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Makoroff v. City of Lockport

October 19, 1990

EUNICE L. ROSS, APPELLANT
v.
PAUL ZAVARELLA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA; ROBERT N. C. NIX; JOHN P. FLAHERTY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; NICHOLAS P. PAPADAKOS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, STEPHEN A. ZAPPALA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAMES T. MCDERMOTT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY



Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil No. 89-01004.

Sloviter, Becker, and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge

This proceeding has its genesis in a decision by President Judge Paul Zavarella of the Court of Common Pleas of Allegheny County, Pennsylvania, to transfer Judge Eunice Ross from the Orphans' Court Division to the Civil Division of the Common Pleas Court. Subsequent to the Pennsylvania Supreme Court's administrative approval of the request without a hearing, Judge Ross filed a motion with the Supreme Court for reconsideration. Prior to its disposition, Ross instituted an action in the United States District Court for the Middle District of Pennsylvania under 42 U.S.C. § 1983 against President Judge Zavarella and the Pennsylvania Supreme Court claiming that Judge Zavarella made the transfer in retaliation for the testimony given by Judge Ross against Justice Rolf Larsen of the Supreme Court of Pennsylvania, with whom Judge Zavarella is closely associated, during a Judicial Inquiry and Review Board (the Board) proceeding in violation of her first amendment rights under the United States Constitution.

After a flurry of motions and amendments to the complaint, the district court dismissed it as to the individual justices of the Supreme Court of Pennsylvania, named as parties-defendant in plaintiff's amended complaint. The court also granted Judge Zavarella's motion to dismiss the allegations in the first complaint as to him. The district court entered the dismissals because it concluded that it lacked jurisdiction to review the final decision of the state supreme court. The second amended complaint as to Judge Zavarella remains pending before the district court.

Plaintiff's appeal to this court presents several important questions for review. The first raises the interesting issue of whether a final judgment of a state supreme court approving a transfer of one of its county judges from one division to another is a judicial or administrative proceeding and the authority of a United States District Court to review it. The second, and for us the threshold question, stems from the district court's order dismissing the suit as to some of the parties, the justices of the Supreme Court of Pennsylvania. The plaintiff contends that the dismissal is reviewable as an interlocutory order denying plaintiff's motion for an injunction restraining her transfer to the Civil Division under 28 U.S.C. § 1292(a)(1). Although we conclude that the order is one denying a preliminary injunction, we nonetheless must dismiss the appeal for want of an appealable order.

I

Plaintiff Judge Ross has been a Judge in the Court of Common Pleas of Allegheny County since 1972. In 1978, she was assigned to the County Orphans' Court Division, where she served up until the time of this litigation. Defendant Judge Zavarella has been a Judge of the Court of Common Pleas of Allegheny County since January of 1974, and is the Administrative Judge of the Orphans' Court Division of Allegheny County. He has served as President Judge of the Court of Common Pleas of Allegheny County since January 19, 1989. Defendant Nix is Chief Justice, and defendants Flaherty, Papadakos, Zappala, and McDermott are Justices of the Supreme Court of the Commonwealth of Pennsylvania, with general supervisory and administrative authority over the judicial system of Pennsylvania. Pa. Const. art. 5, § 10.

In May and September of 1987, Judge Ross reported information to the Inquiry and Review Board concerning Justice Larsen. The Board subsequently filed formal charges against Larsen and in August of 1988, Ross testified on behalf of the Board adversely to Larsen. Zavarella testified as a witness on behalf of Justice Larsen. Ross alleges that Judge Zavarella is closely associated with Justice Larsen and is a member of a social-political organization established and centered around Justice Larsen.

On February 21, 1989, Judge Zavarella petitioned the Pennsylvania Supreme Court to have Judge Ross transferred out of the Orphans' Court Division. In support of his petition, Zavarella stated that the transfer was necessary for the efficient administration of the court system because the Orphans' Court Division needed only three full-time judges and the Civil Division needed additional judges. Ross filed no opposition at this time and the Supreme Court granted that petition.

On March 22, 1989, Ross petitioned the Supreme Court for reconsideration, permanent stay and vacation of order, alleging that Judge Zavarella requested her transfer in retaliation for her testimony in the Board proceeding. On June 29, 1989, Ross petitioned the Supreme Court of Pennsylvania for a ruling on the petition for reconsideration, stay and vacation of the transfer order and on the request for a hearing. She also requested a temporary stay until such a ruling could be made. On July 12, 1989, the Pennsylvania Supreme Court entered a per curiam*fn1 order denying Ross's petition for reconsideration, permanent stay and vacation of order. The court also dismissed her petition for a ruling. It made no formal record of the proceedings.

On July 10, 1989, while the matter was still pending before the Supreme Court, Judge Ross filed a complaint against Judge Zavarella and the Supreme Court of Pennsylvania pursuant to 42 U.S.C. § 1983, alleging that the transfer was retaliatory and in violation of her rights under the first amendment of the United States Constitution. Ross also filed a motion under Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction and temporary restraining order enjoining her transfer to the Civil Division. The Administrative Office of the State Supreme Court agreed not to implement the transfer until the United States District Court resolved the case before it.

On July 19, 1989, Zavarella and the Justices of the Supreme Court of the Commonwealth of Pennsylvania filed motions to dismiss the complaint. Ross filed a motion to amend and supplement her First Amended Complaint and substitute the above-named individual justices as defendants in lieu of the Supreme Court of Pennsylvania. On March 20, 1990, the United States District Court for the Middle District of Pennsylvania granted the motion to dismiss as to all defendants, concluding the court lacked jurisdiction under the Rooker-Feldman*fn2 doctrine. The court granted plaintiff's motion to amend the complaint as to conduct ...


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