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Venen v. Sweet

March 29, 1985

DAVID VENEN, APPELLANT,
v.
HONORABLE CHARLES C. SWEET, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT JUDGE OF THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY PENNSYLVANIA; AVELLA AREA SCHOOL DISTRICT; JOHN DRYER, ALEX HAMILTON, EUGENE PAINTER, JR., EMANUEL PARIS, THOMAS ZELLERS, ALL INDIVIDUALLY AND AS MEMBERS OF THE BOARD OF DIRECTORS OF THE AVELLA AREA SCHOOL DISTRICT; CENTRAL TAX BUREAU, INC., A PENNSYLVANIA CORPORATION AND PAUL SLIFER, INDIVIDUALLY AND AS A AGENT FOR THE CENTRAL TAX BUREAU, INC., APPELLEES



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 83-2670).

Garth and Sloviter, Circuit Judges and Barry, District Judge*fn* .

Author: Barry

BARRY, District Judge:

This case presents the issue of whether the district court had power to grant a motion for reconsideration while the underlying action was on appeal to this court. While simply stated, the issue raises a host of considerations which must inform a district court's determination as to whether, in such a circumstances, it has jurisdiction to proceed. The court below erred in proceeding. We write vacating the orders it was without jurisdiction to enter and setting forth for the guidance of district courts and appellate practitioners those principles applicable to the determination of whether a district court can act or cannot act after a notice of appeal has been filed.

I

On October 24, 1983, David Venen filed a three count complaint naming the Hon. Charles C. Sweet of the Court of Common Pleas of Washington County, Pennsylvania; the Avella Area School District and its Board of Directors; and the Central Tax Bureau, Inc. and one of its agents as defendants. The complaint, brought pursuant to 42 U.S.C. ยง 1983, alleged violations of Venen's civil rights and raised pendent state tort claims, including malicious abuse of process, false imprisonment, and the intentional infliction of mental distress.

The gravamen of the complaint concerned Venen's prosecution for failing to file a tax return required by local ordinance and failing to pay any taxes due and owing. Venen alleged that the school district and the tax bureau and their agents had engaged in the illegal practice of utilizing the criminal process to coerce payment of the civil tax debt. Further, he alleged that Judge Sweet, acting without jurisdiction, intervened in the criminal prosecution and, thereafter, in various ways, violated Venen's rights.

On November 15, 1983, Judge Sweet moved to dismiss the damage claim against him on the ground of judicial immunity and to dismiss the claims for declaratory and injunctive relief on the ground that insufficient facts to warrant such relief had been alleged. By opinion and order filed February 3, 1984, the district court denied Judge Sweet's motion with reference to the damage claim and granted it with reference to the claims for declaratory and injunctive relief. More specifically, viewing the facts alleged in the complaint as true, as it was required to do, the court determined that Judge Sweet had acted in the absence of jurisdiction and hence was not protected by judicial immunity as that doctrine was defined and limited in Stump v. Sparkman, 435 U.S. 349, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978). The court also determined that declaratory relief was inappropriate because there was no substantial controversy of sufficient immediacy to warrant such relief. Finally, the court found that the injunctive relief requested - an order directing that Venen's criminal record be corrected to reflect the illegality of the sentence imposed - was too great an intrusion into state processes.

On February 21, 1984, Judge Sweet filed a notice of appeal from the denial of his motion to dismiss on the ground of judicial immunity, and the appeal was docketed in this court (CA No. 84-3104). Thereafter, on March 16, 1984, Judge Sweet moved in the district court for relief from, and reconsideration of, the order of February 3, 1984 insofar as that order denied his motion to dismiss. Three days later, Venen moved in this court to dismiss Judge Sweet's appeal on the ground that an appeal cannot be taken from a non-final order of the district court.

On March 29, 1984, while the appeal and Venen's motion to dismiss the appeal were pending before this court, the district court, pursuant to a Pennsylvania statute which had not been previously brought to the court's attention but which the court believed established Judge Sweet's jurisdiction to have acted in the Venen matter, treated Judge Sweet's motion as a motion for reconsideration and, on reconsideration, dismissed the damage claim and cross claim on the ground of judicial immunity, leaving no claims remaining against Judge Sweet. Venen moved for entry of final judgment pursuant to Fed.R.Civ.P. 54(b) or, in the alternative, for vacation of the March 29, 1984 order, arguing that the district court lacked jurisdiction to act during the pendency of Judge Sweet's appeal. By opinion and order filed April 19, 1984, the district court directed entry of judgment under Rule 54(b), noting that it had retained jurisdiction because the appeal in No. 84-3104 had been an appeal from a nonappealable order, and thus that it had not lost jurisdiction to enter its subsequent order on reconsideration.*fn1

On April 24, 1984, Venen filed a notice of appeal and now raises two issues in this court. First, Venen argues that on March 29, 1984, the district court lacked jurisdiction to reconsider and, on reconsideration, to grant the motion to dismiss the complaint on the ground of judicial immunity while its earlier denial of the same motion was pending in this court. It follows, although Venen does not so argue, that if the March 29, 1984 order was entered without jurisdiction, so too was the April 19, 1984 order granting Venen's Rule 54(b) motion. Second, Venen complains that both the February 3, 1984 decision of the district court insofar as it denied him declaratory and injunctive relief and the March 29, 1984 decision of the district court which cloaked Judge Sweet with judicial immunity were incorrect. Given our disposition of the first issue, which, in the absence of disputed facts, involves the interpretation and application of principles of law subject to plenary review, see Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102-03 (3d Cir. 1981), we need not and will not reach the second.

II.

As a general rule, the timely filing of a notice of appeal is an event of jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and divesting a district court of its control over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982); United States v. Leppo, 634 F.2d 101, 104 (3d Cir. 1980). "Divest" means what it says - the power to act, in all but a limited number of circumstances,*fn2 has been taken away and placed elsewhere. This judge-made rule has the salutary purpose of preventing the confusion and inefficiency which would of necessity result were two courts to be considering the same issue or issues simultaneously. The district court understood this basis principle.

Similarly, relying on this court's observation in Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3d Cir. 1962), overruled on other grounds, Torockio v. Chamberlain Manufacturing Co., 456 F.2d 1084, 1087 (3d Cir. 1972), the district court understood that "One exception, in both civil and criminal cases is that the jurisdiction of the lower court to proceed in a cause is not lost by the taking of an appeal from an order or judgment which is not appealable . . . . An appeal from a non-appealable judgment or order is sometimes characterized as a 'nullity'." Id. at 277, n.7.*fn3 Indeed, a contrary conclusion would enable a litigant temporarily to deprive a district court of jurisdiction at any non-critical or critical juncture including trial itself, thus bringing proceedings in the district ...


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