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Delgrosso v. Spang and Co.

filed: May 17, 1990.

MATTHEW A. DELGROSSO, JAMES P. BLAIR, LESTER WARE, JIMMIE MINES, JR., JOE HENRY, ROBERT C. TRAINER, JAY T. RICHLER, ROBERT HARDWICK, JEROME J. PHILLIPS, SR., GILBERT WEESE, LARRY K. HILL, CHARLES G. CHURCH, JR., JOHN R. ALVES, BARRY K. RACZ, DONALD LEE ADAMS, CHARLES WOODRUM, RICHARD W. MARTINEAU, HUBERT J. LEE
v.
SPANG AND COMPANY MATTHEW A. DELGROSSO, JAMES P. BLAIR, LESTER WARE, JIMMIE MINES, JR., JOE HENRY, ROBERT C. TRAINER, JAY T. RICHLER, ROBERT HARDWICK, JEROME J. PHILLIPS, SR., GILBERT WEESE, LARRY K. HILL, CHARLES G. CHURCH, JR., JOHN R. ALVES, BARRY K. RACZ, DONALD LEE ADAMS, CHARLES WOODRUM, RICHARD W. MARTINEAU, AND HUBERT J. LEE, AS WELL AS THE UNNAMED PLAINTIFF VESTED PARTICIPANTS, APPELLANTS; MATTHEW A. DELGROSSO, JAMES P. BLAIR, LESTER WARE, JIMMIE MINES, JR., JOE HENRY, ROBERT C. TRAINER, JAY T. RICHLER, ROBERT HARDWICK, JEROME J. PHILLIPS, SR., GILBERT WEESE, LARRY K. HILL, CHARLES G. CHURCH, JR., JOHN R. ALVES, BARRY K. RACZ, DONALD LEE ADAMS, CHARLES WOODRUM, RICHARD W. MARTINEAU, AND HUBERT J. LEE, PETITIONERS V. SPANG AND COMPANY, RESPONDENT, HONORABLE ALAN N. BLOCH, NOMINAL RESPONDENT



Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil Action No. 82-2672; On Petition for Writ of Mandamus; Related to Western District of Pennsylvania, Civil Action No. 82-2672.

Author: Scirica

Greenberg, Scirica and Seitz, Circuit Judges.

SCIRICA, Circuit Judge

In this case, pension plan participants, former employees at the Lorain, Ohio plant of Spang & Company, appeal from a July 18, 1989 order of the United States District Court for the Western District of Pennsylvania, and petition this court for a writ of mandamus to compel the district court to comply with our earlier judgment in Delgrosso v. Spang & Co., 769 F.2d 928 (3d Cir. 1985), cert. denied, 476 U.S. 1140, 106 S. Ct. 2246, 90 L. Ed. 2d 692 (1986). We hold that the July 18, 1989 order is not final and thus is not appealable. We believe, however, that in this difficult and complex case, the district court has not fully implemented the judgment in Spang. Therefore, we will grant the petition for a writ of mandamus.

I.

This case involves the allocation of surplus assets from a pension plan maintained under pension agreements between Spang and the United Steel Workers ("USW"). Spang operated ferro slag plants in Chicago, Illinois and Lorain, Ohio, which the company closed in 1979 and 1982 respectively. Nonvested participants from the Lorain plant sued Spang in 1982 alleging that the company refused to allocate surplus assets for the benefit of plan participants in violation of § 404 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1104 (1982), and § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1982).

By orders dated June 1, 1984 and August 29, 1984, the district court granted summary judgment to Spang on all counts. App. at 1079, 1094. In a 1985 appeal, we held that the surplus assets could not revert to Spang nor were they available exclusively to the nonvested participants. Spang, 796 F.2d at 938. Therefore, we affirmed in part, reversed in part, and remanded the case with the following direction:

The district court, consistent with the foregoing opinion, is directed to: 1) grant summary judgment in favor of Delgrosso [the nonvested participants] on Counts III and IV[;] 2) reform the Spang Plan to provide that reversion to Spang of the Fund surplus is barred; 3) appoint a representative for the vested participants to represent them in the selection of an independent Plan administrator; and 4) under appropriate procedures, appoint an independent administrator of the Plan in the place of Spang.

Id. at 938-39.*fn1 Since then, the district court has presided over four status conferences and issued several orders, culminating with an order dated July 18, 1989, which provided:

[It] appearing to the Court that no further action is contemplated by this Court at this time in the above captioned matter,

IT IS HEREBY ORDERED that the Clerk of Court mark the above captioned case closed.

Nothing contained in this order shall be considered a dismissal or disposition of this matter and, should further proceedings in it become necessary or desirable, either party may initiate it in the same manner as if this order had not been entered.

App. at 1267.

The vested and nonvested participants from the Lorain plant ("Participants") appeal from the order contending that the district court improperly and prematurely closed the case without fulfilling the Spang directives. Spang argues that the order is not final and appealable because it neither resolves the outstanding issues in the case nor precludes the parties from initiating further proceedings.

With certain exceptions not relevant here, the courts of appeals have jurisdiction under 28 U.S.C. § 1291 (1982) to review only final decisions of the district courts. Demenus v. Tinton 35 Inc., 873 F.2d 50, 52 (3d Cir. 1989). A final decision is one that " 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 100 L. Ed. 2d 517, 108 S. Ct. 1945 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945)). The most important of the competing considerations in determining finality are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 94 L. Ed. 299, 70 S. Ct. 322 (1950).

In Patten Securities Corp. v. Diamond Greyhound & Genetics, Inc., 819 F.2d 400 (3d Cir. 1987), we considered the appealability of an order that denied cross motions to dismiss, "administratively terminated" the action pending arbitration, and authorized reinstatement upon motion by either party. We held that the order was not a final judgment because it permitted reinstatement and clearly contemplated the possibility of further proceedings. Id. at 403.*fn2

Similarly, the order in this case permits reinstatement and contemplates the possibility of future proceedings. The order does not purport to end litigation on the merits and the parties agree that it does not determine any issues or resolve the entire case. We recognize that the conduct of the district court raises the question whether the order effectively, if not expressly, brings the case to a close. On balance, however, we believe that the order is not final for purposes of §§ 1291 and that the Participants' allegations regarding the conduct of the district court are properly addressed through a petition for a writ of mandamus.

II.

The Participants contend that a writ of mandamus should issue in this case because, they argue, the district court has refused to resolve questions that are essential to fulfilling the Spang mandate: whether the Chicago assets are included in the Fund surplus and whether the Chicago employees are eligible to share in the surplus. Spang responds that the district court has carried out each of the Spang directives and that the Spang decision made clear that the Fund did not ...


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