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


7-29-2004

Schumacher v. Souderton Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1823




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-1823


                              PATTY L. SCHUMACHER

                                           v.

                  SOUDERTON AREA SCHOOL DISTRICT;
                  LOWELL A. TINNER, SUPERINTENDENT;
                   SOUDERTON AREA SCHOOL BOARD;
             RICHARD SW ARTLEY, PRESIDENT - UNTIL 12/2002;
          RICHARD E. THOMPSON, VICE PRESIDENT UNTIL 12/2002;
         STAN WISLER, SECRETARY; DONNA DEVLIN, TREASURER;
        TRACY G. COLE; RICHARD G. DETWILER; SHARON J. GEHRET;
       PETER O. KRANZ; ERIC R. MACDOUGALL; RALPH "BUD" MILLER

                                                Patty Schumacher,
                                                            Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         D.C. Civil Action No. 02-cv-04477
                       District Judge: Honorable James T. Giles


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 27, 2004
       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN*, Circuit Judges

                                 (Filed July 29, 2004)


   *The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
                                 OPINION OF THE COURT


SCIRICA, Chief Judge.

       In this employment discrimination case, appellant Patty L. Schumacher challenges

two orders of the District Court. We will dismiss for lack of appellate jurisdiction.

                                             I

       Schumacher worked for the Souderton Area School District (“School District”) as

a math teacher for 14 years and as a geography teacher for one year. According to

Schumacher, she suffered discrimination and transfer of position after disclosing to the

School District that she had been diagnosed with Attention Deficit Hyperactive Disorder.

In March 1999, she filed a complaint against the School District, asserting claims under

the Americans with Disabilities Act, 42 U.S.C. § 1201 et seq., and the Pennsylvania

Human Relations Act, 43 P.S. § 950 et seq. The complaint also asserted claims of age

discrimination under the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq.,

civil rights violations under 42 U.S.C. §1983, retaliation under 42 U.S.C. §1201, and

breach of contract relating to a collective bargaining agreement between Schmacher’s

union and the School District.

       On November 9, 2000, at a hearing before Magistrate Judge Wells, the parties

successfully reached a settlement agreement. Among other provisions, the settlement




                                             2
contained a stipulation of confidentiality and a release by the plaintiff of all claims against

the School District.

       On July 8, 2002, Schumacher filed a complaint alleging the School District failed

to properly inform the pension fund of her income as stipulated under the terms of the

settlement. The School District filed a motion to dismiss, asserting that it abided by all

the terms of the settlement agreement. It also filed a motion to seal the pleadings and

references to the terms of the settlement agreement. By order dated November 6, 2002,

the District Court granted the motion to seal the pleadings. By order dated February 25,

2003, the District Court granted the School District’s motion to dismiss without prejudice,

allowing Schumacher to refile claims relating to post-settlement conduct with leave of

court on or before May 22, 2003. Schumacher appealed, challenging these two orders.

                                              II.

A.     Order dated November 6, 2002

       Orders which limit access to the trial record are generally considered final and

appealable. 28 U.S.C. § 1291; United States v. Antar, 38 F.3d 1348, 1355-1356 (3d Cir.

1994), rev’d for other reasons, 53 F.3d 568 (3d Cir. 1995). But an appeal must be filed

within 30 days of the entry of the judgment. See Fed. R. App. P. 4(a); 28 U.S.C. §

2107(a); Berke v. Bloch, 242 F.3d 131, 135-136 (3d Cir. 2001). In this case, the District

Court issued the order to seal the pleadings on November 6, 2002, but Schumacher did

not file an appeal until March 24, 2003. Because she exceeded the 30-day filing



                                              3
requirement, we cannot exercise jurisdiction over her appeal of the order dated November

6, 2002. See Berke, 242 F.3d at 136 (“An untimely appeal does not vest an appellate

court with jurisdiction”); Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91 (3d Cir.

1995) (“The time limits provided by Fed. R. App. P. 4(a)(6) and 28 U.S.C. § 2107 are

‘mandatory and jurisdictional,’ and the courts are required to dismiss untimely appeals

sua sponte.”).

B.       Order dated February 25, 2003

         Motions to dismiss without prejudice are generally not final and appealable so long

as the plaintiff is permitted to refile the complaint upon remedy of the deficiency. Ahmed

v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002); Redmond v. Gill, 352 F.3d 801, 803 (3d

Cir. 2003). In its order dated February 25, 2003, the District Court granted the School

District’s motion to dismiss without prejudice and with permission to refile all claims

with the leave of the court by May 22, 2003. Accordingly, the order was not appealable,

as Schumacher could have refiled her complaint in the permitted time period and obtained

leave of court as required by the order. Instead, Schumacher directly appealed the order

to this Court. The District Court’s order was not final, and we do not have appellate

jurisdiction.1


     1
    Even if we had appellate jurisdiction, Schumacher has not provided us an adequate
record to support her claim that her complaints were inappropriately dismissed. Salazar
v. Atlantic Sun, 881 F.2d 73, 79 (3d Cir. 1989). She has not provided a transcript of the
November 22, 2002 hearing at which the District Court dismissed her complaint, so the
District Court’s reasoning would be unavailable for review.

                                              4
                                     III.

For the foregoing reasons, we will dismiss for lack of appellate jurisdiction.




                                      5
