ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 90-00538)
Before: Becker, Nygaard and Roth, Circuit Judges
Deanna Jo Shea appeals from a summary judgment granted in favor of Karla Smith, Scott Baker, and Robert Rumgay, in a section 1983 claim. Shea alleged that the defendants violated her Fourth Amendment fights when they entered her house without a warrant and searched the premises. The district court granted summary judgment against Shea because the defendants enjoyed qualified immunity.
Our review of the summary judgment is plenary. Hines v. Consolidated Rail Corp, 926 F.2d 262, 267 (3d Cir 1991). We will construe the facts in the light most favorable to the nonmovant Shea. We will affirm because there are no genuine issues of material fact and defendants are entitled to summary judgment as a matter of law.
The facts are simple. Shea rents and resides in a house. At the time of the events leading to this case, Armond "Ace" Wazelle was her boyfriend, whom Shea allowed to reside with her and who did so by Shea's account "approximately one-half of the time." Wazelle was on probation for aggravated assault. His residence, as shown in the Probation Office, is Shea's house.
On July 4, 1989, Shea told her mother, Frances Fox, that she had a fight with Wazelle. Concerned, Fox visited Shea and found the house in disarray. Dishes had been smashed on the floor; things were "busted up" all over the house; and the stove had been pulled from the wall. Fox thought Wazelle was responsible because the things broken were sentimental to Shea. Fox thought that Shea was injured because Shea was walking gingerly as if her back was hurt, but there were no visible injuries.
The next day Fox called Karla Smith, a probation officer. Fox told Smith about the fight and also that she "thought he had been drinking." She also told Smith she thought Wazelle physically hurt her daughter. According to Fox, Smith said, "I'd like to get something on him." Smith did not ask Fox to substantiate her allegation that Wazelle had been drinking. Fox did not give evidence to Smith to show that Wazelle had beaten Shea. Smith stated that she didn't recall whether Fox told her the information was anything more than a hunch.
Smith thought that Wazelle violated the terms of his probation. She told her supervisor, who directed Smith to investigate for possible probation violations (which included both consumption of alcohol and assault). He told her to have a police officer accompany her because Wazelle had a tendency to become violent. Smith and Robert Rumgay, a police officer, together with Scott Baker, a summer intern at the probation office, went to Shea's house. They did not get a search warrant.
When they arrived at the premises, they found the sliding glass door of the premises wide open. Smith yelled, "Is anybody home?" They heard no response and entered. They found, as Fox had described, the premises in disarray, and immediately after they entered the house, Smith, Baker and Rumgay noticed a rifle laying on the couch. They went through the kitchen and up the stairs to Shea's bedroom where they found Shea asleep on the bed. Shea stated she was asleep in the nude, although the defendants said she was covered when they entered her bedroom. There is also some question whether Baker searched her bedroom closet.
At this point, Shea was very displeased and requested that the defendants either show a search warrant or leave her house. The defendants told Shea that a warrant was not necessary. They refused to leave the house, but went downstairs and waited in the kitchen for Shea to dress. When Shea came down, they searched the refrigerator and kitchen drawers. They found no evidence of probation violations and left.
Shea sued Smith, Rumgay, and Baker in federal district court under 42 USC § 1983. She also alleged pendent state claims of trespass and intentional infliction of emotional distress. Rumgay moved for summary judgment, which the district court granted. Shea appealed from the order granting summary judgment, but we dismissed her appeal because the order was not final. Later, the district court granted summary judgment for Smith and Baker, who were protected by qualified immunity. This order was final and made the earlier interlocutory summary judgment appealable. Shea appealed once more.
Before we discuss the merits, we must confront a jurisdictional issue. Federal Rule of Appellate Procedure 3(c) provides: "The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from . . . ." Shea's notice of appeal said that she appeals from the "Judgment Order for Summary Judgment entered on September 16, 1991." This final order granted summary judgment in favor of Smith and Baker. The claim against Rumgay, of course, was decided earlier. Rumgay contends that we do not have appellate jurisdiction to review his summary judgment because the notice of appeal did not specify that Shea was appealing from the order granting him summary judgment and therefore it did not meet the requirements of Rule 3(c). We disagree. The notice of appeal is effective for all parties.
We liberally construe the requirements of Rule 3. We have held that when an appellant gives notice that he is appealing from a final order, failing to refer specifically to earlier orders disposing of other claims or other parties does not preclude us from reviewing those orders. Murray v. Commercial Union Ins Co, 782 F.2d 432, 434 (3d Cir 1986). We reasoned, "in their appellate briefs all parties addressed every issue presented to the district court, and in fact plaintiffs could not appeal the early dismissals of the second and third counts until the final judgment was entered." Id at 434. We have held that appellate jurisdiction vests over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent, the opposing party is not prejudiced and has a full opportunity to brief the issues. Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir 1989). See Gooding v. Warner-Lambert Co, 744 F.2d 354, 357 n4 (3d Cir 1984) (appellate jurisdiction over unspecified prior order dismissing one claim where notice of appeal specified order granting summary judgment on remaining claim, dismissal could not be appealed until judgment entered on other claim, and parties briefed and argued all issues); Elfman Motors, Inc v. Chrysler Corp, 567 F.2d 1252, 1254 (3d Cir 1977) (per curiam) ("if from the notice of appeal itself and the subsequent proceedings on appeal it appears that the appeal was intended to have been taken from an unspecified judgment, order or part thereof, the notice may be construed as bringing up the unspecified order for review"). See also CTC Imports and Exports v. Nigerian Petroleum, 951 F.2d 573, 576 (3d Cir 1991) (where appellant appealed from a denial of a motion it never filed and where it was clear appellant intended and tried to appeal from an unspecified order, the notice of appeal will be treated as "an effective, although inept, attempt to appeal from" the unspecified order if there is no prejudice to the parties).
Our law is consistent with the Supreme Court. See Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 229 (1962) (the court had jurisdiction over an earlier unspecified judgment, since intent to appeal from it was manifest and respondent was not misled or prejudiced). See also Smith v. Barry, 112 S.Ct 678, 682 (1992) (appellate brief may serve as a "functional equivalent" of a notice); Torres v. Oakland Scavenger Co, 487 U.S. 312, 316-17, 108 S. Ct. 2405, 2408-09 (1988) (courts should liberally construe the requirements of Rule 3 so that ...