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


6-12-2007

Gunser v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1226




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 06-1226


            PAUL GUNSER; SHAWN DOUGHERTY; ALBERT PRICE;
          JOSEPH ALLAN; JOSEPH MCGINTY; ANTHONY KOWALSKI

                                         v.

             CITY OF PHILADELPHIA; PHILADELPHIA POLICE
          DEPARTMENT; SYLVESTER JOHNSON, IN HIS INDIVIDUAL
           CAPACITY; JUDY DUNN; CHARLES FEGGINS; MICHAEL
                      GELOVICH; MAURICE LANIER

                                Paul Gunser, Albert Price,
                           Joseph Allan and Anthony Kowolsky,
                                                Appellants


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            D.C. Civil No. 04-cv-03548
                 District Judge: The Honorable Cynthia M. Rufe.


                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 21, 2007


            Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges

                           (Opinion Filed: June 12, 2007)




  *
   The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
                                         OPINION



BARRY, Circuit Judge

       Appellants contest the District Court’s grant of summary judgment in favor of

Appellees on Appellants’ claims of First Amendment retaliation, violation of due process,

and malicious prosecution. For the reasons that follow, we will affirm.

                                             I.

       Appellants are four current and former Philadelphia police officers who

investigated the May 2000 collapse of a nightclub and restaurant into the Delaware River.

In the course of their investigation, they recovered eight beer kegs from the river and

subsequently redeemed them for cash, allegedly allocating the monies to a police coffee

fund. Several weeks later, an anonymous letter was sent to the Pennsylvania Attorney

General accusing the officers of improper “diverting of evidence,” and accusing Sergeant

Shawn Dougherty of engaging in non-work-related activities while on duty.

       An internal investigation followed. Dougherty was criminally prosecuted and

acquitted, but was nevertheless dismissed; the Fraternal Order of Police (“FOP”) filed a

grievance that was ultimately settled. Meanwhile, Appellants were transferred out of the

Marine Unit for impeding the investigation, and the FOP filed a separate grievance on

their behalf. After Appellants told internal investigators that they would testify on

Dougherty’s behalf, formal disciplinary proceedings were instituted against them. They

                                             2
ultimately settled their grievance, including the disciplinary proceedings, by agreeing to

waive any legal claims they might have arising out of the subject matter of the grievance.

Pursuant to the settlement agreement, Appellants’ records were expunged; two of the

Appellants were transferred back to the Marine Unit, and two others received small cash

payments.

       Appellants, together with Dougherty and another officer, Joseph McGinty, filed

this § 1983 lawsuit on July 23, 2004 against the City of Philadelphia, the Philadelphia

Police Department and its Commissioner in his official capacity, and four police officers

whom Appellants accuse of sending the anonymous letter (collectively, “Appellees”).

The complaint alleged claims for First Amendment retaliation, violation of due process,

and malicious prosecution. Appellees filed an answer and counterclaim for breach of

contract and tortious interference with contractual relations.

       After limited discovery, Appellees filed a motion for summary judgment and two

supplemental motions for summary judgment. The District Court, by order dated

November 15, 2005, granted partial summary judgment in favor of Appellees as to all

claims brought by Appellants and McGinty, but denied summary judgment as to

Dougherty’s malicious prosecution claim. By order dated December 15, 2005, the

District Court directed the clerk to terminate Appellees’ supplemental motions for

summary judgment as having been decided by the Court’s November 15, 2005

memorandum and order. Appellants filed a notice of appeal on January 13, 2006. The

remaining parties (Dougherty and Appellees) settled their dispute on October 12, 2006,

                                              3
and a final order of dismissal was entered the following day.

                                             II.

                                             A.

       As a threshold matter, Appellees argue that we lack jurisdiction over this appeal

because Appellants filed their notice of appeal more than 30 days after the District

Court’s November 15, 2005 order. Appellants respond that their notice of appeal was

timely filed within 30 days of the District Court’s December 15, 2005 final order. We

disagree with both views, finding, instead, that the final order from which the appeal

should have been taken was the October 12, 2006 order dismissing the remaining claims

between Dougherty and Appellees.

       When an order of a district court disposes of fewer than all claims or claims

against fewer than all parties, an aggrieved party generally may not immediately appeal

unless the district court expressly determines that there is no just cause for delay and

expressly directs entry of final judgment. Fed. R. Civ. P. 54(b); Carter v. City of Phila.,

181 F.3d 339, 343 (3d Cir. 1999). A statement of reasons must accompany the entry of

final judgment under Rule 54(b). Carter, 181 F.3d at 343. No Rule 54(b) certification or

statement of reasons accompanied the November 15, 2005 or December 15, 2005 orders,

so we conclude that the October 12, 2006 order of dismissal was the District Court’s final

judgment. Because Appellants filed their notice of appeal before the entry of final




                                              4
judgment, their appeal is timely. Fed. R. App. P. 4(a)(2).1

                                             B.

       In their prior settlement agreement, Appellants released Appellees from “any

claims [Appellants] had, have, or may have against [Appellees] arising out of the subject

matter of the aforementioned grievance and demand for arbitration.” (Appellants’ App. at

51.) Appellants argue that the grievance contested only their improper transfer out of the

Marine Unit. Thus, they contend, the settlement agreement, in which the FOP agreed to

withdraw its grievance of their improper transfer, did not purport to settle other

employment-related claims that Appellants might have, such as claims for allegedly

retaliatory investigations and disciplinary charges.

       We construe releases according to principles of state contract law, insofar as state

law is consistent with federal objectives. Three Rivers Motors Co. v. Ford Motor Co.,

522 F.2d 885, 892 (3d Cir. 1975). Under Pennsylvania law, our guiding concern when

construing the scope of a release is to honor the parties’ intent. Id.; A.G. Cullen Constr.,

Inc. v. State Sys. of Higher Educ., 898 A.2d 1145, 1167 (Pa. Commw. Ct. 2006). We do

this by looking at the language of the release and the circumstances surrounding its

execution. A.G. Cullen, 898 A.2d at 1167. The language of a larger settlement



   1
     The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §
1983, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District
Court’s grant of summary judgment de novo, and will affirm only if there is no genuine
issue of material fact and Appellees are entitled to judgment as a matter of law. Davis v.
Mountaire Farms, Inc., 453 F.3d 554, 556 (3d Cir. 2006).
                                              5
agreement into which the release is incorporated may also provide key insight into the

parties’ intent. Id. at 1167-68; see also, e.g., Rossi v. Pa. Unemployment Comp. Bd. of

Review, 676 A.2d 194, 197 (Pa. 1995).

       The release here forecloses claims against Appellees “arising out of the subject

matter of the aforementioned grievance and demand for arbitration.” (Appellants’ App. at

51.) We must determine, therefore, the scope and “subject matter” of the grievance and

demand for arbitration. There is no dispute that, at least initially, the grievance

challenged only Appellants’ transfer out of the Marine Unit. (See id. at 132; see also id.

at 133-34 (dating the disciplinary proceedings after the filing of the grievance).)

Appellees contend, however, that in the course of the grievance proceedings, Appellants

also argued that the disciplinary proceedings against them were improper. To verify that

Appellants did, in fact, raise this issue in the grievance proceedings, we need look no

further than the unambiguous language of the settlement agreement.

       The settlement agreement provided that in consideration of the FOP agreeing to

withdraw its grievance, Appellees agreed to rescind the disciplinary charges and expunge

Appellants’ official records. (Id. at 50.) Thus, the settlement agreement resolved, not

only the grievance, but also the disciplinary proceedings against Appellants. It did so,

moreover, pursuant to the parties’ express “desire to resolve this matter without resort to

further litigation.” (Id. at 49 (emphasis added).) We think it clear, therefore, that the

parties to the settlement agreement viewed “this matter” as encompassing both the

contested transfer of Appellants out of the Marine Unit, and the disciplinary charges

                                              6
pending against them. This was the “subject matter” of the grievance and arbitration

proceedings at the time the parties executed their settlement agreement.

       We easily conclude, therefore, that the parties intended to foreclose the very type

of claims that Appellants now assert. That Appellants did not previously raise these

precise claims is irrelevant. The propriety of the disciplinary action against Appellants

was part of the subject matter of the grievance, and their current claims, which raise but a

new challenge to the propriety of the disciplinary proceedings, clearly arise out of that

subject matter. The parties’ express intention to resolve that matter “without resort to

further litigation” controls, and we conclude that Appellants have waived their current

claims.2

                                            III.

       For the foregoing reasons, we will affirm the final judgment of the District Court

granting summary judgment to Appellees as to all of Appellants’ claims.




   2
      To the extent that our caselaw requires us to consider the totality of the
circumstances surrounding the execution of the settlement agreement, see W.B. v. Matula,
67 F.3d 484, 497 (3d Cir. 1995), we find that Appellants’ waiver of the type of claims
that they now assert was knowing and voluntary.
                                             7
