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


6-2-1998

Tara M. v. City of Philadelphia
Precedential or Non-Precedential:

Docket 97-1596




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Recommended Citation
"Tara M. v. City of Philadelphia" (1998). 1998 Decisions. Paper 128.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/128


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Filed June 2, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-1596

TARA M., By the Guardian of her Estate, Nancy Kanter

v.

CITY OF PHILADELPHIA; PHILADELPHIA DEPARTMENT
OF HUMAN SERVICES; JOAN REEVES, individually and
in her official capacity as Commissioner of the
Department of Human Services of the City of Philadelphia;
JOHN MCGEE, individually and in his official capacity as
Director of Social Services of the Children and Youth
Division, Philadelphia Department of Human Services;
KATHERINE M. CROSS, individually and in her official
capacity as Social Work Administrator of the Adoptions
Branch of the Children and Youth Division, Philadelphia
Department of Human Services; FRANCES CONWELL,
individually and in her official capacity as Social Work
Supervisor of the Adoptions Branch of the Children and
Youth Division of the Human Services; JACQUELINE R.
MARSHALL, Individually and in her official capacity as
Social Case Worker; JOSEPH STUHL, individually and in
his official capacity as Social Case Worker; RICHARD
WALKER, individually and in his official capacity as Social
Case Worker; PENNSYLVANIA DEPARTMENT OF PUBLIC
WELFARE; FEATHER O'CONNOR HOUSTOUN, in her
official capacity as Secretary of the Department of Public
Welfare for the Commonwealth of Pennsylvania;
ASOCIACION DE PUERTORRIQUENOS EN MARCHA, INC.,
["APM, INC."]; HILDA ARTEAGA, individually and in her
official capacity as President of APM, Inc.; JESUS
SIERRA, individually and in his official capacity as
Executive Director of APM, Inc.; MYRIAM MATOS-
MIRANDA, individually and in her official capacity as
Director of the Children, Youth & Family Service Unit of
APM, Inc.; MARIBEL GARCIA, individually and in her
official capacity as Adoption Care Coordinator at APM,
Inc.; NANCY RODRIGUEZ, individually and in her official
capacity as a Foster Care Coordinator at APM, Inc.;
LISETTE GONZALES, individually and in her official
capacity as a Foster Care Coordinator at APM, Inc.; NEW
HOPES OF PHILADELPHIA; FEDERICO RODRIGUEZ;
OWEN W. WILLIAMSON, M.D.; THE CHILD GUIDANCE
CENTER OF THE CHILDREN'S HOSPITAL
OF PHILADELPHIA;

CITY OF PHILADELPHIA; PHILADELPHIA DEPARTMENT
OF HUMAN SERVICES; JOAN REEVES; JOHN MCGEE;
KATHERINE M. CROSS; FRANCES CONWELL;
JACQUELINE R. MARSHALL; JOSEPH STUHL,
       Third Party Plaintiffs

v.

NANCY KANTER, ESQ.,
       Third Party Defendant

FRONTIER INSURANCE COMPANY,
       Intervenor in District Court

       Nancy Kanter, Esquire
       Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-01041)

Argued: March 9, 1998

BEFORE: STAPLETON and ALITO, Circuit Judges, and
SHADUR,* District Judge

(Opinion Filed June 2, 1998)
_________________________________________________________________

* Honorable Milton I. Shadur, Senior United States District Judge for the
Northern District of Illinois, sitting by designation.

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       Jeffrey B. Albert (Argued)
       McKissock & Hoffman
       1700 Market Street - Suite 3000
       Philadelphia, PA 19103
        Attorney for Appellant

       Richard G. Feder
       Divisional Deputy City Solicitor
        (Appeals)
       Jane L. Istvan (Argued)
       Assistant City Solicitor
       Office of the City Solicitor
       1600 Arch Street - 8th Floor
       Philadelphia, PA 19103
        Attorneys for Appellees
        City of Philadelphia, Philadelphia
        Department of Human Services,
        Joan M. Reeves, John McGee,
        Katherine M. Cross, Frances
        Conwell, Jacqueline R. Marshall
        and Joseph Stuhl

       Jay E. Mintzer
       Edelstein, Mintzer & Sarowitz
       1528 Walnut Street - 22nd Floor
       Philadelphia, PA 19102
        Attorney for Appellees
        Asociacion de Puertorriquenos en
        Marcha, Inc., Hilda Arteaga, Jesus
        Sierra, Myriam Matos-Miranda,
        Maribel Garcia, and Nancy
        Rodriguez

OPINION OF THE COURT

STAPLETON, Circuit Judge:

After suffering through years of abuse at the hands of
various foster parents, Tara M., a minor represented by a
court-appointed guardian, brought an action under the

                               3
federal Civil Rights Act, 42 U.S.C. S 1983, and Pennsylvania
law against the City of Philadelphia, several municipal and
state agencies responsible for child welfare, and a number
of individuals associated with those agencies for their
allegedly negligent handling of her case. Several of the
individuals, the City of Philadelphia, and the Philadelphia
Department of Human Services (hereinafter "the city
defendants") filed a third-party complaint against Tara's
guardian ad litem, Nancy Kanter. They asserted that Kanter
had breached various state-law duties in her negligent
representation of Tara; therefore, if they were liable to Tara,
the city defendants sought contribution from Kanter as a
"joint tortfeasor" under Pennsylvania law. Kanter moved to
dismiss the third-party complaint, asserting, inter alia, that
she, as a court appointed guardian ad litem, was entitled to
absolute immunity under section 1983. The district court
denied the motion. We will affirm.

I. Background

Tara was born on April 10, 1987. Her 18-year-old mother
was in the custody of the Pennsylvania child welfare system
at the time, and Tara was consequently committed to the
care of the child welfare system as well. During thefirst
three years of her life, Tara and her mother were shuttled
through six different foster homes. Authorities eventually
discovered that Tara had been abused by her mother, and
they determined that her mother lacked the ability properly
to care for her. Therefore, in November 1990, Tara was
separated from her mother and placed in another foster
home. In January 1991, the Pennsylvania Court of
Common Pleas appointed Nancy Kanter as guardian ad
litem for Tara. In June 1995, Tara was placed in yet
another foster home where she suffered sexual abuse.
Tara's nightmare continued in her next foster home, where
she endured a variety of physical tortures. After several
months of recovery in various institutions, Tara returned to
another private foster home.

In February 1997, Tara, by and through her guardian ad
litem, Kanter, filed a civil action in federal district court
against the City of Philadelphia, the Philadelphia
Department of Human Services, the Pennsylvania

                               4
Department of Public Welfare, several other social welfare
organizations, and several individuals associated with all of
these organizations. Her Complaint sought recovery under
both federal and state law. Counts I and II of the Complaint
assert violations of substantive due process and claim a
remedy under 42 U.S.C. S 1983, while Counts III to VI
contain general allegations of breach of a state imposed
duty of care in failing to protect Tara; failure to exercise
ordinary skill, care, knowledge, and judgment in rendering
care, protection, and services to her; and deviation from
standards governing professional supervision, practice, and
behavior in caring for and servicing dependent minors like
Tara. Count VII alleges a civil conspiracy to commit
unlawful acts that resulted in harm to Tara.

The city defendants filed a third-party complaint against
Kanter. They claimed that if they were liable for the harm
suffered by Tara, then the guardian ad litem, Kanter, must
also have breached her state-law duties to protect Tara. The
third-party plaintiffs alleged that Kanter's neglect was a
"substantial factor" in Tara's damages, and they were
therefore entitled to "contribution and/or indemnity" from
Kanter as a joint tortfeasor under Pennsylvania's version of
the Uniform Contribution Among Tort-feasors Act, 42 Pa.
Cons. Stat. Ann. S 8324 (West 1982).

Kanter moved to dismiss the third-party complaint. She
argued that section 1983 does not provide for contribution,
neither federal nor state law authorized contribution for
liability under section 1983, and in any event she, as a
court appointed guardian ad litem, was entitled to absolute
immunity under section 1983. The district court denied the
motion, observing only that the third-party plaintiffs had
not asserted a claim for contribution under section 1983.
Kanter now appeals.

A. Jurisdiction and Standard of Review

Normally, orders denying motions to dismiss are not
immediately appealable. Such orders do not terminate the
litigation and, hence, are not ordinarily final orders within
the meaning of 28 U.S.C. S 1291. Nonetheless, some denials
of motions to dismiss are final for that purpose. Cohen v.

                               5
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Such
orders are reviewable under the so-called "collateral order"
doctrine if they 1) conclusively determine a disputed
question; 2) resolve an important issue separate from the
merits of the underlying action; and 3) would be effectively
unreviewable on appeal from a final judgment. See Moses
H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
11-12 (1983); Rolo v. General Dev. Corp., 949 F.2d 695, 700
(3d Cir. 1991).

This appeal falls within the collateral order exception.
First, although the district court did not expressly rule that
Kanter was not immune from liability for contribution
toward the third-party plaintiffs' liability under 42 U.S.C.
S 1983, the order so rules by direct implication. Citing
Black v. Bayer, 672 F.2d 309 (3d Cir. 1982), Kanter
expressly argued that, by virtue of section 1983, she was
entitled to absolute immunity that protected her from
having to defend against the third-party complaint. The
effect of the district court's order was to require her to
defend against that complaint. Thus, the court must be
understood as having finally determined that Kanter was
not entitled to the protection she claimed. Second, the issue
of whether Kanter is entitled to be free of the burden of
defending the third-party complaint is an important one
unrelated to the merits of that complaint. Finally, the
district court's refusal to dismiss the third party complaint
is effectively unreviewable after entry of final judgment
because immunity from suit is "an entitlement not to stand
trial or face the other burdens of litigation," an entitlement
that is "effectively lost if a case is erroneously permitted to
go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Therefore, we conclude that the district court's rejection of
Kanter's claim of immunity falls within the collateral order
exception to the finality rule and is subject to immediate
review.1 Because the relevant issues in this case present
_________________________________________________________________

1. At the conclusion of her Brief, Kanter raises two other arguments only
tangentially related to the issue of immunity under section 1983. Even
if we were inclined to invoke a form of "ancillary jurisdiction" over
issues
that are simply presented along with an immediately appealable order
denying immunity from suit, it does not appear that Kanter raised either
argument below, and we will not address them for the first time on
appeal.

                               6
pure questions of law, we exercise plenary review. Carver v.
Foerster, 102 F.3d 96, 99 (3d Cir. 1996).

II. Discussion

Kanter argues that she is entitled to immunity from the
third-party claim based on this court's decision in Black v.
Bayer, 672 F.2d 309 (3d Cir. 1982). Black involved a
lawsuit by a dissatisfied client asserting that his court-
appointed attorney failed to represent him effectively,
resulting in an allegedly improper conviction. We rejected
this claim, holding that criminal defense counsel appointed
by a court enjoy immunity from civil liability under section
1983. We reasoned that potential liability would deter many
qualified attorneys from accepting court appointments in
criminal cases. Kanter urges us to extend the holding of
Black to court-appointed guardians ad litem. We need not
decide whether guardians ad litem should be cloaked with
immunity from liability under section 1983, however,
because any federal immunity that she may enjoy is not
implicated here.

In any situation in which contribution is being sought, it
is helpful to recognize that three distinct liabilities are
involved that may arise from different sources. Thefirst is
the liability to the injured party of the party seeking
contribution. Here, if the city defendants are liable to Tara,
that liability may be based on federal law (S 1983), state law
(negligence or conspiracy), or both. The second is the
liability for contribution. Here, the city defendants assert a
state law basis for the duty to pay contribution (the
Uniform Contribution Among Tort-feasors Act). Finally,
since contribution requires a common obligation to the
injured party, there is the liability to the injured party of
the party from whom contribution is sought. Here, the city
defendants allege that Kanter owed a state law duty to Tara
("a duty to Tara M. to provide competent representation as
is due to an adult client," App. at 59 (Third-Party Compl.
P5)) which was breached by her.

In a suit where the party seeking contribution alleges
that a joint tortfeasor has liability to the injured party
based on the federal Civil Rights Act, contribution may well

                               7
be barred if the tortfeasor would have absolute immunity in
a Civil Rights Act suit brought by the injured party. In such
a situation, awarding contribution would impose upon the
tort feasor indirectly a liability against which she is
absolutely immune under federal law.

This is not, however, the situation currently before us.
Here, the party seeking contribution has alleged that
Kanter is liable to Tara on the basis of a state-imposed duty
of care. A state that imposes such a duty is free to
determine for itself who, if anyone, will be immune from
suits to enforce that duty. Ferri v. Ackerman, 444 U.S. 193,
198 (1978). Accordingly, in these circumstances, a grant of
contribution can impose upon Kanter no liability from
which she is protected under federal law. It is state law that
determines the availability and extent of contribution here
and, even though imposition of liability upon the city
defendants is a matter of federal concern, the duty of
contribution involves no potential conflict with federal law
or policy.

In Poleto v. Consolidated Rail Corp. 826 F.2d 1270 (3d
Cir. 1987), for example, an injured railroad worker had
sued Conrail under the FELA, and Hammermill Paper
Company, the owner of the property where the injury
occurred, under Pennsylvania negligence law. Conrail
cross-claimed against Hammermill for contribution, and we
ultimately were called upon to determine whether state or
federal law controlled the issue raised by the claim for
contribution. We acknowledged that federal law ordinarily
controls issues of contribution when the tort feasors are
alleged to share a federal liability. We held, however, that
the law of Pennsylvania governed the contribution issue
before us because "there was no federal interest at stake"
and the "controversy between Conrail and Hammermill [was
one] that sound[ed] exclusively in state law." Id. at 1282.

Just as in Poleto, the controversy between the city
defendants and Kanter sounds exclusively in state law, and
we therefore hold that Kanter is not entitled to federal
immunity from the contribution claim of the city
defendants. Having resolved the immunity issue that brings
the case before us at this time, we decline to express any
view on the unrelated issue of whether the third-party

                                8
complaint states a claim on which contribution can be
granted under Pennsylvania law. The district court's order
denying Kanter's motion to dismiss will be affirmed.

                                9
SHADUR, Senior District Judge, dissenting:

Just this Term the Supreme Court's opinion in Steel Co.
v. Citizens for a Better Environment, 118 S.Ct. 1003, 1012-
16 (1998) has instructed that whenever subject matter
jurisdiction is lacking a federal court must dismiss on that
score, no matter how clear the path to a disposition on the
merits may seem to be. Because my view is that we are
indeed without jurisdiction here, I regret my inability to join
in the majority's discussion and analysis (though I should
add that if my view on the jurisdictional issue were
different, I would be pleased to sign onto that persuasive
opinion on the merits).

In this instance appellate jurisdiction is sought to be
predicated on the collateral order doctrine of Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), as
it has been extended to district court decisions on
immunity by Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
and its progeny such as Swint v. Chambers County
Comm'n, 514 U.S. 35 (1995). But the difficulty here is that
the district judge never decided the question of the claimed
immunity of third-party defendant Nancy Kanter ("Kanter")
either way. Instead he pegged his ruling on the viability
under Pennsylvania state law of the third-party malpractice
claim that was advanced by the City of Philadelphia ("City")
and its codefendants against Kanter. For us to have
jurisdiction on appeal, then, we must hold that a ruling on
immunity is somehow implicit in the district court's
disposition.

That is a hurdle that I do not believe has been
surmounted here. City's third-party complaint against
attorney Kanter seeks to hold her liable on malpractice
grounds, which the unanimous opinion in Ferri v.
Ackerman, 444 U.S. 193, 197-98, 204-05 (1979) has
confirmed is entirely a matter of state law.1 In fact, Ferri
itself reversed a ruling by the Supreme Court of
Pennsylvania that had looked to the federal law of judicial
immunity (more accurately, to the branch of that doctrine
_________________________________________________________________

1. Indeed, the characterization of City's claim as one sounding in state
law has been confirmed by both attorney Kanter and the City in their
briefs before us.

                               10
that applies to defense counsel such as attorney Kanter) on
the ground that the counsel there had been appointed
under the Criminal Justice Act in a federal criminal case.
That approach was unanimously rejected by the United
States Supreme Court precisely because the malpractice
issue was entirely a matter of state law.

To put the situation before us in the same terms that
were stated in Ferri, federal law does not serve as the
source of the City's malpractice claim against attorney
Kanter, so as to create "a federal interest in defining the
defenses to that claim, including the defense of immunity"
(444 U.S. at 198 n.13). It seems to me that Ferri necessarily
confirms that a state law claim that charges lawyer
malpractice by a court-appointed lawyer (even one who had
been appointed in a federal case as in Ferri, unlike the
situation here) presents pure issues of state law that do not
by their nature implicate the federal doctrine of absolute
immunity. And that to me buttresses the notion that the
district court's nondecision on the issue of immunity
deprives his order of the type of quasi-finality that the
Supreme Court has recognized as conferring appealability
in the collateral-order-doctrine cases such as Mitchell and
succeeding cases.2 As was true in Swint, 514 U.S. at 42-43,
any issue as to Kanter's claimed immunity (if it is not
actually mooted, as it would be if City and its codefendants
were to prevail on the merits of plaintiff's lawsuit against
them) "may be reviewed effectively on appeal from final
judgment" (id. at 43).

That I believe compels us under Steel Co. to halt the
discussion at the outset by dismissing the appeal for lack
of subject matter jurisdiction. Accordingly I respectfully
dissent.
_________________________________________________________________

2. It may be noted in passing that I do not view this case as posing the
same kind of difficulty that caused dismissal of an appeal that had also
sought to invoke the Cohen doctrine in Johnson v. Jones, 515 U.S. 304
(1995). Unlike that case, this one does present a legal issue rather than
the fact-bound questions that foreclosed interlocutory appealability
there.

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A True Copy:
Teste:

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

                               12
