1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-1-1999

We Inc v. City of Philadelphia

Precedential or Non-Precedential:

Docket 97-1958

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Recommended Citation

"We Inc v. City of Philadelphia" (1999). 1999 Decisions. Paper 88.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/88
Filed April 1, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-1958 

WE, INC., t/a UNIVERSITY COIN LAUNDRY; 

WILLIAM SCHOEPE, JR., t/a UNIVERSITY PINBALL 

v. 

CITY OF PHILADELPHIA, DEPARTMENT OF LICENSES 

AND INSPECTIONS; RUDOLPH M. PALIAGA, 

INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF 

BUSINESS REGULATORY ENFORCEMENT OF THE 

DEPARTMENT OF LICENSES AND INSPECTIONS FOR 

THE CITY OF PHILADELPHIA; UNIVERSITY OF 

PENNSYLVANIA; MAUREEN RUSH, INDIVIDUALLY AND IN 

HER OFFICIAL CAPACITY AS DIRECTOR OF POLICE 

OPERATIONS FOR THE UNIVERSITY OF PENNSYLVANIA 

University of Pennsylvania, a/k/a Trustees of the 

University of Pennsylvania and Maureen Rush, 

Appellants 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 97-cv-02874) 

District Judge: Hon. Marvin Katz 

Argued September 14, 1998 

BEFORE: STAPLETON and ROTH, Circuit Judges, and 

LONGOBARDI,* District Judge 

(Opinion Filed April 1, 1999) 

_________________________________________________________________ 

*Honorable Joseph J. Longobardi, Senior United States District Judge for 

the District of Delaware, sitting by designation. 
 Ronald J. Shaffer (Argued) 

 Stephanie Resnick 

 Fox, Rothschild, O'Brien & Frankel 

 2000 Market Street, 10th Floor 

 Philadelphia, PA 19103 

 Attorneys for Appellees 

 Roger F. Cox (Argued) 

 Robert A. Burke 

 Jordana Cooper 

 One Logan Square 

 Philadelphia, PA 19103-6998 

 Attorneys for Appellants 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

The University of Pennsylvania ("the University") appeals 

from an order of the District Court denying its motion for 

summary judgment. The University premised its summary 

judgment motion on a claimed immunity from liability 

under the Noerr-Pennington doctrine. See United Mine 

Workers v. Pennington, 381 U.S. 657 (1965); Eastern R.R. 

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 

127 (1961). Before reaching the merits of the District 

Court's decision, we must determine whether a denial of a 

summary judgment motion that is predicated on NoerrPennington immunity constitutes a final, collateral order 

appealable under 28 U.S.C. S 1291. Because we conclude 

that such an order is not appealable under the narrow 

collateral order doctrine, we will dismiss for lack of 

jurisdiction. 

I. 

The appellee, We, Inc., is the owner and operator of two 

adjacent establishments, a coin laundry and a pinball 

arcade, located near the appellant University of 

Pennsylvania's dental school in West Philadelphia. This suit 

 2 
arises out of a Cease Operations Order that was issued to 

appellee by the City of Philadelphia after the University 

lodged numerous complaints with the City. The University 

alleges that, prior to the Order's issuance, appellee's 

businesses were a nuisance and a threat to public safety 

because they were the locus of a variety of disorderly and 

unlawful activities, including assaults, batteries, and 

curfew and truancy violations. Pursuant to this concern, 

the University repeatedly contacted the City of Philadelphia 

and urged action by the City to address what it perceived 

to be unlawful activity associated with the businesses. The 

University met with City representatives regarding its 

concern on several occasions and provided data gathered 

by the University Police to support its allegations. 

Without first providing notice or an opportunity for a 

hearing, the City issued a Cease Operations order to the 

businesses and posted it on the premises in the presence of 

University police officers. Following the order's posting, We, 

Inc., filed suit against the City and the University under 42 

U.S.C. SS 1983 and 1985, alleging a deprivation of its 

property without due process. The City of Philadelphia 

settled the claims against them and the University moved 

for summary judgment, claiming immunity for at least 

some of its actions under the Noerr-Pennington doctrine. 

The District Court denied the University's motion after 

finding that, by participating in the posting and execution 

of the Cease Operations Order, the University defendants' 

conduct arguably went beyond the mere "petitioning" of 

government that the Noerr-Pennington doctrine is designed 

to protect. The University now appeals the District Court's 

denial of summary judgment. 

II. 

A. 

Under 28 U.S.C. S 1291, appeals as of right are limited to 

"final decisions of the district courts." 1 The denial of a 

_________________________________________________________________ 

1. 28 U.S.C. S 1291 provides: "The courts of appeals ... shall have 

jurisdiction of appeals from all final decisions of the district courts of 

the 

United States...." 

 3 
motion for summary judgment ordinarily is not afinal order 

and, accordingly, is not normally appealable. Sacred Heart 

Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir. 

1992). Under the "collateral order" doctrine, however, a 

decision of a district court may be appealable as a"final 

decision" under 28 U.S.C. S 1291 if it (1)"conclusively 

determine[s]" the disputed question; (2)"resolve[s] an 

important issue completely separate" from the merits of the 

action; and (3) is "effectively unreviewable" on appeal from 

a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 

463, 468-69 (1978). If the order at issue fails to satisfy any 

one of these requirements, it is not an appealable collateral 

order. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 

485 U.S. 271, 276 (1988); Christy v. Horn 115 F.3d 201, 

204 (3d Cir. 1997). 

Since Coopers & Lybrand, the Supreme Court has 

repeatedly referred to the collateral order doctrine as 

"narrow," described the conditions for its applications as 

"stringent" and urged that it "should stay that way and 

never be allowed to swallow the general rule." See e.g., 

Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 

868 (1994); Midland Asphalt Corp., v. United States, 489 

U.S. 794, 799 (1989). We have followed this admonition 

and consistently construed the collateral order exception 

narrowly "lest the exception swallow up the salutary 

general rule that only final orders be appealed." Yakowicz 

v. Pennsylvania, 683 F.2d 778, 783 n.10 (3d Cir. 1982); see 

also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51 

(3d Cir. 1993). Moreover, strict construction of the 

collateral order doctrine is consistent with the longstanding 

congressional policy against piecemeal appeals that

underlies the final judgment rule. See Lusardi v. Xerox 

Corp., 747 F.2d 174, 177 (3d Cir. 1984). 

To guard against the temptation to expand the doctrine's 

reach, the Supreme Court has instructed that "the issue of 

appealability under S 1291 is to be determined for the 

entire category to which a claim belongs." Desktop Direct 

Inc., 511 U.S. at 868; Christy, 115 F.3d at 204. This 

approach reflects the Court's insistence that thefinality 

requirement of S 1291 must not be reduced to a case-bycase determination, see Richardson-Merrill Inc. v. Koller, 

 4 
472 U.S. 424, 439 (1985), and that courts consider 

appealability "without regard to the chance that the 

litigation at hand might be speeded, or a particular 

injustice averted, by a prompt appellate court decision." 

Desktop Direct, 511 U.S. at 868 (citation omitted). Thus, in 

this case, we consider whether an order denying a claim of 

immunity under the Noerr-Pennington doctrine is an 

immediately appealable collateral order. 

B. 

The University contends that the denial of its claim of 

immunity under the Noerr-Pennington doctrine is 

immediately appealable under the collateral order doctrine. 

It likens Noerr-Pennington immunity to the absolute and 

qualified immunity enjoyed by public officials, the denial of 

which is immediately appealable under that doctrine. See 

Mitchell v. Forsythe, 472 U.S. 511, 526 (1985); Nixon v. 

Fitzgerald, 457 U.S. 731, 743 (1982). It is true, as the 

University stresses, that a denial of a motion for summary 

judgment based on Noerr-Pennington immunity, like the 

denial of a summary judgment based on official immunity, 

ordinarily will conclusively determine an important issue 

unrelated to the merits of the case. We therefore focus our 

attention on the third requirement of the collateral order 

doctrine -- that the District Court's decision be effectively 

unreviewable on appeal from the final judgment. 

In holding that an order denying qualified immunity to a 

public official is "effectively unreviewable on appeal from 

final judgment," the Supreme Court reasoned in Mitchell v. 

Forsythe that an "essential attribute" of qualified immunity 

is "an entitlement not to stand trial under certain

circumstances," and thus qualified immunity entails "an 

immunity from suit rather than a mere defense to liability." 

Mitchell, 472 U.S. at 526, 530 (emphasis in original). As 

with absolute immunity, this entitlement "is effectively lost 

if a case is erroneously permitted to go to trial." Id. at 526. 

Since Mitchell, denials of a state's Eleventh Amendment 

immunity from suit in a federal court similarly have been 

held to be immediately appealable. See Puerto Rico 

Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S. 

139, 146 (1993) ("the very object and purpose of the 11th 

 5 
Amendment [are] to prevent the indignity of subjecting a 

State to the coercive process of judicial tribunals at the 

instance of private parties") (citation omitted). 

The Supreme Court has repeatedly urged courts to 

employ caution and restraint, however, in reviewing claims 

of a right not to stand trial. Not all defenses that warrant 

a pretrial dismissal entail a right not to stand trial. As the 

Supreme Court has explained, there is "a crucial distinction 

between a right not to be tried and a right whose remedy 

requires the dismissal of charges." United States v. 

Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). In Van 

Cauwenberghe v. Biard, 486 U.S. 517, 524-25 (1988), the 

Court noted that "[b]ecause of the important interests 

furthered by the final-judgment rule and the ease with 

which certain pretrial claims for dismissal may be alleged to 

entail the right not to stand trial, we should examine the 

nature of the right asserted with special care to determine 

whether an essential aspect of the claim is the right to be 

free of the burdens of a trial." 

In Desktop Direct, the Court was even more emphatic in 

insisting that efforts to obviate S 1291's final judgment rule 

by claiming an immunity from suit should be critically 

assessed. "We have, after all, acknowledged that virtually 

every right that could be enforced appropriately by pretrial 

dismissal might loosely be described as conferring a"right 

not to stand trial. . . . Thus, precisely because candor 

forces us to acknowledge that there is no single, `obviously 

correct way to characterize' an asserted right, we have held 

that S 1291 requires courts of appeals to view claims of a 

`right not to be tried' with skepticism, if not a jaundiced 

eye." Desktop Direct, 511 U.S. at 873. 

Thus, as the Supreme Court has framed it, "[t]he critical 

question, following Mitchell, is whether `the essence' of the 

claimed right is a right not to stand trial." Van 

Cauwenberghe, 486 U.S. at 524. This Court has not yet 

addressed this critical question in the context of a claim to 

Noerr-Pennington immunity. We now proceed to do so,

based on the nature and extent of protection afforded by 

Noerr-Pennington immunity and the Supreme Court's 

general admonition that claims to immunity from suit be 

critically assessed. Because we conclude that the Noerr- 

 6 
Pennington doctrine does not provide an "immunity from 

suit" but rather only a defense against liability, we hold 

that a denial of a summary judgment motion predicated on 

Noerr-Pennington "immunity" is not effectively unreviewable 

on appeal from a final judgment. 

III. 

The Noerr-Pennington doctrine originated in the anti-trust 

context as the proposition that "joint efforts to influence 

public officials do not violate the antitrust laws even though 

intended to eliminate competition. Such conduct is not 

illegal, either standing alone or as part of a broader scheme 

itself violative of the Sherman Act." See United Mine 

Workers v. Pennington, 381 U.S. 657, 670 (1965); Eastern 

R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 

U.S. 127 (1961). The Supreme Court has predicated this 

antitrust "immunity" on two principles: first, the First 

Amendment right of citizens to petition the government and 

participate in the legitimate processes of government, and 

second, a statutory interpretation of the Sherman Act 

under which Congress is viewed as not intending the Act to 

reach the political process. As Noerr explained, "[t]o hold 

that the government retains the power to act in this 

representative capacity and yet hold, at the same time, that 

the people cannot freely inform the government of their 

wishes would impute to the Sherman Act a purpose to

regulate, not business activity, but political activity, a 

purpose which would have no basis whatever in the 

legislative history of that Act. Secondly, and of at least 

equal significance, such a construction of the Sherman Act 

would raise important constitutional questions. The right of 

petition is one of the freedoms protected by the Bill of 

Rights, and we cannot, of course, lightly impute to

Congress an intent to invade these freedoms." Noerr, 365 

U.S. at 137-38 (footnote omitted); see also City of Columbia 

v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991) 

("The [Noerr-Pennington] doctrine .. . rests ultimately upon 

a recognition that the antitrust laws, `tailored as they are 

for the business world, are not at all appropriate for 

application in the political arena.' ") (quoting Noerr, 365 

U.S. at 141). 

 7 
This court, along with other courts, has by analogy

extended the Noerr-Pennington doctrine to offer protection to 

citizens' petitioning activities in contexts outside the antitrust area as well. For example, in Brownsville Golden Age 

Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988), 

we found that the Noerr-Pennington doctrine protected 

individuals from tort liability for their actions in petitioning 

the government to shut down a nursing home that was

operating in violation of applicable regulations. Citing to the 

Noerr-Pennington doctrine in Brownsville, we affirmed an 

order granting summary judgment for the defendants,

noting that: 

 "The rule that liability cannot be imposed for damage 

 caused by inducing legislative, administrative, or 

 judicial action is applicable here. The conduct on 

 which this suit is based is protected by the firmly 

 rooted principle, endemic to a democratic government, 

 that enactment of and adherence to law is the 

 responsibility of all. The problem is not too much 

 citizen involvement but too little. Thus, we hold that as 

 a matter of law, defendants' actions in calling 

 Brownsville's violations to the attention of state and 

 federal authorities and eliciting public interest cannot 

 serve as the basis of tort liability." 

Id. at 160. 

Thus, the purpose of Noerr-Pennington as applied in areas 

outside the antitrust field is the protection of the right to 

petition. Immunity from liability is necessary so as not to 

chill the exercise of that right. The question presented by 

this case is whether immunity from the burden of suit is 

also necessary to avoid an unconstitutional chill of the right 

to petition. 

It is helpful at the outset to note that the Petition Clause 

of the First Amendment neither enjoys "special First 

Amendment status" nor confers an "absolute immunity" for 

privilege. McDonald v. Smith, 472 U.S. 479, 484-85 (1985). 

As the Court held in McDonald, the Petition Clause is on a 

par with the freedoms to speak, publish, and assemble. It 

follows that the protection afforded by Noerr-Pennington is 

no more absolute or extensive than that provided by other 

 8 
First Amendment guarantees. We find this helpful because 

relevant jurisprudence concerning burdens of the right to 

freedom of speech is more fully developed than that

concerning the right to petition. 

Citizens who exercise their First Amendment rights of 

free speech and free press enjoy significant protection from 

defamation liability in order to prevent undue chill on the 

exercise of those rights. See, e.g., New York Times v. 

Sullivan, 376 U.S. 254 (1964) (liability to public officials); 

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (liability 

to public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323 

(1974) (liability to private individuals). The courts have 

never recognized, however, that an immunity from suit was 

necessary to prevent an unacceptable chill of those First 

Amendment rights. Indeed, the law appears to be to the 

contrary. 

In Calder v. Jones, 465 U.S. 783 (1984), respondent

actress Shirley Jones claimed that she had been libeled in 

an article written by petitioners in Florida and published in 

a national magazine with a large circulation in California 

where she resided. Petitioners were served in Florida with 

process issued by a California court, and the issue was 

whether that court could exercise personal jurisdiction over 

petitioners. Although the intermediate appellate court in 

California concluded that petitioners' contacts with 

California would ordinarily be sufficient, it held that 

jurisdiction could not be exercised "because of the potential 

`chilling effect' on reporters and editors which would result 

from requiring them to appear in remote jurisdictions to 

answer for the content of articles upon which they worked." 

Id. at 786. 

The Supreme Court disagreed. While in no way 

disparaging petitioners' First Amendment rights, the Court 

found that the burden of litigating in a distant forum was 

insufficient to constitute an unacceptable chill of the 

journalists' exercise of such rights. As Chief Justice 

Rehnquist, writing for a unanimous court, put it: 

 . . . [t]he potential chill on protected First Amendment 

 activity stemming from libel and defamation actions is 

 already taken into account in the constitutional 

 9 
 limitations in the substantive law governing such suits. 

 See New York Times Co. v. Sullivan, 376 U.S. 254 

 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 

 (1974). To reintroduce those concerns at the

 jurisdictional stage would be a form of double 

 counting. We have already declined in other contexts to 

 grant special procedural protections to defendants in 

 libel and defamation actions in addition to the 

 constitutional protections embodied in the substantive 

 laws. See, e.g., Herbert v. Lando, 441 U.S. 153 (1979) 

 (no First Amendment privilege bars inquiry into 

 editorial process). See also Hutchinson v. Proxmire, 443 

 U.S. 111, 120, n.9 (1979) (implying that no special 

 rules apply for summary judgment). 

Id. at 790-91. If safeguarding the First Amendment rights 

asserted in Calder did not also require protecting against 

the burden of litigating in a distant forum, it is unlikely the 

Supreme Court will find that the First Amendment 

protection Noerr-Pennington provides against liability for 

petitioning also includes an across-the-board immunity 

from suit. 

This court as well has rejected the notion that the burden 

of litigation poses an unacceptable threat to First

Amendment values. At one point, the Fourth, Fifth, Eighth 

and D.C. Courts of Appeals took the position that summary 

judgment should enjoy a special status in defamation cases 

because "[t]he threat of being put to the defense of a 

lawsuit . . . may be as chilling to the exercise of First 

Amendment freedoms as fear of the outcome of the lawsuit 

itself." Washington Post Co. v. Keogh, 365 F.2d 965, 968 

(D.C. Cir. 1966); see Anderson v. Cramlet, 789 F.2d 840, 

843 (10th Cir. 1986) (collecting cases). The Supreme Court 

"express[ed] some doubt" about such an approach in 

Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979), 

however, and this court flatly rejected it in Lavin v. New 

York News, Inc., 757 F.2d 1416, 1419 (3d Cir. 1985)

(footnote omitted): 

 In this case, the bench opinion of the district judge can 

 reasonably be interpreted as expressing the view that, 

 because of First Amendment concerns, summary

 judgment is more easily obtainable by a media 

 10 
 defendant in a defamation case than by defendants in 

 other cases. We reject that approach. A substantial 

 dispute of material fact does not disappear merely 

 because a media defendant is being sued, or because 

 a public official is the plaintiff; and plaintiff 's right to 

 a jury trial is entitled to no less respect.

Accord Clark v. American Broadcasting Co., Inc. , 684 F.2d 

1208, 1212 (6th Cir. 1982) (rejecting the argument that 

different considerations apply to summary judgment 

motions in the defamation context); Yiamouyiannis v. 

Consumers Union of United States, Inc., 619 F.2d 932, 939- 

40 (2d Cir. 1980) (same); Anderson, 789 F.2d at 842-43 

(declining to apply a preference either for or against 

summary judgment in defamation cases). 

If, as McDonald requires, the right to petition enjoys no 

special status among First Amendment rights, these 

authorities suggest that Noerr-Pennington immunity 

provides only a defense to liability, not an immunity from 

suit. Under the collateral order doctrine, therefore, the 

denial of a motion for summary judgment predicated on 

Noerr-Pennington is not a collateral order subject to 

immediate review. The only other court of appeals to have 

considered this issue reached a similar conclusion. In Segni 

v. Commercial Office of Spain, 816 F.2d 344 (7th Cir. 1987), 

the defendants moved to dismiss a civil rights complaint on 

the ground that "their conduct enjoy[ed] an `absolute 

immunity' by virtue of the guarantee in the First 

Amendment of the right to petition government for redress." 

Id. at 345. The District Court denied the motion and the 

defendants appealed. The Court of Appeals acknowledged 

that "[w]here the right asserted by way of defense to a 

lawsuit is (or includes) a right not to bear the burden of 

suit itself, regardless of outcome, the denial of that right, as 

by denying a motion to dismiss the suit, is appealable 

immediately by virtue of the collateral order doctrine." Id. at 

345. It nevertheless dismissed the appeal for want of 

jurisdiction, observing: 

 It's quite a leap, though, to say that anytime a motion 

 to dismiss on First Amendment grounds is denied, the 

 defendant can appeal the denial, on the theory that the 

 failure to dismiss the suit at the earliest opportunity is 

 11 
 itself an infringement of the defendant's First 

 Amendment rights. 

Id. 

The Segni court distinguished Noerr-Pennington immunity 

from "state action" doctrine under Parker v. Brown, 317 

U.S. 341 (1943), on the ground that the latter doctrine "had 

been interpreted to create an immunity from suit and not 

just from judgment -- to spare state officials the burdens 

and uncertainties of the litigation itself as well as the cost 

of an adverse judgment." Id. at 346. The possibility that the 

"burdens of suit . . . might deter [public officials] from 

vigorous execution of their office [was] a consideration 

missing in the case of the private defendant." Id. 

We agree with the conclusion reached by the Segni court 

and with its explanation of the distinction between cases 

involving immunity for a public official and those involving 

immunity for a private defendant. Moreover, we have been 

unable to find any case holding that the burden of litigation 

on a private defendant justifies an immunity from suit as 

well as a defense to liability. 

In re: Asbestos School Litigation, 46 F.3d 1284 (3d Cir. 

1994), a case heavily relied upon by the University, seems 

to us to support our conclusion. In that case, we 

considered a request for a writ of mandamus that would 

require the District Court to dismiss the claim against the 

petitioner, Pfizer, Inc. The underlying suit was a nationwide 

class action by 30,000 school districts against Pfizer and 

other former manufacturers of asbestos-containing building 

products. The plaintiffs claimed that Pfizer, by associating 

with a trade association, Safe Building Alliance ("SBA"), had 

joined an ongoing civil conspiracy and had thus become 

liable for all of the other defendants' prior tortious conduct. 

After the District Court denied Pfizer's motion for summary 

judgment, Pfizer petitioned this court, contending that the 

burden of further litigation in the District Court would chill 

its exercise of its First Amendment right of association. 

We first held that Pfizer had a "clear and indisputable" 

right to the issuance of the writ because the District Court's 

decision was "squarely inconsistent" with the Supreme 

Court's holding in Claiborne Hardware that conspiracy 

 12 
liability cannot, consistent with the First Amendment, be 

imposed based upon mere association. Id. at 1289; NAACP 

v. Claiborne Hardware, 458 U.S. 886, 918-20 (1982). We 

then turned to the question of whether Pfizer had other 

adequate means to attain the desired relief, such as by 

waiting to appeal from the final judgment. We did not, as 

the University suggests, establish a rule that anyone with 

First Amendment protection from liability was entitled to an 

immediate appeal from the denial of a motion for summary 

judgment based on that protection. To the contrary, we 

issued the writ only after making a specific finding that 

waiting for an appeal from a final judgment would cause 

Pfizer irreparable injury throughout the remainder of 

extensive proceedings before the trial court. We found that 

"[w]hile the district court's ruling did not directly prohibit 

Pfizer from associating with the SBA during the remainder 

of the district court proceedings, there [could] be little 

question that in reality the district court ruling[would] 

powerfully inhibit Pfizer from doing so." In re: Asbestos, 46 

F.3d at 1295. Pfizer had a need "to engage, by means of the 

SBA, in a `public dialogue on the important issue of safety 

of in-place asbestos containing building products,' and 

Pfizer would suffer irreparable harm if it were deprived of 

the opportunity to engage in such constitutionally protected 

activity." Id. at 1294-95 (footnote omitted). The fact that we 

found it necessary to find a specific and continuing chill on 

Pfizer supports the conclusion that the generalized chill of 

anticipated litigation on others who wish to petition is, 

alone, insufficient to overcome the strong policy against 

piecemeal appeals. Unlike Pfizer, the University has pointed 

to no specific continuing chill on anticipated petitioning, 

but rather only to the burden of defending the remainder of 

this litigation.2 

_________________________________________________________________ 

2. This court's decision in San Fillipo v. Bongiovanni, 30 F.3d 424 (3d 

Cir. 1994), is also consistent with the result that we reach. In San 

Fillipo, this court held that a government employee is protected against 

retaliation under the Petition Clause for havingfiled suit against his 

employer on a matter of purely private concern. Although the employee 

would have had no First Amendment immunity against employer 

discipline if his expressive conduct had constituted speech, Connick v. 

Myers, 461 U.S. 138, 147 (1983), the court held that Connick's "public 

 13 
In sum, the Noerr-Pennington doctrine provides immunity 

from liability for certain types of constitutionally protected 

activity. While of course "there is value -- to all but the 

most unusual litigant -- in triumphing before trial," Van 

Cauwenberghe, 486 U.S. at 524, the interest protected by 

Noerr-Pennington can be fully vindicated after trial. Without 

diminishing the importance of the First Amendment right to 

petition that is protected by the Noerr-Pennington doctrine, 

we hold that a right not to be burdened with a trial is 

simply not an aspect of this protection. 

Because we conclude that the Noerr-Pennington doctrine 

does not confer a right not to stand trial, but rather 

provides only a defense against liability for certain conduct, 

we find that an order denying Noerr-Pennington immunity is 

effectively reviewable on appeal from a final judgment, and 

thus is not an appealable collateral order. 

IV. 

We will dismiss the defendant's appeal from the district 

court's order denying summary judgment for lack of 

appellate jurisdiction. 

_________________________________________________________________ 

concern" limit on the right of free speech did not apply to the plaintiff 

's 

exercise of his right to petition in this context. Id. at 443. The 

justification behind the "public concern" limitation on the Free Speech 

Clause protection of public employees was found inapplicable in the 

context of disciplinary action taken in retaliation for the employee's 

availing himself of a mechanism formally adopted by his government 

employer for the redress of grievances against the employer. Although 

the San Fillipo court found that the Petition Clause provided broader 

protection than the right of free speech, both its holding and its 

reasoning were explicitly confined to the public employment/retaliatory 

discharge context. See id. at 438 ("the scope of the petition right 

depends 

upon the context in which the right is exercised"); id. at 438 n.17 

(rejecting as inapposite various cases arising outside the public 

employment/retaliatory discharge context); id. at 441-42 (finding that 

the government's adoption of a formal redress process provides an 

"independent reason" for essentially "affording special treatment to 

speech found in a grievance" or similar petition). Thus, nothing in San 

Fillipo contravenes our conclusion that, like other First Amendment 

rights, the right to petition protected by Noerr-Pennington immunity 

conveys an immunity from liability, but not from suit. 

 14 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15