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


9-24-2004

Revelle v. Trigg
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3991




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Recommended Citation
"Revelle v. Trigg" (2004). 2004 Decisions. Paper 329.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/329


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                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-3991


                               SHELTON REVELLE

                                          v.

              TRIGG, Darby Boro Police Dept.; GIBNEY; REGAN;
            GALLI; SILBERSTEIN; DARBY BOROUGH COUNCIL;
                          BOROUGH OF DARBY

                                               Richard Galli,

                                                                    Appellant


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 95-05885)
                    Honorable Louis H. Pollak, District Judge


                     Submitted under Third Circuit LAR 34.1(a)
                                September 24, 2004

         BEFORE: MCKEE, ALDISERT and GREENBERG, Circuit Judges

                             (Filed: September 24, 2004)


                            OPINION OF THE COURT


GREENBERG, Circuit Judge.

     This matter comes on before this court on an appeal from an order entered in the
district court on August 29, 2003, granting the plaintiff-appellee Shelton Revelle a new

trial in this excessive force arrest case under 42 U.S.C. § 1983 against the defendant-

appellant Richard Galli, a Darby Borough police officer; individual defendants Joseph

Trigg, Richard Gibney, Jonathan Regan, and Edward Silberstein, also Darby Borough

police officers; and Darby Borough itself. To date there have been two trials in this case.

At the first trial the claims against Gibney were dismissed but there was a mistrial

declared with respect to the other defendants when the jury could not reach a verdict as to

them. Prior to the second trial the court bifurcated the case but only for purposes of trial

so that the second trial went forward against the remaining four individual defendants, the

court contemplating that, if necessary, there would be a third trial against Darby Borough

before the same jury that sat in the second trial. At the second trial the jury returned a

verdict in favor of the four individual defendants on August 21, 2003, and on August 22,

2003, the court entered a judgment in their favor.

       The case next took an unusual turn as the district court on August 29, 2003,

pursuant to Federal Rule of Civil Procedure 59(d), on its own motion granted Revelle a

new trial against Galli and thus vacated the judgment in his favor. The court filed a

memorandum opinion explaining why it took this action which, in view of our disposition

of this appeal, we need not explain beyond indicating that the court believed that by

failing to appear at the trial in response to its order Galli had prejudiced Revelle who had

intended to call him as a witness. Thus, the court believed that the integrity of the verdict



                                              2
in Galli’s favor was in doubt. The court, however, did not disturb the verdict and

judgment in favor of the other individual defendants. On September 29, 2003, Galli

appealed from the order of August 29, 2003, even though the case against him had not

been retried and the case also remained pending against Darby Borough.

       Revelle has not moved to dismiss the appeal for want of jurisdiction. Nevertheless

in his brief Galli recognized that there is a serious jurisdictional question as his initial

point is that “[t]he district court’s order for a new trial is reviewable as a final judgment

because the district court usurped its power to order a new trial.” Appellant’s br. at 19.

Not surprisingly in his answering brief Revelle contends that “[t]he August 29, 2003

Order is not a final order as defined by 28 U.S.C. § 1291, [and] therefore this Court does

not have jurisdiction.” Appellee’s br. at 11. Of course, if we do not have jurisdiction,

with or without a motion to dismiss, we must dismiss this appeal. See McNasby v.

Crown Cork & Seal Co., 832 F.2d 47, 49 (3d Cir. 1987).

       When we reviewed the matter we noted that regardless of whether the August 29,

2003 order otherwise might be appealable at this time, the presence in the case of Darby

Borough as a defendant raised a second jurisdictional issue as the case was not final as to

all parties. Thus, we asked the parties to this appeal to comment on this point and they

have done so. In this regard Galli acknowledges in his letter to the court dated August 11,

2004, that the case against Darby Borough has not been severed. He nevertheless

contends that on the basis of the facts and the law Darby Borough cannot be liable



                                               3
because “absent a finding of liability against the individual Defendant police officers

there is no independent claim against the Borough of Darby.” Letter of Aug. 11, 2004,

from attorneys for Galli to Clerk of this court. Accordingly, in Galli’s view, inasmuch as

the jury found in favor of the officers, “the claim against the Borough of Darby has

effectively been extinguished. Thus there is no outstanding claim against the Borough of

Darby, which Plaintiff may pursue absent a finding against one of the individual police

officer Defendants.” Id. He contends that we therefore have jurisdiction.

       We will dismiss this appeal. As Galli sets forth in his brief: “The general rule

regarding the district court’s granting of a new trial is that it is interlocutory, and thus,

nonappealable as a final judgment.” Appellant’s br. at 19. See Allied Chem. Corp. v.

Daiflon, 449 U.S. 33, 34, 101 S.Ct. 188, 190 (1980); Blancha v. Raymark Indus., 972

F.2d 507, 511-12 (3d Cir. 1992). While it is true that in Phillips v. Negley, 117 U.S. 665,

6 S.Ct. 901 (1886), the court did allow an immediate appeal from an order granting a new

trial, as we explained in Stradley v. Cortez, 518 F.2d 488, 491 (3d Cir. 1975), Phillips,

reached that conclusion because the challenge went “to the judicial power of the court to

take that action.” While we cannot comment on whether we believe that the district court

was correct in granting a new trial on its own motion, there is no doubt but that Rule

59(d) provides that a district court may take such action and there also is no doubt but that

the order for the new trial entered eight days after the verdict was timely. Accordingly,

Galli’s appeal does not come within the Phillips exception and it must be dismissed.



                                                4
       The presence of the case against Darby Borough also requires us to dismiss the

appeal. In general there can be no doubt but that when a case remains pending against a

defendant an appealable order has not been entered. See Jackson v. Hart, 435 F.2d 1203

(3d Cir. 1970). Galli seeks to avoid this rule by contending that the verdict for the

individual defendants effectively extinguished the claim against Darby Borough. There

are two problems with this argument. First, the verdict in his favor has been set aside so

that the case is pending against an individual defendant. Second, even if somehow

Revelle’s claim against Darby Borough no longer is viable, it will remain a party until the

case against it is dismissed.

       For the foregoing reasons the appeal will be dismissed.




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