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


7-9-2001

Bass v. Butler
Precedential or Non-Precedential:

Docket 00-1860




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Recommended Citation
"Bass v. Butler" (2001). 2001 Decisions. Paper 149.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/149


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Filed July 9, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1860

DIANNE L. BASS, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Appellant

v.

JOHNNY BUTLER, SECRETARY OF
LABOR AND INDUSTRY FOR THE
COMMONWEALTH OF PENNSYLVANIA; RICHARD A.
HIMLER, DIRECTOR OF THE PENNSYLVANIA BUREAU
OF WORKERS' COMPENSATION; COMMONWEALTH OF
PENNSYLVANIA, THROUGH D. MICHAEL FISHER,
ATTORNEY GENERAL, IN HIS OFFICIAL CAPACITY

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 98-cv-4112
District Judge: Honorable Charles R. Weiner

Argued: January 23, 2001

Before: NYGAARD, ALITO, and ROSENN,
Circuit Judges.

(Filed: July 9, 2001)
       For the Appellant:
        Michael H. Landis, Esquire
         (Argued)
        Ronald J. Smolow, Esquire
        Smolow & Landis
        204 Two Neshaminy Interplex
        Trevose, PA 19053

       For the Appellees:
        Claudia M. Tesoro, Esquire
         (Argued)
        Office of the Attorney General
        21 South 12th Street, 3rd Floor
        Philadelphia, PA 19107-3603

OPINION OF THE COURT

ROSENN, Circuit Judge.

Dianne Bass ("Bass"), alleging that the Pennsylvania
Workers Compensation system denied her benefits through
unconstitutional procedures, filed this federal class action
against the Commonwealth of Pennsylvania and two of its
officials. Bass complained that the Pennsylvania Bureau of
Workers Compensation denied her claim without notice
that her case was reassigned to, and decided by, workers
compensation judges ("WCJs") who were neither present
nor presiding when her witnesses testified. Bass also
complained that the Pennsylvania statute allowing WCJs to
make credibility determinations and ultimate decisions
without hearing any witness testimony permitted the taking
of property without Due Process of law. 1 Bass sought
_________________________________________________________________

1. The statute in question is referr ed to as "Section 415 of the Workers
Compensation Act," and states:

       Transfer of petition to another refer ee.

       At any time before an award or disallowance of compensation or
       order has been made by a referee to whom a petition has been
       assigned, the department may order such petition heard before any
       other referee. Unless the department shall otherwise order, the
       testimony taken before the original refer ee shall be considered as
       though taken before the substituted refer ee.

       77 P.S. S 851 ("Section 415").

                               2
declaratory and injunctive relief, costs, and attorneys fees,
but no damages.

The District Court, dismissing Bass's action without
prejudice, abstained in deference to appellate proceedings
in the Pennsylvania courts. Bass filed a motion for
reconsideration, which the District Court denied. Since the
District Court's order of dismissal and denial of
reconsideration, Bass has unsuccessfully exhausted her
state court remedies. Bass appealed from the order denying
reconsideration. We will vacate the or der of dismissal and
remand the action for further proceedings.

I.

The first filed action was Bass's state court claim for
workers compensation benefits. She filed her federal action
approximately six years later. T iming is critical in this
action, so important dates will be stated. None of the facts
are contested by the parties.

A. The Pennsylvania Action

Bass filed a workers compensation claim petition on
November 30, 1992, alleging that she sustained a
workplace injury on December 20, 1990; she later amended
the date of injury to January 8, 1991. The parties
bifurcated the issue of whether Bass sustained her injury
in the scope of her employment. On October 28, 1994,
Workers Compensation Judge ("WCJ") Car ol Mickey held
that Bass was injured within the scope of her employment.
Before deciding the balance of Bass's case, WCJ Mickey
resigned, and Bass's case was transferr ed to WCJ Peter
Perry. WCJ Perry received additional testimony and
evidence but, before closing the recor d, he transferred the
case to WCJ Michael Rosen. Bass was never notified of the
transfer to WCJ Rosen, as required by Pennsylvania law.

After more than five and one-half years had elapsed since
filing her claim, two judges who had never hear d the
claimant or all of her witnesses jointly signed a decision on
August 8, 1996, denying Bass's claim. The Workers
Compensation Appeal Board ("Appeal Boar d") affirmed.
Bass appealed, arguing, inter alia, that she was denied due

                               3
process by the participation of WCJ Rosen. The
Commonwealth Court vacated the Appeal Board's order and
remanded to allow Bass to establish prejudice arising from
the assignment of her claim to WCJ Rosen without notice.
See Appx. 325a ("Commonwealth Court's First Opinion").
The Appeal Board, after considering oral ar gument and
briefs, concluded that Bass failed to establish pr ejudice.
See Appx. 83a, 155a. The Appeal Board r einstated the
August 8, 1996 order denying relief. On February 18, 2000,
the Commonwealth Court affirmed the Appeal Board,
stating:

       In Bass' [sic] first appeal to this court, we addressed
       her challenge to the assignment of WCJ Rosen without
       prior notice to her. . . . At that time, Bass received the
       appropriate relief in the form of a remand for a
       determination of whether the assignment to WCJ
       Rosen without . . . prior notice . . . resulted in
       prejudice. . . . As the Board noted, on r emand Bass
       failed to make any showing of prejudice but simply
       argued that substitution is inherently pr ejudicial. . . .

       . . . Bass cannot now assert for the first time that
       Section 415 of the Workers' Compensation Act is
       unconstitutional. By her failure to challenge the
       constitutionality of Section 415 in her first appeal to
       this court and failure to notify the Attor ney General of
       a facial attack on the statute, Bass has waived this
       issue. . . . In any case, . . . the participation of WCJ
       Rosen did not deprive Bass of a fair adjudication by a
       qualified fact-finder.

Appx. 156a-159a ("Commonwealth Court's Second
Opinion"). The Court concluded that even though her facial
challenge was procedurally barred, Section 415 was
constitutional. See Appx. 159a. The Commonwealth Court
also rejected Bass's claim that she was entitled to discovery
to create an evidentiary record in support of her claim of
actual prejudice. The Court reasoned that Bass was not
entitled to inquire into the deliberations of the tribunals
that decided her case. See Appx. 159a.

The Pennsylvania Supreme Court denied Bass's petition
for allocatur.

                               4
B. The Federal Action

Bass brought her federal action under 42 U.S.C.S 1983
against the Director of the Pennsylvania Bur eau of Workers
Compensation, the Secretary of Labor and Industry for the
Commonwealth of Pennsylvania, and the Commonwealth of
Pennsylvania. None of these defendants were parties to her
workers compensation action in the state proceedings.
Johnny Butler and Richard Himler, the Secretary of Labor
and Director of the Pennsylvania Bureau of Workers
Compensation respectively, twice moved to dismiss without
success; they later answered the complaint. In a
Memorandum and Order on April 30, 1999, the District
Court held that Bass pleaded a protected pr operty interest,
and that Younger and Colorado River abstention were
inappropriate because the workers compensation
proceedings were still in the administrative courts, which
had no authority to decide constitutional issues. See Appx.
173a-175a.

The District Court held hearings on August 30 and
September 7, 1999. WCJs Peter Perry and Michael Rosen
testified about their roles in Bass's workers compensation
case. WCJs Perry and Rosen testified that they had jointly
authored the decision denying Bass's benefits, although
WCJ Mickey had heard most of the live testimony.

On January 6, 2000, the District Court directed the
parties to file dispositive motions; the parties complied. On
February 3, 2000, the District Court entered an order
stating that:

       [T]he interests of comity would best be served by
       allowing the Pennsylvania courts (in which [Bass]
       currently has an action similar to action sub judice
       pending before the Commonwealth Court) . . . tofirst
       adjudicate [Bass's claim that her due process rights
       were denied because her case was not decided by a
       WCJ who actually heard the case and observed the
       witnesses and to determine] the constitutionality of
       Section 415 . . . .

Appx. 271a. The District Court dismissed Bass's case
without prejudice to her "reinstating the suit after all
appeals are exhausted in the Pennsylvania state courts."

                                5
Appx. 271-72. Days later, the Commonwealth Court
decided Bass's second appeal adversely to her . She moved
the District Court for reconsideration. On May 18, 2000,
the District Court denied the motion for reconsideration,
and ordered that it would continue to abstain because Bass
had not exhausted all of her appeals in the Pennsylvania
courts, and because "the decision of the Commonwealth
Court which rejected plaintiff's due pr ocess claims and
upheld the constitutionality of [Section 415] is res judicata
on this court." Appx. 284. The District Court cited Younger
v. Harris, 401 U.S. 37 (1971) and Colorado River Water
Conserv. Dist. v. United States, 424 U.S. 800 (1976), but
performed no further abstention analysis. See Appx. 283a.
The District Court explained that Bass's only further
recourse was to appeal her state action to the Pennsylvania
and United States Supreme Courts. See Appx. 284a.

II.

Bass's compensation claim has now run the course of
Pennsylvania's judicial system, from the workers
compensation process to the Pennsylvania Supr eme Court.
After the District Court entered its final or der, the
Pennsylvania Supreme Court denied allocatur; there are no
longer pending state proceedings. Cf. Melvin v.
Nickolopoulos, 864 F.2d 301, 305 (3d Cir . 1988) ("[W]e
sometimes take judicial notice of subsequent developments
not part of the district court record.") (citing Landy v.
Federal Deposit Ins. Corp., 486 F.2d 139, 151 (3d Cir.
1973), cert. denied, 416 U.S. 960 (1974)). Hence, abstention
is now inapplicable because it provides for federal deference
to ongoing, not completed, parallel state pr oceedings. See
Younger v. Harris, 401 U.S. 37 (1971); Colorado River Water
Conserv. Dist. v. United States, 424 U.S. 800 (1976);
Guarino v. Larsen, 11 F.3d 1151, 1157, 1157 n.1 (3d Cir.
1993). As the District Court contemplated (see order of
February 3, 2000), Bass may now resume her federal
action. The primary basis of Bass's appeal -- that
abstention was inappropriate -- is moot. Ther efore, vacatur
and remand is appropriate. See Davis v. Rendell, 659 F.2d
374, 376 (3d Cir. 1981) ("[T]he issues raised as to the
procedure followed by the district court in ruling on the

                               6
abstention claim and the correctness of that ruling itself
are concededly moot, and a remand would appear to be
appropriate"); see also Melvin, 864 F.2d at 305 ("[W]e do not
think it would be appropriate for us to simply notice the
subsequent action of the New Jersey court and then decide
the preclusion issue.")

The District Court did not proceed beyond abstention in
considering this case,2 but the defendants on appeal raised
serious questions, asserting that the Commonwealth
Court's decisions are inextricably intertwined with Bass's
attempted federal court Constitutional challenges to Section
415. Therefore, they contend that her challenges to the
workers compensation law is barred by the Rooker-Feldman
doctrine. The defendants also assert complicated questions
pertaining to claim and issue preclusion, even though the
defendants in the federal action appear to dif fer somewhat
from those in the state action. See Chur chill v. Star
Enterprises, 183 F.3d 184, 194 (3d Cir . 1999) (claim
preclusion requires party identity or privity). Each of these
defenses are vigorously contested by the plaintiffs. In the
procedural posture of the case then befor e the able and
experienced District Court, it did not have the benefit of
oral argument, briefs of the parties, and the opportunity to
decide these complex issues. Additionally, we ar e concerned
with class certification and the justiciability of the class
claims, which the District Court judiciously held in
abeyance.

Under the facts and posture of the case, we believe it
appropriate for the District Court to deter mine in the first
instance the threshold issues, including jurisdiction,
preclusion, and class certification. Of course, if Bass passes
the threshold, she will be entitled to full judicial process on
the merits. The prudential value of having the benefit of
District Court consideration and analysis outweighs the
_________________________________________________________________

2. The District Court mentioned res judicata in its final order, but the
comment was dicta and was unsupported by any rationale. In this case,
res judicata is a difficult question r equiring substantial analysis if
the
District Court reaches it on remand. The District Court would not reach
it should the Court conclude that the Rooker -Feldman doctrine divests it
of subject matter jurisdiction.

                               7
judicial economy of having this Court dispose of these
issues now.3

Ordinarily, we would dismiss this appeal because a stay
like the one entered by the District Court her e usually is
not a final order for purposes of 28 U.S.C.S 1291. However,
because of the inordinate time consumed by this litigation
in the state and federal courts, and the District Court's
order dismissing without prejudice to r einstatement of the
litigation after exhaustion of remedies in the state courts,
we will remand the case to the District Court. 4

III.

The Order of the District Court will be vacated, and the
case remanded for further proceedings consistent with this
opinion. Costs taxed against the appellees.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
3. We make no judgment whether the District Court committed legal
error by abstaining. We base our decision on undisputed events
occurring after the District Court entered itsfinal order.

4. Our disposition has the same practical ef fect as dismissing the
appeal,
and leaves Bass in the same position as if she r e-filed her action in
federal court following the Pennsylvania courts' disposition of her state
claims. There being "no unyielding jurisdictional hierarchy," Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 578 (1999), we are within our power
to decide the jurisdictional issue of mootness befor e reaching the much
more complicated issue of whether we have appellate jurisdiction. Cf.
Steel Co. v. Citizens for Better Environ., 523 U.S. 83, 101 n.3 (1998)
(tacitly affirming the practice of deciding Younger abstention issues
before determining whether there is a case or controversy). Judge Alito
would dismiss the appeal.

                                8
