                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-1999

Local 19 v. Herre Bros. Inc
Precedential or Non-Precedential:

Docket 97-7552




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Recommended Citation
"Local 19 v. Herre Bros. Inc" (1999). 1999 Decisions. Paper 336.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/336


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Filed December 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-7552, 97-7553, 97-7554, & 97-7555

SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION LOCAL 19
       Appellee/Cross-Appellant

v.

HERRE BROS., INC.
       Appellant/Cross-Appellee

On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 95-cv-02131
(Honorable Sylvia H. Rambo)

Argued April 26, 1999

Before: SCIRICA, ROTH and MCKAY,* Circuit Judges

(Opinion filed: December 30, 1999)



_________________________________________________________________
* Honorable Monroe G. McKay, Circuit Judge, United States Court of
Appeals for the Tenth Circuit, sitting by designation.
       Ronald M. Katzman, Esquire
        (Argued)
       Steven E. Grubb, Esquire
       Goldberg, Katzman & Shipman, P.C.
       320 Market Street
       Strawberry Square
       P. O. Box 1268
       Harrisburg, PA 17108

       Thomas R. Davies, Esquire (Argued)
       Harmon & Davies, P.C.
       2306 Columbia Avenue
       Lancaster, PA 17603

        Attorneys for Herre Bros., Inc.
        Appellant at 97-7552 and
        97-7553/Cross-Appellee at
        97-7554 and 97-7555

       Bruce E. Endy, Esquire (Argued)
       Spear, Wilderman, Borish, Endy,
        Spear and Runckel
       230 South Broad Street -
        Suite 1400
       Philadelphia, PA 19102

        Attorney for Sheet Metal Workers'
        International Association Local 19
        Appellee at 97-7552 and
        97-7553/Cross Appellant at
       97-7554 and 97-7555

OPINION OF THE COURT

MCKAY, Circuit Judge

These appeals and cross-appeals arise from a dispute
between Plaintiff Sheet Metal Workers' International
Association Local 19 [Union], Defendant Herre Bros., Inc.,
and a third party, Sheet Metal Contractors Association of
Central Pennsylvania [SMCA] concerning the enforcement of
a collective bargaining agreement. The dispute revolves
around Herre Bros.' attempt to revoke its bargaining rights

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in the SMCA with the intent that it would not be bound by
a later-negotiated agreement between the SMCA and the
Union to be effective from 1995 to 1998. The Union sued
Herre Bros., asserting that Herre Bros. was bound to the
1995 agreement. The district court granted summary
judgment to the Union on that issue and, after a trial on
damages, ordered specific performance of the 1995
agreement. Herre Bros. appealed those rulings, arguing
that because it had revoked its bargaining rights from the
SMCA it could not be bound by the 1995 agreement. For a
more detailed explanation of the facts and history of the
entire dispute, see Sheet Metal Workers' Internat'l Ass'n
Local 19 v. Herre Bros., Inc., No. 97-7450 (3d Cir.,
December 30, 1999). In these appeals, Herre Bros. repeats
its previous arguments; the Union cross-appeals, arguing
that the court erroneously measured damages by excluding
lost wages. The threshold issue is whether these appeals
and cross-appeals should be dismissed for lack of
jurisdiction. Further explanation of the procedural posture
of this case is necessary.

In its summary judgment order filed September 16, 1996,
the district court determined that Herre Bros. was bound to
the 1995 collective bargaining agreement with the Union
because its conduct after it withdrew its bargaining rights
from the SMCA invalidated that withdrawal. See App., Vol.
II at 256A, 266A. After a trial on damages, the district court
filed an order on August 27, 1997, in which it granted
judgment to the Union in the amount of $325,203.98;
required Herre Bros. to provide the Union with an
accounting of all hours worked by nonunion workers after
September 27, 1996; allowed the Union to file a
supplemental brief requesting damages to union funds
resulting from Herre Bros.' failure to utilize union workers
after September 27, 1996, and allowed Herre Bros. tofile a
reply brief thereto; directed Herre Bros. to specifically
perform the 1995 agreement between the Union and the
SMCA until it expired in 1998; and directed the clerk of the
court "to defer entry of judgment until the conclusion of
this case." Attach. to Appellant's Br. (Aug. 27, 1997 Order).
Herre Bros. timely filed a notice of appeal on September 14,
1997.

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In that appeal, No. 97-7450, we determined that the
August 27 Order was not final within the meaning of 28
U.S.C. S 1291 because it did not conclusively dispose of the
damages issues in the case and because it deferred entry of
judgment until a later undetermined time. We concluded,
however, that the portion of the order directing specific
performance was immediately appealable as an
interlocutory order under 28 U.S.C. S 1292(a)(1), and we
addressed the merits of the case, affirming the district
court. See Sheet Metal Workers', No. 97-7450 (3d Cir.,
December 30, 1999).

The appeals at issue here were filed in response to two
district court orders entered after the August 27 Order.   In
the first, filed September 19, 1997, pursuant to Fed. R.   Civ.
P. 62(c), the district court granted Herre Bros.' motion   to
stay pending appeal the portion of the August 27 Order
directing specific performance. See App., Vol. I at 13A.   The
court also attempted to amend both the September 16,
1996 summary judgment order and the August 27 Order by
directing that judgment in the case would be entered on
September 19, 1997. See id.

Second, on September 23, 1997, the district courtfiled
another order in which it corrected clerical errors contained
in the judgment that was filed pursuant to the September
19 Order. Otherwise the substance of the September 19
and September 23 Orders is identical.

Apparently in an effort to protect their rights of appeal,
Herre Bros. filed notices of appeal and the Unionfiled
notices of its cross-appeals from both the September 19
and September 23 Orders. The parties phrased their
notices of appeal and cross-appeal as though the
September 19 and September 23 Orders are final
judgments. Because the appeals that are the subject of this
decision essentially mirror the appeal in No. 97-7450 over
which we possessed jurisdiction, our decision in No. 97-
7450 conclusively answers the issues raised in these
appeals, with the exception of the issue of damages raised
in the Union's cross-appeals. Accordingly, we still must
determine whether the September 19 and September 23
Orders provide this court with jurisdiction over the
remaining damages issue on cross-appeal.

                               4
It is well established that "[t]he filing of a notice of appeal
. . . confers jurisdiction on the court of appeals and divests
the district court of its control over those aspects of the
case involved in the appeal." Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982).1 Likewise, a notice of
appeal from an unappealable order does not deprive the
district court of jurisdiction. See United States v. Rodgers,
101 F.3d 247, 251-52 (2d Cir. 1996); Ruby v. Secretary of
United States Navy, 365 F.2d 385, 389 (9th Cir. 1966).
Exceptions to the rule in Griggs allow the district court to
retain jurisdiction to issue orders staying, modifying, or
granting injunctive relief, to review applications for
attorney's fees, to direct the filing of supersedeas bonds, to
correct clerical mistakes, and to issue orders affecting the
record on appeal and the granting or vacating of bail. See
Bensalem Township v. International Surplus Lines Ins. Co.,
38 F.3d 1303, 1314 & n.9 (3d Cir. 1994) (describing some
exceptions to general rule); Mary Ann Pensiero, Inc. v.
Lingle, 847 F.2d 90, 97 (3d Cir. 1988) (same); see also Fed.
R. App. P. 7-11; Fed. R. Civ. P. 60(a); Gillis v. Hoechst
Celanese Corp., 4 F.3d 1137, 1139 n.1 (3d Cir. 1993)
(holding that appellant was not required to file second
notice of appeal from order making corrections of clerical
nature to final order); Showtime/The Movie Channel, Inc. v.
Covered Bridge Condo. Ass'n, 895 F.2d 711, 713 (11th Cir.
1990) (delineating exceptions such as the "authority to act
in aid of the appeal, to correct clerical mistakes or to aid in
the execution of a judgment that has not been
superseded").

In light of these principles and because the August 27,
1997 Order was properly appealable as an interlocutory
order under 28 U.S.C. S 1292(a)(1), the district court did
not have jurisdiction to enter the September 19, 1997
Order, except for the portion of the order staying specific
performance.2 To the extent that it granted a stay pending
_________________________________________________________________

1. Fed. R. App. P. 4(a)(4) was amended effective December 1, 1993, to
allow a premature notice of appeal to become effective upon the denial
of a motion under Fed. R. Civ. P. 59. See Lazy Oil Co. v. Witco Corp., 166
F.3d 581, 587 (3d Cir. 1999).

2. The court also properly stayed the portion of the August 27 Order that
directed an accounting and supplemental briefing on damages.

                               5
appeal, the September 19 Order is valid. The remainder of
the September 19 Order, however, is void for lack of
jurisdiction.
 837<!>Although the district court's September 23 Order

appeared only to correct a clerical mistake in its September
19 Order, which it generally would retain jurisdiction to do,
see Gillis, 4 F.3d at 1139 n.1, the September 23 Order is
void for the same reasons as the void September 19 Order.

As a result, there is no final judgment from which these
appeals and cross appeals are taken, and we DISMISS both
appeals and cross-appeals in these cases for lack of
jurisdiction.

A True Copy:
Teste:

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

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