Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2006

Klatch v. Sugarloaf
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1081




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Recommended Citation
"Klatch v. Sugarloaf " (2006). 2006 Decisions. Paper 1545.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1545


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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 05-1081


                                CHARMAINE KLATCH,
                                    Appellant

                                            v.

                        SUGARLOAF TOWNSHIP;
               SUGARLOAF TOWNSHIP BOARD OF SUPERVISORS;
                    ROBERT STANZIOLA; EARL MILLER;
                    EDWARD W. DRUM; DONALD BRIOR



                    On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                        (D.C. Civil Action No. 01-cv-01836)
                      District Judge: Hon. Malachy E. Mannion


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 25, 2006

                BEFORE: RENDELL and STAPLETON, Circuit Judges,
                          and GILES,* District Judge

                           (Opinion Filed: February 23, 2006)



*Hon. James T. Giles, Chief Judge, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Plaintiff-appellant Charmaine Klatch (“Klatch”) appeals from the District Court’s

entry of judgment in favor of the defendants, Sugarloaf Township and certain Township

officials, following a jury trial and defense verdict. We have jurisdiction pursuant to 28

U.S.C. § 1291.

       Between 1996 and 1999, Klatch was engaged in a protracted dispute with

Suglarloaf Township and Township officials relating to Klatch’s septic tank and Klatch’s

efforts to bring the tank into compliance with state and local laws. In September 2001,

Klatch filed a complaint in federal court alleging federal claims pursuant to 42 U.S.C. §

1983 for violations of her First Amendment rights and her right to equal protection of the

laws. She also alleged state law claims for negligence and intentional infliction of

emotional distress. She named as defendants Sugarloaf Township, the Sugarloaf

Township Board of Supervisors, three members of the Board of Supervisors in both their

official and individual capacities, and the Sewage Enforcement Officer for Sugarloaf

Township in both his official and individual capacity. By consent of the parties, the

matter was referred to a Magistrate Judge.

       Roughly two years after the filing of the complaint, the Magistrate granted partial

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summary judgment to the defendants. The Magistrate granted summary judgment as to:

1) all of Klatch’s state law claims against the Township and the individual defendants in

their official capacities; and 2) Klatch’s negligence claim against the officials in their

individual capacities. Klatch does not challenge these rulings on appeal.

       Following the partial summary judgment order, several claims seemingly

remained: first, Klatch’s claim for intentional infliction of emotional distress against the

officials in their individual capacity; second, Klatch’s claim under § 1983 for violations

of the First Amendment; and, third, Klatch’s equal protection claim. Inexplicably,

however, from this point forward, all parties to the litigation treated only the intentional

infliction of emotional distress claim as remaining.

       Accordingly, when the defendants filed a pretrial memorandum in March 2004,

they stated:

       The Federal and Negligent pendant state claims were dismissed pursuant to
       the [summary judgment order]. There remains the pendant state claim
       premised upon alleged Intentional Infliction of Emotional Distress and a
       claim for punitive damages.

S.A. at 2. Klatch did not file a pretrial memorandum of her own at this time.

       Three months later, in June 2004, Klatch’s counsel filed a motion to withdraw as

counsel. In that motion, Klatch’s counsel stated that “[t]he one remaining count that

survived the Defendant’s Motion for Summary Judgment was the Plaintiff’s claim for

intentional infliction of emotional distress.” S.A. at 16. In response to the Court’s order

to show cause why the attorney’s motion should not be granted, Klatch consented to the


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withdrawal, but did not challenge her counsel’s characterization of the remaining claims.

       In December 2004, Klatch, now represented by new counsel, filed a pre-trial

memorandum. In that memorandum, Klatch only referred to the claim for intentional

infliction of emotional distress and made no reference to her federal claims.

       On the eve of trial, Klatch filed a motion for voluntary withdrawal of the case

under 28 U.S.C. § 1367. The motion asserted that due to the Magistrate’s prior ruling

precluding Klatch from introducing expert testimony at trial,1 and in light of the

Pennsylvania rule that plaintiffs claiming emotional distress must substantiate their claims

with expert medical confirmation, going forward with trial in federal court was “virtually

pointless” because even if Klatch were successful at trial, the verdict would be overturned

on post trial motions. S.A. at 44. Klatch requested that the court “dismiss the state law

claim without prejudice” so that she could bring a new case in state court. 

denied the motion. The Court noted it had authority to dismiss the

case under § 1367(c)(3) because federal jurisdiction was premised on the fact that the

case was originally brought as a federal civil rights action, but only the state law claim for

intentional infliction of emotional distress remained in the case. The Court, however,

declined to grant the motion because the case had been in litigation for years and much of

that delay stemmed from the plaintiff’s inability to meet reasonable deadlines. The Court

noted that the defendants had incurred substantial expense in preparing for trial and



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    Klatch had failed to file a timely expert report.
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concluded that dismissal without prejudice would prejudice the defendants and be

“blatantly unfair at this stage of the game.” 

       The parties proceeded to trial under the assumption that only a claim for

intentional infliction of emotional distress remained. It appears that over the course of

trial, Klatch never once alluded to the possibility of proving any claim aside from

intentional infliction of emotional distress. The Magistrate at times limited testimony to

that which was relevant to such a claim. Klatch also does not appear to have requested a

jury instruction regarding her federal claims, nor does she appear to have objected to the

jury instructions given by the Court. The jury found in favor of the defendants and the

Court entered judgment for the defendants.

       Klatch’s main argument on appeal is that the Magistrate erred “in repeatedly and

stridently ruling that its Order granting partial summary judgment . . . also disposed of

Plaintiff’s claims under 42 U.S.C. § 1983.” Br. Appellant at 5. Klatch never raised this

argument in any form below. “It is well established that failure to raise an issue in the

district court constitutes a waiver of the argument.” Brenner v. Local 514, United Bhd. of

Carpenters & Joiners of Am., 

, 1298 (3d Cir. 1991). Moreover, Klatch

affirmatively waived her right to pursue her federal claims by repeatedly characterizing,

including in her pretrial submissions, her sole remaining claim as one for intentional

infliction of emotional distress. It was not error for the Magistrate to interpret those

characterizations as a waiver of Klatch’s federal claims. Nor was it error for the

Magistrate to limit the evidence presented at trial accordingly. See Sample v. Diecks, 885

                                              

, 1106-07 (3d Cir. 1989) (“It is well established that a trial judge possesses the

discretion to prohibit parties from raising matters they have failed to advance during the

pretrial proceedings. This is true regardless of whether a pretrial order under Rule 16 is

entered by the judge.”) (citations omitted).

       As for Klatch’s remaining arguments on appeal, we are unpersuaded. It was not an

abuse of discretion for the Court to refuse to allow Klatch to present a witness who would

testify to a prior inconsistent statement of a non-party witness, when that statement bore

little relevance to the question of the defendants’ liability. Nor was it an abuse of

discretion to deny Klatch’s motions for voluntary withdrawal and to amend the complaint

in light of the prejudice that would have inured to the defendants had the motions been

granted. Similarly, it was not an abuse of discretion to preclude Klatch from presenting

expert testimony when Klatch had failed to file a timely expert report.

       The judgment of the District Court will be affirmed.




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