, in this case, we consider whether an order denying a claim of immunity under the Noerr-Pennington doctrine is an immediately appealable collateral order.

B.

The University contends that the denial of its claim of immunity under the Noerr-Pennington doctrine is immediately appealable under the collateral order doctrine. It likens Noerr-Pennington immunity to the absolute and qualified immunity enjoyed by public officials, the denial of which is immediately appealable under that doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Nixon v. Fitzgerald, 457 U.S. 731, 743, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). It is true, as the University stresses, that a denial of a motion for summary judgment based on Noerr-Pennington immunity, like the denial of a summary judgment based on official immunity, ordinarily will conclusively determine an important issue unrelated to the merits of the case. We therefore focus our attention on the third requirement of the collateral order doctrine--that the District Court's decision be effectively unreviewable on appeal from the final judgment.

In holding that an order denying qualified immunity to a public official is "effectively unreviewable on appeal from final judgment," the Supreme Court reasoned in Mitchell v. Forsyth that an "essential attribute" of qualified immunity is "an entitlement not to stand trial under certain circumstances," and thus qualified immunity entails "an immunity from suit rather than a mere defense to liability." Mitchell, 472 U.S. at 526, 530, 105 S.Ct. 2806 (emphasis in original). As with absolute immunity, this entitlement "is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. 2806. Since Mitchell, denials of a state's Eleventh Amendment immunity from suit in a federal court similarly have been held to be immediately appealable. See Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ("the very object and purpose of the 11th Amendment [are] to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties") (citation omitted).

The Supreme Court has repeatedly urged courts to employ caution and restraint, however, in reviewing claims of a right not to stand trial. Not all defenses that warrant a pretrial dismissal entail a right not to stand trial. As the Supreme Court has explained, there is "a crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges." United States v. Hollywood Motor Car Co., 458 U.S. 263, 269, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982). In Van Cauwenberghe v. Biard, 486 U.S. 517, 524-25, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988), the Court noted that "[b]ecause of the important interests furthered by the final-judgment rule and the ease with which certain pretrial claims for dismissal may be alleged to entail the right not to stand trial, we should examine the nature of the right asserted with special care to determine whether an essential aspect of the claim is the right to be free of the burdens of a trial."

In ...