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Loughman v. Consol-Pennsylvania Coal Co.

filed: September 13, 1993; As Corrected November 23, 1993.

DOROTHY LOUGHMAN
v.
CONSOL-PENNSYLVANIA COAL COMPANY, A CORP.; RHEIN BRAUN U.S., A CORP.; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN INDIVIDUAL; DAVID BOGGS, AN INDIV.; EWING POLLOCK, AN INDIV.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL COMPANY; CONSOL-LAND DEVELOPMENT COMPANY; RHEINBRAUN VERKAUFSGESELLSCHAFT, MBLT.; AND MARIA THERESE VERKAUFSGESELLSCHAFT; MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK EWING POLLOCK AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS, APPELLANTS IN NO. 92-3380 PAUL KENT; MABEL KENT, APPELLANTS IN NO. 92-3437 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORP.; RHEIN BRAUN U.S., A CORP.; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; MARIA THERESIA BERGBAUGESELLSCHAFT MBH; RHEINISCHE BRAUNKOHLENWERK; JAMES MCINTYRE; GLENNA MCINTYRE, APPELLANTS IN NO. 92-3438 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORP.; RHEIN BRAUN U.S., A CORP.; MONONGAHELA RAILWAY COMPANY, A CORP.; MIKE WILSON, AN IND.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; MARIA THERESIA BERGBAUGESELLSCHAFT MBH; RHEINISCHE BRAUNKOHLENWERK; MARK E. HEADLEE; CHARLOTTE HEADLEE, APPELLANTS IN NO. 92-3439 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; MARIA THERESIA BERGBAUGESELLSCHAFT MBH; RHEINISCHE BRAUNKOHLENWERK; DOROTHY LOUGHMAN, V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; RHEINBRAUN VERKAUFSGESELLSCHAFT, MBLT; AND MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK; CONSOL PENNSYLVANIA COAL CO.; CONSOL-LAND DEVELOPMENT CO., CONSOLIDATION COAL CO., THE MONONGAHELA RAILWAY CO., MARIA THERESIA BERGBAUGESELLSCHAFT, RHEINBRAUN U.S. AND RHEINISCHE BRAUNKOHLENWERK, APPELLANTS IN NO. 92-3444 DOROTHY LOUGHMAN, APPELLANT IN NO. 92-3445 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; RHEINBRAUN VERKAUFSGESELLSCHAFT, MBLT; AND MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK; LARRY LEVINE; DAN LEVINE; MORRIS LEVINE; EDWARD LEVINE, INDIVIDUALS; AND MORRIS LEVINE ENTERPRISES, INC., A CORPORATION; AND LEVINE IRON AND METAL, INC., A CORPORATION V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; RHEINBRAUN VERKAUFSGESELLSCHAFT, MBLT; MARIA THERESE VERKAUFSGESELLSCHAFT, MBLT; AND MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK; LARRY LEVINE, DAN LEVINE, MORRIS LEVINE, MORRIS LEVINE ENTERPRISES, INC., AND LEVINE IRON AND METAL, INC., APPELLANTS IN NO. 92-3446 JAMES E. HUGHES; LINDA L. HUGHES, APPELLANTS IN NO. 92-3447 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; WILLIAM REESE, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; AND MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK; JOHN W. YESENOSKY, JR.; LINDA M. YESENOSKY, APPELLANTS IN NO. 92-3450 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; WILLIAM REESE, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; RHEINBRAUN VERKAUFSGESELLSCHAFT, MBLT; MARIA THERESE VERKAUFSGESELLSCHAFT, MBLT; AND MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK; THOMAS J. ALLEN, ESQUIRE, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN T. THROCKMORTEN, APPELLANT IN NO. 92-3451 V. CONSOL-PENNSYLVANIA COAL COMPANY, A CORPORATION; RHEIN BRAUN U.S., A CORPORATION; MONONGAHELA RAILWAY COMPANY, A CORP.; JAMES LEACH, AN IND.; DAVID BOGGS, AN IND.; EWING POLLOCK, AN IND.; AND THE LAW FIRM OF POLLOCK, POLLOCK AND THOMAS; THE UPSHUR AGENCY, INC.; CONSOLIDATED COAL CO.; CONSOL-LAND DEVELOPMENT CO.; RHEINBRAUN VERKAUFSGESELLSCHAFT, MBLT; MARIA THERESE VERKAUFSGESELLSCHAFT, MBLT; AND MARIA THERESIA BERGBAUGESELLSCHAFT, MBH; RHEINISCHE BRAUNKOHLENWERK;



On Appeal From the United States District Court For the Western District of Pennsylvania. (D.C. Civ. No. 83-00921). (D.C. Civ. No. 93-01675). (D.C. Civ. No. 93-01676). (D.C. Civ. No. 83-01679). (D.C. Civ. No. 83-00921). (D.C. Civ. No. 83-00921). (D.C. Civ. No. 83-01677). (D.C. Civ. No. 83-01678). (D.C. Civ. No. 83-01674). (D.C. Civ. No. 83-01754).

Before: Becker, Hutchinson, and Roth, Circuit Judges.

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

This is the second time this case has been before us. See Hughes v. Consol-Pennsylvania Coal Co., 945 F.2d 594, 617-18 (3d Cir. 1991), cert. denied, 119 L. Ed. 2d 224, 112 S. Ct. 2300 (1992). Plaintiffs were owners of rural land in southwestern Pennsylvania which they sold for the construction of a railroad to service a major new coal mining operation. Defendants include the coal and railroad companies that were involved in the venture, the realty company that assisted in the acquisition of the land, individual employees of the realty company, and a lawyer (along with his law firm) who handled the land closings for the purchasers, but who also gave legal advice about one of the land transactions to a plaintiff seller.*fn1 The jury found that the defendants conspired to procure, through fraud, the plaintiffs' land at unfairly low prices, that the lawyers had committed malpractice, and that various defendants also were liable for common law fraud and federal civil RICO violations. The made large compensatory and punitive damage awards.

Following the jury verdicts, but before entry of judgment on those verdicts, the district court sua sponte dismissed the legal malpractice claim. On February 25, 1987, the court entered judgments on the verdict for the plaintiffs. Responding to various post-trial motions, the court vacated, then reinstated, and then re-vacated the RICO judgments. The court also vacated the jury award in its entirety and ordered a new trial on damages. After several more procedural twists and turns, a retrial was held on both punitive and compensatory damages, and new damage awards were entered in favor of the plaintiffs.

On appeal, this court reversed, holding, inter alia, that: (1) the district court had abused its discretion in setting aside the first damage award and ordering a new trial on damages; (2) the first award of punitive damages was supported by the record; (3) the malpractice verdict against the attorneys should be reinstated; and (4) the district court properly granted judgment n.o.v. on the civil RICO claims. See 945 F.2d at 617-18. Our judgment, entered on December 30, 1991, vacated the judgments entered on the second damage awards and remanded the cases to the district court "with instruction to reinstate the first awards returned by the jury."*fn2

The ten appeals and cross-appeals currently before us present three questions. First, under 28 U.S.C. § 1961, does post-judgment interest run from the original February 25, 1987 judgment, or from the more recent date of our (previous) appellate mandate? Second, should the individual punitive damage awards be imposed on the defendant co-conspirators jointly and severally? Third, does the jury's verdict, which found that 100% percent of plaintiff Dorothy Loughman's compensatory damages were due to malpractice, mandate that the compensatory damages awarded her be entered solely against the lawyers, notwithstanding that all of the defendants, except Reese and Wilson, were found liable for civil conspiracy and a number were found liable for common law fraud?*fn3

Because this court's remand order essentially reinstated the initial judgments, the essential liability and damage elements of which had been ascertained by the jury in the initial proceeding, we will affirm the order of the district court awarding post-judgment interest from the date the first judgments were entered. We will also affirm the order of the district court rejecting plaintiffs' claim that liability for punitive damages should be joint and several. A review of the jury instructions demonstrates that the punitive damages issue was submitted and the verdict rendered on an individualized basis against the various defendants, and we find no basis for the contention that a case should not be tried in this manner.

We will, however, reverse the district court's order entering judgment against solely the Pollock defendants on Loughman's compensatory damages. The court must harmonize a jury's responses to interrogatories if possible. Here, however, the district court failed to do so, largely on the understanding that the plaintiffs had waived their right to complain. We conclude, however, that if a harmonizing interpretation can be given, then there was no obligation to raise the inconsistency in the first place, and hence no waiver.

Our review of the jury instructions in conjunction with the answers to interrogatories leads us to conclude that the jury's findings may be harmonized. Specifically, we conclude that the jury's finding that 100% of the loss was attributable to malpractice was an alternative manner of stating its Conclusion that the malpractice was a "but for" cause of Loughman's loss, which the jury was instructed it must find in order to hold the Pollock defendants liable for malpractice. There may be more than one but for cause of a loss, and in finding all of the defendants liable for civil conspiracy the jury necessarily found that this conduct also was a but for cause of Loughman's loss. Accordingly, we will reverse and order that judgment be entered jointly and severally against all of the defendants that were found liable to Loughman for civil conspiracy.

I. Procedural History

The first trial ended on February 23, 1987 in a jury finding that all of the defendants had engaged in a civil conspiracy, that a number of defendants were liable for fraud, that a number of defendants had violated the federal RICO statute, and that the attorneys were liable to Loughman for legal malpractice. The jury awarded the plaintiffs approximately $5,360,000 in compensatory damages. Of this amount, the jury awarded Loughman $1,450,000, but also provided in answer to an interrogatory that "the percentage of this amount . . . due to legal malpractice is: 100%." The jury also awarded punitive damages in varying amounts against all but four of the defendants, for a total of $5,500,000 in punitive damages.

The day after the jury returned its verdict, the district court conducted a post-trial conference at which, sua sponte, it dismissed the malpractice claim against the Pollock defendants. In addition, the court ruled that the plaintiffs were not entitled to both punitive damages and RICO's trebled compensatory damages, concluding that the two were duplicative. Instead, the court permitted each plaintiff to choose between the trebled compensatory award under civil RICO and the plaintiff's pro rata share of punitive damages plus their non-trebled compensatory damages.

On February 25, 1987, the district court entered judgment on the verdict in favor of the plaintiffs, entering individual judgments for each plaintiff or group of plaintiffs*fn4 against the applicable defendants. For those plaintiffs who had opted for trebled damages, the judgments provided a lump sum and indicated that the compensatory damages had been trebled, and no formal judgment on punitive damages was entered. The judgments did not identify which claims or theories supported the compensatory damage awards. For those plaintiffs who had elected punitive damages, a judgment was entered comprised of a general award of compensatory damages and an award of punitive damages against specific defendants, again without reference to the theory supporting that award.

Over the next few years the parties filed numerous motions, and the district court entered a series of orders in response. We chronicle the most relevant of these orders.

1. On October 22, 1987, the district court ordered that judgment n.o.v. be entered in favor of the defendants on the civil RICO claims and vacated the February 25, 1987 judgments. The court, however, denied defendants' motion for judgment n.o.v. as to the civil conspiracy and fraud claims. The court also considered the damage awards and concluded that they were "obscenely excessive," and "contrary to the great weight of the evidence." Accordingly, it ordered a new trial on both compensatory and punitive damages unless the plaintiffs agreed to a remittitur.

2. On May 17, 1988, based on an intervening decision by this court, the district court partially reversed its earlier decision. It vacated those portions of the October 22, 1987 order that had entered judgment n.o.v. in favor of the defendants on the civil RICO claims, determining that the plaintiffs had proved a "pattern of racketeering" and that the defendants were liable for violations of the civil RICO statute. The court's order, however, did not expressly enter new judgments in favor of the plaintiffs or reinstate the vacated February 25, 1987 judgments. Additionally, the court stated that the portion of the October 22, 1987 order requiring a new trial would not be vacated, but that the new trial on damages would continue as scheduled.

3. Another Judge was assigned to the case, and on October 27, 1988, that Judge reaffirmed the ruling made during the June 9, 1988 pretrial conference that punitive damages would not be submitted to the second jury in light of the reinstated trebled RICO award. As the parties prepared to move forward on retrial of the compensatory damages, the case was reassigned to a third Judge.

4. On November 23, 1988, plaintiffs moved for class certification. On December 7, 1988, the district court denied plaintiffs' motion for certification on the ground that plaintiffs had failed so to move within 90 days of the filing of the complaint as required by Local Rule 34 of the United States District Court for the Western District of Pennsylvania.

5. On February 27, 1990, the district court announced that it would grant judgment n.o.v. in favor of the defendants on the RICO claims in light of an intervening Supreme Court decision. The court also ordered that, since RICO was once again out of the case, punitive damages would be retried along with compensatory damages. On March 1, 1990, the court filed a written opinion setting aside the RICO award. Again, however, no new judgments were entered.

6. On April 5, 1990, at the Conclusion of the retrial on damages, the jury awarded the plaintiffs $4,262,677 in compensatory and $649,000 in punitive damages. On April 11, 1990, the district court entered judgments in favor of the plaintiffs for both compensatory and punitive damages. The defendants subsequently moved for judgment n.o.v. or, in the alternative, a new trial, which motion was denied by the district court on June 29, 1990.

7. The first appeal was then filed and resolved. On July 2, 1992, following remand from this court, the district court entered judgments in favor of the plaintiffs. In conjunction therewith, the court made three rulings that frame the issues for this appeal. First, the court determined that post-judgment interest should run from February 25, 1987, the date of entry of judgments on the first jury verdict. Second, the court decided that the defendants were not jointly and severally liable for punitive damages, but that each defendant was liable only for those punitive damages specifically assessed by the jury against that defendant. Third, based on the jury's apparent determination that lawyer malpractice was the exclusive cause of Loughman's damages, the court concluded that the Pollock defendants alone were liable for Loughman's compensatory award of $1,450,000.

II. Post-judgment Interest

A. Introduction

The award of post-judgment interest is governed by 28 U.S.C. § 1961(a), which provides in relevant part:

Interest shall be allowed on any money judgment in a civil case recovered in a district court. . . . Such interest shall be calculated from the date of entry of judgment . . . .*fn5

The purpose of 28 U.S.C. § 1961 "'is to compensate the successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the damage and the payment by the defendant.'" Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835-36, 110 S. Ct. 1570, 1576, 108 L. Ed. 2d 842 ...


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