UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 26, 1985
CITY OF SCRANTON CITY HALL SCRANTON, PENNSYLVANIA AND MCNULTY, JAMES B. IN HIS PERSONAL CAPACITY AND AS MAYOR OF THE CITY OF SCRANTON CITY HALL SCRANTON, PENNA. 18503; JAMES B. MCNULTY, IN HIS PERSONAL CAPACITY AND AS MAYOR OF THE CITY OF SCRANTON CITY HALL SCRANTON, PENNA. 18503
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 83-0880) District Judge: William W. Caldwell
Before: ALDISERT, Chief Judge, SLOVITER, Circuit Judge, and MANSMANN, District Judge.*fn*
MEMORANDUM OPINION OF THE COURT
ALDISERT, Chief Judge.
Before us is an appeal by the Mayor of the City of Scranton as a result of an adverse jury verdict in a civil rights action in which the plaintiff contended that the termination of his employment was impermissibly politically motivated. In his complaint, plaintiff asked for a declaratory judgment on the basis of "a willful, bad faith violation of their rights of association as guaranteed by the First and Fourteenth Amendments to the United States Constitution thereto." He also requested "a mandatory injunction restoring plaintiff to his position of employment immediately preceding termination," and made a claim for lost wages, damages, punitive damages and other relief.
Following a jury verdict that awarded damages, the court entered an order on August 15, 1984, denying motions for judgment n.o.v. and a new trial and entering a judgment of $13,000 for lost wages and general compensatory damages of $5,000. By special interrogatories the jury had found that the plaintiff's political activity was a substantial or motivating factor in his job termination and that his position would not have been terminated by the City of Scranton except for his political activity. Appellant argues that the court erred in permitting hearsay evidence attributed to James Noone, Director of Public Safety, and that the jury verdict was not supported by the evidence.
Initially we must confront a jurisdictional issue addressed by neither party. At the time appellant filed his notice of appeal on September 14, 1984, still pending in the district court was the question of whether appellee was entitled to reinstatement. Because this injunctive relief issue remained to be adjudicated, the order appealed from denying appellee's motion for judgment n.o.v. was not final, as it did not "terminate the litigation between the parties on the merits of the case and leave nothing to be done but to enforce by execution what ha[d] been determined." See St. Louis Iron Mountain & Southern Railway v. South Express Co., 108 U.S. 24, 28-29 (1883), quoted in Croker v. Boeing Co. (Vertol Division), 662 F.2d 975, 983 (3d Cir. 1981) (in banc). Normally, the "final judgment rule" of 28 U.S.C. § 1291 would require us to dismiss an appeal from a non-final order. However the circumstances of this case bring this appeal within a narrow exception to the final judgment rule. Upon request from this court, both counsel involved here advised us that the issue of reinstatement was decided in plaintiff's favor on November 27, 1984. Accordingly, the rule recently restated in Presinzano v. Hoffman-LaRoche, Inc., 726 F.2d 105, 108 (3d Cir. 1984), applies" "'a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party.'" Id., quoting Richerson v. Jones, 555 F.2d 918, 922 (3d Cir. 1977); accord Cape May Greene, Inc. v. Warren, 678 F.2d 179 (3d Cir. 1983). Because there is no showing of prejudice to appellee here -- indeed appellee advises us in his letter of March 8, 1985 that "the matter is ripe for disposition" -- we conclude we have jurisdiction and now turn to the merits.
Appellant argues that the statements attributed to Scranton's Director of Public Safety, James Noone, should have been excluded as inadmissible hearsay. At trial appellee testified over appellant's objection that following publication of a newspaper article stating that appellee supported a particular candidate for political office, Noone came to appellee's office and told him: "I want to speak to you about your job[.] . . . The Mayor is aggravated and your position will be eliminated." App. at 47a. The mayor had supported another candidate for the same office. The basis for admission of the statements was Rule 801(d)(2)(D), Federal Rules of Evidence, which states:
(d) Statements which are not hearsay. A statement is not hearsay if --
(2) Admission by party-opponent. The statement is offered against a party and is . . . (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment made during the existence of the relationship . . .
That the district court relied upon this Rule in admitting the statements is evident from the court's finding that "Mr. Noone's relationship to the Mayor and as the Director of Public Safety of the City of Scranton allows that statement to come in." App. at 46a. In denying appellant's post-trial motions, the district court apparently altered its basis for admitting Noone's statements, stating:
As Public Safety Director in the Mayor's cabinet he is obviously an agent of the Mayor in many instances. But agency is not a necessary element in this case. The Director simply informed plaintiff of the Mayor's displeasure and state of mind, and whether he was authorized to do so in immaterial.
App. at 168a. Nothwithstanding the district court's subsequent change in its stated reasoning, we hold Rule 801(d)(2)(D) was the proper basis for the admission of Noone's statements. The record adequately establishes that Noone was an agent of the Mayor -- he was Director of Public Service and on the "executive cabinet," -- and that the statement concerned a matter within the scope of Noone's employment made while he was serving in that capacity. We reject appellant's argument that there is no evidence, other than the statement itself, that connects Noone with the appellee's termination, noting that Noone signed the letter terminating appellee. App. at 153a.
Appellant also asserts on appeal that Noone's statements should have been excluded because there was no evidence that he had personal knowledge of the subject matter of his statements. Appellant aparently [apparently] invites us to graft an additional foundational requirement onto those already enumerated in Rule 801(d)(2)(D). We decline the invitation. We rejected a personal knowledge requirement for Rule 801 admissions in United States v. Ammar, 714 F.2d 238 (3d Cir. 1983). Although Ammar dealt with coconspirator statements offered under Rule 801(d)(2)(E), we observed in broad terms that
it is clear from the Advisory Committee Notes that the drafters intended that the personal knowledge foundation requirement of Rule 602 should apply to hearsay statements admissible as exceptions under Rules 803 and 804 but not to admissions (including coconspirator statements) admissible under Rule 801(d)(2). See McCormick, Handbook of the Law of Evidence § 262, at 628 (2d ed. 1972); cf. Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 630-31 (8th Cir. 1978) (personal knowledge requirementdoes not apply to Fed.R.Evid. 801(d)(2)(D)).
Id. at 254 (footnote omitted).
Finally, we reject as wholly without merit appellant's argument that appellee failed to meet his burden of proof and that appellant met his burden of proving appellee's termination was for a neutral, constitutionally benign reason. The jury returned a verdict based upon special interrogatories:
THE COURT: Mr. Palumbo, you are the foreman of the jury. I'll read the questions and ask you to give the answers.
"Was the political activity or expression of the plaintiff a substantial or motivating factor in bringing about his termination as an employee of the City of Scranton?"
THE FOREMAN: Yes it was, Your Honor.
THE COURT: "Would the plaintiff have been terminated for budgetary reasons regardless of his political activity or expression?"
THE FOREMAN: No, Your Honor.
App. at 149a. Our task is not to second-guess the jury. Rather, as stated in Black v. Stephens, 662 F.2d 181, 187-188 (3d Cir.), cert. denied, 456 U.S. 950 (1981)
[i]n examining the trial court's denial of appellants' motions for judgment n.o.v., we are required to "review the record in this case in the light most favorable to the non-moving party, . . . and to affirm the judgment of the district court denying the motions unless the record is 'critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.'" Dawson v. Chrysler Motor Corp., 630 F.2d 950 (3d Cir. 1980), cert. denied, 450 U.S. 959 (1981), quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969).
Id. Our review of the record reveals sufficient evidence form which the jury could rationally find appellant liable.
We have reviewed all the contentions of the appellant and find them to be without merit.
The judgment of the district court will be affirmed.