On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 85-1717.
Sloviter, and Cowen, Circuit Judges, and Debevoise, District Judge.*fn*
Arguably, our consideration of the merits of this appeal from the district court's grant of summary judgment for one of the two defendants on the ground that there was an insufficient showing of state action to support the constitutional and civil rights violations alleged inserts us into the fray sooner than prudentially sound because the second defendant is not before us. This anomalous situation arises from the somewhat unusual procedural history outlined below.
Plaintiffs (collectively referred to as "Robison"), who at times relevant to this litigation both resided as tenants in the Borough of Seven Fields (Borough) and constituted its governing body or officers, sued Canterbury Village, a privately held corporation which developed Seven Fields, and Thomas J. Reilly, its president and a fifty percent shareholder, under various civil rights acts, specifically 42 U.S.C. §§ 1971, 1973, 1983, 1985 and 1986. They alleged that Reilly and Canterbury Village had violated plaintiffs' First Amendment free speech rights, their Ninth Amendment rights to serve as public officials and to have their votes count, their Fourteenth Amendment privileges and immunities, due process, and equal protection rights, and their voting rights, and sought declaratory and injunctive relief, as well as an award of monetary damages and attorneys' fees. The essence of plaintiffs' claims, which we have with some difficulty extrapolated from the complaint and affidavits, is that Reilly and the Village, who developed Seven Fields as a residential development of mostly rental units on 500 acres of land in Cranberry Township, Pennsylvania, and thereafter incorporated Seven Fields as an independent borough under the laws of the Commonwealth of Pennsylvania,*fn1 instituted a series of retaliatory actions against elected members of the town council and the town's officers to coerce them into abiding by Reilly's wishes.
Reilly and Canterbury Village filed an answer and counterclaim alleging libel. The district court then established timetables for motions and responses, and stayed discovery until it decided the issue of its jurisdiction. After the defendants filed a motion to dismiss with Reilly's supporting affidavit and plaintiffs filed counter-affidavits and a motion to dismiss the counterclaim, the district court, treating the motions as seeking summary judgment in light of the submission of evidentiary materials, dismissed the action and counterclaim.*fn2
While Robison's appeal was pending, Canterbury Village advised this court that it had filed for bankruptcy under Chapter 11 of the Bankruptcy Code between the time of the filing of the complaint and the district court's dismissal of the action. It apparently never previously advised the district court or Robison. This court remanded the matter with a direction that the district court consider whether its order dismissing the complaint should be vacated "at least as to Canterbury" in light of the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362 (1982 & Supp. IV 1986). Robison et al. v. Canterbury Village, Inc. and Thomas J. Reilly, 817 F.2d 752, slip op. at 3 (3d Cir. 1987) (per curiam). The district court then vacated its order of dismissal as to Canterbury Village but retained it as to Reilly. Robison et al. v. Canterbury Village and Thomas J. Reilly, No. 85-1717 (W.D. Pa. April 30, 1987). Robison moved for certification of the district court's order pursuant to Fed. R. Civ. P. 54(b), which the district court granted, and Robison appeals.
Robison now complains on appeal that it is unfair that the order of dismissal "applicable to two defendants equally is suspended as to one." Appellants' Brief at 8. However, that is the inevitable result of the automatic stay. The court's Rule 54(b) certification, issued at Robison's request, made the order appealable. Robison also complains of unfairness because the order is before us only as to one defendant. It might indeed have been preferable had the district court declined to certify the dismissal of the complaint as to Reilly, so that the legal issues could be addressed with both parties before us.
In any event, we are satisfied that the order dismissing the complaint as to Reilly is, in fact, final. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7-8, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 362 (3d Cir. 1975). It effectively terminated the litigation as to him. Moreover, although Robison asserts that Reilly and Canterbury Village acted for all relevant purposes as a single unit, Appellants' Brief at 7, the claims as to Reilly are legally separable from those as to Canterbury Village. Even if we had the power to remand on the ground that the Rule 54(b) certification was an abuse of discretion, such a remand would delay the appeal until the conclusion of the bankruptcy proceeding as to Canterbury Village, which may be lengthy. In light of our plenary scope of review of the grant of summary judgment, we deem it preferable from the standpoint of judicial economy that we consider the merits of Reilly's appeal at this time, because we have jurisdiction and our disposition will undoubtedly be relevant to the case still pending in the district court.