                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2002

Liberty Res Inc v. SEPTA
Precedential or Non-Precedential: Precedential

Docket No. 01-3702




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Recommended Citation
"Liberty Res Inc v. SEPTA" (2002). 2002 Decisions. Paper 804.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/804


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                                              NOT PRECEDENTIAL

                        IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT

                                         No. 01-3702
                                  ________________________

                               LIBERTY RESOURCES, INC. and
                                 CONSUMER CONNECTION

                                                  v.

                            SOUTHEASTERN PENNSYLVANIA
                             TRANSPORTATION AUTHORITY,
                                                    Appellant
                          ____________________________________

                         On Appeal From the United States District Court
                               For the Eastern District of Pennsylvania
                                    (D.C. Civ. No. 99-CV-4837)
                         District Judge: Honorable Lowell A. Reed, Jr., S.J.

                          ____________________________________

                                      Argued: December 9, 2002

                        Before: BECKER, Chief Judge, ROTH and SMITH
                                       Circuit Judges.

                                   (Filed: December 23, 2002)

BRADLEY K. MOSS (ARGUED)
Schnader Harrison
Segal & Lewis LLP
1600 Market Street
Philadelphia, PA 19103

Counsel for Appellant

STEPHEN F. GOLD (ARGUED)
125 South Ninth Street
Suite 700
Philadelphia, PA 19107

THOMAS H. EARLE
ROBIN RESNICK
Disabilities Law Project
1315 Walnut Street, Suite 400
Philadelphia, PA 19107-4798

Counsel for Appellees
                                      _______________________

                                             OPINION
                                      _______________________

BECKER, Chief Judge.

        Defendant-appellant, Southeastern Pennsylvania Transportation Authority

(“Septa”), appealed to this Court from the Order granting summary judgment in favor of

plaintiffs Liberty Resources, Inc. and Consumer Connection (collectively “LRI”) entered

on January 8, 2001 and from the Order for Final Injunctive Relief entered on August 31,

2001. On June 3, 2002, after the notice of appeal was filed, the District Court entered an

Order terminating the Order for Final Injunctive Relief, pursuant to the clause contained

therein which stated that Septa may seek to have the injunction terminated after six

consecutive months of compliance with the Order. Septa’s appeal from the Order for Final

Injunctive Relief is thus moot because it is no longer required to comply with the District

Court’s mandate. See Harris v. City of Philadelphia, 47 F.3d 1311, 1326 (3d Cir. 1995)

(“As a general principle, once a party has complied with a court order or injunction, and has

not been penalized or suffered any prejudice that could be remedied on appeal, the appeal is

moot.”).

                                                     2
        We also conclude that the appeal from the January 8, 2001 Order granting summary

judgment is moot. The doctrine of mootness requires a court to consider only those

actions which “involve a live case or controversy [that] extends through all phases of

litigation, including appellate review.” County of Morris v. Nationalist Movement, 273

F.3d 527, 533 (3d Cir. 2001). The injunctive order is inextricably tied to the summary

judgment order out of which it grew, and such conflation with the injunction moots the

earlier order as well. Indeed, counsel for plaintiffs conceded at oral argument that the

District Court’s opinion could not be used to preclude the litigation of issues in future

litigation between the parties.

        While a defendant’s voluntary compliance will not render an action moot, in the case

at bar, Septa’s actions were not voluntary because it acted in response to the now

terminated Order for Final Injunctive Relief. See Bagby v. Beal, 606 F.2d 411, 414 (3d

Cir. 1979) (“The Supreme Court . . . on many occasions has held cases to be moot when

the event causing mootness was compliance with a lower court injunction.” citing DeFunis

v. Odegaard, 416 U.S. 312 (1974)).

        We follow the “settled practice of vacating the district court judgment” when the

issue is moot on appeal. Bagby, 606 F.2d at 414. See also United States v.

Munsingwear, 340 U.S. 36, 41 (1950) (holding that vacatur “is commonly used . . . to

prevent a judgment, unreviewable because of mootness, from spawning any legal

consequences”). However, we will preserve LRI’s right to collect attorney’s fees. In

Morris, this Court held that “an award of attorney’s fees with respect to the trial phases of a

                                                     3
case is not precluded when a case becomes moot during the pendency of an appeal.” 273

F.3d at 534.

        In conclusion, Septa’s appeal will be dismissed as moot, and the matter will be

remanded to the District Court with directions to vacate the judgment entered on January 8,

2001.




                                       ___________________

TO THE CLERK:

                                                  4
Please file the foregoing Opinion.

                                     BY THE COURT:




                                       /s/ Edward R. Becker
                                          Chief Judge




                                       5
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