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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

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No. 10-4575

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THE ESTATE OF PERRY BREWINGTON, DECENDENT, 

BY AND THROUGH THE ADMINISTRATOR OF THE ESTATE JAMES D. ROSEN, 

ESQUIRE

 

v.

JOSEPH LOMBARDO, POLICE OFFICER; HORNER, POLICE OFFICER 

BADGE NUMBER 2349; CITY OF PHILADELPHIA

The Estate of Perry Brewington, Appellant

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On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 2-05-cv-06016)

District Judge: Chief Magistrate Judge Thomas J. Rueter

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Submitted Under Third Circuit L.A.R. 34.1(a),

January 13, 2012

BEFORE: MCKEE, Chief Judge, and FUENTES and JORDAN, Circuit Judges

(Opinion Filed: February 28, 2012)

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OPINION OF THE COURT

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FUENTES, Circuit Judge.
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Syeta Brewington obtained a Protection from Abuse (PFA) order against her 

boyfriend, Ramon Mills. In the affidavit in support of the PFA, Syeta alleged that Mills 

had threatened to kill her and that he possessed a gun. For that reason, the Court of 

Common Pleas PFA order stated that the “Defendant shall immediately relinquish the 

following weapons to the Sheriff of Philadelphia County: GUN.” Nevertheless, the two 

police officers who served the PFA order on Mills failed to seize his gun. Shortly after 

being served with the PFA, Mills shot and killed Syeta’s brother, Perry Brewington.

The Estate of Perry Brewington filed suit against the two police officers, Joseph 

Lombardo and Richard Horner, pursuant to 42 U.S.C. § 1983, alleging that they violated 

Brewington’s Fourteenth Amendment due process rights when they failed to seize Mills’ 

weapon.

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The case went to trial before Chief Magistrate Judge Thomas J. Rueter from 

August 11, 2010 to August 13, 2010, and the jury found in the Officers’ favor. The 

Estate filed a Motion for a New Trial pursuant to Federal Rule of Civil Procedure 59(a) 

and 60(b), but Judge Rueter denied this motion on September 29, 2010. The Estate then 

filed a Motion for Reconsideration, which Judge Rueter denied on November 3, 2010. 

 The Estate claimed that the Officers were responsible for Brewington’s death 

under the state-created danger theory of liability. The Officers filed a motion for 

summary judgment. Judge Ludwig denied this motion with respect to the Estate’s due 

process claim against the Officers. 

 1 The Estate’s complaint also named the City of Philadelphia as a defendant, and it raised 

claims of wrongful death and municipal liability that are not at issue on appeal.
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The issue now on appeal is the same issue presented to the District Court in the 

Motion for Reconsideration. The Estate argues that a new trial should have been granted 

because the testimony the Officers gave at trial contradicted their deposition testimony 

and was therefore “contrary to the law of the case.” The Estate contends that, in his 

ruling on the Officers’ summary judgment motion, Judge Ludwig determined “as a 

matter of law” that the PFA order required the Officers to seize Mills’ gun.2

After carefully reviewing the record and the submissions of the parties, we find no 

basis for disturbing the District Court’s thorough and thoughtful opinion and judgment.

 Thus, the 

Estate believes that the Officers should not have been permitted to testify otherwise at 

trial.

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 2 In his opinion, Judge Ludwig noted that, in their depositions, “Officer Harner . . . 

testified that ‘if it [the PFA] said to remove the weapons, I would have removed them, 

yes,’ [and] Officer Lombardo testified that if a PFA requires relinquishment of a weapon, 

the serving officer is required to confiscate it.” Estate of Brewington v. Lombardo, No. 

05-6016, 2008 U.S. Dist. LEXIS 69430, at *4 (E.D. Pa. Sept. 15, 2008). He also stated 

that the officers failed to confiscate Mills’ weapon “despite the clear language of the 

PFA.” Id. at *6.

 

Despite the horrendous facts of this case and the shortcomings of the Officers’ efforts to 

enforce the PFA, the Estate’s arguments are not persuasive. The Estate had a full and fair 

opportunity to impeach the Officers regarding inconsistencies between their deposition 

3 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and we 

have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “Generally, the denial of a 

motion for reconsideration is reviewed for an abuse of discretion. Where a district 

court’s denial of a motion to reconsider is based upon the interpretation of legal precepts, 

however, our review of the lower court’s decision is plenary.” North River Ins. Co. v. 

CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir. 1995) (citation omitted).
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testimony and their trial testimony. Moreover, it seems inappropriate to view Judge 

Ludwig’s denial of summary judgment as creating “law of the case.” As the Ninth 

Circuit has stated, “[s]uch a denial merely postpones decision of any question; it decides 

none. To give it any other effect would be entirely contrary to the purpose of the 

summary judgment procedure.” Dessar v. Bank of Am. Nat’l Trust & Sav. Ass’n, 353 

F.2d 468, 470 (9th Cir. 1965). Therefore, we will affirm the judgment for substantially 

the reasons set forth in the District Court’s opinion.