                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2001

Berke v. Bloch
Precedential or Non-Precedential:

Docket 00-2078




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Berke v. Bloch" (2001). 2001 Decisions. Paper 36.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/36


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Filed February 27, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2078

LYNNE BERKE; DAVID ABDINOOR; LEONARD ACCARDO;
JEFF ADAMS; ARNOLD ADICOFF, M.D.; MAR Y ELLEN
ANDERSON; KERMETH G. ANDERSON; PABLO ARIAS;
PAUL ARIAS; KURT ARNST; OSCAR ASCURRA; STEWARD
AUSTIN; ROBERT BALBACH, JR.; PHILIP BANKS, JR.;
PASQUALE BARISCIANO; LYNDA BATTLE; ARTHUR
BEEBE; MR. AND MRS. DAVID BEVERLY; JOSEPH
BIRES; JOHN BOHMKE; RANDOLF BOOKER; CARL
BOULAY; SCOTT BOYER; RICHARD BRADLEY; ANNA
BRODYCZ; MELVIN BURKHARDT; ROSEMARY
CAMPERLENGO; JOSEPH CARDELLA; JOHN CAREY; KEN
CARPENTER; SAMUEL CASTRO; FRANK CHAN; YOUNG
CHANG; VICTOR CHEUK; E. NORMAN CHOINIERE;
EUGENE CHRISKE; RAYMOND CLARK; CRAIG CLERF;
MRS. RAYMOND CODY; DONALD COLEMAN; EDUARDO
CONSOLE; WILLIAM COOTE; SHIRLEY CORBETT; DAVID
CORNELL; AIDA CORTES; ELIZABETH CRAIG; DIANA
DAPONTE; ANGELA DAVIE; LOUIS DEBLASIO; LOUIS
DEMARCO; ANTHONY DIBATTISTA; CHARLES
DIGRIGOLI; JAMES DOW; DANNY K. & DOROTHY M.
DUNBAR; JANET DUNN; DONALD DYER; EASTERN
ANALYTICAL SERVICES, INC., C/O PAUL STASCAVAGE;
JAMES EDWARDS; DIANE EVANS; HARLOW F ARMER, III;
JOSEPH FAVALE; HAROLD FERIOLI; F.L. FICKS; ALICE
FIRGAU; HELEN FREEMONDE; PETER FRIEL; STUART
FRIES; ELIZABETH FUSS; FLOYD GALLEGOS, SR.; IRA
GELBER; KATHLEEN GIACOMO; EDWARD GILMORE;
LAWRENCE GIUSTINIANI; DAVID GLICKMAN; KENNETH
GLOYESKE; THEODORE GOLDMAN; DOYLE GROSS;
HENRY GROSSMAN; GUARDIAN INVESTMENT CLUB,
C/O DENNIS MCCULLOUGH; JABIR GULAMHUSSEIN;
MARLENE HALLMAN; DENNIS HANCOCK; TYSON
HARPER; JOHN HARRISON; MARTIN HAYES; EDWARD
HEIMRICH; VICTOR HIMEL; BRYAN HODGKINS; BRIAN
HOFF; CHARLES HORVATH; HANS HUNZIKER;
GLORIANNE JACKSON; RICHARD JEFFERSON; KENNETH
JENKINS; PHILLIP JENSEN; CLARE JOHNSON; ERIC
JOHNSON; ROSS JOHNSON; WILFRED JOHNSON;
WILLIAM JONES; HENRY KARPIK; MARK KESSLER;
FRAZIN KHIABANI; DANIEL KILFOYLE; JOSEPH
KOLODZEJ, JR.; JOSEPH KILIDZEJ, SR.; CHESTER
KOZLOWSKI; JOAN KUJAWSKI; FRED LACROIX; ARRON
LEHMANN; ROBERT LESINSKI; HOWARD LITTLE;
ROBERT LOSHBOUGH; BRUCE LOUGHRIDGE; YVONNE
LUMB; LUCILLE LUSTICA; HUBERT MAEHR; MARIE
MARCHESE; H. STEVEN MARELIA; RALPH MARICONDA;
JAMES MASONE; DOUGLAS MCFADDEN-BLANK; JAMES
C. MCCANN; WILLIAM MCGOWAN; DENNIS MCIVOR;
WILLIAM MCPHILLIPS; JOSEPH MECCA; THOMAS
MERWIN; GREGORY MERYAM; JOHN MOONEY; JESSIE
MOONEY-GRIFFIN; ISABEL MOUNTBATTEN; ROTHER
MURRAY; JOHN NAYLOR; FRANK NEDELKA; ANN
NEWMAN; FARSHID NIKFAR; BRENDAN O'CONNOR;
DALE OBERLY; GARRETT OCKERT; EDW ARD OLSON;
DAVID OWEN; MARGARET OXENDINE; ANTHONY
PANNELLA; WILLIAM PARKER; GEORGE P ATTEN, JR.;
BOBBY PAYNE; VINCENT PERO; NADJA PETRIZZO; L.
GORDON PFEFFERKORN; HARRY PINKMAN; NICOLETTE
PISCATELLI; ALVIN POLLEX; JEFFREY POPE; MICHAEL
POTTER; FREDDIE PRESSLEY; RICHARD PRESIOSI;
GRACE RADONICIC; FRANK RECCA; STUART REIN;
JASON REIN; GARY RIEMER; BRADLEY RITZ; ANTHONY
RIZZIO; LUCIEN RIZZO; THOMAS ROOF; WILLIAM
ROTHE; ONOFRIO RUSSO; RALPH RUSSO, JR.; JOHN
RYERSON; SERG SAINT-PRIX; SANDRA SANTIAGO;
LARRY SCARINGELLI; LYNN SCHEELER; ROBER T
SCHELICH; RICHARD SCHINDLER; F. THOMAS SENIOR;
JOSEPH R SHARPLES; RONALD SHEN; ROBERT
SHIFMAN; HERBERT SIEH; NICHOLAS SITINAS; LESLEY
M. SMITH; LYDIA SMITH; FRANKLIN SMITH; DORIS
SOAPE; JAMES SOCKMAN;

                               2
WILLIAM SOCKMAN; PATRICIA SOFRAN; P AUL ST. JEAN;
MICHAEL STAFFORD; ISREAL STEIN; JOHN STEVENS;
DOUGLAS STROHL; RONALD SULLO; JOSEPH SWINTON;
HAROLD TAPSCOTT; JULIA TAYLOR; SANDRA THOMAS;
FRANCINE TINDONA; JOSEPH TOMAINO; KATHLEEN
TOTH; RICHARD ROWNSEND; LARRY TRAUB;
ALEXANDER TRENTO; MICHAEL TRONOLONE; GEORGE
TURNER; DOLORES TUSS; EDWIN UTLEY; RONALD
VACCA; ADELE VECCHIONE; ARCENIO VELEZ; FRANK
VIOLA; INEZ WALSH; JOSEPH WEHNER; JOSEPH
WEINBERGER; JANET WESTLAKE; CHARLES WILLIAMS;
ROSE ZAPPOLI; ABE ZYMAN, Appellants
and ALICE O'DONNELL

v.

PAUL H. BLOCH; STEVEN E. WEIGNER; INDEPENDENT
BROADCASTERS NETWORK, INC.; BROADCAST
MANAGEMENT CORPORATION; BROADCAST RADIO GRP;
BUCKLEY BROADCASTING CORPORATION, d/b/a WOR
Radio; FUTURE VISION DIRECT MARKETING, INC.;
NATIONWIDE WIRELESS CORPORATION; JAMES
BARSCHOW; RICHARD HORNE; MARK EDDINGER; MARK
FREEDMAN; PHILIP JAMES CARATOZZOLA; PHILIP
FORMA, SR.; DANIEL KELLY; HERBERT HERR; IRA
COHEN; WILLIAM GERONIMO; RAY FILLWEBER; JOHN
FORMA; SCOTT LAGROSSA; JOHN GNOLFO; NEIL
SLAVIN; TOM FASANO; PIONEER NUMISMA TICS, INC.;
JOHN WRUBLEWSKI; MICHAEL SCHWAN; KEVIN
SCHWAN; ADAM CRUM; DAVID CAMIRE; JOHN DOES, 1-
25 (Names being fictitious and unknown but described as
salespeople and/or business entities selling investment in
The Great Columbia Basin Limited Company); HARR Y I.
"SONNY" BLOCH; BLOCH BROADCASTING; BRUCE
SCHROEDER; JOSEPH GLENSKI; CARDIFF
BROADCASTING; CARDIFF PARTNERS "A"

ON APPEAL FROM THE UNITED STATES District Court
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 94-cv-05999)
District Judge: The Honorable Nicholas H. Politan

                                3
Submitted Under Third Circuit LAR 34.1(a) on
January 22, 2001

Before: NYGAARD, ALITO, and ROSENN, Cir cuit Judges.

(Filed: February 27, 2001)

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Before us is Appellee Buckley Broadcasting's motion to
dismiss this appeal for lack of jurisdiction. The Appellants
have filed a memorandum in opposition. Buckley
Broadcasting argues that we lack jurisdiction because the
Appellants did not file their notice of appeal within thirty
(30) days of the date the District Court's judgment became
final, as required by F.R.A.P . 4(2)(1)(A). The Appellants
maintain that such finality was not achieved until June 8,
2000, and that their notice of appeal -- filed on June 21,
2000 -- was therefore timely.

I. Background

On December 19, 1999, two hundred and eighty-eight
(288) plaintiffs filed a complaint alleging that several named
defendants fraudulently solicited their investment in units
of the Greater Columbia Basin Limited Liability Company.
The purpose of this solicitation was to raise money for a
wireless cable television system. Appellants (plaintiffs
below) claimed that these investments were worthless and
that the revenue generated was fraudulently diverted and
has never been located or returned to them.

Buckley Broadcasting was one of the named defendants.
The only federal claim against Buckley Broadcasting was
that it sold an unregistered security, as defined by section
12(1) of the Securities Exchange Act of 1933. On December
14, 1999, the District Court granted Buckley Br oadcasting's
motion for summary judgment. The District Court found no
genuine issue as to whether Buckley Broadcasting was a
"seller" of securities within the meaning of the statute. The

                               4
District Court declined to exercise supplemental
jurisdiction with regard to the remaining state law claims
and dismissed them.

On January 13, 2000, the Appellants filed a notice of
appeal contesting the December 14, 1999 order . Because
their cause of action remained active as to several other
defendants, the Appellants later voluntarily withdr ew the
appeal, indicating that they reserved the right"to refile said
appeal at such time as the Order of December 14, 1999
becomes final within the meaning of 28 U.S.C.S 1291 or is
certified as such by Judge Politan."1

On March 1, 2000, the District Court filed an order
dismissing the action with respect to the r emaining
defendants, expressing its belief that the matter had been
settled with the two remaining defendants, W illiam
Geronimo and Raymond Fillweber. The District Court
dismissed the action "without costs and without prejudice
to the right, upon good cause shown, within 60 days, to
reopen the action if the settlement is not consummated."
The order further instructed that "this case is now
CLOSED." (emphasis in the original). That is to say, the
Appellants had until Monday, May 1, 2000, to r e-open their
case if the settlement fell through.

The docket indicates that the Appellants undertook no
action within the prescribed sixty (60) day period following
entry of the District Court's order. It was not until May 4,
2000, that the Appellants returned to the District Court
and requested the entry of a "stipulation of dismissal with
prejudice" as to Fillweber. On June 8, 2000, the Appellants
requested a final stipulation of dismissal fr om the District
Court for Geronimo. The Appellants filed a notice of appeal
on June 21, 2000.
_________________________________________________________________

1. We note that although they voluntarily withdrew their appeal,
Appellants did not seek to reinstate it. The fact that they "reserved the
right to refile said appeal at such time as the Order of December 14,
1999, becomes final within the meaning of 29 U.S.C. S 1291 or is
certified by Judge Politan" is irrelevant.The requirements of F.R.A.P. are
not discretionary. Such limitations are"mandatory and jurisdictional,"
and parties filing notices of appeal cannot r eserve the right to refile
them
more than thirty (30) days after a final judgment. Krebs Chrysler-
Plymouth, Inc., v. Valley Motors, Inc., 141 F.3d 490, 495 (3d Cir. 1998).

                                5
II. Jurisdiction and Final, Appealable Or ders

For purposes of appellate jurisdiction, we must determine
first whether there was a final order entered in this case
and, if so, when it became appealable. Federal law provides
that we shall have jurisdiction over appeals fr om "all final
decisions of the District Courts of the United States." 28
U.S.C. S 1291. A decision is consideredfinal for purposes of
section 1291 when the District Court's decision"ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment." Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 710-11, 116 S.Ct. 1712, 1718 (1996);
see also Van Cauwenberghe v. Biar d, 482 U.S. 517, 521,
108 S.Ct. 1945, 1949 (1988); Aluminum Com. of America v.
Beazer East Inc., 124 F.3d 551, 557 (3d Cir. 1997); Christy
v. Horn, 115 F.3d 201, 203 (3d Cir . 1997). Conversely, if the
order specifically contemplates further activity by the
District Court, it is not considered final. If the order
contemplates only ministerial actions by the District Court
however, finality may exist. See Paiewonsky Assoc. Inc. v.
Sharp Props. Inc. 998 F.2d 145, 150 (3d Cir. 1990).

An order dismissing a case outright is, of course, final
and appealable. Trent v. Dial Med. of Florida et al., 33 F.3d
217, 220 (3d Cir. 1994) (citing Ingersoll-Rand Fin. Corp. v.
Callison, 844 F.2d 133, 134-35 & n.1 (3d Cir. 1988)). We
have even indicated that dismissals "without pr ejudice"
may be final and appealable if the District Court believes its
ruling ends the litigation. See id. (citing United States v.
Wallace & Tiernan Co., 336 U.S. 793, 794 n.1, 69 S.Ct.
824, 825 n.1 (1949)). We have cautioned, however, that
such dismissals could not be appealable until the party
seeking relief renounces any intention to reinstate
litigation. Id.; see also Tier nan v. Devoe, 923 F.2d 1024,
1031 (3d Cir. 1991).

III. The March 1, 2000 Order

Buckley Broadcasting initially argues that the March 1,
2000, order required no further action by the District Court
and was therefore final and appealable on that date.
Buckley Broadcasting points out that the Mar ch 1, 2000
order dismissed the case, leaving it open only so that the

                               6
District Court may, upon a showing of good cause, r etain
jurisdiction if a settlement was not consummated.
Additionally, they suggest that the March 1st order did not
reserve for the District Court the jurisdiction to re-examine
the case on the merits, or the ability to enter any further
substantive orders; the Court expressly closed the case.

However, the District Court dismissed all claims without
prejudice, giving the Appellants sixty (60) days to reinstate
their action if a settlement was not reached. This condition
is problematic. When a District Court dismisses a case
pending settlement, and grants the Appellants leave to re-
file within a set period of time, the order cannot be
considered final for the purposes of appeal on the date it
was entered. Typically, conditional dismissals based on
imminent settlement include a fixed period of time to reach
settlement terms. While these types of dismissals may keep
the parties' "feet to the fire" by giving them a deadline to
conclude settlement, they cannot be consider ed final.
Instead, if terms are reached, and/or the plaintiff makes no
attempt to re-open the litigation, the or der ripens into a
final, appealable order upon the expiration of the fixed time
period.

It is a "well-settled principle" in this cir cuit that an order
dismissing a complaint without prejudice is not a final and
appealable order unless, for example, the plaintiff no longer
can amend the complaint because the statute of limitations
has run or if the plaintiff has elected to stand on their
pleadings. In re Westinghouse Secs. Litig., 90 F.3d 696, 705
(3d Cir. 1996); see also Bethel v. McAllister Bros. Inc., 81
F.3d 376, 381 (3d Cir. 1996); Deutsch v. United States, 67
F.3d 1080, 1083 (3d Cir. 1995); Pr esbytery of N.J. Orthodox
Presbyterian Church v. Florio, 40 F .3d 1454, 1461 & n.6 (3d
Cir. 1994); Batoff v. State Far m Ins. Co., 977 F.2d 848, 851
n.5 (3d Cir. 1992); Welch v. Folsom, 925 F.2d 666, 668 (3d
Cir. 1991); Newark Branch, N.A.A.C.P . v. Harrison, N.J., 907
F.2d 1408, 1416-17 (3d Cir. 1990). While the order of
dismissal in this case was not final and appealable when it
was entered, we find the Appellants' failur e to do anything
in the subsequent sixty (60) day period akin to standing on
their complaint, thereby making the order both final and
appealable on May 1, 2000.

                               7
Federal Rule of Appellate Procedure 4 instructs that "in
a civil case . . . the notice of appeal requir ed by Rule 3
must be filed with the district clerk within 30 days after the
judgment or order appealed from is enter ed." F.R.C.P.
4(a)(1)(A). An untimely appeal does not vest an appellate
court with jurisdiction. See Browder v. Director, Dep't of
Corr., 434 U.S. 257, 264 (1978); Mar cangelo v. Boardwalk
Regency, 47 F.3d 88, 91 (3d Cir. 1995). Since the order
became final and appealable on May 1, 2000, the notice of
appeal filed by the Appellants on June 21, 2000, was not
timely. We lack jurisdiction to review this case and will,
therefore, dismiss.

The Appellants argue that their filing and
communications with the District Court clearly indicated
that the litigation was not to be consideredfinal until the
filing of stipulations of dismissal with pr ejudice. As
evidence of this intention, they refer to an ex parte letter
sent to the District Court on March 1, 2000, in which the
Appellants outlined their plans to achieve settlement with
the remaining defendants, Geronimo and Fillweber. We are
not persuaded. The judicial process works best when orders
mean what they say. See Adams v. Lever Br os. Co., 874
F.2d 393, 395 (7th Cir. 1989). The District Court's order is
clear and unambiguous. Just as parol evidence is excluded
in contracts cases when the plain language is clear , so too
this type of ex parte evidence about a party's intentions
must be considered irrelevant to an unequivocal and final
order.

Finally, the filing of "stipulations of voluntary dismissal
with prejudice" on May 4, 2000, and on June 8, 2000, do
nothing to rescue the untimely notice of appeal. We view
them as superfluous. Geronimo and Fillweber were already
dismissed from this case on March 1, 2000.

IV. Conclusion

The March 1, 2000, dismissal order in this case is final
and became appealable on May 1, 2000. Because the
Appellants did not file their notice of appeal until June 21,
2000, we lack the requisite jurisdiction to adjudicate this
appeal. Consequently, this appeal is dismissed.

                               8
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               9
