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Rose v. Bartle

filed: March 20, 1989.

ROSE, JOSEPH, APPELLANT IN NO. 88-1634
v.
BARTLE, PAUL, ASHER, ROBERT, SMYTH, JOSEPH A. JR., GOODMAN, BERT, VANCE, OSCAR, MONTGOMERY COUNTY, AND REPUBLICAN PARTY OF MONTGOMERY COUNTY; REED, TRUDY W., APPELLANT IN NO. 88-1646 V. BARTLE, PAUL B., BANNING, RITA C., DEMAIORIBUS, JAMES R., COLLECTIVELY AS THE SALARY BOARD OF MONTGOMERY COUNTY, BARTLE, PAUL, INDIVIDUALLY, ASHER, ROBERT, SMYTH, JOSEPH A., JR., GOODMAN, BERT, VANCE, OSCAR, MONTGOMERY COUNTY, REPUBLICAN PARTY OF MONTGOMERY COUNTY, COMMISSIONERS OF THE COUNTY OF MONTGOMERY; HILL, FREDERICK B. V. BARTLE, PAUL, ASHER, ROBERT, SMYTH, JOSEPH A., JR., GOODMAN, BERT, VANCE, OSCAR, MONTGOMERY COUNTY, AND REPUBLICAN PARTY OF MONTGOMERY COUNTY; HILL, FREDERICK B. V. BARTLE, PAUL, ASHER, ROBERT, SMYTH, JOSEPH A., JR., GOODMAN, BERT, AND REPUBLICAN PARTY OF MONTGOMERY COUNTY, MONTGOMERY ICOUNTY; FREDERICK HILL, APPELLANT IN NO. 88-1650; KOLIMAGA, WALTER, APPELLANT IN NO. 88-1653 V. BARTLE, PAUL, ASHER, ROBERT, MONTGOMERY COUNTY, AND REPUBLICAN PARTY OF MONTGOMERY COUNTY



On Appeal from the United States District Court for the Eastern District of Pennsylvania, District Court Nos. 86-6255, 87-6405, 86-6963, 87-3927, and 87-0804.

Gibbons, Chief Judge, and Greenberg and Rosenn, Circuit Judges.

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge.

This appeal consolidates the claims of four separate appellants whose complaints are grounded in the same alleged misconduct of the defendants. The plaintiff-appellants were employed in the office of the sheriff of Montgomery County, Pennsylvania. Frederick Hill was the elected sheriff, Joseph Rose the chief deputy sheriff, Walter Kolimaga a lieutenant, and Trudy W. Reed the office manager. Rose, Kolimaga, and Reed were discharged and Hill was defeated in his reelection bid after a grand jury presentment against Michael Rebar, a captain in the sheriff's office, named them in connection with Rebar's alleged criminal activity. Thereafter, additional presentments recommended criminal charges against each of the plaintiffs.

The defendants are individuals who at the times material to this action held public and party offices in Montgomery County, in the Republican Party organization and in the county itself. Paul Bartle was the Chairman of the Montgomery County Commission, the county governing body, Robert Asher was the Chairman of the Republican Party, Joseph A. Smyth, Jr. was the district attorney, Bert Goodman was an assistant district attorney, and Oscar Vance was the chief of Montgomery County detectives. Bartle along with Rita C. Banning and James R. DeMaioribus constituted the Salary Board of Montgomery County. These individuals and the Republican Party of Montgomery County, the salary board, the commissioners of the county, and the county, were named as defendants by one or more of the plaintiffs.

The plaintiffs allege that the presentments were politically motivated and illegally obtained to force their resignations or provide pretexts for their dismissal and that the defendants engaged in a conspiracy to violate their civil rights. Consequently, plaintiffs filed complaints asserting claims under either or both 42 U.S.C. § 1983 and 18 U.S.C. §§ 1961-68 (RICO), in addition to pendent state law claims. The plaintiffs' complaints were dismissed by Judge Giles of the United States District Court for the Eastern District of Pennsylvania in four separate summary judgment orders.

On appeal, the plaintiffs contend that the district court failed to follow the proper procedures for granting summary judgment. In addition, they argue that their complaints adequately alleged section 1983 and RICO claims and that the defendants failed to demonstrate that there was no genuine dispute as to any material issue of fact and thus were not entitled to summary judgment.

We have appellate jurisdiction under 28 U.S.C. § 1291. The district court had jurisdiction over the section 1983 claims, the RICO claims and the pendent state law claims under 28 U.S.C. § 1343, 18 U.S.C. § 1964(c), and 28 U.S.C. § 1331.

In his memorandum opinions Judge Giles stated that he notified the parties that the then pending "motions to dismiss [filed by defendants] would be considered as motions for summary judgment." Rose v. Bartle, 692 F. Supp. 521, 524 (E.D. Pa., (E.D. Pa., (E.D. Pa. July 22, 1988); Kolimaga v. Bartle, 1988 U.S. Dist LEXIS 7483 (E.D. Pa. 1988). We conclude, however, that the notice was ambiguous and that, consequently, the plaintiffs were denied adequate opportunity to oppose the motions. We must, therefore, reverse the summary judgments unless there was no set of facts on which the plaintiffs could have prevailed. Under this standard we find that some of the plaintiffs' counts were properly dismissed while others were not. Accordingly, we will affirm in part, reverse in part, vacate in part and remand for further proceedings.

I. BACKGROUND

A. The Underlying Facts

An election at which Hill, the incumbent sheriff was expected to run for reelection, was scheduled for November 8, 1983, in Montgomery County. Prior thereto on July 11, 1983, Smyth, Goodman, and Vance instituted grand jury proceedings to investigate allegations of misconduct in the sheriff's office.

The grand jury issued an interim presentment in August 1983, recommending charges against Michael Rebar, a captain in the sheriff's office. This presentment, like one later returned, detailed the testimony given in support of the conclusions reached. See Rose app. at 172. The criminal charges included 67 counts of "macing," defined by 25 Pa. Con. Stat. Ann. § 2374 as the coercive solicitation of political contributions from public employees by public officers or members of political committees. Rebar eventually pleaded guilty to 48 counts of macing. See Rose app. at 261, 570. The presentment also recommended that charges be brought for four counts of conducting an illegal lottery as a funding mechanism for the macing efforts. These charges were brought and Rebar eventually pleaded guilty to them. See Rose app. at 261, 570. The grand jury recommended additional counts of obstructing administration of law or other government functions and hindering apprehension or prosecution. See Rose app. at 261.

The August 1983 presentment also named Hill, Rose, Kolimaga, and Reed in connection with Rebar's alleged criminal activity and as a result Rose, Kolimaga, Reed, and Rebar were fired in August 1983. Hill was defeated in his bid for re-election after the Republican Party failed to endorse him. See Hill Amended Complaint para. 49; see also Reed Amended Complaint para. 27-28. Hill, Rose, Kolimaga, and Reed allege that they did not direct Rebar's activities but that Rebar, a Republican committeeman, acted on behalf of the defendants. See Rose app. at 94, 570-72. The defendants maintain that Rebar's activities were directed by Hill, Rose, Kolimaga, and Reed as a means to finance Hill's reelection campaign.

In November 1983, the grand jury returned a second presentment recommending charges against Hill, Rose, Kolimaga, and Reed. See Rose app. at 87-171. Consequently, Vance swore out a criminal complaint and an affidavit of probable cause charging each of the plaintiffs with 450 counts of macing and charges related to macing.*fn1 See, e.g., Rose app. at 264-66.

Criminal complaints were issued against the plaintiffs in March 1984 following which District Justice John Murray held a preliminary hearing on the charges lasting 14 days over six months. On October 9, 1984, at the close of the hearing, Murray held over 246 of the charges against Rose for trial, see Rose Amended Complaint para. 22, and over 100 of the charges against Hill and Reed, see Hill Amended Complaint para. 21; Reed Amended Complaint para. 35. Certain charges were also held over against Kolimaga. See Kolimaga Complaint para. 23.

According to his brief, at a trial ending November 28, 1984, Hill was acquitted of the macing charges. See Hill brief at 3. In early December 1984 Rose was informed that the new District Attorney was dropping all charges against him. See Rose Amended Complaint para. 23. At a trial ending in March 1985 Hill was acquitted of the election code violation charges. See Hill brief at 3. The charges against Rose and Kolimaga were formally dismissed in February or March 1985. See Rose Amended Complaint para. 23; Kolimaga Complaint para. 24. Some of the charges against Reed were dismissed by the court and she was acquitted by a jury of the remaining charges. See Reed Amended Complaint para. 30.

The essence of the complaints filed by these plaintiffs is the allegation of a conspiracy among high-level officials of Montgomery County and the county Republican Party maliciously to prosecute them shortly before the November 1983 election to force then-Sheriff Hill out of office. Allegedly, the defendants sought to replace Sheriff Hill with someone who would cooperate in their efforts to extend party patronage, macing, and other forms of political influence within the sheriff's office.

B. The Development of This Litigation

On October 27, 1986, Rose filed a complaint which named Bartle, Asher, Smyth, Goodman, Vance, the county, and the party as defendants and which contained section 1983 and RICO counts. In a third count Rose pleaded pendent state law claims of false arrest, malicious prosecution, malicious use and abuse of process, intentional infliction of emotional distress, outrageous conduct, defamation, and civil conspiracy.

On November 28, 1986, Hill filed a complaint in No. 86-6963 under section 1983 which named the same defendants and contained the same pendent state law claims as Rose's complaint.

On February 12, 1987, Kolimaga filed a complaint which named Bartle, Asher, the county, and the party, but not Smyth, Goodman, or Vance, as defendants and which stated section 1983 and RICO counts and a count containing the same pendent state law claims as alleged by Rose.

On June 1, 1987, Hill filed a complaint in No. 87-3927 which named Bartle, Asher, Smyth, Goodman, and the party, but neither Vance nor the county, as defendants and which contained a single RICO count.

The defendants in the Rose case filed motions under Rule 12(b)(6) and Rule 12(c) and also moved to limit discovery, and Rose filed a motion to compel discovery. After a hearing on these motions on August 12, 1987, Judge Giles directed Rose to file an amended complaint and stayed discovery pending his ruling on the sufficiency of the pleadings. At that time Rose expressly requested that the district court inform him before converting defendants' motions into motions for summary judgment. See Rose app. at 545-49. Hill and Kolimaga did not participate in the hearing.

On September 21, 1987, Rose filed an amended complaint which named the same defendants and which contained the same three counts and, on September 25, 1987, he filed a supplemental memorandum in opposition to the motions to dismiss. See Rose app. at 4-5, 554-87, 588-98.

On October 13, 1987, Reed filed a complaint which named all of the defendants Rose had named, including Bartle individually. Additionally, Reed named the Commissioners of Montgomery County and Rita C. Banning, James R. DeMaioribus, and Bartle, collectively, as the Salary Board of Montgomery County, as defendants. Reed's complaint stated section 1983 and RICO counts and a count containing the same pendent state law claims alleged by the other plaintiffs. See Reed app. at 3, 7-19. Thus, at that point there were five separate actions pending, two brought by Hill, and one by each of the other plaintiffs.

The defendants responded to these complaints by filing motions to test the sufficiency of the pleadings. In Hill's section 1983 case, during February or March 1987, each of the defendants other than Smyth filed a Rule 12(b)(6) motion. On February 23, 1987, Smyth filed an answer which included as an affirmative defense the claim that the amended complaint failed to state a claim upon which relief could be granted and which attached as exhibits copies of the presentments of August 1983 and November 1983. On April 7, 1987, Smyth moved for a judgment on the pleadings under Rule 12(c). See Hill app. at 6, 18-19, 35-36, 50-60, 62-63, 82-85.

During March 1987 each of the defendants in Kolimaga's action responded to his original complaint by filing motions to dismiss under Rule 12(b)(6). On April 20, 1987, Kolimaga filed a memorandum of law in opposition to the motions to dismiss to which no exhibits were appended.

During August and September 1987, each of the defendants other than Smyth filed a Rule 12(b)(6) motion to dismiss Hill's RICO complaint. See Hill app. at 3, 141-42, 152-53, 162-63. On October 15, 1987, Smyth filed a motion which sought the alternative remedies of striking his name from Hill's complaint, under Rule 12(f), or dismissing the complaint against him, under Rule 12(b)(6). See Hill app. at 3, 171-72.

On October 23, 1987, Smyth filed an answer to Rose's amended complaint which included as an affirmative defense the claim that the amended complaint failed to state a claim upon which relief could be granted and which attached as exhibits copies of the presentments of August 10, 1983 and November 10, 1983. Rose app. at 603. On October 23, 1987, Bartle and the county filed a motion to dismiss under Rule 12(b)(6) to which was attached an exhibit containing selected excerpts from the November 10, 1983, presentment. See Rose app. at 5, 87, 172, 621-23, 676-83. On October 26, 1987, Goodman and Vance filed a motion to dismiss under Rule 12(b)(6). See Rose app. at 684-85. The remaining defendants, Asher and the party, filed a Rule 12(b)(6) motion on November 6, 1987. See Rose app. at 694-96. On December 4, 1987, Smyth renewed his motion for a judgment on the pleadings under Rule 12(c). See Rose app. at 5. Rose and the defendants filed memoranda in support of their respective positions on the motions to dismiss.

On December 29, 1987, Smyth filed his answer to Reed's original complaint which included as an affirmative defense the assertion that the complaint failed to state a claim upon which relief could be granted and which attached as exhibits copies of the presentments of August 10, 1983 and November 10, 1983. See Reed app. at 23; 32, Rose app. at 87, 172. During January 1988 all of the defendants other than Smyth filed motions to dismiss Reed's complaint pursuant to Rule 12(b)(6). See Reed app. at 3, 36-37, 65-67. On January 28, 1988, Smyth filed a motion for judgment on the pleadings pursuant to Rule 12(c). See Reed app. at 3, 81-84.

The plaintiffs and the defendants filed memoranda of law in support of their respective positions on the motions to challenge the sufficiency of the pleadings. On January 22, 1988, Judge Giles entered an order in Rose's action which stated in pertinent part:

The parties are hereby notified that the court shall consider the pleadings, and the documentary or sworn attachments thereto, in deciding any motion pressed pursuant to Fed. R. Civ. P. 12(b)(6). Any party desiring to submit any further brief or document in opposition or support of such motions must do so by February 10, 1988.

Rose app. at 772.

Orders employing this same language were filed in all of the other cases on January 26, 1988, except for Hill's RICO case. See Reed app. at 80; Hill app. at 207; Kolimaga app. at 68. The time limit for the submission of briefs and other documents was extended until February 17, 1988 for the Rose litigation. The deadline was February 26, 1988, in the Reed, Kolimaga, and Hill section 1983 cases.

On February 17, 1988, in response to Judge Giles's order, Rose filed a "Supplemental Response, Submissions, and Memorandum" which observed that the January 22, 1988, order was ambiguous as to whether Judge Giles intended to rule on the motions to dismiss or whether he intended to convert the motions and rule on summary judgment. See Rose app. at 775-82. Rose's memorandum specifically requested that Judge Giles lift a stay of discovery which he had entered before ruling on summary judgment if that was his intention. In fact, because of the stay, Rose's attempt for discovery had been frustrated and the stay was being honored in the other cases as well. In addition, Rose's memorandum referred to and incorporated his affidavit of February 16, 1988 and an affidavit of Bernard McNulty, an assistant district attorney, which were submitted for consideration if the court was converting the motions. The McNulty affidavit stated that he had shredded certain records of the District Attorney's Office relating to the prosecutions of Hill, Reed, Kolimaga, and Rose, but that expungement orders relating to the destruction of these documents did not cover the shredding of Rose's file. The Rose affidavit contained thirty-one pages of testimony in support of the claims in his amended complaint. The Rose affidavit also stated that "I will not be able to prosecute my case or further counter specific facts asserted in the presentment without the power to subpoena witnesses and depose defendants and without access to the documents in control of the defendants and other parties." Rose app. at 784, 788. Several of the defendants named in the Rose case filed memoranda of law in reply to Rose's supplemental response.

On February 23, 1988, Hill responded to Judge Giles's order by filing a motion for leave to amend both his complaints, attaching a copy of the amended complaint consolidating his section 1983 and state law claims with his RICO claim. See Hill app. at 3, 6, 209-13. On March 10, 1988, the district court granted the motion to amend the section 1983 complaint and on March 18, 1988, it allowed Hill to amend his RICO complaint. See Hill app. at 215, 216. The amended complaint no longer named Vance as a defendant and it did not assert RICO claims against Smyth or Goodman. See Hill app. at 225-53. Hill attached copies of Rose's February 16, 1988, affidavit and Bernard McNulty's affidavit as exhibits to his amended complaint. See Hill app. at 225, 255-86, 288. In March and April 1988, Smyth refiled his answer including the Rule 12(b)(6) affirmative defense and the other remaining defendants refiled pending Rule 12(b)(6) motions.

On February 24 and 25, 1988, the defendants in Kolimaga's action filed supplemental memoranda of law in support of the motions to dismiss. One memorandum included a copy of the motion to dismiss Rose's amended complaint and the memorandum of law in support of the Rose dismissal. See Kolimaga app. at 69, 74, 77. The memorandum filed in Rose's case included an exhibit containing eight pages of selected excerpts from the November 10, 1983, presentment. See Kolimaga app. at 77, 129-36. Kolimaga did not respond to Judge Giles' order by seeking to amend his complaint nor did he file any briefs, memoranda, or affidavits after entry of the January 26, 1988, order.

On February 26, 1988, Reed responded to Judge Giles's order by filing a motion for leave to amend her complaint, attaching a copy of the amended complaint. The amended complaint named the same defendants and contained the same three counts. The district court granted the motion to amend the complaint on March 10, 1988, by which time Reed had supplied copies of Hill's amended complaint and Rose's affidavit as exhibits to be attached to her amended complaint. See Reed app. at 3, 135-38, 157, 162, 163, 191-220, 221-52. In June 1988 the defendants filed anew their Rule 12(b)(6) motions and Smyth's answer which included a Rule 12(b)(6) affirmative defense. See Reed app. at 3, 259, 263, 402-17.

On July 22, 1988, Judge Giles granted the motions to dismiss each of the four plaintiffs' complaints. The plaintiffs appeal from these orders.

II. PROCEDURAL CHALLENGE

Judge Giles converted the motions to dismiss into motions for summary judgment in each of these actions.*fn2 See Rose v. Bartle, 692 F. Supp. at 524; Reed v. Bartle, No. 87-6495, slip op. at 3; Hill v. Bartle, Nos. 86-6963, 87-3927, slip op. at 3; Kolimaga v. Bartle, No. 87-0804, slip op. at 2.

Only Kolimaga argues that the determination should be characterized as a Rule 12(b)(6) dismissal rather than as summary judgment.*fn3 Kolimaga brief at 3. We have previously stated that the label a district court places on its disposition is not binding on an appellate court. See Bogosian v. Gulf Oil Corp., 561 F.2d 434, 443 (3d Cir. 1977) (citing Tuley v. Heyd, 482 F.2d 590, 593 (5th Cir. 1973)), cert. denied, 434 U.S. 1086, 98 S. Ct. 1280-81, 55 L. Ed. 2d 791 (1978). Here, however, we are not concerned with labels inasmuch as we conclude for the reasons we set forth that a standard of review equivalent to that of a Rule 12(b)(6) determination is required in each of these four cases.

Rule 12(b) and Rule 12(c), by identical language, require that when a district court converts motions under them into motions for summary judgment, the procedures of Rule 56 govern.

If . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

When this conversion takes place all parties must be given the opportunity to present material to the court. The parties can exercise this opportunity only if they have notice of the conversion. A comparison of the requirements of Rule 56 with the procedures employed in this case demonstrates that the district court did not provide adequate notice of its conversion of the motions to dismiss.

Fed. R. Civ. P. 56(c) includes two prerequisites to a summary judgment ruling. The Rule requires that the parties have at least ten days notice before the court may consider the motion, a requirement logically connected to the second prerequisite: the opportunity to submit "pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . affidavits" to support or oppose the motion for summary judgment.*fn4

The district court's July 22, 1988, orders granting summary judgment were preceded by more than ten days by the orders of January 22, 1988, and January 26, 1988, on which the district court relied for compliance with the notice requirement of Rule 56. On appeal no party contests the timing of these orders. Instead the plaintiffs contend that the content of the orders was inadequate to provide notice of conversion; they argue that they were unaware that the court was even considering summary judgment.

As quoted above, the orders of January 22, 1988, and January 26, 1988, stated:

The parties are hereby notified that the court shall consider the pleadings, and the documentary or sworn attachments thereto, in deciding any motion pressed pursuant to Fed. R. Civ. P. 12(b)(6). Any party desiring to submit any further brief or document in opposition or support of such motions must do so by February 10, 1988.

Rose app. at 772; see Reed app. at 80; Hill app. at 207; Kolimaga app. at 68. (The Hill, Reed and Kolimaga orders allowed the additional briefs or documents to be filed by February 26, 1988). We have previously held that when no hearing is conducted, the court's order converting Rule 12(b)(6) and Rule 12(c) motions into summary judgment motions must be unambiguous.

[W]e believe that it is undesirable in general for a district court to enter summary judgment after receiving briefs and without holding a hearing unless it makes clear in its order that all affidavits and counter-affidavits must be filed with the briefs. . . . At the least, as a matter of good practice, we believe resort should not be had to [the authorization in Rule 78 for disposition of a motion without a hearing] unless it is made clear beyond all doubt that the parties must present their affidavits and counter-affidavits in addition to whatever facts appear in the pleadings, depositions, answers to interrogatories, and admissions on file.

Season-All Industries, 425 F.2d at 39-40 (footnote omitted).

We examine each of the two quoted sentences in the orders to determine if the parties were sufficiently notified of the district court's intention to convert the motions to dismiss. Prelimlnarily, we observe that the orders refer to the district court's consideration of Rule 12(b)(6) motions rather than orders for summary judgment under Rule 56. The content of the orders does not change this focus on Rule 12(b)(6). The first sentence describes the material on which the district court would rely in ruling on the pending motions. If the described materials unambiguously constitute "matters outside the pleading" which required the district court to convert the motions then this sentence implicitly stated that the court was considering summary judgment. But "pleadings" would not require conversion and the "documentary or sworn attachments" to pleadings could consist not only of material which would require conversion such as a party's affidavit, but of such diverse materials not requiring conversion as a certificate of service, a notice of appearance, or a stipulation for the extension of time in which to file an answer. Inasmuch as this latter class of attachments would meet the description of matters to be considered by the district court, yet would not require conversion, we cannot conclude that the first sentence unambiguously notified the parties that the district court was considering summary judgment.

The second sentence described the type of submissions that the district court would accept before ruling on the pending motions. The district court referred only to the submission of "any further brief or document". A court obviously may consider legal briefs without having to convert a motion to dismiss into a motion for summary judgment. See 5 C. Wright & A. Miller § 1366, at 682, (citing Baltimore & O.R.R. Co. v. American Fidelity & Cas. Co., 34 F.R.D. 148 (W.D. Pa. 1963) and Patitucci v. United States, 178 F. Supp. 507 (E.D. Pa. 1959)). When read in conjunction with "brief", the term "other document" may mean a memorandum of points and authorities which, similarly, does not require conversion. See id. Thus, we cannot conclude that this second sentence in any way clarified the ambiguity of the district court's orders.

Although it would be desirable in the interest of clarity for an order to notify expressly the parties that the court was converting a motion to dismiss into one of "summary judgment" or that the ruling would be pursuant to "Rule 56," the court need not be so explicit so long as the order otherwise fairly apprises the parties of the proposed conversion. Here Rose specifically requested at the August 12, 1987, hearing that the court notify him if it intended to convert the motions. Moreover, in response to the court's January 22, 1988 order, Rose filed a memorandum of law which clearly stated that he was uncertain as to whether the district court intended to convert the motions. In this instance the district court should have clarified the nature of the proceeding before granting summary judgment.

We have held that it is reversible error for a district court to convert a motion under Rule 12(b)(6) or Rule 12(c) into a motion for summary judgment unless the court provides notice of its intention to convert the motion and allows an opportunity to submit materials admissible in a summary judgment proceeding or allows a hearing. See Castle v. Cohen, 840 F.2d 173, 179-80 (3d Cir. 1988) (vacating summary judgment when the district court converted the Rule 12(b)(6) motion without notice to the parties); Davis Elliott Int'l, Inc. v. Pan American Container Corp., 705 F.2d 705, 706-08 (3d Cir. 1983) (reversing summary judgment when the district court acted without notice to the parties and without an opportunity for hearing); Crown Central Petroleum Corp. v. Waldman, 634 F.2d 127, 129 (3d Cir. 1980) (reversing summary judgment when the district court acted without notice to the parties and without allowing an opportunity to submit affidavits); Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980) (same).

The failure to give adequate notice does not, however, require automatic reversal; it may be excused if the failure was a "harmless error". See Hancock Industries v. Schaeffer, 811 F.2d 225, 229 (3d Cir. 1987). Thus, the judgment may be affirmed if it appears that there is no set of facts on which plaintiffs could possibly recover. ...


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