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D ock e t 97-1596

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" T a r a M . v . C it y of P hi l a de lp hi a " (1998). 1998 D e cisio n s

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. e du/thir dc ir c uit_1998/128Filed June 2, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-1596

TARA M., By the Guardian of her Estate, Nancy Kante r

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 Philade lphia; JOHN MCGEE, individually and in his official capaci ty as
Director of Social Services of the Children and You th Division, Philadelphia Department of Human Services ; KATHERINE M. CROSS, individually and in her officia l capacity as Social Work Administrator of the Adopti ons Branch of the Children and Youth Division, Philadel phia 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; RICHAR D WALKER, individually and in his official capacity a s 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 h er official capacity as President of APM, Inc.; JESUS SIERRA, individually and in his official capacity a sExecutive Director of APM, Inc.; MYRIAM MATOSMIRANDA, individually and in her official capacity as Director of the Children, Youth & Family Service Un it ofAPM, Inc.; MARIBEL GARCIA, individually and in her

official capacity as Adoption Care Coordinator at A PM, Inc.; NANCY RODRIGUEZ, individually and in her offi cial 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 designati on.

2Jeffrey 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 represente d by a court-appointed guardian, brought an action under t he

3federal Civil Rights Act, 42 U.S.C. S 1983, and Pen nsylvania

law against the City of Philadelphia, several munic ipal and state agencies responsible for child welfare, and a number of individuals associated with those agencies for t heir allegedly negligent handling of her case. Several o f the individuals, the City of Philadelphia, and the Phil adelphia 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 neglig ent representation of Tara; therefore, if they were lia ble to Tara, the city defendants sought contribution from Kanter as a "joint tortfeasor" under Pennsylvania law. Kanter m oved to dismiss the third-party complaint, asserting, inter alia, that she, as a court appointed guardian ad litem, was en titled 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 mo ther was in the custody of the Pennsylvania child welfar e system at the time, and Tara was consequently committed to the care of the child welfare system as well. During th efirst three years of her life, Tara and her mother were s huttled through six different foster homes. Authorities eve ntually 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 fos ter 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 ye t
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 s everal months of recovery in various institutions, Tara re turned to another private foster home.

In February 1997, Tara, by and through her guardian ad litem, Kanter, filed a civil action in federal dist rict court against the City of Philadelphia, the Philadelphia Department of Human Services, the Pennsylvania

4Department of Public Welfare, several other social welfare

organizations, and several individuals associated w ith 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 cl aim a remedy under 42 U.S.C. S 1983, while Counts III to VI contain general allegations of breach of a state im posed duty of care in failing to protect Tara; failure to exercise ordinary skill, care, knowledge, and judgment in re ndering care, protection, and services to her; and deviatio n from standards governing professional supervision, pract ice, and behavior in caring for and servicing dependent mino rs like Tara. Count VII alleges a civil conspiracy to commi t
unlawful acts that resulted in harm to Tara.

The city defendants filed a third-party complaint a gainst Kanter. They claimed that if they were liable for t he harm suffered by Tara, then the guardian ad litem, Kante r, must also have breached her state-law duties to protect Tara. The third-party plaintiffs alleged that Kanter's neglec t was a "substantial factor" in Tara's damages, and they we re therefore entitled to "contribution and/or indemnit y" from Kanter as a joint tortfeasor under Pennsylvania's v ersion 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 contr ibution,
neither federal nor state law authorized contributi on 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 den ied the motion, observing only that the third-party plainti ffs 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 terminat e the litigation and, hence, are not ordinarily final ord ers within the meaning of 28 U.S.C. S 1291. Nonetheless, some denials of motions to dismiss are final for that purpose. C ohen v.

5Beneficial Industrial Loan Corp., 337 U.S. 541 (194 9). Such

orders are reviewable under the so-called "collater al order" doctrine if they 1) conclusively determine a disput ed question; 2) resolve an important issue separate fr om the merits of the underlying action; and 3) would be ef fectively unreviewable on appeal from a final judgment. See M oses 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 excep tion. First, although the district court did not expressl y rule that Kanter was not immune from liability for contributi on toward the third-party plaintiffs' liability under 42 U.S.C. S 1983, the order so rules by direct implication. C iting Black v. Bayer, 672 F.2d 309 (3d Cir. 1982), Kanter expressly argued that, by virtue of section 1983, s he was entitled to absolute immunity that protected her fr om 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 bur den 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 ju dgment because immunity from suit is "an entitlement not t o 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, 52 6 (1985). Therefore, we conclude that the district court's re jection of Kanter's claim of immunity falls within the collate ral order exception to the finality rule and is subject to im mediate review.1 Because the relevant issues in this case p resent

___________________________________________________ ______________

1. At the conclusion of her Brief, Kanter raises tw o 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 th e first time on appeal.

6pure 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 effectiv ely, resulting in an allegedly improper conviction. We r ejected this claim, holding that criminal defense counsel a ppointed by a court enjoy immunity from civil liability unde r section 1983. We reasoned that potential liability would de ter many qualified attorneys from accepting court appointmen ts in criminal cases. Kanter urges us to extend the holdi ng of Black to court-appointed guardians ad litem. We nee d 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 sou ght, it is helpful to recognize that three distinct liabili ties are involved that may arise from different sources. The first is the liability to the injured party of the party see king contribution. Here, if the city defendants are liab le 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 defendan ts assert a state law basis for the duty to pay contribution (t he Uniform Contribution Among Tort-feasors Act). Final ly, since contribution requires a common obligation to the injured party, there is the liability to the injure d party of the party from whom contribution is sought. Here, t he city defendants allege that Kanter owed a state law duty to Tara ("a duty to Tara M. to provide competent representa tion 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 alle ges that a joint tortfeasor has liability to the injure d party based on the federal Civil Rights Act, contribution may well

7be barred if the tortfeasor would have absolute imm unity in

a Civil Rights Act suit brought by the injured part y. In such a situation, awarding contribution would impose upo n the tort feasor indirectly a liability against which sh e is absolutely immune under federal law.

This is not, however, the situation currently befor e us. Here, the party seeking contribution has alleged th at
Kanter is liable to Tara on the basis of a state-im posed duty of care. A state that imposes such a duty is free t o 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 fr om which she is protected under federal law. It is sta te law that determines the availability and extent of contribut ion here and, even though imposition of liability upon the c ity defendants is a matter of federal concern, the duty of contribution involves no potential conflict with fe deral 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. Conrai l cross-claimed against Hammermill for contribution, and we ultimately were called upon to determine whether st ate or federal law controlled the issue raised by the clai m for contribution. We acknowledged that federal law ordi narily
controls issues of contribution when the tort feaso rs are alleged to share a federal liability. We held, howe ver, that the law of Pennsylvania governed the contribution i ssue 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 l aw, and
we therefore hold that Kanter is not entitled to fe deral 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 expr ess any view on the unrelated issue of whether the third-pa rty

8complaint 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

.

9SHADUR, Senior District Judge, dissenting:

Just this Term the Supreme Court's opinion in Steel Co. v. Citizens for a Better Environment, 118 S.Ct. 100 3, 1012- 16 (1998) has instructed that whenever subject matt er jurisdiction is lacking a federal court must dismis s on that score, no matter how clear the path to a dispositio n on the merits may seem to be. Because my view is that we a re indeed without jurisdiction here, I regret my inabi lity to join in the majority's discussion and analysis (though I should add that if my view on the jurisdictional issue wer e different, I would be pleased to sign onto that per suasive opinion on the merits).

In this instance appellate jurisdiction is sought t o be predicated on the collateral order doctrine of Cohe n v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (19 49), 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 th e claimed immunity of third-party defendant Nancy Kanter ("Ka nter") either way. Instead he pegged his ruling on the via bility under Pennsylvania state law of the third-party mal practice 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 r uling 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 again st attorney Kanter seeks to hold her liable on malprac tice 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 fa ct, 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 do ctrine

___________________________________________________ ______________

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.

10that applies to defense counsel such as attorney Ka nter) on

the ground that the counsel there had been appointe d
under the Criminal Justice Act in a federal crimina l case. That approach was unanimously rejected by the Unite d States Supreme Court precisely because the malpract ice issue was entirely a matter of state law.

To put the situation before us in the same terms th at were stated in Ferri, federal law does not serve as the source of the City's malpractice claim against atto rney Kanter, so as to create "a federal interest in defi ning the defenses to that claim, including the defense of im munity" (444 U.S. at 198 n.13). It seems to me that Ferri n ecessarily confirms that a state law claim that charges lawyer malpractice by a court-appointed lawyer (even one w ho had been appointed in a federal case as in Ferri, unlik e the situation here) presents pure issues of state law t hat do not by their nature implicate the federal doctrine of a bsolute immunity. And that to me buttresses the notion that the
district court's nondecision on the issue of immuni ty deprives his order of the type of quasi-finality th at the Supreme Court has recognized as conferring appealab ility
in the collateral-order-doctrine cases such as Mitc hell and succeeding cases.2 As was true in Swint, 514 U.S. a t 42-43, any issue as to Kanter's claimed immunity (if it is not actually mooted, as it would be if City and its cod efendants were to prevail on the merits of plaintiff's lawsui t against them) "may be reviewed effectively on appeal from f inal judgment" (id. at 43).

That I believe compels us under Steel Co. to halt t he discussion at the outset by dismissing the appeal f or lack of subject matter jurisdiction. Accordingly I respe ctfully
dissent.

___________________________________________________ ______________

2. It may be noted in passing that I do not view th is 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. J ones, 515 U.S. 304 (1995). Unlike that case, this one does present a l egal issue rather than the fact-bound questions that foreclosed interlocut ory appealability

there.

11A True Copy:

Teste:

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

12