On Appeal From The United States District Court For The Eastern District Of Pennsylvania.
Gibbons and Hunter, Circuit Judges and Gerry, District Judge.*fn*
Opinion ON REMAND FROM THE SUPREME COURT
This case is before us on remand from the Supreme Court reversing our holding permitting appellant to proceed on a notice of appeal which was filed after the entry of judgment by the district court but while the appellant's motion to alter or amend that judgment remained pending in the district court. We vacate our judgment and dismiss appellant's appeal.
In June 1979, Robert and Jacqueline Griggs (the Griggses) obtained a personal loan from Provident Consumer Discount Company (Provident) and received a document entitled "Note, Security Agreement and Disclosure Statement" which in paragraph 17-E set forth the extent and nature of Provident's security interests in the Griggses' real and personal property. Soon thereafter, the Griggses filed a Petition in Bankruptcy. The Griggses then brought suit for statutory damages against Provident in the United States District Court for the District of Pennsylvania contending that Provident violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z of the Federal Reserve Board, 12 C.F.R. § 226.1 et seq. They alleged that: (1) the description of Provident's security interest taken in after-acquired property was inaccurate and misleading; (2) Provident improperly calculated the refund of prepaid interest due on an earlier loan refinanced by the present loan; and (3) the inclusion in the disclosure statement of a non-existent security interest in insurance proceeds was improper. Provident counterclaimed for setoff against any recovery of the Griggses' pre-bankruptcy obligation to it.
On December 24, 1980, the district court granted the Griggses' motion for summary judgment and dismissed Provident's counterclaim, finding that Provident's disclosure of its security interests in the after-acquired property had been inaccurate and misleading. Griggs v. Provident Consumer Discount Co., 503 F. Supp. 246 (E.D. Pa. 1980). Since one violation of the Act is sufficient to establish liability for statutory damages, plaintiffs' remaining contentions were not reached. The court awarded the Griggses separate recoveries of $1000.00 each under 15 U.S.C. § 1640(a), and Provident thereafter filed a notice of appeal from that order on January 16, 1981. We dismissed that appeal because the district court's order was not appealable under Fed. R. Civ. P. 54. By Order dated November 5, 1981, the district court certified its Order of December 24, 1980 as a final judgment under Fed. R. Civ.P. 54(b). On November 12, 1981, Provident filed a Motion for Reconsideration and Motion to Alter, Amend and Vacate Judgment. On November 19, while that motion was still pending, Provident filed a notice of appeal. On November 23, 1981, the district court dismissed Provident's motions. No further notice of appeal was filed.
This court accepted jurisdiction of the appeal and reversed the district court's judgment noting:
The Griggses urge that this matter is not appealable because Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that "[a] notice of appeal filed before the disposition of any of the above motions shall have no effect." Appellant did fail to satisfy Rule 4(a)(4) but though a premature notice of appeal is subject to dismissal, we have generally allowed appellant to proceed unless the appellee can show prejudice resulting from the premature filing of the notice. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 882 n.2 (3d Cir.), cert. denied, 454 U.S. 893, 102 S. Ct. 390, 70 L. Ed. 2d 208 (1981); Hodge v. Hodge, 507 F.2d 87, 89 (3d Cir. 1975); accord Williams v. Town of Okoboji, 599 F.2d 238 (8th Cir. 1979). See also 9 Moore's Federal Practice para 204.14 (2d ed. 1982). In our case, the Griggses have shown no prejudice by the premature filing of a notice of appeal.
Griggs v. Provident Consumer Discount Co., 680 F.2d 927, 929 n.2 (3d Cir. 1982). Because our analysis of Rule 4(a)(4) conflicted with decisions in other circuits,*fn1 and the language and purposes of the 1979 Amendments to the Federal Rules of Appellate Procedure, the Supreme Court granted the Griggses' petition for writ of certiorari.
Rule 4(a)(4) of the Federal Rules of Appellate Procedure states in pertinent part:
A notice of appeal filed before the disposition of any [Fed. R. Civ. P. 59] motions shall have no effect.
Nonetheless, since 1975, this court, pursuant to its discretionary authority under Fed. R. App. P. 2, has waived the conceded defects of a premature notice of appeal unless the appellee can ...