JOHN BRIGHT, Individually v. Westmoreland County

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 03-4320
___________
JOHN BRIGHT, Individually and
in his capacity as Administrator
of the ESTATE OF
ANNETTE BRIGHT, deceased,
Appellant
v.
WESTMORELAND COUNTY; TAMI
WHALEN, Individually and in her
capacity as a Probation Officer for
Westmoreland County; RICHARD
YESKO, Individually and in his capacity
as a Probation Officer for Westmoreland
County; ANTHONY C. GUINTA,
Individually and in his capacity as
Probation Supervisor for Westmoreland
County; CITY OF MONESSEN; CARL
FRANZAGLIO, Individually and in his
capacity as a Police Officer for the City
of Monessen; PAUL S. KUNTZ,
Individually and in his capacity as Court
Administrator for the Westmoreland
County Court of Common Pleas; JOHN
PECK, Individually and in his capacity
as District Attorney of Westmoreland
County; CHARLES KOSCHALK
___________
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 03-cv-01072)
District Judge The Honorable Arthur J.
Schwab
___________
ARGUED MAY 12, 2004
BEFORE: NYGAARD, McKEE, and
CHERTOFF Circuit Judges.
(Filed August 24, 2004)
___________
Peter M. Suwak, Esq. (Argued)
P.O. Box 1
Pete's Surplus Building
Washington, PA 15301
Counsel for Appellant
Thomas P. Pellis, Esq. (Argued)
Meyer, Darragh, Buckler, Bebenek & Eck
114 South Main Street
Greensburg, PA 15601
Counsel for A ppellee County of
Westmoreland, et. al.
Thomas P. McGinnis, Esq. (Argued)
Thomas, Thomas & Hafer
301 Grant Street
One Oxford Centre, Suite 1150
Pittsburgh, PA 15219
Counsel for Appellee City of Monessen,
et. al.

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Mary E. Butler, Esq. (Argued)
Supreme Court of Pennsylvania
Administrative Office of PA Courts
1515 Market Street, Suite 1414
Philadelphia, PA 19102
Counsel for Paul S. Kuntz, etc.
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
I.
John Bright appeals the dismissal of his
complaint. Bright’s claims arose when
Charles Koschalk murdered one of
Bright’s daughters, Annette. At the time
of the murder, Koschalk was on probation
after pleading guilty to corrupting the
morals of Annette Bright’s sister. The
District Court dismissed all of Bright’s
claims. We have jurisdiction under 28
U.S.C. § 1291 and exercise plenary review
over the District Court’s order. Morse v.
Lower Merion Sch. Dist., 132 F.3d 902,
906 (3d Cir. 1997).
II.
In his brief, Bright focused all of his
argument, except for a single footnote, on
the merits of the District Court opinion.
That single footnote, however, raises a
procedural impropriety underlying the
District Court’s opinion that undermines
the legitimacy of the dismissal order. The
relevant footnote asserts that during a
preliminary case conference, which
occurred before the due date for or the
filing of Bright’s response to the
appellees’ motions to dismiss,1 the District
Court indicated that it planned to dismiss
Bright’s complaint on the basis of an
unpublished District Court decision. At
this conference, the District Court also
requested that in lieu of a reply brief the
appellees file a consolidated statement of
position. The attorneys confirmed at oral
argument that in response to the District
Court’s request they submitted a proposed
opinion and order of court, which the
District Court adopted nearly verbatim, as
its opinion and order. Therefore, Bright
asserts that he is appealing an order
supported by an opinion that were
ghostwritten by appellees’ counsel.
At our request, counsel for the
appellees supplied us with a copy of the
proposed memorandum opinion and order
that they had submitted to the District
1.Though not spelled out by Bright in his
brief, our review of the District Court
docket indicates that a case conference
was scheduled to be held on September
17, 2003, that the appellees’ motions to
dismiss were filed on September 12 and
16 and Bright’s response to those
motions was not filed until September
26. This sequence of events in consistent
with Bright’s argument.

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Court.2 This proposed opinion is nearly
identical to the opinion filed by the District
Court. Other than minor grammatical and
stylistic edits, the District Court made only
two substantive changes. First, in the
analysis section of the opinion, the District
Court struck a single sentence from the
appellees’ proposed opinion. Second, the
District Court added a section that
dismissed the claims against Koschalk for
lack of jurisdiction.
Importantly, the District Court did not
substantively alter the section in the
proposed opinion that dismissed Bright’s
state law claims based on the Pennsylvania
Political Subdivisions Tort Claims Act
(“P.S.T.C.A.”). 42 Pa. C.S. § 8541 et seq.
This is significant because nowhere in
appellees’ motions to dismiss do they
argue that Bright’s state law claims are
barred under the P.S.T.C.A. The District
Court, however, adopted this section of the
appellees’ proposed opinion without any
real modification or explanation, again
excepting minor stylistic changes.
Bright complains about the District
Court’s procedure, stating that “[i]t is hard
to reconcile this evident overreaching with
plaintiff’s reasonable expectations as a
litigant for a fair and independent judicial
review of his claim.” Appellant’s Brief at
n.2. We agree and will reverse and
remand the cause to the District Court with
orders to engage in an independent judicial
review of Bright’s claims and the
appellee’s motion to dismiss, and, should
it again decide to dismiss, for it to prepare
an opinion explaining the reasons for its
order.
III.
We have held that the adoption of
proposed findings of fact and conclusions
of law supplied by prevailing parties after
a bench trial, although disapproved of, is
not in and of itself reason for reversal.
See Anderson v. Bessemer City, N.C., 470
U.S. 564, 572 (1985) (“[E]ven when the
trial judge adopts the findings verbatim,
the findings are those of the court and may
be reversed only if clearly erroneous.”);
Lansford-Coaldale Joint Water Auth. v.
Tonolli Corp., 4 F.3d 1209, 1215-16 (3d
Cir. 1993) (disapproving of the verbatim
adoption of proposed findings of fact but
acknowledging the rule announced in
Anderson and noting that there was “no
indication in the record that the district
court was unfamiliar with the testimony or
exhibits or that it was using the proposed
findings as a crutch; if [there were such an
indication] we might view the matter
differently”). However, we made clear
that the findings of fact adopted by the
court must be the result of the trial judge’s
2.The District Court’s docket sheet does
not indicate that this proposed opinion
and order were ever filed and there is no
certificate of service attached to the copy
of the document that appellees have
submitted to us. Because this document
does not appear in any other public filing
and it is of central importance to this
appeal, we have included a copy of it
along with a copy of the District Court’s
opinion as an appendix to the opinion we
have filed.

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independent judgment. Pa. Envtl. Def.
Found.: (PEDF) v. Canon-McMillian Sch.
Dist., 152 F.3d 228, 233 (3d Cir. 1998)
(citing with approval Odeco, Inc. v.
Avondale Shipyards, Inc. 663 F.2d 650,
652-53 (5th Cir. 1981)). “The central
issue is whether the district court had made
an independent judgment.” Id.
Here, however, we are not dealing with
findings of fact. Instead, we are
confronted with a District Court opinion
that is essentially a verbatim copy of the
appellees’ proposed opinion. This fact,
even standing alone, would be enough for
us to distinguish the holdings in
Anderson and Lansford-Coaldale. We
agree with the Court of Appeals for the
Fourth Circuit’s observation that:
There is authority for the
submission to the court of proposed
findings of fact and conclusions of
law by the attorneys for the
opposing parties in a case, and the
adoption of such of the proposed
findings and conclusions as the
judge may find to be proper. . . .
But there is no authority in the
federal courts that countenances the
preparation of the opinion by the
attorney for either side. That
practice involves the failure of the
trial judge to perform his judicial
function.
Chicopee Mfg. Corp. v. Kendall Co., 288
F.2d 719, 725 (4th Cir. 1961) (emphasis
added).
Judicial opinions are the core work-
product of judges. They are much more
than findings of fact and conclusions of
law; they constitute the logical and
analytical explanations of why a judge
arrived at a specific decision. They are
tangible proof to the litigants that the judge
actively wrestled with their claims and
arguments and made a scholarly decision
based on his or her own reason and logic.
When a court adopts a party’s proposed
opinion as its own, the court vitiates the
vital purposes served by judicial opinions.
We, therefore, cannot condone the practice
used by the District Court in this case.
There is, however, an additional reason
why a reversal and remand is the
appropriate remedy in this case. We have
made it clear that the linchpin in using
findings of fact, even when they are
verbatim adoptions of the parties’
proposals, is evidence that they are the
product of the trial court’s independent
judgment. PEDF, 152 F.3d at 233. In this
case, there is no record evidence which
would allow us to conclude that the
District Court conducted its own
independent review, or that the opinion is
the product of its own judgment. In fact,
the procedure used by the District Court
casts doubt on the possibility of such a
conclusion.
According to Bright’s unrebutted
assertions, the District Court indicated that
it was going to grant appellee’s motions to
dismiss before it even received Bright’s
response to those motions. Indeed, Bright
claims, again without a rebuttal, that he did
not have the opportunity to object or even
respond to the submitted opinion and order

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before the District Court adopted them as
its own.
Courts and judges exist to provide
neutral fora in which persons and entities
can have their professional disputes and
personal crises resolved. Any degree of
impropriety, or even the appearance
thereof, undermines our legitimacy and
effectiveness. We therefore hold that the
District Court’s adoption of the appellees’
proposed opinion and order, coupled with
the procedure it used to solicit them, was
improper and requires reversal with a
remand for the court to reevaluate the
appellees’ motion to dismiss in a
procedure consistent with this opinion.

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