                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-1998

In Re: City of Phila
Precedential or Non-Precedential:

Docket 96-1978




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Recommended Citation
"In Re: City of Phila" (1998). 1998 Decisions. Paper 222.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/222


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Filed September 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1978

IN RE: CITY OF PHILADELPHIA LITIGATION
(D.C. Civil No. 85-cv-02745)

RAMONA AFRICA

       Appellant

v.

CITY OF PHILADELPHIA; WILLIE GOODE; LEO A.
BROOKS; GREGORE SAMBOR; WILLIAM RICHMOND;
FRANK POWELL, LT.; WILLIAM KLEIN, OFFICER;
MICHAEL TURSI, OFFICER; ALBERT REVEL, SGT.;
EDWARD CONNOR, SGT.; MORRIS DEMSKO, CORPORAL;
RICHARD REED, STATE TROOPER, Individually and in
their present and/or former official capacities
(D. C. Civil No. 87-cv-02678)

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. Nos. 85-cv-02745 & 87-cv-02678)

Argued
January 27, 1998

Before: MANSMANN, COWEN and ALITO, Circuit Judges.

(Filed September 9, 1998)
       Andre L. Dennis, Esquire (ARGUED)
       Danielle Banks, Esquire
       Stradley, Ronon, Stevens & Young
       2600 One Commerce Square
       Philadelphia, PA 19103
        Counsel for Appellant

       Judith E. Harris, Esquire (ARGUED)
       Morgan, Lewis & Bockius
       2000 One Logan Square
       Philadelphia, PA 19103
        Counsel for Appellees:
        City of Philadelphia,
        Gregore J. Sambor and
        William C. Richmond

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In a companion case decided today, we relate the salient
facts surrounding the disastrous confrontation between the
City of Philadelphia police and the members of MOVE. See
In re City of Phila. Litig., ___ F.3d ___ (3d Cir. 1998).
Although dozens of claims emerged from the ashes and
rubble of 6221 Osage Avenue in West Philadelphia, the
present appeal brings before us only the judgment entered
against Ms. Ramona Africa and in favor of defendants
William Richmond, the former City of Philadelphia Fire
Commissioner, and Gregore Sambor, the former City of
Police Commissioner, on Ms. Africa's state law battery
claim.

The issue we are called upon to decide in this appeal is
whether Ms. Africa has properly raised and preserved any
right she may have had to a jury trial on the issue of willful
misconduct in relation to her battery claim against
Richmond and Sambor. In addition, we must determine
whether the district court erred in determining that Ms.
Africa failed to show willful misconduct by a preponderance
of the evidence. Because we conclude that Ms. Africa has
failed to properly raise and preserve any right to a jury trial

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that she may have had on the willful misconduct issue and
because we find that the district court did not err in ruling
on willful misconduct, we will affirm the judgment entered
in favor of Richmond and Sambor.

I.

We begin our review with an abbreviated recitation of the
procedural history relevant to this appeal. On October 6,
1993, the magistrate judge assigned to this case
recommended granting summary judgment to all individual
defendants on the state law claims except Richmond and
Sambor because each was immune from common law tort
liability. In re City of Phila. Litig., 849 F. Supp. 331, 364
(E.D. Pa. 1994). He recommended denying summary
judgment as to Richmond and Sambor because there was
evidence that their decision not to extinguish the fire on the
roof of the MOVE compound constituted "willful
misconduct," conduct that would preclude them from
obtaining official immunity from the state law claims under
Pennsylvania law. See 42 Pa. Cons. Stat. Ann. S 8550 (West
1982). The district court adopted the magistrate judge's
recommendation with respect to Richmond and Sambor
and denied them summary judgment on the state law
claims.

After various appeals, remands, and pre-trial decisions,
Richmond and Sambor filed motions requesting that the
district court reconsider its summary judgment order
denying them judgment as a matter of law based on official
immunity. The district court denied these motions in a
bench opinion delivered on January 18, 1996. See In re
City of Phila. Litig., 938 F. Supp. 1264 (E.D. Pa. 1996). The
court found that there was evidence suggesting that
Richmond and/or Sambor deliberately disregarded an order
from General Brooks to put out the fire. Such obvious
insubordinate conduct, according to the district court,
could establish willful misconduct -- intentional conduct
known to be wrong -- because a reasonable factfinder
could infer from the decision to flout a direct order that
they knew their conduct was "an excessive response to the
law enforcement requirements" yet intentionally proceeded

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with that course of conduct despite this knowledge. Id. at
1276-77.

In denying Richmond and Sambor's motions for
reconsideration, the district court also determined that,
under Pennsylvania law, the issue of willful misconduct
must be decided by the court rather than by a jury. Id. at
1270, 1277-78. The court concluded that the reference to a
judicial determination of willful misconduct in
Pennsylvania's Political Subdivision Tort Claims Act
(PSTCA) mandates that the court decide the issue. Id.; see
also 42 Pa. Cons. Stat. Ann. S 8550 (West 1982).

A flurry of motions for reconsideration and motions in
limine followed the court's decision denying reconsideration
of its summary judgment determination. None of the initial
motions for reconsideration, however, questioned the
court's determination that the issue of willful misconduct
was to be determined by the court.1 In a motion in limine
filed on March 19, 1996, Sambor first took issue with the
court's decision that it would determine the issue of willful
misconduct. Sambor argued that, under Pennsylvania law,
the issue of willful misconduct should be decided by a jury.
In response to this motion in limine, Ms. Africa advocated
that the court deny Sambor's request for a jury
determination on willful misconduct. In a pretrial
conference on March 26, 1996, the court again made clear
that, based upon its interpretation of the PSTCA, the court
was required to determine the issue of willful misconduct.
Ms. Africa made no objection to the court's determination
at that time.

At a pretrial hearing on March 27, 1996, Sambor
submitted a letter memorandum to the court taking issue
with the timing of a bench determination on willful
misconduct and arguing that any bench determination
_________________________________________________________________

1. Sambor filed a motion for reconsideration on January 22, 1996 which
made no reference to the court's determination that it would decide the
issue of willful misconduct. Likewise, Ms. Africa's response to the
defendants' motions filed on January 25, 1996 took no exception to this
ruling. The parties did not include Richmond's January 23, 1996 motion
for reconsideration in their appendices in this appeal; Ms. Africa has not
contended, however, that Richmond's motion raised this issue.

                                4
must be made after the jury had considered the merits of
the state law claims. The court accepted Sambor's
submission and requested that the other parties submit
their views on this issue. Richmond subsequentlyfiled a
memorandum reiterating Sambor's position. Ms. Africa
responded on April 11, 1996 in a "Response to Defendant's
Motions . . . and Motion for Reconsideration of the January
18, 1996 Bench Ruling," raising several points relating to
the burden of proof on willful misconduct. In one sentence,
in the conclusion of her response, Ms. Africa requested that
the issue of willful misconduct, if raised, be submitted to
the jury. Ms. Africa cited no authority for this request. In a
supplemental submission filed on April 15, 1996, Ms. Africa
made no specific demand that the willful misconduct issue
be determined by a jury.

At a pretrial conference on April 18, 1996, the court
outlined the procedure it intended to follow with respect to
the battery claim. The court explained that the jury would
first decide the substantive state law claims. If the jury
found against Richmond and/or Sambor, the court would
then decide the issue of willful misconduct, conforming its
findings, if necessary, to the jury's findings. No objections
were made to this procedure at that time.

On June 24, 1996, the jury returned a verdict against
Richmond and Sambor on the battery claim, thus
necessitating a ruling on official immunity. In an opinion
and order dated August 27, 1996, the district court held
that because plaintiffs failed to carry their burden of
establishing willful misconduct, Richmond and Sambor
were entitled to official immunity on the battery claim. In re
City of Phila. Litig., 938 F. Supp. 1278, 1290-93 (E.D. Pa.
1996). The court held that the claims against Richmond
failed because the trial testimony dispelled any possibility
that Richmond willfully disregarded Brooks' order.2 Id. at
_________________________________________________________________

2. The question of whether Richmond had received Brooks' order and
subsequently disregarded it was disputed at the summary judgment
stage due to Sambor's testimony before the MOVE Commission that
Richmond was present when Brooks ordered Sambor to put out the fire.
Sambor recanted this testimony at trial, acknowledging that his
testimony before the MOVE Commission was erroneous. Richmond's
testimony that he instructed his firefighters to extinguish the fire as
soon as he received orders to do so was therefore undisputed at trial.

                               5
1290. As to Sambor, the district court weighed the evidence
and concluded that plaintiffs did not establish by a
preponderance of the evidence that Sambor committed
willful misconduct. The district court specifically credited
Sambor's testimony that he and Richmond agreed to let the
fire neutralize the bunker before receiving any order from
Brooks to extinguish the fire. Id. at 1292-93. The district
court accordingly entered judgment in favor of Richmond
and Sambor on the battery claim on August 28, 1996. Ms.
Africa timely filed this appeal from that final judgment.

Ms. Africa asserts that the district court erred in failing
to submit the issue of willful misconduct to a jury. In
addition, she challenges the district court's legal and
factual determinations in relation to its ruling on willful
misconduct. Because we find that Ms. Africa failed to
properly raise and preserve any right she may have had to
a jury trial on the issue of willful misconduct and that the
district court's legal and factual determinations on willful
misconduct were not erroneous, we will affirm the district
court's judgment in favor of Richmond and Sambor.

II.

The right to a jury trial in federal court, regardless of
whether the claim arises under state law, presents a
question of federal law. Simler v. Conner, 372 U.S. 221, 222
(1963) (per curiam); Cooper Labs., Inc. v. International
Surplus Lines Ins. Co., 802 F.2d 667, 671 (3d Cir. 1986).
Although the right to a jury trial is guaranteed by the
Seventh Amendment to the United States Constitution, like
all constitutional rights it can be waived by the parties.
United States v. Moore, 340 U.S. 616, 621 (1951). Unlike
other constitutional rights, however, an intentional
relinquishment of the right is not required for waiver; the
right to a jury trial can be waived by inaction or
acquiescence. See, e.g., Cooper v. Loper, 923 F.2d 1045,
1049 (3d Cir. 1991) (holding that jury trial right was waived
by acquiescence); see also 9 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure, S 2321 (2d ed.
1995) (noting that the intentional relinquishment standard
is inapplicable to waiver of the right to a trial by jury).

                               6
A.

Because the right to a jury trial in federal court is a
question of federal law, our starting point is with the
Federal Rules of Civil Procedure. Under Rule 38, in order to
preserve the right to trial by jury as declared by the
Seventh Amendment or by statute, a party must serve a
demand for a jury trial upon the other parties no later than
ten days after the last pleading directed to the issue to by
tried by the jury. Fed. R. Civ. P. 38. If the party does not
specify which issues are to be tried by a jury, the party will
be deemed to have demanded trial by jury on all issues. Id.
Once a demand for a jury trial properly has been made, all
issues will be tried to a jury unless the parties consent to
a non-jury trial or the court finds that a right to a jury trial
on some or all of the issues does not exist under the
Constitution or statutes of the United States. See Fed. R.
Civ. P. 39(a).

It is undisputed that Ms. Africa included a general
demand for a jury trial in her initial complaint in
compliance with Rule 38. Ms. Africa contends that she
therefore preserved her right to have the issue of willful
misconduct determined by a jury simply because she never
consented, by oral or written stipulation as provided in
Rule 39(a), to a non-jury trial. We disagree.

Our sister courts of appeals have taken a broad approach
to interpreting Rule 39(a) and accordingly have held that a
party may waive his right to a jury trial under Rule 39(a)
not only by stipulation, but also by failing to object to a
court order. See e.g., Sewell v. Jefferson County Fiscal
Court, 863 F.2d 461, 464-65 (6th Cir. 1988) (noting that
courts have interpreted Rule 39(a) broadly and holding that
plaintiff waived right to a jury trial by failing to object to
court order setting case for bench trial). In fact, our sister
court of appeals for the Ninth Circuit has specifically
declined to read Rule 39(a) in the formalistic fashion
advocated by Ms. Africa. See White v. McGinnis, 903 F.2d
699, 701 (9th Cir. 1990). Moreover, in Cooper v. Loper, 923
F.2d 1045, 1049 (3d Cir. 1991), we joined the majority of
our sister courts in advocating waiver by acquiescence by
adopting the well established rule that a party's
participation in a bench trial without objection waives any

                                7
Seventh Amendment right to a jury trial that the party may
have had. See also Wilcher v. City of Wilmington, 139 F.3d
366, 378-79 (3d Cir. 1998) (reaffirming our adoption of the
Cooper rule).

Two considerable policy considerations counsel in favor
of adopting the rule that parties may waive their Seventh
Amendment rights by acquiescing in a judicial
determination that an issue will be tried by the court. The
first is the well established principle that it is inappropriate
for an appellate court to consider a contention raised on
appeal that was not initially presented to the district court.
See Armbruster v. Unisys Corp., 32 F.3d 768, 772 n.4 (3d
Cir. 1994); Frank v. Colt Indus., Inc., 910 F.2d 90, 99-100
(3d Cir. 1990). The second is the valid concern that a party
should not be permitted to silently acquiesce in a trial
court's plan to try an issue non-jury by failing to make a
timely objection and later demand a new trial only after it
has lost on the merits. See Cooper, 923 F.2d at 1049; see
also United Steel Workers of America, AFL-CIO v. New
Jersey Zinc Co., Inc., 828 F.2d 1001, 1008 (3d Cir. 1987)
(refusing to condone practice of awaiting court's decision on
the merits before raising jury trial issue). Promotion of such
tactics would not only lead to an unnecessary squandering
of judicial resources but would also reduce a trial court's
bench proceeding to a meaningless exercise in futility. See
Lovelace v. Dall, 820 F.2d 223, 228 (7th Cir. 1987)
(discussing policy considerations).

In keeping with these policy considerations which have
traditionally informed our Seventh Amendment
jurisprudence, we hold today that where a party has made
a general demand for a jury trial and the court
subsequently determines that a certain issue will be
determined non-jury, it is incumbent upon that party to
timely lodge a specific objection in order to preserve any
Seventh Amendment jury trial right he may have with
respect to that issue. This rule is consistent with our
general policy against ruling on an issue first raised on
appeal that the district court never had the opportunity to
consider. In addition, it preserves the integrity of the
judicial process by ensuring that judicial determinations
are given full effect and prevents the tremendous waste of

                               8
precious judicial resources that otherwise would result from
duplicitous litigation.

B.

Accordingly, once the district court determined that the
issue of willful misconduct would be determined without a
jury, it was incumbent upon Ms. Africa to timely lodge a
specific objection to that determination in order to preserve
her right to a jury trial under the Seventh Amendment. We
find that Ms. Africa failed to set forth a sufficiently timely
and specific objection to preserve any jury trial rights that
she may have had.

At oral argument before us, Ms. Africa was unable to
point to any specific objection stating that her right to a
jury trial under the Seventh Amendment would be abridged
if the court were to determine the issue of willful
misconduct. Our independent review of the record has also
failed to locate such an objection. The absence of a specific
objection on this point leads us to conclude that Ms. Africa
has waived any right she may have had to a jury trial on
the issue of willful misconduct.

Ms. Africa, however, contends that her one sentence
request in the conclusion of her response of April 11, 1996
was sufficiently timely and definite to preserve her right to
a jury trial. We disagree. By the time Ms. Africa submitted
her response, the debate as to whether the court would
determine willful misconduct was over.

The court had first announced its determination that it
would resolve the willful misconduct issue on January 18,
1996. None of the initial pleadings relating to
reconsideration of this determination, including Ms. Africa's
January 25, 1996 response to the defendants' motions for
reconsideration, objected to the court's decision that it,
rather than the jury, would determine willful misconduct.
In addition, when Sambor first objected to a judicial
determination of the issue in his March 19, 1996 motion in
limine, Ms. Africa responded by taking the position that the
issue had been conclusively determined and that Sambor's
motion in limine should therefore be denied. Finally, when
the court reiterated its position that it would determine the

                               9
issue at the March 27,   1996 pretrial hearing, Ms. Africa
made no objection. The   court therefore had every reason to
believe that, by March   27, 1996, Ms. Africa had waived any
right she may have had   to a jury trial on willful
misconduct.

Furthermore, Ms. Africa's April 11, 1996 response was
submitted in answer to the court's request that the parties
give their views on the proper sequence in trying the state
law claims. At that juncture, neither the court nor the
parties were focusing on the issue of whether willful
misconduct should be tried to a jury. The district court
should not be expected to view a passing reference in the
conclusion of this response as a valid demand under the
Seventh Amendment absent a clear and substantiated
argument relating to the grounds for such a demand.

In short, Ms. Africa's one sentence demand in a pleading
unrelated to her Seventh Amendment right to a jury trial
made almost four months after the court's initial
determination on the issue was too little too late. Her
request was not sufficiently specific to alert the court that
she was exercising any rights she may have had under the
Seventh Amendment to demand a jury trial on willful
misconduct. In addition, her request was untimely.
Accordingly, we find that Ms. Africa failed to adequately
raise and preserve any right she may have had to a jury
trial on willful misconduct.

III.

Ms. Africa also contends that the district court's decision
on willful misconduct is fraught with legal error because
the district court applied an incorrect legal standard and
failed to correctly weigh the evidence presented. Neither
contention has merit. The district court correctly
interpreted Renk v. City of Pittsburgh, 641 A.2d 289 (Pa.
1994) as requiring a subjective standard of willfulness that
calls for a showing of an intention to do what is known to
be wrong. See Sameric Corp. of Delaware, Inc. v. City of
Philadelphia, 142 F.3d 582, 600-01 (3d Cir. 1998). In
addition, the district court did not err in applying this
standard and in weighing the conflicting evidence to

                                 10
determine that Ms. Africa had failed to show willful
misconduct by a preponderance of the evidence. See In re
City of Phila. Litig., 938 F. Supp at 1290-93. Specifically,
after independently reviewing the trial testimony, we
conclude that the district court's findings that Richmond
never learned of Brooks' order to put the fire out, that
Sambor directed Richmond to put out the fire as soon as he
received the order from Brooks, and that neither Richmond
nor Sambor engaged in willful misconduct in disregarding
Brooks' order or in allowing the fire to burn, are not clearly
erroneous. While Ms. Africa contends that the district court
did not consider certain evidence relating to the decision to
initially allow the fire to burn, she has failed to point us to
any evidence that would compel a finding that either
Richmond or Sambor engaged in conduct they knew to be
wrong. Accordingly, because we do not find any legal error,
we must affirm the district court's judgment on Ms. Africa's
battery claim.

IV.

In sum, we find that Ms. Africa waived any right she may
have had to a jury trial on the issue of willful misconduct
by failing to timely and specifically object to the district
court's January 18, 1996 decision that it would determine
the issue. In addition, we do not find any legal error with
the district court's judgment in favor of Richmond and
Sambor on Ms. Africa's battery claim. Accordingly, we must
affirm the judgment of the district court.

A True Copy:
Teste:

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

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