SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, ALDISERT, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges
The Commonwealth Defendants have filed a petition for rehearing from our en banc decision filed on February 26, 1982. They make two contentions worthy of comment.
First, Paragraph 7 of the petition states that the District Court never ruled on motions filed by each of the defendants to amend or alter the District Court's Order of March 2, 1981, and that they therefore "justifiably believed that filing a Rule 60(b) motion in relation to this matter would be a futile act." This statement is significantly misleading.
There was no connection between the provisions in the March 2, 1981 Order of the District Court, to which a motion to amend or alter was addressed, and the June 4, 1981 and July 14, 1981 payment orders which were the orders that the Commonwealth disobeyed.
The March 2 Order provided for additional services to class members. The motion to amend or alter that order, filed on March 11, 1981, basically quarrels with the District Court's schedule for provision of those services, and with the meaning of the Supreme Court's partial stay of the previous order of this court. The motion to amend or alter the March 2 order challenges neither establishment of the Masters offices, nor the Commonwealth's obligation to fund them.
On August 25, 1981 the Commonwealth defendants were held in contempt for disobeying two orders directing payment of costs for the Masters. In their appeal from the judgment of contempt, the Commonwealth's defense was impossibility of performance based on a change in Pennsylvania law. This argument was not presented in the March 11 motion to alter or amend the judgment. Indeed it could not have been since the Pennsylvania legislature only passed the statute disallowing further funding of the Masters in June of 1981. The March 11 motion thus does not undermine the conclusion in the opinion of the court that the Commonwealth defendants never appealed or moved to reconsider Paragraph 8 of the District Court's March 17, 1978 judgment, but instead simply resorted to self-help. For the reasons set forth in the opinion of the court, a Rule 60(b) motion was necessary.
Second, the petition for rehearing argues that the Supreme Court's recent opinion in White v. New Hampshire Department of Employment Security, 50 U.S.L.W. 4255 (March 2, 1982), undercuts this court's recent holding in Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc), that where a decision on attorney's fees is outstanding, there is not a final order which can be reviewed by the Court of Appeals. Appellants are correct that the holding of White v. New Hampshire Department of Employment Security that a request for attorney's fees raises legal issues collateral to the main cause of action overrules the portion of our opinion in Croker dealing with appealability when application for attorney's fees are not fully determined. Since the Croker rule no longer has any vitality, litigants in this circuit should rely on our previous holdings in DeLong Corp. v. Raymond Intern., Inc., 622 F.2d 1135, 1138-39 n.3 (3d Cir. 1980), and Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3d Cir.), cert. denied, 429 U.S. 825 (1976), that orders disposing finally of the merits are appealable even though the questions relating to attorneys fees have been left undetermined.
The demise of the Croker rule on appealability does not, however, affect our holding in Halderman v. Pennhurst that the judgment of civil contempt was an appealable order. The opinion of the court distinguished Croker, we now know unnecessarily.Although the appealability holding in Croker has been overruled, White does not provide the petitioners with any support for their petition for rehearing.*fn1
The petition for rehearing will be denied.
GARTH, Circuit Judge, concurring, with whom Judge Hunter joins.
Judge Gibbons, writing for the court, has denied the Commonwealth's Petition for Rehearing. I agree that the Petition should be denied, even though I maintain my disagreement with the Rule 60(b) argument found in the majority opinion. I therefore continue to hold to the view that because the payment orders and the order appointing a Master were improper, the contempt must fall as well. Nevertheless, I am in accord with the conclusion that the Commonwealth's assertions regarding its motion to alter or amend the district court's order of March 2, 1981, raise no issue requiring further consideration by this court.
I also agree that this court's decision in Croker v. Boeing Co., 662 F.2d 975, 981-84 (3d Cir. 1981) (en banc), is inconsistent with the Supreme Court's recent decision in White v. New Hampshire Department of Employment Security, 50 U.S.L.W. 4255 (No. 80-5887 March 2, 1982), and that therefore this Circuit's Croker rule of appealability no longer has any vitality. I am concerned of course that this change in the time when an order becomes appealable may have unforeseen and dire effects on cases which are in our pepeline. It may also have a severe impact on parties who, in reliance on Croker, have taken no appeal from orders that are still awaiting determination of attorney's fees, only to find now that under White the order should have been appealed at the time of judgment and that the time for appeal has thus already passed. Yet, having once confronted this issue and having concluded ...