JONATHAN LAZORKO, Administrator of the Estate of PATRICIA NORLIE, a/k/a PATRICIA… v. Pennsylvania Hospital

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3692
JONATHAN LAZORKO, Administrator of
the Estate of PATRICIA NORLIE, a/k/a
PATRICIA NORLIE-LAZORKO; JONATHAN
LAZORKO, Personal Representative of
PATRICIA NORLIE-LAZORKO
v.
PENNSYLVANIA HOSPITAL; INSTITUTE OF
PENNSYLVANIA; DAVID E NICKLIN, M.D.;
UNIVERSITY CITY FAMILY MEDICINE;
U.S. HEALTHCARE
t/a
HMO-PA
Jonathan Lazorko, Administrator of the Estate
of Patricia Norlie, a/k/a Patricia Norlie-Lazorko;
and *John J. O’Brien, III, Esquire,
Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 96-cv-04858)
District Court Judge: Hon. Louis H. Pollak
Submitted Under Third Circuit LAR 34.1(a)
July 23, 2003

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Before: ALITO, FUENTES, and BECKER, Circuit Judges.
(Opinion Filed: August 21, 2003 )
OPINION OF THE COURT
ALITO, Circuit Judge:
Patricia Norlie-Lazorko committed suicide in 1993 while suffering from
depression and schizophrenia. As administrator of his late wife’s estate, Jonathan
Lazorko brought suit in Pennsylvania state court against U.S. Healthcare, the health-
maintenance organization that insured the couple pursuant to an ERISA plan. Following
a series of removals, remands, and partial summary judgments, U.S. Healthcare moved
for Rule 11 sanctions against Lazorko’s counsel, John J. O’Brien, III (“O’Brien, III”), on
the basis of unsubstantiated allegations in Lazorko’s Fourth Amended Complaint that
U.S. Healthcare had “a policy of intentionally not treating a patient to make a profit” and
had fraudulently “sold a health care policy with the intent to disclaim and never revealed
this scheme to the plaintiff or the decedent.” In a separate order dated June 30, 1998, the
District Court granted the motion and awarded costs to U.S. Healthcare for its defense
against what it viewed as the frivolous claims. While O’Brien, III’s appeal of the order
was pending, the District Court held a hearing to determine the size of the sanctions
award and on August 3, 1998, issued an order (“the 1998 order”) assessing costs of
$2,452.50. This order was not appealed. This Court subsequently held that O’Brien, III’s

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appeal of the June 30, 1998, order was premature and dismissed it for lack of jurisdiction.
Lazorko v. Pennsylvania Hosp., 237 F.3d 242, 251 (3d Cir. 2000). On February 9, 2001,
O’Brien, III’s law partner, John J. O’Brien, Jr. (“O’Brien, Jr.”), moved the District Court
to reconsider its June 30, 1998, sanctions order, and U.S. Healthcare moved for additional
sanctions due to the frivolity of the motion for reconsideration. On September 20, 2001,
the District Court denied the motion for reconsideration and granted U.S. Healthcare’s
motion for additional sanctions, which amounted to $1,025. O’Brien, Jr. proceeded to
move the District Court to vacate both sanctions awards, and on August 28, 2002, the
District Court denied the motion and ordered the firm to pay the sum outstanding. The
instant appeal comes from these orders. Additionally, U.S. Healthcare has moved for
further sanctions pursuant to Federal Rule of Appellate Procedure 38.
U.S. Healthcare argues that O’Brien, III’s failure to appeal the 1998 order renders
the subsequent motions for reconsideration untimely, thereby divesting the District Court,
and this Court, of jurisdiction to reach the merits. We conduct “plenary review of the
question of our jurisdiction over the appeal of [a sanctions] award.” Lazorko, 237 F.3d at
248. In its September 20, 2001, denial of O’Brien, Jr.’s motion for reconsideration, the
District Court characterized the motion as untimely under both the Court’s local rules, see
E.D. PA. R. 7.1(g) (“Motions for reconsideration . . . shall be served and filed within ten
(10) days after the entry of the . . . order. . . .”), and the Federal Rules of Civil Procedure.
See FED. R. CIV. P. 60(b) (providing that a Court may relieve a party from a previous

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order upon a motion filed “not more than one year after the judgment, order, or
proceeding was entered or taken”). Because Rule 60(b)’s time bar is jurisdictional, see
Wesco Products Co. v. Alloy Automotive Co., 880 F.2d 981, 985 (7th Cir. 1989), the
District Court’s accompanying order constitutes a dismissal for lack of jurisdiction.
Obviously, a litigant cannot resurrect jurisdiction, once it has been defeated, by
submitting a (timely filed) motion to reconsider an earlier (untimely filed) motion to
reconsider. Such a loophole would negate all time bars. We agree with the District
Court’s jurisdictional holding, and, consequently, we also lack jurisdiction.
Although we do not reach the merits, we note that we could not, in any event,
discern any grounds on which to characterize the District Court’s imposition of sanctions
as an abuse of discretion. O’Brien, III does not analogize this case to any precedents for
the reversal of Rule 11 sanctions, e.g., Zuk v. Eastern Pa. Psychiatric Inst. of the Medical
College, 103 F.3d 294 (3d Cir. 1996); Simmerman v. Corino, 27 F.3d 58 (3d Cir. 1994);
Waltz v. County of Lycoming, 974 F.2d 387 (3d Cir. 1992); CTC Imports & Exports v.
Nigerian Petrol. Corp., 951 F.2d 573 (3d Cir. 1991), but merely continues to insist that the
representations for which he was sanctioned were accurate, while offering a Philadelphia
Inquirer newspaper article, dated well after the sanctionable conduct, as the lone support
for this contention. The article appears inadmissible, cf. Metro. Council of NAACP
Branches v. FCC, 46 F.3d 1154, 1165 (D.C. Cir. 1995) (“We seriously question whether a
New York Times article is admissible evidence of the truthfulness of its contents.”), and

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moreover is irrelevant given that an attorney’s compliance with Rule 11 is judged
according to “what was reasonable when the document was submitted. . . . [A] signer
making an inadequate inquiry into the sufficiency of the facts and law underlying a
document will not be saved from a Rule 11 sanction by the stroke of luck that the
document happened to be justified.” Garr v. U.S. Healthcare, Inc., 22 F.3d 1274, 1279
(3d Cir. 1994).
Although we agree that this appeal is frivolous, see generally Borowski v. DePuy,
Inc., 876 F.2d 1339 (7th Cir. 1989), we do not consider it an appropriate occasion for the
imposition of further sanctions pursuant to FRAP 38. “‘[A] statement inserted in a
party’s brief that the party moves for sanctions is not sufficient notice’” to comply with
the Rule’s requirement that the party against whom sanctions are sought be given
“separately filed . . . notice . . . and reasonable opportunity to respond.” Determan v.
Sandoval, 186 B.R. 490, 496 (B.A.P. 9th Cir. 1995) (quoting FED. R. APP. P. 38 advisory
committee’s note to 1994 amendment); FED. R. APP. P. 38.
For the foregoing reasons, we dismiss this appeal for lack of jurisdiction and deny
U.S. Healthcare’s motion for FRAP 38 sanctions.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Not Precedential Opinion.

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/s/Samuel A. Alito
Circuit Judge

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