1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-2-1998

Tara M. v. City of Philadelphia

Precedential or Non-Precedential:

Docket 97-1596

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Recommended Citation

"Tara M. v. City of Philadelphia" (1998). 1998 Decisions. Paper 128.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/128
Filed June 2, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-1596 

TARA M., By the Guardian of her Estate, Nancy Kanter 

v. 

CITY OF PHILADELPHIA; PHILADELPHIA DEPARTMENT 

OF HUMAN SERVICES; JOAN REEVES, individually and 

in her official capacity as Commissioner of the 

Department of Human Services of the City of Philadelphia; 

JOHN MCGEE, individually and in his official capacity as 

Director of Social Services of the Children and Youth 

Division, Philadelphia Department of Human Services; 

KATHERINE M. CROSS, individually and in her official 

capacity as Social Work Administrator of the Adoptions 

Branch of the Children and Youth Division, Philadelphia 

Department of Human Services; FRANCES CONWELL, 

individually and in her official capacity as Social Work 

Supervisor of the Adoptions Branch of the Children and 

Youth Division of the Human Services; JACQUELINE R.

MARSHALL, Individually and in her official capacity as 

Social Case Worker; JOSEPH STUHL, individually and in 

his official capacity as Social Case Worker; RICHARD 

WALKER, individually and in his official capacity as Social 

Case Worker; PENNSYLVANIA DEPARTMENT OF PUBLIC 

WELFARE; FEATHER O'CONNOR HOUSTOUN, in her 

official capacity as Secretary of the Department of Public 

Welfare for the Commonwealth of Pennsylvania; 

ASOCIACION DE PUERTORRIQUENOS EN MARCHA, INC., 

["APM, INC."]; HILDA ARTEAGA, individually and in her 

official capacity as President of APM, Inc.; JESUS 

SIERRA, individually and in his official capacity as 

Executive Director of APM, Inc.; MYRIAM MATOSMIRANDA, individually and in her official capacity as 

Director of the Children, Youth & Family Service Unit of 
 

APM, Inc.; MARIBEL GARCIA, individually and in her 

official capacity as Adoption Care Coordinator at APM, 

Inc.; NANCY RODRIGUEZ, individually and in her official 

capacity as a Foster Care Coordinator at APM, Inc.;

LISETTE GONZALES, individually and in her official 

capacity as a Foster Care Coordinator at APM, Inc.; NEW 

HOPES OF PHILADELPHIA; FEDERICO RODRIGUEZ; 

OWEN W. WILLIAMSON, M.D.; THE CHILD GUIDANCE 

CENTER OF THE CHILDREN'S HOSPITAL 

OF PHILADELPHIA; 

CITY OF PHILADELPHIA; PHILADELPHIA DEPARTMENT 

OF HUMAN SERVICES; JOAN REEVES; JOHN MCGEE; 

KATHERINE M. CROSS; FRANCES CONWELL; 

JACQUELINE R. MARSHALL; JOSEPH STUHL, 

 Third Party Plaintiffs 

v. 

NANCY KANTER, ESQ., 

 Third Party Defendant 

FRONTIER INSURANCE COMPANY, 

 Intervenor in District Court 

 Nancy Kanter, Esquire 

 Appellant 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 97-cv-01041) 

Argued: March 9, 1998 

BEFORE: STAPLETON and ALITO, Circuit Judges, and 

SHADUR,* District Judge 

(Opinion Filed June 2, 1998) 

_________________________________________________________________ 

* Honorable Milton I. Shadur, Senior United States District Judge for the 

Northern District of Illinois, sitting by designation. 

 2 
 Jeffrey B. Albert (Argued) 

 McKissock & Hoffman 

 1700 Market Street - Suite 3000 

 Philadelphia, PA 19103 

 Attorney for Appellant 

 Richard G. Feder 

 Divisional Deputy City Solicitor 

 (Appeals) 

 Jane L. Istvan (Argued) 

 Assistant City Solicitor 

 Office of the City Solicitor 

 1600 Arch Street - 8th Floor 

 Philadelphia, PA 19103 

 Attorneys for Appellees 

 City of Philadelphia, Philadelphia 

 Department of Human Services, 

 Joan M. Reeves, John McGee, 

 Katherine M. Cross, Frances 

 Conwell, Jacqueline R. Marshall 

 and Joseph Stuhl 

 Jay E. Mintzer 

 Edelstein, Mintzer & Sarowitz 

 1528 Walnut Street - 22nd Floor 

 Philadelphia, PA 19102 

 Attorney for Appellees 

 Asociacion de Puertorriquenos en 

 Marcha, Inc., Hilda Arteaga, Jesus 

 Sierra, Myriam Matos-Miranda, 

 Maribel Garcia, and Nancy 

 Rodriguez 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

After suffering through years of abuse at the hands of 

various foster parents, Tara M., a minor represented by a 

court-appointed guardian, brought an action under the 

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federal Civil Rights Act, 42 U.S.C. S 1983, and Pennsylvania 

law against the City of Philadelphia, several municipal and 

state agencies responsible for child welfare, and a number 

of individuals associated with those agencies for their 

allegedly negligent handling of her case. Several of the 

individuals, the City of Philadelphia, and the Philadelphia 

Department of Human Services (hereinafter "the city

defendants") filed a third-party complaint against Tara's 

guardian ad litem, Nancy Kanter. They asserted that Kanter 

had breached various state-law duties in her negligent 

representation of Tara; therefore, if they were liable to Tara, 

the city defendants sought contribution from Kanter as a 

"joint tortfeasor" under Pennsylvania law. Kanter moved to 

dismiss the third-party complaint, asserting, inter alia, that 

she, as a court appointed guardian ad litem, was entitled to 

absolute immunity under section 1983. The district court 

denied the motion. We will affirm. 

I. Background 

Tara was born on April 10, 1987. Her 18-year-old mother 

was in the custody of the Pennsylvania child welfare system 

at the time, and Tara was consequently committed to the 

care of the child welfare system as well. During thefirst 

three years of her life, Tara and her mother were shuttled 

through six different foster homes. Authorities eventually 

discovered that Tara had been abused by her mother, and 

they determined that her mother lacked the ability properly 

to care for her. Therefore, in November 1990, Tara was 

separated from her mother and placed in another foster 

home. In January 1991, the Pennsylvania Court of 

Common Pleas appointed Nancy Kanter as guardian ad 

litem for Tara. In June 1995, Tara was placed in yet 

another foster home where she suffered sexual abuse. 

Tara's nightmare continued in her next foster home, where 

she endured a variety of physical tortures. After several 

months of recovery in various institutions, Tara returned to 

another private foster home. 

In February 1997, Tara, by and through her guardian ad 

litem, Kanter, filed a civil action in federal district court 

against the City of Philadelphia, the Philadelphia 

Department of Human Services, the Pennsylvania 

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Department of Public Welfare, several other social welfare 

organizations, and several individuals associated with all of 

these organizations. Her Complaint sought recovery under 

both federal and state law. Counts I and II of the Complaint 

assert violations of substantive due process and claim a 

remedy under 42 U.S.C. S 1983, while Counts III to VI 

contain general allegations of breach of a state imposed 

duty of care in failing to protect Tara; failure to exercise 

ordinary skill, care, knowledge, and judgment in rendering 

care, protection, and services to her; and deviation from 

standards governing professional supervision, practice, and 

behavior in caring for and servicing dependent minors like 

Tara. Count VII alleges a civil conspiracy to commit 

unlawful acts that resulted in harm to Tara. 

The city defendants filed a third-party complaint against 

Kanter. They claimed that if they were liable for the harm 

suffered by Tara, then the guardian ad litem, Kanter, must 

also have breached her state-law duties to protect Tara. The 

third-party plaintiffs alleged that Kanter's neglect was a 

"substantial factor" in Tara's damages, and they were 

therefore entitled to "contribution and/or indemnity" from 

Kanter as a joint tortfeasor under Pennsylvania's version of 

the Uniform Contribution Among Tort-feasors Act, 42 Pa. 

Cons. Stat. Ann. S 8324 (West 1982). 

Kanter moved to dismiss the third-party complaint. She 

argued that section 1983 does not provide for contribution, 

neither federal nor state law authorized contribution for 

liability under section 1983, and in any event she, as a 

court appointed guardian ad litem, was entitled to absolute 

immunity under section 1983. The district court denied the 

motion, observing only that the third-party plaintiffs had 

not asserted a claim for contribution under section 1983. 

Kanter now appeals. 

A. Jurisdiction and Standard of Review 

Normally, orders denying motions to dismiss are not

immediately appealable. Such orders do not terminate the 

litigation and, hence, are not ordinarily final orders within 

the meaning of 28 U.S.C. S 1291. Nonetheless, some denials 

of motions to dismiss are final for that purpose. Cohen v. 

 5 
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Such 

orders are reviewable under the so-called "collateral order" 

doctrine if they 1) conclusively determine a disputed 

question; 2) resolve an important issue separate from the 

merits of the underlying action; and 3) would be effectively 

unreviewable on appeal from a final judgment. See Moses 

H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 

11-12 (1983); Rolo v. General Dev. Corp., 949 F.2d 695, 700 

(3d Cir. 1991). 

This appeal falls within the collateral order exception. 

First, although the district court did not expressly rule that 

Kanter was not immune from liability for contribution 

toward the third-party plaintiffs' liability under 42 U.S.C. 

S 1983, the order so rules by direct implication. Citing 

Black v. Bayer, 672 F.2d 309 (3d Cir. 1982), Kanter

expressly argued that, by virtue of section 1983, she was 

entitled to absolute immunity that protected her from 

having to defend against the third-party complaint. The 

effect of the district court's order was to require her to 

defend against that complaint. Thus, the court must be 

understood as having finally determined that Kanter was 

not entitled to the protection she claimed. Second, the issue 

of whether Kanter is entitled to be free of the burden of 

defending the third-party complaint is an important one 

unrelated to the merits of that complaint. Finally, the 

district court's refusal to dismiss the third party complaint 

is effectively unreviewable after entry of final judgment 

because immunity from suit is "an entitlement not to stand 

trial or face the other burdens of litigation," an entitlement 

that is "effectively lost if a case is erroneously permitted to 

go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). 

Therefore, we conclude that the district court's rejection of 

Kanter's claim of immunity falls within the collateral order 

exception to the finality rule and is subject to immediate 

review.1 Because the relevant issues in this case present 

_________________________________________________________________ 

1. At the conclusion of her Brief, Kanter raises two other arguments only 

tangentially related to the issue of immunity under section 1983. Even 

if we were inclined to invoke a form of "ancillary jurisdiction" over 

issues 

that are simply presented along with an immediately appealable order 

denying immunity from suit, it does not appear that Kanter raised either 

argument below, and we will not address them for the first time on 

appeal. 

 6 
pure questions of law, we exercise plenary review. Carver v. 

Foerster, 102 F.3d 96, 99 (3d Cir. 1996). 

II. Discussion 

Kanter argues that she is entitled to immunity from the 

third-party claim based on this court's decision in Black v. 

Bayer, 672 F.2d 309 (3d Cir. 1982). Black involved a 

lawsuit by a dissatisfied client asserting that his courtappointed attorney failed to represent him effectively, 

resulting in an allegedly improper conviction. We rejected 

this claim, holding that criminal defense counsel appointed 

by a court enjoy immunity from civil liability under section 

1983. We reasoned that potential liability would deter many 

qualified attorneys from accepting court appointments in 

criminal cases. Kanter urges us to extend the holding of 

Black to court-appointed guardians ad litem. We need not 

decide whether guardians ad litem should be cloaked with 

immunity from liability under section 1983, however, 

because any federal immunity that she may enjoy is not 

implicated here. 

In any situation in which contribution is being sought, it 

is helpful to recognize that three distinct liabilities are 

involved that may arise from different sources. Thefirst is 

the liability to the injured party of the party seeking 

contribution. Here, if the city defendants are liable to Tara, 

that liability may be based on federal law (S 1983), state law 

(negligence or conspiracy), or both. The second is the 

liability for contribution. Here, the city defendants assert a 

state law basis for the duty to pay contribution (the 

Uniform Contribution Among Tort-feasors Act). Finally, 

since contribution requires a common obligation to the 

injured party, there is the liability to the injured party of 

the party from whom contribution is sought. Here, the city 

defendants allege that Kanter owed a state law duty to Tara 

("a duty to Tara M. to provide competent representation as 

is due to an adult client," App. at 59 (Third-Party Compl. 

P5)) which was breached by her. 

In a suit where the party seeking contribution alleges 

that a joint tortfeasor has liability to the injured party 

based on the federal Civil Rights Act, contribution may well 

 7 
be barred if the tortfeasor would have absolute immunity in 

a Civil Rights Act suit brought by the injured party. In such 

a situation, awarding contribution would impose upon the 

tort feasor indirectly a liability against which she is 

absolutely immune under federal law. 

This is not, however, the situation currently before us. 

Here, the party seeking contribution has alleged that 

Kanter is liable to Tara on the basis of a state-imposed duty 

of care. A state that imposes such a duty is free to 

determine for itself who, if anyone, will be immune from 

suits to enforce that duty. Ferri v. Ackerman, 444 U.S. 193, 

198 (1978). Accordingly, in these circumstances, a grant of 

contribution can impose upon Kanter no liability from 

which she is protected under federal law. It is state law that 

determines the availability and extent of contribution here 

and, even though imposition of liability upon the city 

defendants is a matter of federal concern, the duty of 

contribution involves no potential conflict with federal law 

or policy. 

In Poleto v. Consolidated Rail Corp. 826 F.2d 1270 (3d 

Cir. 1987), for example, an injured railroad worker had 

sued Conrail under the FELA, and Hammermill Paper 

Company, the owner of the property where the injury

occurred, under Pennsylvania negligence law. Conrail 

cross-claimed against Hammermill for contribution, and we 

ultimately were called upon to determine whether state or 

federal law controlled the issue raised by the claim for 

contribution. We acknowledged that federal law ordinarily 

controls issues of contribution when the tort feasors are 

alleged to share a federal liability. We held, however, that 

the law of Pennsylvania governed the contribution issue 

before us because "there was no federal interest at stake" 

and the "controversy between Conrail and Hammermill [was 

one] that sound[ed] exclusively in state law." Id. at 1282. 

Just as in Poleto, the controversy between the city

defendants and Kanter sounds exclusively in state law, and 

we therefore hold that Kanter is not entitled to federal 

immunity from the contribution claim of the city 

defendants. Having resolved the immunity issue that brings 

the case before us at this time, we decline to express any 

view on the unrelated issue of whether the third-party 

 8 
complaint states a claim on which contribution can be 

granted under Pennsylvania law. The district court's order 

denying Kanter's motion to dismiss will be affirmed. 

 9 
SHADUR, Senior District Judge, dissenting: 

Just this Term the Supreme Court's opinion in Steel Co. 

v. Citizens for a Better Environment, 118 S.Ct. 1003, 1012- 

16 (1998) has instructed that whenever subject matter 

jurisdiction is lacking a federal court must dismiss on that 

score, no matter how clear the path to a disposition on the 

merits may seem to be. Because my view is that we are 

indeed without jurisdiction here, I regret my inability to join 

in the majority's discussion and analysis (though I should 

add that if my view on the jurisdictional issue were 

different, I would be pleased to sign onto that persuasive 

opinion on the merits). 

In this instance appellate jurisdiction is sought to be 

predicated on the collateral order doctrine of Cohen v. 

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), as 

it has been extended to district court decisions on

immunity by Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) 

and its progeny such as Swint v. Chambers County 

Comm'n, 514 U.S. 35 (1995). But the difficulty here is that 

the district judge never decided the question of the claimed 

immunity of third-party defendant Nancy Kanter ("Kanter") 

either way. Instead he pegged his ruling on the viability 

under Pennsylvania state law of the third-party malpractice 

claim that was advanced by the City of Philadelphia ("City") 

and its codefendants against Kanter. For us to have

jurisdiction on appeal, then, we must hold that a ruling on 

immunity is somehow implicit in the district court's 

disposition. 

That is a hurdle that I do not believe has been 

surmounted here. City's third-party complaint against 

attorney Kanter seeks to hold her liable on malpractice 

grounds, which the unanimous opinion in Ferri v. 

Ackerman, 444 U.S. 193, 197-98, 204-05 (1979) has 

confirmed is entirely a matter of state law.1 In fact, Ferri 

itself reversed a ruling by the Supreme Court of 

Pennsylvania that had looked to the federal law of judicial 

immunity (more accurately, to the branch of that doctrine 

_________________________________________________________________ 

1. Indeed, the characterization of City's claim as one sounding in state 

law has been confirmed by both attorney Kanter and the City in their 

briefs before us. 

 10 
that applies to defense counsel such as attorney Kanter) on 

the ground that the counsel there had been appointed 

under the Criminal Justice Act in a federal criminal case. 

That approach was unanimously rejected by the United 

States Supreme Court precisely because the malpractice 

issue was entirely a matter of state law. 

To put the situation before us in the same terms that 

were stated in Ferri, federal law does not serve as the 

source of the City's malpractice claim against attorney 

Kanter, so as to create "a federal interest in defining the 

defenses to that claim, including the defense of immunity" 

(444 U.S. at 198 n.13). It seems to me that Ferri necessarily 

confirms that a state law claim that charges lawyer

malpractice by a court-appointed lawyer (even one who had 

been appointed in a federal case as in Ferri, unlike the 

situation here) presents pure issues of state law that do not 

by their nature implicate the federal doctrine of absolute 

immunity. And that to me buttresses the notion that the 

district court's nondecision on the issue of immunity 

deprives his order of the type of quasi-finality that the 

Supreme Court has recognized as conferring appealability 

in the collateral-order-doctrine cases such as Mitchell and 

succeeding cases.2 As was true in Swint, 514 U.S. at 42-43, 

any issue as to Kanter's claimed immunity (if it is not 

actually mooted, as it would be if City and its codefendants 

were to prevail on the merits of plaintiff's lawsuit against 

them) "may be reviewed effectively on appeal from final 

judgment" (id. at 43). 

That I believe compels us under Steel Co. to halt the 

discussion at the outset by dismissing the appeal for lack 

of subject matter jurisdiction. Accordingly I respectfully 

dissent. 

_________________________________________________________________ 

2. It may be noted in passing that I do not view this case as posing the 

same kind of difficulty that caused dismissal of an appeal that had also 

sought to invoke the Cohen doctrine in Johnson v. Jones, 515 U.S. 304 

(1995). Unlike that case, this one does present a legal issue rather than 

the fact-bound questions that foreclosed interlocutory appealability 

there. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 12