                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2008

Gary v. Braddock Cemetery
Precedential or Non-Precedential: Precedential

Docket No. 06-3469




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                                        PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                      No. 06-3469
 KARL E. GARY; OSCAR R. IAMS; SHIRLEY J. IAMS;
                 CHARLES W.
    PHILLIPS; DAVID HIGGENBOTHAM; JUDITH
          HIGGENBOTHAM; MARY ANN
   NEELY; CHARLES AMBROSE WHITLATCH, JR.;
           DEBRA ANN WHITLATCH;
  DONALD WHITLATCH; FRANCIS E. WHITLATCH;
         HENRY ABNER WHITLATCH;
   NORMA JEAN WHITLATCH; ROBERT PHILLIPS;
           WILLIAM H. WHITLATCH;
 KATHY L. WHITLATCH; ALFRED R. CHAMBERS, as
              power of Attorney for
Gary J. Pierson; ALFRED R. CHAMBERS, JR.; ALBERT R.
                      CHAMBERS,
  as Power of Attorney for Winifred J. Pierson; PAUL R.
                       PHILLIPS;
     BARBARA SWARTZMILLER; CHARLES E.
      WHITLATCH; PATRICIA WHITLATCH;
     NETTIE PHILLIPS MORRIS; EDNA PHILLIPS
              SCHRADER; VIRGINIA
    KENNEDY; HELEN KELLY; MARY THORNE;
            KENNETH L. PHILLIPS
                           Appellants


                            v.


THE BRADDOCK CEMETERY; CONSOL ENERGY INC,
               the successor
and/or assign of Rheinbraun U.S. Corporation; CNX COAL,
 the successor and/or assign of Consol Pennsylvania Coal
                       Company


                      No. 06-3617


 KARL E. GARY; OSCAR R. IAMS; SHIRLEY J. IAMS;
                 CHARLES W.
    PHILLIPS; DAVID HIGGENBOTHAM; JUDITH
          HIGGENBOTHAM; MARY ANN
  NEELY; CHARLES AMBROSE WHITLATCH, JR.;
          DEBRA ANN WHITLATCH;
 DONALD WHITLATCH; FRANCIS E. WHITLATCH;
        HENRY ABNER WHITLATCH;
  NORMA JEAN WHITLATCH; ROBERT PHILLIPS;
          WILLIAM H. WHITLATCH;
KATHY L. WHITLATCH; ALFRED R. CHAMBERS, as
              power of Attorney
   for Gary J. Pierson; ALFRED R. CHAMBERS, JR.;
                        ALFRED R.

                           2
CHAMBERS, as Power of Attorney for Winifred J. Pierson;
  PAUL R. PHILLIPS; BARBARA SWARTZMILLER;
                  CHARLES E.
   WHITLATCH; PATRICIA WHITLATCH; NETTIE
          PHILLIPS MORRIS; EDNA
PHILLIPS SCHRADER; VIRGINIA KENNEDY; HELEN
            KELLY; MARY THORNE;
               KENNETH L. PHILLIPS


                           v.


THE BRADDOCK CEMETERY; CONSOL ENERGY, the
              successor and/or
 assign of Rheinbraun U.S. Corporation; CNX COAL, the
                       successor
   and/or assign of Consol Pennsylvania Coal Company




               Consol Energy; CNX Coal,


                          Appellants


                     No. 06-3680


KARL E. GARY; OSCAR R. IAMS; SHIRLEY J. IAMS;

                           3
                     CHARLES W.
    PHILLIPS; DAVID HIGGENBOTHAM; JUDITH
          HIGGENBOTHAM; MARY ANN
   NEELY; CHARLES AMBROSE WHITLATCH, Jr.;
           DEBRA ANN WHITLATCH;
  DONALD WHITLATCH; FRANCIS E. WHITLATCH;
         HENRY ABNER WHITLATCH;
   NORMA JEAN WHITLATCH; ROBERT PHILLIPS;
       WILLIAM H. WHITLATCH; KATHY
 L. WHITLATCH; ALFRED R. CHAMBERS, as power of
                  Attorney for
Gary J. Pierson; ALFRED R. CHAMBERS, JR.; ALFRED R.
                      CHAMBERS,
  as Power of Attorney for Winifred J. Pierson; PAUL R.
                       PHILLIPS;
     BARBARA SWARTZMILLER; CHARLES E.
           WHITLATCH; PATRICIA
   WHITLATCH; NETTIE PHILLIPS MORRIS; EDNA
            PHILLIPS SCHRADER;
    VIRGINIA KENNEDY; HELEN KELLY; MARY
         THORNE; KENNETH L. PHILLIPS


                            v.


   BRADDOCK CEMETERY; CONSOL ENERGY, the
             successor and/or assign


                           4
   of RHEINBRAUN U.S. Corporation; CNX COAL, the
                successor and/or
        assign of Consol Pennsylvania Coal Company




     CONSOL ENERGY, the successor and/or assign of
                Rheinbraun U.S.
  Corporation; CNX COAL, the successor and/or assign of
                      Consol
                Pennsylvania Coal Company,


                                 Appellants


       On Appeal from the United States District Court
          for the Western District of Pennsylvania
                    D.C. No. 05-cv-01438
           District Judge: Hon. David S. Cercone

     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                     December 6, 2007
                 (Filed: February 5, 2008)

   Before: McKee, Chagares and Hardiman, Circuit Judges

Louis M. Tarasi, Jr.
Colm W. Kenny
Tarasi, Tarasi & Fishman


                             5
510 Third Avenue
Pittsburgh, PA 15219

      Attorneys for Karl E. Gary, et al.

Joseph A. Katarincic
Jerri A. Ryan
Thorp, Reed & Armstrong
301 Grant Street
One Oxford Centre, 14th Floor
Pittsburgh, PA 15219

      Attorneys for Consol Energy and CNX Coal

Rodger L. Puz
Dickie, McCamey & Chilcote
Two PPG Place
Suite 400
Pittsburgh, PA 15222-5402

      Attorney for Braddock Cemetery

                         OPINION

McKee, Circuit Judge

      This matter involves two consolidated appeals. In No. 06-

3469, Karl E. Gary, and other owners of burial plots in

Braddock Cemetery (collectively, “Plaintiffs”), appeal the

                              6
district court’s dismissal of the action they brought under 42

U.S.C. § 1983 against Braddock Cemetery, Consol Energy, and

Consol    Pennsylvania      Coal    Company       (collectively,

“Defendants”).    The district court dismissed that suit after

concluding that it lacked subject matter jurisdiction pursuant to

the Rooker-Feldman doctrine. In No. 06-3617, Consol Energy

and Consol Pennsylvania Coal Company (collectively “Consol”)

appeal the district court’s failure to rule on their motion for

sanctions under Fed. R. Civ. P. 11, before invoking Rooker-

Feldman and dismissing Plaintiffs’ complaint. The district court

had “temporarily” denied Consol’s Rule 11 motion, pending the

outcome of the appeal of the dismissal of the complaint. Consol

argues that the district court should have ruled on its Rule 11

motion before entering a final order. We agree. For the reasons

that follow, we will affirm the district court’s dismissal of the

Plaintiffs’ action based upon the Rooker-Feldman doctrine in


                               7
06-3469, but we will remand in 06-3617 and order the district

court to rule on Consol’s motion for sanctions.

                                I.

       The facts of this case are recited in the very thorough and

thoughtful May 17, 2006, Report and Recommendation of

Magistrate Judge Francis X. Caiazza (the “R and R”), which is

attached hereto as an appendix.       As the Magistrate Judge

accurately notes: “[t]his case proves the axiom that ‘the wheels

of justice grind slowly.’ [It has] occupied state courts since

March 1991 when the first of four consolidated claims was

filed.” App. at 2.

       The R and R recites the factual and procedural history of

this dispute, and we need not reiterate it here. Rather, we only

note that this litigation arises out of a two week mining

operation that began in 1991. Thereafter, some purchasers of

burial plots sued the Cemetery and Consol in the Court of


                                8
Common Pleas for Greene County, Pennsylvania challenging

the Cemetery’s right to execute a lease or subsidence agreement

with the mining company, and alleging various violations of

state law that purportedly interfered with the ground support of

their burial plots resulting in subsidence of those plots.

       All liability issues were resolved in favor of the Plaintiffs

based on summary judgment motions. The state court then held

a nine day jury trial limited to the issue of damages. After all

proof had been submitted, the jury was instructed that damages

could be calculated based on the value of the coal taken from the

Cemetery.    Using this measure, the jury assessed damages

against Consol and the Cemetery.

       On appeal, the Pennsylvania Superior Court determined

that the damage award should not have been based on the value

of the coal extracted, because the Plaintiffs did not own the

mineral rights to the burial plots. The Court also found that the


                                 9
Court of Common Pleas had erred in granting summary

judgment in favor of the Plaintiffs on a number of claims.

Accordingly, the Superior Court reversed the order of the Court

of Common Pleas, and remanded the matter for a new trial

encompassing liability as well as damages.

       As the Magistrate Judge sets forth in his R and R, on

retrial, the trial court explained the jury’s finding in favor of the

defendants as follows:

       The jury, after a three-week trial and after hearing
       that there was no visible damage to the cemetery
       and that the sale of lots and burials had continued
       up to at least the time of trial, and after hearing
       that no one, plaintiff or otherwise, had requested
       the transfer of the remains of his or her loved one
       to another cemetery, found that whatever
       subsidence had occurred did not interfere with the
       reasonable and proper enjoyment of the lots as
       burial sites.

Whitlatch v. Braddock Cemetery, No. 152-1991, slip op. at 9-10

(Pa. Common Pleas Nov. 5, 2001). App. at 6.



                                 10
       Plaintiffs filed post-trial motions in which they argued,

among other things, that allowing the verdict to stand would

amount to an uncompensated “taking” of their property. The

trial court rejected that claim and Plaintiffs appealed to the

Pennsylvania Superior Court; their brief raised seventeen

issues.1 Their claims included the argument that the jury’s


   1
     Given the number of issues that were raised on appeal, we
(like the Superior Court) are reminded of the following quote
from our colleague, Judge Aldisert:
        With a decade and a half of federal appellate court
        experience behind me, I can say that even when
        we reverse a trial court it is rare that a brief
        successfully demonstrates that the trial court
        committed more than one or two reversible errors.
        I have said in open court that when I read an
        appellant's brief that contains ten or twelve points,
        a presumption arises that there is no merit to any
        of them. I do not say that it is an irrebuttable
        presumption, but it is a presumption nevertheless
        that reduces the effectiveness of appellate
        advocacy. Appellate advocacy is measured by
        effectiveness, not loquaciousness.
Aldisert, “The Appellate Bar: Professional Competence and
Professional Responsibility-A View From the Jaundiced Eye of
One Appellate Judge,”Capital University Law Review 445, 458

                              11
verdict “effected a de facto condemnation of [the Plaintiffs’]

support estate, entitling [them] to just compensation under the

Fifth Amendment.” The Superior Court rejected that argument,

and affirmed the order of the Court of Common Pleas. The

Supreme Court of Pennsylvania refused allocatur, and Plaintiffs

did not request a writ of certiorari from the United States

Supreme Court, to raise their Fifth Amendment “taking” claim.

Instead, they filed the instant suit under 42 U.S.C. § 1983 in the

United States District Court for the Western District of

Pennsylvania.

       They argue that the Supreme Court of Pennsylvania’s

denial of their petition for reconsideration, “clothed the

Defendants under color of state law with the authority to take

private property without just compensation.” They claim that

the Defendants’ actions thus resulted in an unconstitutional


(1982).

                               12
“taking” of their “support estates” in violation of the United

States and Pennsylvania Constitutions.

       Consol responded by serving Plaintiffs with a copy of the

motion for Rule 11 sanctions that they intended to file with the

district court pursuant to Rule 11(c)(1).2 In their accompanying

letter, dated November 1, 2005, Consol cited the Rooker-

Feldman doctrine, the lack of any state action as required for an

action pursuant to § 1983, the bar of the applicable statute of

limitations, and the doctrines of collateral estoppel and res

judicata in explaining why Plaintiffs’ federal suit was barred.

Consol warned that in light of the long history of litigation and

the final state court decision in Defendants’ favor, Plaintiffs’

federal suit was frivolous and in Consol’s opinion, meant only



   2
     Fed. R. Civ. P. 11(c)(1) requires a litigant to give advance
notice of the intent to move for sanctions by properly serving the
opposing party with a copy of the motion prior to filing with the
court.

                               13
to harass. When Plaintiffs did not dismiss their complaint as

requested in the Rule 11 notice, Consol filed a motion to dismiss

together with its motion for Rule 11 sanctions.3

         The case was referred to a Magistrate Judge who advised

Consol at a status conference that he would deny their Rule 11

motion without prejudice to Consol’s right to renew that motion

after a ruling on the motion to dismiss. Subsequently, the

Magistrate Judge issued the aforementioned R and R explaining

that Plaintiffs’ action was barred by the Rooker-Feldman

doctrine. The R and R also explained that Plaintiffs could not

maintain a suit under § 1983 because the injuries they

complained of were not the result of any state action. The

district court subsequently adopted the R and R and dismissed

the complaint, Gary v. Braddock Cemetery, 2:05cv1438 (W.D.

Pa. June 27, 2006) (memorandum order granting motion to


   3
       The Cemetery also filed a motion to dismiss.

                                14
dismiss). This appeal followed.

       Thereafter, Consol renewed its motion for Rule 11

sanctions, and the Magistrate Judge ordered Plaintiffs to respond

to Consol’s Rule 11 motion by August 3, 2006. However, on

July 23, 2006, Plaintiffs filed their Notice of Appeal in 06-3469

challenging the district court’s dismissal of their Complaint. On

July 24, prior to receiving any response from Plaintiffs on the

Rule 11 motion, the Magistrate Judge issued an order which

“temporarily” denied the Rule 11 motion while explaining that

the motion would be stayed pending resolution of Plaintiffs’

appeal. The district court overruled Consol’s objections in an

order dated August 3, 2006. Thereafter, Consol filed the Notice

of Appeal in No. 06-3617 challenging the district court’s failure

to rule on the Rule 11 motion before dismissing the Complaint.

                               II.

       We first address the district court’s dismissal of the


                               15
complaint for lack of subject-matter jurisdiction based on the

Rooker-Feldman doctrine. 4 That doctrine takes its name from

the two Supreme Court cases that gave rise to the doctrine.

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The doctrine is derived from 28 U.S.C. § 1257 which states that

“[f]inal judgments or decrees rendered by the highest court of a

state in which a decision could be had, may be reviewed by the

Supreme Court. . ..”. See also Desi's Pizza, Inc. v. City of

Wilkes Barre, 321 F.3d 411, 419 (3d Cir. 2003).          “Since

Congress has never conferred a similar power of review on the

United States District Courts, the Supreme Court has inferred

that Congress did not intend to empower District Courts to



     4
        Our review of a dismissal for lack of subject matter
jurisdiction pursuant to Rooker-Feldman is plenary. Gould
Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).

                              16
review state court decisions.” Desi’s Pizza, 321 F.3d at 419.

       After reviewing the arguments challenging the district

court’s dismissal for lack of subject matter jurisdiction, we

conclude that Magistrate Judge Caiazza adequately explained

why the district court lacked subject matter jurisdiction in the

thoughtful R and R that the district court adopted and which we

attach as an appendix to this opinion. Inasmuch as we can add

little to the explanation offered in that R and R, we will affirm

the dismissal of Plaintiff’s complaint substantially for the

reasons set forth therein. See App. at 7-10.5


  5
     The Magistrate Judge recited our pre-Exxon formulation of
the doctrine, wherein a federal action is barred either “where the
claim raised in federal court was actually litigated in state court”
or “where the federal claim is inextricably intertwined with the
state adjudication.” We note that several circuit courts of
appeals have revisited the appropriate contours of the
“inextricably intertwined” prong in the wake of the Exxon
decision. See, e.g. Hoblock v. Albany County Bd. of Elections,
422 F.3d 77 (2d Cir. 2005); McCormick v. Braverman, 451 F.3d
382, 393-94 (6th Cir. 2006). The doctrine clearly applies here
under either formulation of the doctrine. However, caution is

                                17
       We need only add that this action falls squarely within

that class of actions prohibited by the Rooker-Feldman doctrine,

even as limited by the Supreme Court’s recent opinion in Exxon

Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280

(2005). Plaintiffs, the “state-court losers,” brought this suit

“complaining of injuries caused by [a] state-court judgment[]

rendered before the district court proceedings commenced and

inviting district court review and rejection of [that] judgment.”

Exxon Mobil, 544 U.S. at 284. Because federal district courts

lack subject matter jurisdiction to entertain appeals from state

courts, the district court correctly adopted the reasoning of the

R and R and dismissed this action for lack of subject-matter

jurisdiction. Rooker, 263 U.S. at 416; Feldman, 460 U.S. at

482; Exxon Mobil, 544 U.S. at 292. We will therefore affirm the



now appropriate in relying on our pre-Exxon formulation of the
Rooker-Feldman doctrine.

                               18
district court’s order dismissing this suit substantially for the

reasons set forth in the R and R.

                               III.

       Our affirmance of the dismissal of the Complaint does

not end our discussion because, in 06-3617, Consol argues that

the district court erred in not ruling on the Rule 11 motion

before entering final judgment.6 We agree. We usually review

   6
    Rule 11 imposes specific duties upon attorneys practicing
before the federal courts. It provides in part:

       Every pleading, written motion, and other paper
       shall be signed by at least one attorney of record
       . . . . By presenting to the court . . . a pleading,
       written motion, or other paper, an attorney . . . is
       certifying that to the best of the person’s
       knowledge, information, and belief, formed after
       an inquiry reasonable under the circumstances, (1)
       it is not being presented for any improper
       purpose, such as to harass or to cause unnecessary
       delay or needless increase in the cost of litigation;
       (2) the claims, defenses, and other legal
       contentions therein are warranted by existing law
       or by a nonfrivolous argument for the extension,
       modification, or reversal of existing law or the

                                19
a district court’s ruling on a motion for sanctions under Rule 11

for an abuse of discretion. Simmerman v. Corino, 27 F.3d 58,

62 (3d Cir. 1994). Here, however, there is nothing to review

because the district court never ruled on the propriety of Rule 11

sanctions even though it entered a final order dismissing the suit.

       Almost twenty years ago, we adopted a supervisory rule

“that counsel seeking Rule 11 sanctions must file their motions

before entry of final judgment in the district court.” Mary Ann

Pensiero, Inc. v. Lingle, 847 F.2d 90, 92 (3d Cir. 1988). We

explained that “[s]wift disposition of a Rule 11 motion is

essential so that any ensuing challenge to it might be included



       establishment of new law . . . . If, after notice and
       a reasonable opportunity to respond, the court
       determines that [this rule] has been violated, the
       court may . . . impose an appropriate sanction
       upon the attorneys . . . that . . . are responsible for
       the violation.

Fed. R. Civ. P. 11.

                                 20
with the appeal on the merits.” Id. at 99. The supervisory rule

was intended to eliminate piecemeal appeals and “serve[] the

interest of judicial economy without risking a significant waste

of district court efforts.” Id. Although we did not explicitly

state that a district court was also required to rule on a motion

for Rule 11 sanctions prior to entry of final judgment, Pensiero

clearly anticipates that a district court would rule on the motion

for sanctions prior to, or contemporaneously with, entering final

judgment. See id. (“We will henceforth require prompt action

by a litigant whenever a Rule violation appears. In that way, the

district court will be able to decide the matter in a timely

fashion so as to eliminate additional appeals.”) (emphasis

added).

       Thus, following Pensiero, we held in Simmerman that a

district court imposing Rule 11 sanctions sua sponte must do so

prior to the entry of final judgment. There, we explained:


                               21
       There is no inordinate burden in requiring the
       district court to raise and resolve any Rule 11
       issues prior to or concurrent with its resolution of
       the merits of the case. . . . Similarly, concurrent
       consideration of challenges to the merits and the
       imposition of sanctions avoids the invariable
       demand on two separate appellate panels to
       acquaint themselves with the underlying facts and
       the parties’ respective legal positions. In the
       context of a Rule 11 violation, the court and
       opposing party are in similar positions. Both
       know of the rule and its requirements, and both
       possess similar information about the conduct and
       the pleadings of counsel. . . . There is no reason
       why prompt action should be required of an
       opposing party and yet not similarly required of
       the court.

27 F.3d at 63.

       Consol filed its motion for Rule 11 sanctions in a timely

fashion, consistent with Pensiero, and Plaintiffs do not argue to

the contrary. For reasons not apparent from this record, the Rule

11 motion was initially dismissed without prejudice, and Consol

renewed its Rule 11 motion after the district court granted the




                               22
motion to dismiss.7 An obvious corollary to requiring parties

to file their Rule 11 motion prior to final judgment, and

requiring a district court imposing sanctions sua sponte to do so

prior to or contemporaneously with final judgment, is that

district courts must resolve any issues about imposition of

sanctions prior to, or contemporaneously with, entering final

judgment. Requiring Rule 11 motions to be filed before final



    7
       In their brief in No. 06-3617, Consol represents that it
informed the court of the need to rule on the outstanding Rule
11 motion prior to entering a final order dismissing the
complaint and expressed a concern that failure to follow our
supervisory rule “would jeopardize Consol’s ability to recover
sanctions under Rule 11 pursuant to prior decisions of the Third
Circuit.” Appellants’ Br. at 5, n.2. For reasons not apparent on
this record, the court nevertheless proceeded to enter final
judgment without ever ruling on the Rule 11 motion. As we
explain, the most likely result of the eventual Rule 11 ruling will
be a second appeal raising issues which could have (and should
have) been addressed in the appeal (or possible cross-appeal) of
the order dismissing the complaint. That will require another
panel of this court to revisit the merits of the underlying case -
precisely the result Pensiero strives to avoid.


                                23
judgment is entered accomplishes nothing unless we are able to

resolve any challenge to the grant or denial of Rule 11 sanctions

when we rule on the merits of the final judgment.

       Consol believes that the record supports imposition of

sanctions because the district court dismissed Plaintiffs’ suit on

the precise grounds Consol cited in the letter Consol sent to

Plaintiffs as part of the notice it served under Rule 11. Consol

therefore “asks [us] to conclude that sanctions should be granted

here and return the case to the District Court and/or the

Magistrate Judge for a determination of the appropriate amount

to be levied, or in the alternative, that [we] impose sanctions,

based on the facts and law as set forth in the record.” Consol

Br. at 24. Although Consol’s reliance on Rooker-Feldman

certainly had merit as explained in the R and R, it is neither

appropriate nor prudent for us to attempt to resolve the propriety

or amount of any Rule 11 sanctions on this record.


                               24
       As we have just explained, motions under Rule 11 must

be decided in the first instance by the trial court absent

extraordinary circumstances that do not appear on this record

and which we cannot now imagine.          Accordingly, we will

remand this case to the district court to rule on Consol’s Rule 11

motion.

                              IV.

       For the foregoing reasons, the dismissal for lack of

subject-matter jurisdiction will be AFFIRMED and the case is

REMANDED for a ruling by the district court on Consol’s

motion for Rule 11 sanctions.




                                25
