(D.C. Civ. Nos. 85-cv-02745 & 87-cv-02678)
Before: Mansmann, Cowen and Alito, Circuit Judges.
The opinion of the court was delivered by: Mansmann, Circuit Judge.
IN RE: CITY OF PHILADELPHIA LITIGATION (D.C. Civil No. 85-cv-02745)
Appeal from the United States District Court for the Eastern District of Pennsylvania
In a companion case decided today, we relate the salient facts surrounding the disastrous confrontation between the City of Philadelphia police and the members of MOVE. See In re City of Phila. Litig., ___ F.3d ___ (3d Cir. 1998). Although dozens of claims emerged from the ashes and rubble of 6221 Osage Avenue in West Philadelphia, the present appeal brings before us only the judgment entered against Ms. Ramona Africa and in favor of defendants William Richmond, the former City of Philadelphia Fire Commissioner, and Gregore Sambor, the former City of Police Commissioner, on Ms. Africa's state law battery claim.
The issue we are called upon to decide in this appeal is whether Ms. Africa has properly raised and preserved any right she may have had to a jury trial on the issue of willful misconduct in relation to her battery claim against Richmond and Sambor. In addition, we must determine whether the district court erred in determining that Ms. Africa failed to show willful misconduct by a preponderance of the evidence. Because we conclude that Ms. Africa has failed to properly raise and preserve any right to a jury trial that she may have had on the willful misconduct issue and because we find that the district court did not err in ruling on willful misconduct, we will affirm the judgment entered in favor of Richmond and Sambor.
We begin our review with an abbreviated recitation of the procedural history relevant to this appeal. On October 6, 1993, the magistrate Judge assigned to this case recommended granting summary judgment to all individual defendants on the state law claims except Richmond and Sambor because each was immune from common law tort liability. In re City of Phila. Litig., 849 F. Supp. 331, 364 (E.D. Pa. 1994). He recommended denying summary judgment as to Richmond and Sambor because there was evidence that their decision not to extinguish the fire on the roof of the MOVE compound constituted "willful misconduct," conduct that would preclude them from obtaining official immunity from the state law claims under Pennsylvania law. See 42 Pa. Cons. Stat. Ann. § 8550 (West 1982). The district court adopted the magistrate Judge's recommendation with respect to Richmond and Sambor and denied them summary judgment on the state law claims.
After various appeals, remands, and pre-trial decisions, Richmond and Sambor filed motions requesting that the district court reconsider its summary judgment order denying them judgment as a matter of law based on official immunity. The district court denied these motions in a bench opinion delivered on January 18, 1996. See In re City of Phila. Litig., 938 F. Supp. 1264 (E.D. Pa. 1996). The court found that there was evidence suggesting that Richmond and/or Sambor deliberately disregarded an order from General Brooks to put out the fire. Such obvious insubordinate conduct, according to the district court, could establish willful misconduct -- intentional conduct known to be wrong -- because a reasonable factfinder could infer from the decision to flout a direct order that they knew their conduct was "an excessive response to the law enforcement requirements" yet intentionally proceeded with that course of conduct despite this knowledge. Id. at 1276-77.
In denying Richmond and Sambor's motions for reconsideration, the district court also determined that, under Pennsylvania law, the issue of willful misconduct must be decided by the court rather than by a jury. Id. at 1270, 1277-78. The court concluded that the reference to a judicial determination of willful misconduct in Pennsylvania's Political Subdivision Tort Claims Act (PSTCA) mandates that the court decide the issue. Id.; see also 42 Pa. Cons. Stat. Ann. § 8550 (West 1982).
A flurry of motions for reconsideration and motions in limine followed the court's decision denying reconsideration of its summary judgment determination. None of the initial motions for reconsideration, however, questioned the court's determination that the issue of willful misconduct was to be determined by the court.*fn1 In a motion in limine filed on March 19, 1996, Sambor first took issue with the court's decision that it would determine the issue of willful misconduct. Sambor argued that, under Pennsylvania law, the issue of willful misconduct should be decided by a jury. In response to this motion in limine, Ms. Africa advocated that the court deny Sambor's request for a jury determination on willful misconduct. In a pretrial conference on March 26, 1996, the court again made clear that, based upon its interpretation of the PSTCA, the court was required to determine the issue of willful misconduct. Ms. Africa made no objection to the court's determination at that time.
At a pretrial hearing on March 27, 1996, Sambor submitted a letter memorandum to the court taking issue with the timing of a bench determination on willful misconduct and arguing that any bench determination must be made after the jury had considered the merits of the state law claims. The court accepted Sambor's submission and requested that the other parties submit their views on this issue. Richmond subsequentlyfiled a memorandum reiterating Sambor's position. Ms. Africa responded on April 11, 1996 in a "Response to Defendant's Motions . . . and Motion for Reconsideration of the January 18, 1996 Bench Ruling," raising several points relating to the burden of proof on willful misconduct. In one sentence, in the Conclusion of her response, Ms. Africa requested that the issue of willful misconduct, if raised, be ...