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


7-5-2001

Pryer v. Slavic
Precedential or Non-Precedential:

Docket 00-3297




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Recommended Citation
"Pryer v. Slavic" (2001). 2001 Decisions. Paper 147.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/147


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                              UNREPORTED       NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                           _____________

                           No. 00-3297
                          _____________

          RAYMOND T. PRYER

              v.

          C.O. 3 SLAVIC; C.O. 1 COOK; C.O. 1 D. BURSEY,

                              Appellants
                          _____________

           Appeal from the United States District Court
             for the Western District of Pennsylvania
                     (D.C. Civ. No. 92-1461)
           District Judge: Honorable Gary L. Lancaster
                          _____________

                              Argued
                         October 26, 2000
      Before: MANSMANN, ALITO, and FUENTES, Circuit Judges.



                          _____________

                      ORDER AMENDING OPINION
                          _____________

          The opinion filed on May 30, 2001 is amended as follows:
          Page 18, line 2   delete the word "effectively";
          Page 18, insert the following paragraphs before the paragraph
beginning
"Rather than reversing . . . .
                         The majority seeks to justify its departure from
our
          established standard of review, and its consequent substitution
          of its discretion for that of the trial judge, by invoking two
          purported exceptions: First, the majority asserts that no
          deference is due "where a trial court fails to explain its
          grounds for exercising discretion, and its reasons for doing so
          are not otherwise apparent from the record". Supra at 7 n.4.
          However, the District Court's reasons for limiting the second
          trial to damages are made abundantly clear in its opinion: As
          the Court explained, "a new trial is appropriate on the issue of
          damages because the court failed to properly instruct the jury
          on damages" (by, inter alia, giving an unwarranted nominal
          damages instruction), and because the resulting nominal
           damages award was against the weight of the evidence.
           Implicit in the Court's recital of errors in the damages
           instructions and award was its recognition that there was no
           error in the liability instructions or verdict. Ordinarily, the
           presence of error limited to a single issue should be
           considered reason enough to limit retrial to that issue.
           Although the majority may consider the stated reasons
           insufficient, it cannot fairly be said that the trial Court
           "articulated no rationale".
                          Second, the majority asserts that the District
Court's
           grant of a partial retrial "turns on the application of a legal
           precept to the evidence". Supra at 7 n.4. The majority does
           not identify what "legal precept" it deems controlling. The
           due process and fairness concerns set forth in Gasoline
           Products clearly speaks to discretion, and we (and other
           courts) have always considered its application to be an
           exercise of discretion, rather than a legal determination. The
           majority's cryptic invocation of the "legal precept" exception,
           without identifying a controlling question of law, threatens to
           eviscerate the abuse of discretion standard: potentially, every
           exercise of discretion may be subjected to plenary review at
           the whim of the reviewing court by pointing out that some
           "legal precept" is somehow involved. By substituting its
           judgment for that of the District Court (in which the discretion
           is intended to be reposed) on the basis of such ill-considered,
           amorphous exceptions, the majority has fundamentally altered
           our standard of review, effectively overruling sub silentio our
           decisions in Vizzini and Stanton.

           Page 19, line 2   delete "finding an abuse of discretion by" and
substitute
"overriding"

           Page 19, line 3   after Court add "'s discretion"

           IT IS HEREBY ORDERED



                                                               /s/ Carol Los
Mansmann
                                           Circuit Judge

           Dated:   June 5, 2001
