                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2000

Amatangelo v. Donora
Precedential or Non-Precedential:

Docket 99-3862




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Recommended Citation
"Amatangelo v. Donora" (2000). 2000 Decisions. Paper 100.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/100


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Filed May 18, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3862

FRANK AMATANGELO; AMELIA AMATANGELO; MARTIN
CLEMENT; LINDA CLEMENT; MARTIN CLEMENT;
MARJORIE CLEMENT; ROBERT CLEMENT; GINGER
CLEMENT; RONALD CLEMENT; NANCY CLEMENT; PAUL
DEBARDINIS; CHARLOTE F. DEBARDINIS; ALFRED
DEMARINO; ROSE DEMARINO; ALFRED FIORAVANTI;
MARY FIORAVANTI; PALMER FRAGELLO; ROBERT
FRAGELLO; MARTHA FRAGELLO; SAMUEL FRAGELLO;
VIRGIL FRAGELLO; JAMES JOHNSTON; MARLENE
JOHNSTON; JEANETTE LORESKI; GEORGE KARABIN;
DOROTHY KARABIN; MICHAEL KARABIN; CATHERINE
KARABIN; RICHARD KOPANIC; ROSE KOPANIC; JANE
MENDARINO; ANNA MONGELLUZZO; RICHARD
MONGELLUZZO; FLORENCE PAWELEC; MERRY H.
POLACHEK; DUNCAN RUSSELL; MARYANN RUSSELL;
ALEXANDER SENKO; MARGARET SENKO; DEL SUPPO;
JUDY SUPPO; SARA TUBIN; ZORA TUBIN; DOROTHY E.
VAYANSKY; MARY MARGARET VAYANSKY; RICHARD
VEDDER; BONNIE VEDDER; ALLEN VITALE;
LOUISE VITALE,

       Appellants

v.

THE BOROUGH OF DONORA; CITY OF MONESSEN; MON
VALLEY SEWAGE AUTHORITY; GANNETT FLEMING
ENGINEERING, INC.; JOHN T. SUBRICK, INC.; JOHN
LIGNELLI; ROBERT PARASCHAK; RAYMOND
AMATANGELO; ANTHONY MENENDEZ; KAREN
POLKABLA; WILLIAM HEVIA; PETER LAMENDOLA;
THOMAS KOSTOLANSKY; FRED BERESTECKY; MARIE
TROZZO; ROBERT LEONE; TIMOTHY MAATTA; JOHN
SWANN; KAREN LOVICH; JIM MANDERINO; EDWARD
BURDOCK; ERNEST WISYANSKI; BEN LEVENDOSKY;
FRANK BIALON; ARNOLD HIRSCH; STANLEY POVICH;
STEPHEN MAJOR; RONALD BARRON; RON LUCI; FRED
HEVIA; EDWARD MONROE; JOHN T. SUBRICK; RONALD
AMATI; CHARLES MUIA; JAY SUBRICK; CHAD SUBRICK;
L. SUBRICK

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 98-02143)
District Judge: Honorable Gary L. Lancaster

Submitted under Third Circuit LAR 34.1(a)
May 9, 2000

BEFORE: GREENBERG, MCKEE, and GARTH,
Circuit Judges

(Filed: May 18, 2000)

       Thomas A. Crawford, Jr.
       701 Smithfield Street
       Triangle Building
       Pittsburgh, PA 15222

        Attorney for Appellants

       Scott G. Dunlop
       Stephen J. Poljak
       Marshall, Dennehey, Warner,
       Coleman & Goggin
       600 Grant Street
       2900 USX Tower
       Pittsburgh, PA 15219

        Attorneys for Appellees,
       City of Monessen, Robert Leone,
       Timothy Maatta, John Swann,
       Karen Lovich, Jim Manderino,
       Edward Burdock and Ernest
       Wisyanski

                                  2
Mark R. Hamilton
Carmen A. Martucci
Zimmer Kunz
600 Grant Street
3300 USX Tower
Pittsburgh, PA 15219

 Attorneys for Appellees
John Lignelli, Robert Paraschak,
Raymond Amatangelo,
Anthony Menendez, Karen
Polkabla, William Hevia, Peter
Lamendola, Thomas Kostolansky,
Fred Berestecky, Marie Trozzo and
the Borough of Donora

Leo G. Daly
Bethann R. Lloyd
Grogan, Graffam & McGinley
Three Gateway Center
22nd Floor
Pittsburgh, PA 15222

 Attorneys for Appellees
Mon Valley Sewage Authority,
Ben Levendosky, Frank Bialon,
Arnold Hirsch, Stanley Povich,
Stephen Major, Ronald Barron, Ron
Luci and Fred Hevia

Mark J. Gesk
Wayman, Irvin & McAuley
1624 Frick Building
437 Grant Street
Pittsburgh, PA 15219

 Attorney for Appellees
Gannett Fleming Engineering, Inc.
and Edward Monroe

                          3
       Paul N. Barna, Jr.
       709 McKean Avenue
       Donora, PA 15033

        Attorney for Appellees
       Ronald Amati and Charles Muia

OPINION OF THE COURT

GREENBERG, Circuit Judge.

The appellants, residents and property owners in Donora,
Pennsylvania, brought this action against certain public
officials and entities and private parties in the aftermath of
the installation of public sewerage lines in Donora to which
appellants were required to join their properties at
considerable expense. While most of the appellants did not
object to the installation of the sewerage lines, see
appellants' br. at 8, they contend that they
unconstitutionally were treated differently than certain
other property owners and users of the sewerage system
with respect to the need to join the system and the
allocation of its costs. Id. Inasmuch as the appellants
brought their action under the civil rights laws, 42 U.S.C.
SS 1983 and 1985, and RICO, 18 U.S.C. S 1961, the district
court had jurisdiction under 28 U.S.C. SS 1331 and
1343(a)(3).

The district court, in a comprehensive memorandum
opinion and an accompanying order dated August 23,
1999, granted the appellees' motions to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6). We have reviewed this case and
have concluded that the appeal is clearly without merit and
that a published opinion on the substantive issues raised
on this appeal would have no institutional or precedential
value. Consequently, we ordinarily would affirm the order of
the district court with a memorandum opinion as provided
in our Internal Operating Procedure 5.4. Nevertheless, in
view of a jurisdictional issue which the appellees raise we
do not do so.

The district court's order of dismissal was entered on
August 24, 1999. Therefore, the appellants had 30 days

                               4
from that time to file their notice of appeal, see Fed. R. App.
P. 4(a)(1), and thus the appeal, to be timely, should have
been filed on or before September 23, 1999. Nevertheless,
the appellants did not appeal within that time. Instead, on
October 14, 1999, their attorney mailed to the appellees'
attorneys a copy of a request to the district court for an
extension of time within which to file a notice of appeal.
The operative portions of the request for the extension of
time read in full as follows:

       1. The plaintiffs have notified counsel that the y wish to
       appeal this Honorable Court's action of 23 August
       1999 dismissing their complaint in the above captioned
       matter.1

       2. Counsel, whose civil practice invariably includ es the
       United States as a party, informed them that they had
       sixty (60) days to file a notice of appeal.

       3. Believing that he had sixty (60) days within wh ich
       the plaintiffs could take an appeal, counsel began a
       rather lengthy motion for this Honorable Court to
       reconsider its ruling.

       4. From 23 August to the present counsel has tried
       three jury trials, filed five trial court briefs and a brief
       for the Commonwealth Court as well attending
       hearings for twelve other clients.

       5. On 13 August 1999 [sic], the daughter of one of the
       plaintiffs whom I represent in this matter called to my
       attention that the time for filing an appeal which her
       mother wanted to do had passed and that I had
       misinformed them as to the filing date.

       6. I researched the matter and found that she was
       right and that the appeal ought to have been filed upon
       22 September 1999, rather than 22 October 1999 as I
       had informed them which would have been the case
       had the United States been a party.

       7. Since the neglect was counsel's and I believe
       excusable, the plaintiffs ought not to suffer from the
_________________________________________________________________

1. The district court's order was dated August 23, 1999, but was entered
on the docket the following day.

                               5
       miscalculation of filing dates for the notice of appeal in
       this matter.

The appellants' attorney apparently submitted the
request to the district court at about the same time that he
mailed it to the appellees' attorneys because the court, on
October 15, 1999, signed an order granting the appellants
until November 1, 1999, to appeal. In fact, the appellants
appealed on October 21, 1999. Subsequently, on December
17, 1999, December 27, 1999, and December 29, 1999, the
appellees moved in this court to quash the appeals and the
appellants have responded to the motions to quash.

We find the proceedings we describe above troublesome.
Under Fed. R. App. P. 4(a)(5)(A), if a party shows"excusable
neglect or good cause" the district court may extend the
time for filing a notice of appeal if a motion seeking the
extension is filed no later than 30 days after the expiration
of the time prescribed for the appeal under Rule 4(a). Under
Rule 4(a)(5)(B), such a motion may be ex parte if filed before
the expiration of the prescribed time unless the court
requires otherwise. But a motion seeking an extension filed,
as was the case here, after the expiration of the prescribed
time must be on notice to the parties. Id.

As a practical matter, the district court granted the order
for the extension of time to appeal on an ex parte basis. As
we have indicated, the appellants mailed the motion to
appellees' attorneys on October 14, 1999. Accordingly,
appellees did not have an opportunity to oppose the
application for the extension of time because the court
granted it on October 15, 1999, the same day they received
the motion seeking the extension.

Moreover, the order granting the extension was not
consistent with the provisions of Rule 4(a)(5). That rule
permits an extension which is not to exceed 30 days past
the prescribed time for the appeal or 10 days from the date
of entry of the order allowing the extension, whichever
occurs later. In this case, a 30-day extension past the
prescribed time for appeal would have established an
appeal period ending on October 23, 1999, which by reason
of Fed. R. App. P. 26(a) would have been extended to
October 25, 1999, as October 23, 1999, was a Saturday.

                               6
Thus, the order granting the extension could have
established an outside date for the appeal of ten days from
October 15, 1999, or 32 days from September 23, 1999,
i.e., to October 25, 1999. Notwithstanding the October 25,
1999 limitation, the court extended the time until
November 1, 1999. The appellants, as we have indicated,
nevertheless filed their notice of appeal on October 21,
1999, within a period that the court could have authorized
under Rule 4(a)(5).

We are concerned, however, with more than the
procedural unfairness of the proceedings in the district
court and the technical defect in the order of October 15,
1999. According to the request for the extension of time to
appeal submitted to the district court, the appellants'
attorney, who indicates that his "civil practice invariably
includes the United States as a party, informed[the
appellants] that they had sixty (60) days tofile a notice of
appeal." Moreover, believing that the appellants had 60
days to appeal, "counsel began a rather lengthy motion for
[the district court] to reconsider its ruling." The attorney
indicates, however, that "[o]n 13 August 1999, the daughter
of one of the plaintiffs whom I represent in this matter
called to my attention that the time for filing an appeal
which her mother wanted to do had passed and that I had
misinformed them as to the filing date." It seems obvious to
us that the attorney wrote "August" when he meant
"October." He then indicated that he researched the matter
and concluded that the appellant's daughter was correct.
Finally, he asserts that his neglect was excusable and that
his clients should not suffer from his miscalculations.

This request for an extension did not establish"excusable
neglect or good cause" for the court to grant the extension.
While we recognize that issues arising under the Federal
Rules of Civil and Appellate Procedure are in some
instances complex, Rule 4(a)(1), which establishes the time
to appeal, is neither obscure nor difficult to understand. In
fact, Rule 4(a)(1) specifies the time for appeal in cases in
which the United States or an officer or agency thereof is or
is not a party.2 In the circumstances, we cannot
_________________________________________________________________

2. See also 28 U.S.C. S 2107.

                                7
understand how appellants' attorney could have been
familiar with the 60-day provision when the United States
or its officer or agency is a party but not the 30-day
provision applicable in other cases. Moreover, surely it is
not too much to ask that an attorney know the time for an
appeal. See Consolidated Freightways Corp. v. Larson, 827
F.2d 916, 919 (3d Cir. 1987) (in determining whether there
has been excusable neglect court should consider, inter
alia, "whether the inadvertence reflects professional
incompetence such as ignorance of the rules of procedure");
see also Ramseur v. Beyer, 921 F.2d 504, 506 (3d Cir.
1990) (" `Rule 4(a)(5) . . . require(s) afinding of excusable
neglect in those instances where the court, after weighing
the relevant considerations, is satisfied that counsel has
exhibited substantial diligence, professional competence
and has acted in good faith to conform his or her conduct
in accordance with the rule.' ") (quoting Consolidated
Freightways).

Furthermore, appellants' attorney, in reliance on his
belief that he had 60 days to appeal, "began a rather
lengthy motion for [the district court] to reconsider its
ruling." This action demonstrates another
misunderstanding of an applicable court rule, as motions
for reconsideration must be filed within ten days of the
entry of the judgment. See Fed. R. Civ. P. 59(e); Federal
Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.
1987) ("For purposes of Rule 4(a) of the Federal Rules of
Appellate Procedure, we view a motion characterized only
as a motion for reconsideration as the `functional
equivalent' of a Rule 59(e) motion to alter or amend a
judgment."). Thus, the time for appeal simply is not
germane to the question of when a motion for
reconsideration may be filed.

We also point out that only a timely motion for
reconsideration extends the time for an appeal. See Fed. R.
App. P. 4(a)(4); Welch v. Folsom, 925 F.2d 666, 669 (3d Cir.
1991) ("[A] Rule 59(e) motion does not toll the time for
appeal, unless it is `timely filed.' "). Indeed, an untimely
motion for reconsideration is "void and of no effect." United
States v. Contents of Accounts Nos. 3034504504 and 144-
07143, 971 F.2d 974, 976 n.1 (3d Cir. 1992). In fact, the

                               8
appellants' attorney filed a motion for reconsideration in the
district court on October 20, 1999, and, as it was untimely,
it did not extend the time for appeal. The district court
denied the motion on October 22, 1999.

It might be thought from the foregoing discussion that we
should dismiss this appeal and, indeed, we are tempted to
do so. But we will not dismiss the appeal because the
appellees did not appeal from the order granting the
extension of time to appeal. Moreover, we cannot treat their
motions to quash as notices of appeal, as they filed the
motions beyond the time to appeal from the order for the
extension of the time to appeal. Furthermore, we are
satisfied that the irregularities in the district court
proceedings that we describe did not preclude the court
from entering the order for the extension of time to appeal.
Thus, this case differs from a situation in which the district
court erroneously directs the entry of a final judgment
under Fed. R. Civ. P. 54(b) on fewer than all claims or
parties in the case in an attempt to allow an appeal to be
taken from an order even though it simply is notfinal. In
that case, the court of appeals will not have jurisdiction.
See Gerardi v. Pelullo, 16 F.3d 1363, 1368-71 (3d Cir.
1994). Moreover, the appellants did appeal within a time
that could have been allowed under Rule 4(a)(5), so we will
not dismiss the appeal on the theory that the appeal could
not have been timely as it was taken beyond any
permissible extension period.

Thus we are constrained to deny the appellees' motions
to quash the appeal as we do have jurisdiction. While we
deny the motions, we nevertheless emphasize that district
courts, in considering applications for an extension of time
to appeal which are filed after the expiration of the
prescribed time to appeal, should not grant the request in
the absence of an indication that the appellees do not
object to the request without determining that the appellees
have had an effective opportunity to object to the extension.
Of course, even if the appellees do not object, the district
court should not grant the extension absent a showing of
excusable neglect or good cause as provided in Rule 4(a)(5).
In this case, the appellants made no such showing.

                               9
In fact, inasmuch as it is evident that the notice to the
appellees of the request for the extension effectively was no
notice at all, we have considered remanding this matter to
the district court so that it can reconsider the request for
the extension on proper notice to the appellees. See Vianello
v. Pacifico, 905 F.2d 699, 701 (3d Cir. 1990) (when district
court erroneously concluded it could not extend the time
for appeal court of appeals remanded case for further
consideration). Nevertheless, though we could remand the
matter for that purpose, we will not do so as we do have
jurisdiction and we want to save the parties from further
expense in this meritless litigation.

In conclusion we determine that we have jurisdiction and
thus we deny the motions to quash the appeal. But we also
conclude that the appeal is completely without merit so we
will affirm the order entered on August 24, 1999.

A True Copy:
Teste:

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

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