Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2004

Adefumi v. Phila Free Library
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4486




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"Adefumi v. Phila Free Library" (2004). 2004 Decisions. Paper 181.
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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-4486


                               OLANIYAN ADEFUMI,

                                                                      Appellant

                                           v.

                          PHILADELPHIA FREE LIBRARY




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. Civ. No. 01-05565)
                    Honorable Eduardo C. Robreno, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                  October 29, 2004

  BEFORE: SCIRICA, Chief Judge, and FISHER and GREENBERG, Circuit Judges

                               (Filed: October 29, 2004)


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before this court on Olaniyan Adefumi’s appeal from an

order for summary judgment entered on July 17, 2003, in this action in which he alleged
unlawful termination, discriminatory termination, retaliatory termination, and existence of

an unlawful hostile work environment contrary to the Americans with Disabilities Act, 42

U.S.C. §§ 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

The district court set forth the background of the matter in its comprehensive

memorandum opinion. After our plenary review of this matter, see Kopec v. Tate, 

, 775 (3d Cir. 2004), petition for cert. filed (July 19, 2004) (No. 04-112), we

have concluded that the district court was correct and ordinarily we might affirm without

further discussion.

       We, however, do discuss one point that does not involve the merits of the case.

The appellee, City of Philadelphia, Free Library (“City”), contends that Adefumi’s appeal

is untimely and thus we do not have jurisdiction and must dismiss the appeal, citing

Boggs v. Dravo Corp., 

, 899 (3d Cir. 1976). At the same time the City

recognizes that if the district court properly extended the time for the appeal and Adefumi

appealed within that period we would have jurisdiction.

       As we have indicated, the judgment was entered on July 17, 2003. Adefumi did

not appeal within 30 days of that judgment as required by Fed. R. App. P. 4(a)(1) but

instead filed a timely motion under Fed. R. App. P. 4(a)(5) for extension of the time to

appeal on August 22, 2003, predicated on his attorney’s health problems which he

asserted interfered with the filing of the appeal. The district court granted the motion

over the City’s objection on November 13, 2003, extending the time to appeal until



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November 24, 2003. Adefumi then appealed on November 17, 2003.

       The City does not contend that in a chronological sense the time for the appeal was

not extended properly nor does it contend that Adefumi did not appeal within the time to

appeal as extended. It does contend, however, that the appeal “should be quashed as

untimely because the district court abused its discretion by extending the time to appeal

after it had expired.” Appellee’s br. at 13. But we will not entertain this argument as the

City has not appealed from the November 13, 2003 extension order, nor has it moved to

dismiss the appeal. In Amatangelo v. Borough of Donora, 

, 780 (3d Cir.

2000), another case in which the district court extended the time for appeal, we indicated

that though “we [were] tempted to do so . . . we [would] not dismiss the appeal because

the appellees did not appeal from the order granting the extension of time to appeal [and

we could not] treat their motions to quash as notices of appeal, as they filed the motions

beyond the time to appeal from the order for the extension of the time to appeal.”

       The City’s position with respect to dismissal of the appeal is even weaker than that

of the appellees in Amatangelo as it, too, has not appealed from the extension order, and,

moreover, unlike the appellees in Amatangelo, never has moved to quash the appeal.

Thus, the only document that the City has filed that we possibly could regard as an appeal

from the extension order is its brief filed in this court on June 30, 2004. But if we treated

the brief as a notice of appeal from the November 13, 2003 order it would not be timely

even if we could measure the time for the City to appeal from November 17, 2003, when



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Adefumi appealed, from November 13, 2003, when the court extended the time to appeal.

Finally, we point out that if we reviewed the extension order on our own initiative on the

ground that our jurisdiction is in issue, see Gerardi v. Pelullo, 

, 1368 (3d Cir.

1994), our result would not be different as it does not seem to us that the district court

erred in its interpretation and application of Rule 4(a)(5), nor did it abuse its discretion in

entering its order granting the extension for the time for the appeal. See Consolidated

Freightways Corp. v. Larson, 

, 918 (3d Cir. 1987).

       The order of July 17, 2003, will be affirmed.




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