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. e du/thir dc ir c uit_1998/222Filed September 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1978

IN RE: CITY OF PHILADELPHIA LITIGATION (D.C. Civil No. 85-cv-02745)

RAMONA AFRICA

Appellant

v.

CITY OF PHILADELPHIA; WILLIE GOODE; LEO A. BROOKS; GREGORE SAMBOR; WILLIAM RICHMOND; FRANK POWELL, LT.; WILLIAM KLEIN, OFFICER; MICHAEL TURSI, OFFICER; ALBERT REVEL, SGT.; EDWARD CONNOR, SGT.; MORRIS DEMSKO, CORPORAL; RICHARD REED, STATE TROOPER, Individually and in their present and/or former official capacities (D. C. Civil No. 87-cv-02678)

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Nos. 85-cv-02745 & 87-cv-02678)

Argued January 27, 1998

Before: MANSMANN, COWEN and ALITO, Circuit Judges.

(Filed September 9, 1998)Andre L. Dennis, Esquire (ARGUED)

Danielle Banks, Esquire Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103 Counsel for Appellant

Judith E. Harris, Esquire (ARGUED) Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103 Counsel for Appellees: City of Philadelphia, Gregore J. Sambor and
William C. Richmond

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In a companion case decided today, we relate the sa lient facts surrounding the disastrous confrontation betw een the City of Philadelphia police and the members of MOVE . See In re City of Phila. Litig., ___ F.3d ___ (3d Cir. 1998). Although dozens of claims emerged from the ashes an d rubble of 6221 Osage Avenue in West Philadelphia, t he present appeal brings before us only the judgment e ntered against Ms. Ramona Africa and in favor of defendant s William Richmond, the former City of Philadelphia F ire Commissioner, and Gregore Sambor, the former City o f Police Commissioner, on Ms. Africa's state law batt ery claim.

The issue we are called upon to decide in this appe al is whether Ms. Africa has properly raised and preserve d any right she may have had to a jury trial on the issue of willful misconduct in relation to her battery claim against Richmond and Sambor. In addition, we must determine whether the district court erred in determining tha t Ms. Africa failed to show willful misconduct by a prepo nderance
of the evidence. Because we conclude that Ms. Afric a has failed to properly raise and preserve any right to a jury trial

2that she may have had on the willful misconduct iss ue and

because we find that the district court did not err in ruling on willful misconduct, we will affirm the judgment entered
in favor of Richmond and Sambor.

I.

We begin our review with an abbreviated recitation of the procedural history relevant to this appeal. On Octo ber 6, 1993, the magistrate judge assigned to this case recommended granting summary judgment to all indivi dual defendants on the state law claims except Richmond and
Sambor because each was immune from common law tort liability. In re City of Phila. Litig., 849 F. Supp . 331, 364 (E.D. Pa. 1994). He recommended denying summary judgment as to Richmond and Sambor because there wa s evidence that their decision not to extinguish the fire on the roof of the MOVE compound constituted "willful misconduct," conduct that would preclude them from obtaining official immunity from the state law clai ms under Pennsylvania law. See 42 Pa. Cons. Stat. Ann. S 855 0 (West 1982). The district court adopted the magistrate ju dge's recommendation with respect to Richmond and Sambor and denied them summary judgment on the state law
claims.

After various appeals, remands, and pre-trial decis ions, Richmond and Sambor filed motions requesting that t he district court reconsider its summary judgment orde r denying them judgment as a matter of law based on o fficial immunity. The district court denied these motions i n a bench opinion delivered on January 18, 1996. See In re City of Phila. Litig., 938 F. Supp. 1264 (E.D. Pa. 1996). The court found that there was evidence suggesting that Richmond and/or Sambor deliberately disregarded an order from General Brooks to put out the fire. Such obvio us insubordinate conduct, according to the district co urt,
could establish willful misconduct -- intentional c onduct known to be wrong -- because a reasonable factfinde r could infer from the decision to flout a direct ord er that they knew their conduct was "an excessive response to the law enforcement requirements" yet intentionally pro ceeded

3with that course of conduct despite this knowledge. Id. at

1276-77.

In denying Richmond and Sambor's motions for reconsideration, the district court also determined that, under Pennsylvania law, the issue of willful miscon duct must be decided by the court rather than by a jury. Id. at 1270, 1277-78. The court concluded that the referen ce to a judicial determination of willful misconduct in Pennsylvania's Political Subdivision Tort Claims Ac t (PSTCA) mandates that the court decide the issue. I d.; see also 42 Pa. Cons. Stat. Ann. S 8550 (West 1982).

A flurry of motions for reconsideration and motions in limine followed the court's decision denying recons ideration of its summary judgment determination. None of the initial motions for reconsideration, however, questioned th e court's determination that the issue of willful mis conduct was to be determined by the court.1 In a motion in limine filed on March 19, 1996, Sambor first took issue wi th the
court's decision that it would determine the issue of willful misconduct. Sambor argued that, under Pennsylvania law,
the issue of willful misconduct should be decided b y a jury. In response to this motion in limine, Ms. Africa ad vocated that the court deny Sambor's request for a jury determination on willful misconduct. In a pretrial conference on March 26, 1996, the court again made clear that, based upon its interpretation of the PSTCA, t he court was required to determine the issue of willful misc onduct. Ms. Africa made no objection to the court's determi nation
at that time.

At a pretrial hearing on March 27, 1996, Sambor submitted a letter memorandum to the court taking i ssue with the timing of a bench determination on willful misconduct and arguing that any bench determination

___________________________________________________ ______________

1. Sambor filed a motion for reconsideration on Jan uary 22, 1996 which
made no reference to the court's determination that it would decide the issue of willful misconduct. Likewise, Ms. Africa's response to the defendants' motions filed on January 25, 1996 took no exception to this ruling. The parties did not include Richmond's Janu ary 23, 1996 motion for reconsideration in their appendices in this app eal; Ms. Africa has not contended, however, that Richmond's motion raised t his issue.

4must be made after the jury had considered the meri ts of

the state law claims. The court accepted Sambor's submission and requested that the other parties sub mit their views on this issue. Richmond subsequentlyfil ed a memorandum reiterating Sambor's position. Ms. Afric a responded on April 11, 1996 in a "Response to Defen dant's
Motions . . . and Motion for Reconsideration of the January 18, 1996 Bench Ruling," raising several points rela ting to the burden of proof on willful misconduct. In one s entence, in the conclusion of her response, Ms. Africa reque sted that the issue of willful misconduct, if raised, be subm itted to the jury. Ms. Africa cited no authority for this re quest. In a supplemental submission filed on April 15, 1996, Ms . Africa made no specific demand that the willful misconduct issue be determined by a jury.

At a pretrial conference on April 18, 1996, the cou rt outlined the procedure it intended to follow with r espect to the battery claim. The court explained that the jur y would
first decide the substantive state law claims. If t he jury found against Richmond and/or Sambor, the court wou ld then decide the issue of willful misconduct, confor ming its findings, if necessary, to the jury's findings. No objections were made to this procedure at that time.

On June 24, 1996, the jury returned a verdict again st Richmond and Sambor on the battery claim, thus necessitating a ruling on official immunity. In an opinion and order dated August 27, 1996, the district court held that because plaintiffs failed to carry their burde n of establishing willful misconduct, Richmond and Sambo r were entitled to official immunity on the battery c laim. In re City of Phila. Litig., 938 F. Supp. 1278, 1290-93 ( E.D. Pa. 1996). The court held that the claims against Richm ond failed because the trial testimony dispelled any po ssibility that Richmond willfully disregarded Brooks' order.2 Id. at

___________________________________________________ ______________

2. The question of whether Richmond had received Br ooks' order and subsequently disregarded it was disputed at the sum mary judgment stage due to Sambor's testimony before the MOVE Com mission that Richmond was present when Brooks ordered Sambor to put out the fire. Sambor recanted this testimony at trial, acknowledg ing that his testimony before the MOVE Commission was erroneous. Richmond's testimony that he instructed his firefighters to ex tinguish the fire as
soon as he received orders to do so was therefore u ndisputed at trial.

51290. As to Sambor, the district court weighed the evidence

and concluded that plaintiffs did not establish by a preponderance of the evidence that Sambor committed willful misconduct. The district court specifically credited Sambor's testimony that he and Richmond agreed to l et the fire neutralize the bunker before receiving any ord er from Brooks to extinguish the fire. Id. at 1292-93. The district court accordingly entered judgment in favor of Rich mond and Sambor on the battery claim on August 28, 1996. Ms. Africa timely filed this appeal from that final jud gment.

Ms. Africa asserts that the district court erred in failing to submit the issue of willful misconduct to a jury . In addition, she challenges the district court's legal and factual determinations in relation to its ruling on willful
misconduct. Because we find that Ms. Africa failed to properly raise and preserve any right she may have had to a jury trial on the issue of willful misconduct and that the district court's legal and factual determinations o n willful misconduct were not erroneous, we will affirm the d istrict court's judgment in favor of Richmond and Sambor.

II.

The right to a jury trial in federal court, regardl ess of whether the claim arises under state law, presents a question of federal law. Simler v. Conner, 372 U.S. 221, 222 (1963) (per curiam); Cooper Labs., Inc. v. Internat ional Surplus Lines Ins. Co., 802 F.2d 667, 671 (3d Cir. 1986). Although the right to a jury trial is guaranteed by the
Seventh Amendment to the United States Constitution , like all constitutional rights it can be waived by the p arties. United States v. Moore, 340 U.S. 616, 621 (1951). U nlike other constitutional rights, however, an intentiona l relinquishment of the right is not required for wai ver; the right to a jury trial can be waived by inaction or acquiescence. See, e.g., Cooper v. Loper, 923 F.2d 1045, 1049 (3d Cir. 1991) (holding that jury trial right was waived by acquiescence); see also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, S 2321 ( 2d ed. 1995) (noting that the intentional relinquishment s tandard is inapplicable to waiver of the right to a trial b y jury).

6A.

Because the right to a jury trial in federal court is a question of federal law, our starting point is with the Federal Rules of Civil Procedure. Under Rule 38, in order to preserve the right to trial by jury as declared by the Seventh Amendment or by statute, a party must serve a demand for a jury trial upon the other parties no l ater than ten days after the last pleading directed to the is sue to by tried by the jury. Fed. R. Civ. P. 38. If the party does not specify which issues are to be tried by a jury, the party will be deemed to have demanded trial by jury on all iss ues. Id. Once a demand for a jury trial properly has been ma de, all issues will be tried to a jury unless the parties c onsent to a non-jury trial or the court finds that a right to a jury trial
on some or all of the issues does not exist under t he
Constitution or statutes of the United States. See Fed. R. Civ. P. 39(a).

It is undisputed that Ms. Africa included a general demand for a jury trial in her initial complaint in compliance with Rule 38. Ms. Africa contends that s he therefore preserved her right to have the issue of willful misconduct determined by a jury simply because she never consented, by oral or written stipulation as provid ed in Rule 39(a), to a non-jury trial. We disagree.

Our sister courts of appeals have taken a broad app roach to interpreting Rule 39(a) and accordingly have hel d that a party may waive his right to a jury trial under Rul e 39(a) not only by stipulation, but also by failing to obj ect to a court order. See e.g., Sewell v. Jefferson County F iscal Court, 863 F.2d 461, 464-65 (6th Cir. 1988) (noting that courts have interpreted Rule 39(a) broadly and hold ing that plaintiff waived right to a jury trial by failing t o object to court order setting case for bench trial). In fact, our sister court of appeals for the Ninth Circuit has specific ally declined to read Rule 39(a) in the formalistic fash ion advocated by Ms. Africa. See White v. McGinnis, 903 F.2d 699, 701 (9th Cir. 1990). Moreover, in Cooper v. Lo per, 923 F.2d 1045, 1049 (3d Cir. 1991), we joined the major ity of our sister courts in advocating waiver by acquiesce nce by adopting the well established rule that a party's participation in a bench trial without objection wa ives any

7Seventh Amendment right to a jury trial that the pa rty may

have had. See also Wilcher v. City of Wilmington, 1 39 F.3d 366, 378-79 (3d Cir. 1998) (reaffirming our adoptio n of the Cooper rule).

Two considerable policy considerations counsel in f avor of adopting the rule that parties may waive their S eventh Amendment rights by acquiescing in a judicial determination that an issue will be tried by the co urt. The first is the well established principle that it is inappropriate for an appellate court to consider a contention rai sed on appeal that was not initially presented to the dist rict court. See Armbruster v. Unisys Corp., 32 F.3d 768, 772 n. 4 (3d Cir. 1994); Frank v. Colt Indus., Inc., 910 F.2d 90 , 99-100 (3d Cir. 1990). The second is the valid concern tha t a party should not be permitted to silently acquiesce in a trial court's plan to try an issue non-jury by failing to make a timely objection and later demand a new trial only after it has lost on the merits. See Cooper, 923 F.2d at 104 9; see also United Steel Workers of America, AFL-CIO v. Ne w Jersey Zinc Co., Inc., 828 F.2d 1001, 1008 (3d Cir. 1987) (refusing to condone practice of awaiting court's d ecision on the merits before raising jury trial issue). Promot ion of such tactics would not only lead to an unnecessary squan dering of judicial resources but would also reduce a trial court's bench proceeding to a meaningless exercise in futil ity. See Lovelace v. Dall, 820 F.2d 223, 228 (7th Cir. 1987) (discussing policy considerations).

In keeping with these policy considerations which h ave traditionally informed our Seventh Amendment jurisprudence, we hold today that where a party has made a general demand for a jury trial and the court subsequently determines that a certain issue will b e determined non-jury, it is incumbent upon that part y to timely lodge a specific objection in order to prese rve any Seventh Amendment jury trial right he may have with respect to that issue. This rule is consistent with our general policy against ruling on an issue first rai sed on appeal that the district court never had the opport unity to consider. In addition, it preserves the integrity o f the judicial process by ensuring that judicial determin ations are given full effect and prevents the tremendous w aste of

8precious judicial resources that otherwise would re sult from

duplicitous litigation.

B.

Accordingly, once the district court determined tha t the
issue of willful misconduct would be determined wit hout a jury, it was incumbent upon Ms. Africa to timely lo dge a specific objection to that determination in order t o preserve her right to a jury trial under the Seventh Amendme nt. We
find that Ms. Africa failed to set forth a sufficie ntly timely and specific objection to preserve any jury trial r ights that she may have had.

At oral argument before us, Ms. Africa was unable t o point to any specific objection stating that her ri ght to a jury trial under the Seventh Amendment would be abr idged
if the court were to determine the issue of willful misconduct. Our independent review of the record ha s also failed to locate such an objection. The absence of a specific objection on this point leads us to conclude that M s. Africa has waived any right she may have had to a jury tri al on
the issue of willful misconduct.

Ms. Africa, however, contends that her one sentence request in the conclusion of her response of April 11, 1996 was sufficiently timely and definite to preserve he r right to a jury trial. We disagree. By the time Ms. Africa s ubmitted her response, the debate as to whether the court wo uld
determine willful misconduct was over.

The court had first announced its determination tha t it
would resolve the willful misconduct issue on Janua ry 18, 1996. None of the initial pleadings relating to reconsideration of this determination, including Ms . Africa's January 25, 1996 response to the defendants' motion s for reconsideration, objected to the court's decision t hat it, rather than the jury, would determine willful misco nduct. In addition, when Sambor first objected to a judici al determination of the issue in his March 19, 1996 mo tion in limine, Ms. Africa responded by taking the position that the issue had been conclusively determined and that Sam bor's
motion in limine should therefore be denied. Finall y, when the court reiterated its position that it would det ermine the

9issue at the March 27, 1996 pretrial hearing, Ms. A frica

made no objection. The court therefore had every re ason to believe that, by March 27, 1996, Ms. Africa had wai ved any right she may have had to a jury trial on willful
misconduct.

Furthermore, Ms. Africa's April 11, 1996 response w as submitted in answer to the court's request that the parties give their views on the proper sequence in trying t he state law claims. At that juncture, neither the court nor the parties were focusing on the issue of whether willf ul misconduct should be tried to a jury. The district court should not be expected to view a passing reference in the conclusion of this response as a valid demand under the
Seventh Amendment absent a clear and substantiated argument relating to the grounds for such a demand.

In short, Ms. Africa's one sentence demand in a ple ading unrelated to her Seventh Amendment right to a jury trial
made almost four months after the court's initial
determination on the issue was too little too late. Her request was not sufficiently specific to alert the court that she was exercising any rights she may have had unde r the Seventh Amendment to demand a jury trial on willful misconduct. In addition, her request was untimely. Accordingly, we find that Ms. Africa failed to adeq uately raise and preserve any right she may have had to a jury
trial on willful misconduct.

III.

Ms. Africa also contends that the district court's decision on willful misconduct is fraught with legal error b ecause the district court applied an incorrect legal stand ard and failed to correctly weigh the evidence presented. N either contention has merit. The district court correctly interpreted Renk v. City of Pittsburgh, 641 A.2d 28 9 (Pa. 1994) as requiring a subjective standard of willful ness that calls for a showing of an intention to do what is k nown to be wrong. See Sameric Corp. of Delaware, Inc. v. Ci ty of Philadelphia, 142 F.3d 582, 600-01 (3d Cir. 1998). In addition, the district court did not err in applyin g this standard and in weighing the conflicting evidence t o

10determine that Ms. Africa had failed to show willfu l

misconduct by a preponderance of the evidence. See In re City of Phila. Litig., 938 F. Supp at 1290-93. Spec ifically, after independently reviewing the trial testimony, we conclude that the district court's findings that Ri chmond never learned of Brooks' order to put the fire out, that Sambor directed Richmond to put out the fire as soo n as he received the order from Brooks, and that neither Ri chmond nor Sambor engaged in willful misconduct in disrega rding Brooks' order or in allowing the fire to burn, are not clearly
erroneous. While Ms. Africa contends that the distr ict court did not consider certain evidence relating to the d ecision to initially allow the fire to burn, she has failed to point us to any evidence that would compel a finding that eithe r Richmond or Sambor engaged in conduct they knew to be wrong. Accordingly, because we do not find any lega l error, we must affirm the district court's judgment on Ms. Africa's battery claim.

IV.

In sum, we find that Ms. Africa waived any right sh e may have had to a jury trial on the issue of willful mi sconduct by failing to timely and specifically object to the district court's January 18, 1996 decision that it would det ermine the issue. In addition, we do not find any legal er ror with the district court's judgment in favor of Richmond and Sambor on Ms. Africa's battery claim. Accordingly, we must affirm the judgment of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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