1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-1998

In Re: City of Phila

Precedential or Non-Precedential:

Docket 96-1978

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Recommended Citation

"In Re: City of Phila" (1998). 1998 Decisions. Paper 222.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/222
Filed 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 salient 

facts surrounding the disastrous confrontation between 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 and 

rubble of 6221 Osage Avenue in West Philadelphia, the 

present appeal brings before us only the judgment entered 

against Ms. Ramona Africa and in favor of defendants 

William Richmond, the former City of Philadelphia Fire 

Commissioner, and Gregore Sambor, the former City of 

Police Commissioner, on Ms. Africa's state law battery 

claim. 

The issue we are called upon to decide in this appeal is 

whether Ms. Africa has properly raised and preserved 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 that Ms. 

Africa failed to show willful misconduct by a preponderance 

of the evidence. Because we conclude that Ms. Africa has 

failed to properly raise and preserve any right to a jury trial 

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that she may have had on the willful misconduct issue 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 October 6, 

1993, the magistrate judge assigned to this case 

recommended granting summary judgment to all individual 

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 was 

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 claims under 

Pennsylvania law. See 42 Pa. Cons. Stat. Ann. S 8550 (West 

1982). The district court adopted the magistrate judge'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 decisions, 

Richmond and Sambor filed motions requesting that the 

district court reconsider its summary judgment order 

denying them judgment as a matter of law based on official 

immunity. The district court denied these motions in 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 obvious 

insubordinate conduct, according to the district court, 

could establish willful misconduct -- intentional conduct 

known to be wrong -- because a reasonable factfinder 

could infer from the decision to flout a direct order that 

they knew their conduct was "an excessive response to the 

law enforcement requirements" yet intentionally proceeded 

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with 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 misconduct 

must be decided by the court rather than by a jury. Id. at 

1270, 1277-78. The court concluded that the reference to a 

judicial determination of willful misconduct in 

Pennsylvania's Political Subdivision Tort Claims Act 

(PSTCA) mandates that the court decide the issue. Id.; 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 reconsideration 

of its summary judgment determination. None of the initial 

motions for reconsideration, however, questioned the 

court's determination that the issue of willful misconduct 

was to be determined by the court.1 In a motion in limine 

filed on March 19, 1996, Sambor first took issue with 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 by a jury. 

In response to this motion in limine, Ms. Africa advocated 

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, the court 

was required to determine the issue of willful misconduct. 

Ms. Africa made no objection to the court's determination 

at that time. 

At a pretrial hearing on March 27, 1996, Sambor 

submitted a letter memorandum to the court taking issue 

with the timing of a bench determination on willful

misconduct and arguing that any bench determination

_________________________________________________________________ 

1. Sambor filed a motion for reconsideration on January 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 January 23, 1996 motion 

for reconsideration in their appendices in this appeal; Ms. Africa has not 

contended, however, that Richmond's motion raised this issue. 

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must be made after the jury had considered the merits of 

the state law claims. The court accepted Sambor's 

submission and requested that the other parties submit 

their views on this issue. Richmond subsequentlyfiled a 

memorandum reiterating Sambor's position. Ms. Africa 

responded on April 11, 1996 in a "Response to Defendant's 

Motions . . . and Motion for Reconsideration of the January 

18, 1996 Bench Ruling," raising several points relating to 

the burden of proof on willful misconduct. In one sentence, 

in the conclusion of her response, Ms. Africa requested that 

the issue of willful misconduct, if raised, be submitted to 

the jury. Ms. Africa cited no authority for this request. 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 court 

outlined the procedure it intended to follow with respect to 

the battery claim. The court explained that the jury would 

first decide the substantive state law claims. If the jury 

found against Richmond and/or Sambor, the court would 

then decide the issue of willful misconduct, conforming 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 against 

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 burden of 

establishing willful misconduct, Richmond and Sambor 

were entitled to official immunity on the battery claim. In re 

City of Phila. Litig., 938 F. Supp. 1278, 1290-93 (E.D. Pa. 

1996). The court held that the claims against Richmond 

failed because the trial testimony dispelled any possibility 

that Richmond willfully disregarded Brooks' order.2 Id. at 

_________________________________________________________________ 

2. The question of whether Richmond had received Brooks' order and 

subsequently disregarded it was disputed at the summary judgment 

stage due to Sambor's testimony before the MOVE Commission that 

Richmond was present when Brooks ordered Sambor to put out the fire. 

Sambor recanted this testimony at trial, acknowledging that his 

testimony before the MOVE Commission was erroneous. Richmond's 

testimony that he instructed his firefighters to extinguish the fire as 

soon as he received orders to do so was therefore undisputed at trial. 

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1290. 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 let the 

fire neutralize the bunker before receiving any order from 

Brooks to extinguish the fire. Id. at 1292-93. The district 

court accordingly entered judgment in favor of Richmond 

and Sambor on the battery claim on August 28, 1996. Ms. 

Africa timely filed this appeal from that final judgment. 

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 on willful 

misconduct were not erroneous, we will affirm the district 

court's judgment in favor of Richmond and Sambor. 

II. 

The right to a jury trial in federal court, regardless 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. International 

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 parties. 

United States v. Moore, 340 U.S. 616, 621 (1951). Unlike 

other constitutional rights, however, an intentional 

relinquishment of the right is not required for waiver; 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 standard 

is inapplicable to waiver of the right to a trial by jury). 

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A. 

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 later than 

ten days after the last pleading directed to the issue 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 issues. Id. 

Once a demand for a jury trial properly has been made, all 

issues will be tried to a jury unless the parties consent 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 the 

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 she 

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 provided in 

Rule 39(a), to a non-jury trial. We disagree. 

Our sister courts of appeals have taken a broad approach 

to interpreting Rule 39(a) and accordingly have held that a 

party may waive his right to a jury trial under Rule 39(a) 

not only by stipulation, but also by failing to object to a 

court order. See e.g., Sewell v. Jefferson County Fiscal 

Court, 863 F.2d 461, 464-65 (6th Cir. 1988) (noting that 

courts have interpreted Rule 39(a) broadly and holding that 

plaintiff waived right to a jury trial by failing to object to 

court order setting case for bench trial). In fact, our sister 

court of appeals for the Ninth Circuit has specifically 

declined to read Rule 39(a) in the formalistic fashion 

advocated by Ms. Africa. See White v. McGinnis, 903 F.2d 

699, 701 (9th Cir. 1990). Moreover, in Cooper v. Loper, 923 

F.2d 1045, 1049 (3d Cir. 1991), we joined the majority of 

our sister courts in advocating waiver by acquiescence by 

adopting the well established rule that a party's 

participation in a bench trial without objection waives any 

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Seventh Amendment right to a jury trial that the party may 

have had. See also Wilcher v. City of Wilmington, 139 F.3d 

366, 378-79 (3d Cir. 1998) (reaffirming our adoption of the 

Cooper rule). 

Two considerable policy considerations counsel in favor 

of adopting the rule that parties may waive their Seventh 

Amendment rights by acquiescing in a judicial 

determination that an issue will be tried by the court. The 

first is the well established principle that it is inappropriate 

for an appellate court to consider a contention raised on 

appeal that was not initially presented to the district 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 that 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 1049; see 

also United Steel Workers of America, AFL-CIO v. New 

Jersey Zinc Co., Inc., 828 F.2d 1001, 1008 (3d Cir. 1987) 

(refusing to condone practice of awaiting court's decision on 

the merits before raising jury trial issue). Promotion of such 

tactics would not only lead to an unnecessary squandering 

of judicial resources but would also reduce a trial court's 

bench proceeding to a meaningless exercise in futility. See 

Lovelace v. Dall, 820 F.2d 223, 228 (7th Cir. 1987)

(discussing policy considerations). 

In keeping with these policy considerations which have 

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 be 

determined non-jury, it is incumbent upon that party to 

timely lodge a specific objection in order to preserve 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 raised on 

appeal that the district court never had the opportunity to 

consider. In addition, it preserves the integrity of the 

judicial process by ensuring that judicial determinations 

are given full effect and prevents the tremendous waste of 

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precious judicial resources that otherwise would result from 

duplicitous litigation. 

B. 

Accordingly, once the district court determined that the 

issue of willful misconduct would be determined without a 

jury, it was incumbent upon Ms. Africa to timely lodge a 

specific objection to that determination in order to preserve 

her right to a jury trial under the Seventh Amendment. We 

find that Ms. Africa failed to set forth a sufficiently timely 

and specific objection to preserve any jury trial rights that 

she may have had. 

At oral argument before us, Ms. Africa was unable to 

point to any specific objection stating that her right to a 

jury trial under the Seventh Amendment would be abridged 

if the court were to determine the issue of willful

misconduct. Our independent review of the record has also 

failed to locate such an objection. The absence of a specific 

objection on this point leads us to conclude that Ms. Africa 

has waived any right she may have had to a jury trial 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 her right to 

a jury trial. We disagree. By the time Ms. Africa submitted 

her response, the debate as to whether the court would 

determine willful misconduct was over. 

The court had first announced its determination that it 

would resolve the willful misconduct issue on January 18, 

1996. None of the initial pleadings relating to 

reconsideration of this determination, including Ms. Africa's 

January 25, 1996 response to the defendants' motions for 

reconsideration, objected to the court's decision that it, 

rather than the jury, would determine willful misconduct. 

In addition, when Sambor first objected to a judicial 

determination of the issue in his March 19, 1996 motion in 

limine, Ms. Africa responded by taking the position that the 

issue had been conclusively determined and that Sambor's 

motion in limine should therefore be denied. Finally, when 

the court reiterated its position that it would determine the 

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issue at the March 27, 1996 pretrial hearing, Ms. Africa 

made no objection. The court therefore had every reason to 

believe that, by March 27, 1996, Ms. Africa had waived any 

right she may have had to a jury trial on willful 

misconduct. 

Furthermore, Ms. Africa's April 11, 1996 response was 

submitted in answer to the court's request that the parties 

give their views on the proper sequence in trying the state 

law claims. At that juncture, neither the court nor the 

parties were focusing on the issue of whether willful 

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 pleading 

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 under 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 adequately 

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 because 

the district court applied an incorrect legal standard and 

failed to correctly weigh the evidence presented. Neither 

contention has merit. The district court correctly 

interpreted Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 

1994) as requiring a subjective standard of willfulness that 

calls for a showing of an intention to do what is known to 

be wrong. See Sameric Corp. of Delaware, Inc. v. City of 

Philadelphia, 142 F.3d 582, 600-01 (3d Cir. 1998). In 

addition, the district court did not err in applying this 

standard and in weighing the conflicting evidence to 

 10 
determine that Ms. Africa had failed to show willful 

misconduct by a preponderance of the evidence. See In re 

City of Phila. Litig., 938 F. Supp at 1290-93. Specifically, 

after independently reviewing the trial testimony, we 

conclude that the district court's findings that Richmond 

never learned of Brooks' order to put the fire out, that 

Sambor directed Richmond to put out the fire as soon as he 

received the order from Brooks, and that neither Richmond 

nor Sambor engaged in willful misconduct in disregarding 

Brooks' order or in allowing the fire to burn, are not clearly 

erroneous. While Ms. Africa contends that the district court 

did not consider certain evidence relating to the decision to 

initially allow the fire to burn, she has failed to point us to 

any evidence that would compel a finding that either 

Richmond or Sambor engaged in conduct they knew to be 

wrong. Accordingly, because we do not find any legal 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 she may 

have had to a jury trial on the issue of willful misconduct 

by failing to timely and specifically object to the district 

court's January 18, 1996 decision that it would determine 

the issue. In addition, we do not find any legal error 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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