Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2005

Allen v. York
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1946




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Recommended Citation
"Allen v. York" (2005). 2005 Decisions. Paper 1367.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1367


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                                                     NOT PRECEDENTIAL

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                  ____________________

                           NO. 04-1946
                      ____________________

      MICHAEL ALLEN; DEBRA TAYLOR, Individually and as
          Co-Administrators of the Estate of Lillie Belle Allen,
    Deceased; HATTIE DICKSON, Individually and as Administratix
     of Estate of Murray Dickson, Deceased; JENNIE SETTLES, as
      Administratix of the Estates of James and Beatrice Moseley,
                               Deceased

                                   v.

CITY OF YORK, PENNSYLVANIA; RAY MARKEL, Individually and in
      His Official Capacity as a Former City of York Police Officer;
   DENNIS MCMASTER, Individually and in His Official Capacity as
    a Former City of York Police Officer; CHARLES ROBERTSON,
       Individually and in His Official Capacity as a Former City of
   York Police Officer; JAMES VANGREEN, Individually and in His
  Official Capacity as a Former City of York Police Officer; RONALD
     ZEAGER, Individually and in His Official Capacity as a Former
                        City of York Police Officer


           Ray Markel, Individually and in His Official Capacity
        as a Former City of York Police Officer; Dennis McMaster,
           Individually and in His Official Capacity as a Former
        City of York Police Officer; Charles Robertson, Individually
           and in His Official Capacity as a Former City of York
         Police Officer; James VanGreen, Individually and in His
         Official Capacity as a Former City of York Police Officer;
         Ronald Zeager, Individually and in His Official Capacity
                  as a Former City of York Police Officer,

                                        Appellants
                  _______________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                              (D.C. No. 03-cv-00169)
                      District Judge: Honorable Yvette Kane
                  ______________________________________

                             Argued March 29, 2005
               Before: ALITO, SMITH and BECKER, Circuit Judges.

                               (Filed: April 13, 2005)

JAMES D. YOUNG, ESQUIRE (Argued)
Lavery, Faherty, Young & Patterson
225 Market Street, Suite 304
Harrisburg, PA 17108

     Attorney for Appellants

DONALD B. HOYT, ESQUIRE
Blakey, Yost, Bupp & Rausch
17 East Market Street
York, PA 17401

HAROLD I. GOODMAN, ESQUIRE (Argued)
Raynes McCarty Binder Ross & Mundy
1845 Walnut Street, Suite 2000
Philadelphia, PA 19103

      Attorneys for Appellees
                             ________________________

                               BENCH OPINION
                           ________________________

BECKER, Circuit Judge.
       (Whereupon the following occurred in open court.)

       JUDGE BECKER: I will deliver a bench opinion. This appeal will be dismissed

for lack of appellate jurisdiction. The entire appellate brief is devoted to the issue of

statute of limitations. Denials of statute of limitations defenses do not satisfy the

requirements of a collateral order and are therefore not subject to immediate appellate

review. We have so held in Bell Atlantic v. Pennsylvania Public Utility Commission, 

(3d Cir. 2001); Brown v. United States, 

(3d Cir. 1988), and in a

number of other cases.

       In an attempt to avoid section 1291's jurisdiction bar, defendants have couched

their appeal in terms of their rights to qualified immunity. And they claim that the statute

of limitations defense is subsumed under qualified immunity. But, as I noted, all of the

arguments involve only the statutes of limitations defense; they contend that the

limitations period should not be tolled on the basis of fraudulent concealment because the

complaint is devoid of factual support for fraudulent concealment. They argued that the

plaintiffs failed to exercise reasonable diligence in bringing their claims, particularly

because the events underlying their claim were the subject of a class action suit against

City of York officials, which was the subject of detailed fact findings by Judge Nealon.

       But at bottom, they admit that their appeal is based on their statute of limitations

defense. They urged the Court to expand the doctrine to encompass this time-bar issue,

even though they acknowledge that there is no reported case ever anywhere that supports

this proposition. But the law is clear that for purposes of interlocutory appeals, the
distinction between a qualified immunity defense and a statute of limitation defense is

clear and significant. And Bell Atlantic and Brown make those points clearly. Insofar as

we might analyze this separately under the requisites of the collateral order doctrine as

explicated by the Supreme Court in Cohen v. Beneficial, plainly the third prong effective

on reviewability is not met here and there’s a question as to the second and perhaps even

to the first.

        At all events, it is clear to this panel that we lack appellate jurisdiction to hear this

case. The appeal will be dismissed. However, exercising our discretion, we decline to

impose double costs under Rule 38 of the Federal Rule of Appellate Procedure.

        This constitutes the opinion and judgment of this Court, subject to comments

which I will now solicit or elicit from Judge Alito and Judge Smith, will in due course be

transcribed and entered as a non-precedential opinion of the Court.

        Judge Alito, any additions or corrections?

        JUDGE ALITO: No. I have no additional comments.

        JUDGE BECKER: Judge Smith?

        JUDGE SMITH: Nothing to add, Judge Becker.

        THE COURT: All right, thank you gentlemen.

        (Proceeding adjourned.)