                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2007

Osiris Entr v. Whitehhall
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5331




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                                          NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ____________

               No. 05-5331
              ____________

        OSIRIS ENTERPRISES
   and ANTONIO F. MOSCATIELLO,

                         Appellants

                       v.

      BOROUGH OF WHITEHALL;
HAROLD L. BERKOBEN, individually and
  as official of the Borough of Whitehall;
 KATHLEEN N. DEPUY, individually and
  as official of the Borough of Whitehall;
     PHILIP J. LAHR, individually and
  as official of the Borough of Whitehall;
 ROBERT J. MCKOWN, individually and
  as official of the Borough of Whitehall;
    GLENN P. NAGY, individually and
  as official of the Borough of Whitehall;
  ANDREW SAKMAR, individually and
  as official of the Borough of Whitehall;
   ADAM J. BARONE, individually and
  as official of the Borough of Whitehall;
     JAMES F. NOWALK, individually
and as official of the Borough of Whitehall;
     LINDA J. BOOK, individually and
 as an official of the Borough of Whitehall;
    JAHN A. WOTUS, individually and
  as official of the Borough of Whitehall;
    THOMAS OZEMO, individually and
 as an official of the Borough of Whitehall;
    JAMES R. DUFFY, individually and
  as official of the Borough of Whitehall;
 JAMES E. LEVENTRY, individually and
  as official of the Borough of Whitehall;
                         MARILYN F. MOORE, individually and
                          as official of the Borough of Whitehall
                                       ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 02-cv-01103)
                    District Judge: Honorable William L. Standish
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 15, 2007

               Before: FISHER, NYGAARD and ROTH, Circuit Judges.

                                  (Filed: June 6, 2007)
                                     ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

      Osiris Enterprises (“Osiris”) and Antonio F. Moscatiello (“Moscatiello”)

(collectively “Appellants”)1 appeal the District Court’s grant of summary judgment in

favor of the Borough of Whitehall (“Borough”), and Harold L. Berkoben, Kathleen N.

DePuy, Philip J. Lahr, Robert J. McKown, Glenn P. Nagy, Andrew Sakmar, Adam J.

Barone, James F. Nowalk, Kinda J. Book, Jahn A. Wotus, Thomas Ozemo, James R.

Duffy, James E. Leventry and Marilyn E. Moore, in their individual capacities




      1
       Moscatiello is the owner of Osiris.

                                             2
(collectively “Appellees”).2 The Appellants claim that the District Court erred by

applying the doctrine of res judicata. For the reasons that follow, we will affirm the

District Court’s judgment.

                                             I.

       We write only for the parties and thus will forgo a lengthy recitation of the factual

and legal background to this case. In May 2001, the Borough sought bids for a

construction project ! the Oakridge Drive Project. According to the terms of the notice

issued by the Borough, all bidders were required to be PennDOT pre-qualified. Although

another company submitted a lower bid, it was not pre-qualified, making Osiris the

lowest, qualified bidder.

       In August 2001, the Borough Council extended the deadline for making bids in

order to enable the other company to be pre-qualified and receive the construction project.

At the same meeting, the Council voted unanimously to bar Osiris from bidding on future

Borough projects because it deemed Osiris a non-responsible bidder. Osiris performed a

construction project for the Borough in 1993, and in 1995 a dispute arose concerning that

performance. The Borough brought a lawsuit against Osiris, and the matter was




       2
        The Appellants sued all of the individually named defendants in both their
individual and official capacities. The District Court dismissed the claims against the
individual defendants in their official capacities. The Appellants do not appeal that
dismissal. Nor do the Appellants appeal the District Court’s dismissal of the claims
against Ruthann Omer and Thomas Hudzema.

                                             3
eventually settled. Although there was no determination of fault, it was this dispute that

led the Borough to designate Osiris as a non-responsible bidder.

       Numerous lawsuits have been filed regarding the Borough’s designation of Osiris

as a non-responsible bidder. However, for purposes of our analysis, we only need to

discuss two of those cases. In June 2002, the Appellants filed this suit in the District

Court against the Borough and various individuals in their official and individual

capacities. The Appellants made claims under 42 U.S.C. § 1983, the Racketeer

Influenced and Corrupt Organizations (“RICO”) Act, and various state law claims,

including breach of contract and false light claims. The claims were based on the

Borough’s designation of Osiris as a non-responsible bidder.

       In July 2003, the Appellants brought suit in the Court of Common Pleas of

Allegheny County against the same defendants. The complaint included allegations

regarding Osiris’s designation as a non-responsible bidder and the contract awarded on

the Oakridge Drive Project. Additionally, the Appellants alleged facts regarding three

other construction projects that the Borough did not award to Osiris after its designation

of Osiris as a non-responsible bidder. These claims arose after the Appellants filed suit in

the District Court. The claims included interference with contractual relations,

interference with prospective economic advantage, and defamation.

       The Court of Common Pleas sustained various preliminary objections made by the

defendants and dismissed with prejudice all of the remaining counts against all of the

remaining defendants. Osiris Enters. v. Borough of Whitehall, No. GD-03-012928, 2004

                                              4
WL 5049973 (Pa. Com. Pl. May 27, 2004). The court determined that the remaining

defendants were entitled to high public official immunity. The Appellants appealed the

court’s decision, and the court filed an opinion explaining its decision. Osiris Enters. v.

Borough of Whitehall, No. GD-03-012928, 2004 WL 5050296 (Pa. Com. Pl. Sept. 21,

2004).

         The Commonwealth Court of Pennsylvania affirmed the trial court’s opinion in

April 2004. Osiris Enters. v. Borough of Whitehall, 877 A.2d 560, 569 (Pa. Commw. Ct.

2005). The Pennsylvania Supreme Court denied the Appellants’ petition for allowance of

appeal. Osiris Enters. v. Borough of Whitehall, 897 A.2d 459 (Pa. 2006).

         After the Commonwealth Court affirmed the trial court’s opinion, but before the

Pennsylvania Supreme Court denied the petition, the District Court decided the parties’

cross-motions for summary judgment.3 The District Court held that the Appellees were

entitled to summary judgment because the claims were barred by the doctrine of res

judicata. Osiris Enters. v. Borough of Whitehall, 398 F. Supp. 2d 400, 409-10 (W.D. Pa.

2005). The District Court explained that the two cases involved identical parties, arose

out of the same factual allegations, sought the same damages, and that all of the claims

asserted in the federal court case could have been brought in the state court case. Id.

         This timely appeal followed.


         3
        As noted above, the District Court previously dismissed the Appellants’ § 1983
claims against the individual defendants in their official capacities. It also dismissed
without prejudice the RICO claims. The only remaining claim was the § 1983 claim
against the Borough and the individual defendants in their individual capacities.

                                              5
                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s

order granting summary judgment de novo. See Kneipp v. Tedder, 95 F.3d 1199, 1204

(3d Cir. 1996). We apply the same standard employed by a district court, and view the

facts in the light most favorable to the non-moving party. See Moore v. City of

Philadelphia, 461 F.3d 331, 340 (3d Cir. 2006).

                                             III.

       The Appellants claim that the District Court erred by holding that the claims were

barred by res judicata. A federal court must give full faith and credit to a final state-court

judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005).

In deciding whether the doctrine of res judicata applies, we look to state law to decide

what effect to give state-court judgments. See Turner v. Crawford Square Apartments III,

L.P., 449 F.3d 542, 548 (3d Cir. 2006).

       The Supreme Court of Pennsylvania has explained that res judicata:

       “bars a later action on all or part of the claim which was the subject of the
       first action. Any final, valid judgment on the merits by a court of
       competent jurisdiction precludes any further suit between the parties or their
       privies on the same cause of action. Res judicata applies not only to claims
       actually litigated, but also to claims which could have been litigated during
       the first proceeding if they were part of the same cause of action.”

Id. (quoting Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995)) (emphasis in

Turner). Pennsylvania requires that the two actions possess four similarities for res

judicata to apply: “(1) the thing sued upon or for; (2) the cause of action; (3) the persons


                                              6
and parties to the action; and (4) the capacity of the parties to sue or be sued.” Turner,

499 F.3d at 548 (internal quotation marks and citation omitted).

       It is clear that there was a final decision on the merits. See, e.g., Shaffer v. Smith,

673 A.2d 872, 874 (Pa. 1996). Additionally, the four conditions for res judicata exist in

this case. In both actions, the thing sued upon is the same ! the Appellants seek damages

for the effects of the Borough’s designation of Osiris as a non-responsible bidder. Under

the second factor, this action shares the same cause of action as the previously

adjudicated state claims. The applicability of res judicata is not based on the specific

legal theories asserted, rather res judicata

       generally is thought to turn on the essential similarity of the underlying
       events giving rise to the various legal claims. . . . [I]n determining whether
       a single cause of action is present one may consider the identity of the acts
       complained of, the demand for recovery, the identity of the witnesses,
       documents, and facts alleged.

Id. The underlying events are identical in both cases. The Borough voted to bar Osiris

from bidding on future Borough construction projects. Both cases involve the same acts,

witnesses, documents, and facts. The fact that different, and additional claims, were

raised in the state court case does not affect the applicability of res judicata. As discussed

above, res judicata applies not only to litigated claims, but also to claims that could have

been litigated. Because the Appellants could have raised all of their claims, including the

RICO and § 1983 claims, in state court, the doctrine of res judicata applies and bars those

claims. See, e.g., Felder v. Casey, 487 U.S. 131, 139 (1988) (stating that state courts have



                                               7
concurrent jurisdiction over § 1983 actions); Tafflin v. Levitt, 493 U.S. 455, 458 (1990)

(holding that state courts have concurrent jurisdiction over civil RICO claims).

       As for the identity of the parties, the parties in both cases are identical.4 Finally,

the parties all could sue and be sued in both state and federal court. Therefore, all four

conditions are met. Additionally, the fact that the federal court case was filed before the

state court case does not impact the application of res judicata. As the District Court

explained, the relevant date for purposes of res judicata is the date of final judgment. See,

e.g., Restatement (Second) of Judgments § 14; Ellis v. Amex Life Ins. Co., 211 F.3d 935,

937-38 (5th Cir. 2000) (holding that a later-filed claim may bar an earlier-filed claim).

Because the state court case was decided before the present case, res judicata applies and

the Appellants’ claims are barred.5

                                              IV.

       For the reasons stated above, we will affirm the District Court’s judgment.6



       4
       The fact that some of the Appellees were dismissed from the state court case does
not change the result. They were a party to both cases, and there was a final judgment on
the merits as to the claims against them.
       5
        Because we find that res judicata applies, it is unnecessary for us to address the
additional arguments raised by the parties.
       6
        We deny the Appellees’ Motion to Strike the Appellants’ Appendix for failure to
comply with Federal Rule of Appellate Procedure 30(a), and we grant the Appellees’
Motion to File a Supplemental Appendix. As the cost of preparing an adequate appendix
is usually borne by the appellant, see Fed. R. App. 30(b), we will order that the
Appellants reimburse the Appellees for the cost of preparing the Supplemental Appendix.
We also grant the Appellants’ counsel’s Motion to Withdraw.

                                               8
