/ 01-4356 Federal Home Loan Mortgage Corporation "freddie Mac" v. Scottsdale Insurance Company

PRECEDENTIAL
Filed January 22, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-4271 / 01-4356
FEDERAL HOME LOAN MORTGAGE CORPORATION
("FREDDIE MAC");
FEDERAL INSURANCE COMPANY,
Cross-Appellants
v.
SCOTTSDALE INSURANCE COMPANY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 99-cv-05056 )
District Judge: Honorable Katharine S. Hayden
Argued: Tuesday, December 10, 2002
Before: FUENTES, and GARTH, Circuit Judges, and
WALLACH, Judge*
(Opinion Filed: January 22, 2003)
_________________________________________________________________
* Honorable Evan J. Wallach, United States Court of International Trade,
sitting by designation.
Theresa E. Mullen (argued)
Allan Maitlin (argued)
Sachs, Maitlin, Fleming, Greene,
Wilson & Marotte
80 Main Street
West Orange, NJ 07052
Attorneys for Appellant/Cross-
Appellee Scottsdale Insurance
Company
Gerard H. Hanson (argued)
Todd J. Leon
Hill Wallack
202 Carnegie Center
CN 5266
Princeton, NJ 08543
Attorney for Appellees/Cross-
Appellants FHMLC and Federal
Insurance Company
OPINION OF THE COURT
GARTH, Circuit Judge:

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This case involves a controversy over what obligations
Scottsdale Insurance Company ("Scottsdale"), the
appellant/cross-appellee, owed to appellee/cross-appellant
Federal Home Loan Mortgage Corporation ("Freddie Mac")1
with respect to costs and payments incurred by Freddie
Mac in defending, litigating, and settling various lawsuits
filed by persons who alleged damages from a fire that
occurred in an apartment building owned by Freddie Mac.
_________________________________________________________________
1. The other appellee/cross-appellant in this case is Federal Insurance
Company, Freddie Mac’s insurer. Earlier, Vigilant Insurance Company
had been erroneously named as the insurer and as Freddie Mac’s co-
plaintiff in the complaint against Scottsdale, but Freddie Mac moved
before the district court to substitute Federal Insurance Company for
Vigilant. Hereinafter, references in this opinion to"Freddie Mac" should
be understood to refer collectively to Freddie Mac and Federal Insurance
Company, unless otherwise specified.
2
The district court granted partial summary judgment for
Freddie Mac in the amount of $427,234.37, plus attorney’s
fees and prejudgment interest. We will affirm that
judgment.
Prior to reviewing the district court’s judgment on the
merits in Parts III and IV of this opinion, however, we
consider a significant question concerning our appellate
jurisdiction in Part II.
I.
The event from which this case arose was a fire that took
place in February 1996 in an apartment building in East
Orange, New Jersey. The fire was apparently started due to
an accident that occurred when a thirteen-year-old boy was
using a cooking range. Several of the residents filed suit
against Freddie Mac, which owned the building, and Sibley
Real Property Services ("Sibley"), Freddie Mac’s property
manager.2
Freddie Mac and Sibley filed a third-party complaint
against T&R Alarm Systems, Inc. ("T&R") based on T&R’s
contracts related to the installation and/or maintenance of
the fire and smoke alarm systems, including exit signs and
emergency lighting systems, in the apartment building. The
third-party complaint alleged that the underlying and
primary lawsuits contained allegations that these systems
were insufficient or ineffective. Prior to commencing its
work on the premises, T&R had purchased an insurance
policy from appellant/cross-appellee Scottsdale Insurance
Company ("Scottsdale"). The Scottsdale policy listed Freddie
Mac and Sibley as "additional insureds."
During discovery related to the third-party complaint
against T&R, Freddie Mac claimed that T&R, which was
represented by the same counsel representing Scottsdale,
failed to inform Freddie Mac about its insurance policy, or

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to produce a copy of the policy. Eventually, the magistrate
judge ordered T&R to produce the insurance policy.
_________________________________________________________________
2. Sibley was not a party to the proceedings below and is not a party to
this appeal or cross-appeal.
3
Freddie Mac claims that it and Sibley as co-insureds
sought coverage from Scottsdale within three weeks after
the insurance policy was produced by T&R, but Scottsdale
did not respond to their demands.
Freddie Mac thereafter filed a third-party complaint
against Scottsdale on October 25, 1999; and filed an
amended complaint on December 7, 1999. The amended
complaint contained three counts. In Count One, Freddie
Mac sought a declaratory judgment that the insurance
policy issued by Scottsdale obliged Scottsdale "to defend
and indemnify Freddie Mac and Sibley as to the underlying
claims and to indemnify both Freddie Mac, Sibley, and
Vigilant for all settlement monies, costs, expenses, and
attorney’s fees arising from the underlying claim." Am.
Compl. PP 16-17.
In Count Two, Freddie Mac alleged that Scottsdale
breached an implied covenant of good faith and fair dealing
by failing to investigate, process, and grant Freddie Mac’s
claims that Scottsdale was obliged to defend and indemnify
Freddie Mac, and thus that Freddie Mac was not only
entitled to actual and consequential damages, but it was
entitled as well to exemplary and punitive damages and
attorney’s fees and costs incurred in the instant litigation.
Id. PP 20-24.
In Count Three, Freddie Mac alleged that Scottsdale had
breached its insurance contract by failing to defend and
indemnify Freddie Mac for the underlying claims, and for
breaching the implied duty of good faith and fair dealing, as
asserted in Count Two. Id. P 27.
Freddie Mac moved for partial summary judgment on
Count One alone, and Scottsdale moved for summary
judgment in its favor on all three counts. The district court
entered an order on March 20, 2001, granting Freddie
Mac’s motion for partial summary judgment on Count One,
and denying Scottsdale’s motion for summary judgment.
The district court reasoned that under New Jersey law,
Scottsdale had a duty to defend Freddie Mac because
Freddie Mac was named as an additional insured on the
policy, and the complaints in the underlying lawsuits by
the residents of the apartment building made claims that
4
were "clearly connected to T&R work under the alarm
system." Federal Home Loan Mortgage Corp. v. Scottsdale

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Ins. Co., Civ. No. 99-05056 (bench opinion) (Mar. 19, 2001)
[hereinafter District Court Bench Op.], at 60, App. 70.
The district court concluded that Scottsdale also had a
duty to indemnify Freddie Mac for the settlement amounts,
reasoning that Scottsdale was equitably estopped from
denying coverage because "T&R’s and Scottsdale’s conduct,
or lack of participation, failed to meet the insureds’
reasonable expectation of protection generated by the
fiduciary duty to deal with [Freddie Mac] fairly and to
defend" Freddie Mac against the claims made by those
alleging injuries due to the fire. Id. at 71, App. 81.
The district court thus granted partial summary
judgment to Freddie Mac and directed Scottsdale to pay
Freddie Mac $427,234.37, reflecting reimbursement of
defense costs in the amount of $101,113.87 and settlement
payments of $326,120.50. See Federal Home Loan Mortgage
Corp. v. Scottsdale Ins. Co., Civ. No. 99-05056 (Oct. 12,
2001), slip op. at 3.
Following this determination, the district court, in an
order dated October 12, 2001, awarded attorney’s fees to
Freddie Mac in the amount of $38,261.66, and, having
granted Freddie Mac’s motion for prejudgment interest, set
the amount of prejudgment interest at $32,612.05 in an
order dated October 19, 2001.
The district court then entered a Consent Judgment, to
which the parties had agreed, on November 1, 2001. The
Consent Judgment, the text of which we reproduce, infra,
purported to permit an appeal by Scottsdale from the
district court’s grant of summary judgment to Freddie Mac
on Count One, notwithstanding that Counts Two and Three
were dismissed without prejudice.
Scottsdale filed a timely notice of appeal on November 28,
2001, and Freddie Mac cross-appealed.
II.
The district court had federal subject matter jurisdiction
5
over this action pursuant to 12 U.S.C. S 1452(f)(2).3 In the
posture presented to us at the time of oral argument, the
Consent Judgment from which the appeal was taken could
not vest us with appellate jurisdiction.
Neither party addressed the subject of appellate
jurisdiction in their briefs to the Court. We therefore
requested supplemental letter-memoranda from the parties
addressing the issue of appellate jurisdiction. After
receiving supplemental briefing from the parties, we also
directed the parties to be prepared to discuss at oral
argument a number of authorities we had cited to them.
A. The Consent Judgment

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As noted earlier, the district court entered a Consent
Judgment, which provided as follows:
THIS MATTER having been presented to the
Honorable Katharine S. Hayden by way of joint
application for entry of Consent Judgment; and the
parties having agreed to the form of this Order;
IT IS on this 25th day of Oct., 2001, hereby
ORDERED that Judgment be entered in favor [of] the
plaintiffs in the amount of $427,234.37 in accordance
with this court’s Order and Bench Opinion of March
19, 2001 granting plaintiff ’s Motion for Partial
Summary Judgment as to Count One of the Complaint.
IT IS FURTHER ORDERED that Count Two and
Three of plaintiffs’ Complaint is [sic] hereby dismissed,
without prejudice, subject to the plaintiffs’ right to
reinstate Counts Two and Three if the March 19th
Order should be vacated and this matter remanded for
trial by the Third Circuit Court of Appeals based upon
the appeal the defendant has represented will be filed
in accordance with the Rules of Court; and
_________________________________________________________________
3. That section provides that "all civil actions to which the [Federal Home
Loan Mortgage] Corporation is a party shall be deemed to arise under
the laws of the United States, and the district courts of the United States
shall have original jurisdiction of all such actions, without regard to
amount or value." 12 U.S.C. S 1452(f)(2).
6
IT IS FURTHER ORDERED that entry of this Consent
Judgment will not preclude plaintiff from otherwise
filing future applications seeking an award of counsel
fees in accordance with the Rules of Court and
applicable case law; and
IT IS FURTHER ORDERED that post-judgment
interest will be added to this Consent Judgment in
accordance with the Rules of Court to be calculated as
of the time of satisfaction of this Consent Judgment;
and
IT IS FURTHER ORDERED that this Consent
Judgment shall be deemed final pursuant to Rule 54(b)
for purposes of defendant’s intent to appeal this court’s
Judgment of March 19, 2001 in favor of the plaintiffs
in the amount of $427,234.37.
Consent Judgment at 1-2, App. 8-9 (emphasis added). 4
It was from this judgment that Scottsdale appealed and
Freddie Mac cross-appealed. The Consent Judgment, by its
terms, kept Counts Two and Three alive by dismissing them
without prejudice, and specifically allowed their
reinstatement if we were to reach a particular outcome.

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B. Finality under S 1291
The finality requirement of 28 U.S.C. S 1291 is grounded
"not in merely technical conceptions of ‘finality,’ " but rather
on a long-recognized policy "against piecemeal litigation."
Catlin v. United States, 324 U.S. 229, 233 (1945). See also
Coopers & Lybrand v. Livesay, 437 U.S. 463, 471 (1978)
("The finality requirement in S 1291 evinces a legislative
judgment that ‘[r]estricting appellate review to ‘final
decisions’ prevents the debilitating effect on judicial
administration caused by piecemeal appeal disposition of
what is, in practical consequence, but a single
controversy.’ ") (quoting Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 170 (1974)).
_________________________________________________________________
4. The Consent Judgment was entered on November 1, 2001, though it
was apparently signed on October 25, 2001.
7
Given the strong policy against piecemeal litigation that
underlies the finality requirement of S 1291, we have
adhered consistently to the general rule that we lack
appellate jurisdiction over partial adjudications when
certain of the claims before the district court have been
dismissed without prejudice. See, e.g. , Erie County Retirees
Ass’n v. County of Erie, Pa., 220 F.3d 193, 201 (3d Cir.
2000) ("Of course, ordinarily we do not have jurisdiction
under 28 U.S.C. S 1291 of an appeal from an order partially
adjudicating a case when an appellant has asserted a claim
in the district court which it has withdrawn [without
prejudice] or dismissed without prejudice."), cert. denied,
532 U.S. 913 (2001). See also Sullivan v. Pacific Indem. Co.,
566 F.2d 444, 445 (3d Cir. 1977).
Our recent decision in Verzilli v. Flexon, Inc. , 295 F.3d
421 (3d Cir. 2002), spoke directly to the issue of the
appealability of a Consent Judgment order that was
remarkably similar to the Consent Judgment in the instant
case. In Verzilli, we held that a Consent Judgment did not
constitute an appealable final order because the
termination of the litigation was contingent upon the Court
of Appeals’ reaching a particular result. Id. at 425.5
In Verzilli, the district court had entered an order
restricting the plaintiffs’ claim for damages because of a
failure to follow the district court’s pre-trial rules governing
discovery. Id. at 422. Thereafter, the parties reached an
agreement to enter into a Consent Judgment, and the
district court entered a Consent Judgment that provided for
judgment for $13,000 in favor of the plaintiffs, and
included a statement that "[t]his is a final order and there
is no just cause for delay." Id. Accompanying the Consent
Judgment was a stipulation that the defendants "will be
permitted to present a full and complete defense to all
issues in this case" if we were to reverse the district court’s
decision; but that the proceedings in the case would be

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_________________________________________________________________
5. The Consent Judgment in Verzilli did not by its terms involve a
dismissal without prejudice, but the fact that the termination of the
litigation was contingent upon the decision of this Court was functionally
similar to a dismissal without prejudice. Cf. Verzilli, 295 F.3d at 424 n.2
(discussing dismissals without prejudice).
8
terminated if we did not reverse. Id. The stipulation also
noted that "it is further understood and agreed that the
Consent Judgment . . . is a final appealable order pursuant
to 28 U.S.C. S 1291." Id.
The Verzilli Court held that the contingent nature of the
Consent Judgment and stipulation defeated finality:
[T]he parties’ stipulation in the case before us covers
only one possible outcome of the appeal--an affirmance
by this Court. According to the stipulation, if this
Court should decide to reverse, then the matter would
return to the District Court for a full trial. Similarly, if
this Court declined to decide the propriety of the
pretrial ruling, the case would be remanded to the
District Court.
Therefore, . . . only one possible ruling by this Court
would effectively end the District Court’s work. Left
open is the possibility of two other dispositions, either
a reversal or a dismissal for lack of appellate
jurisdiction, that would require further adjudication by
the District Court, namely, a full trial. Thus, the
stipulation does not create finality in the Consent
Judgment and, in the absence of that element, this
Court lacks jurisdiction.
Id. at 425.
Our analysis in Verzilli is therefore directly applicable to
this case. There, as here, under the terms of the Consent
Judgment, "only one possible ruling by this Court would
effectively end the District Court’s work." Id. The Consent
Judgment in the instant case provides that the litigation
would end if we were to affirm the order granting partial
summary judgment to Freddie Mac on Count One; but
afforded Freddie Mac the "right to reinstate Counts Two
and Three if the March 19th Order should be vacated and
this matter remanded for trial by the Third Circuit Court of
Appeals." Consent Judgment at 1-2 (emphasis added). The
logic of Verzilli applies with equal force to the Consent
Judgment in this case.6
_________________________________________________________________
6. Despite the Verzilli rule, we have entertained appellate jurisdiction
where the remaining "without prejudice" claims were effectively barred,
thus rendering the judgment final.
9

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Here, the Consent Judgment preserved Freddie Mac’s
right to reinstate Counts Two and Three, if we were to
reverse and remand the district court’s ruling. We had no
reason to think, nor did the parties provide sufficient
reasons in their supplemental briefing or at oral argument,
that as a practical matter, Freddie Mac’s remaining claims
would be effectively barred. The Consent Judgment thus
represented an inappropriate attempt to evade S 1291’s
requirement of finality. Both we and other Courts of Appeal
have disapproved of such end-runs for the purpose of
effectuating piecemeal appeals.
For example, in Newfound Management Corp. v. Lewis,
131 F.3d 108 (3d Cir. 1997), we cited the views of the
Seventh Circuit with approbation:
Litigants and courts cannot, by agreement, avoid the
finality requirement of S 1291. While in this case the
parties have settled their dispute, the settlement is not
a final one, but a contingent one; if we affirm, the
parties will go their own ways, but if we reverse the
parties will continue to litigate the dispute.
Id. at 112 (quoting Union Oil Co. of California v. John
Brown, Inc., 121 F.3d 305, 309 (7th Cir. 1997)). As the
Ninth Circuit has also succinctly explained, "[L]itigants
_________________________________________________________________
Thus, for example, in Fassett v. Delta Kappa Epsilon, 807 F.2d 1150
(3d Cir. 1986), cert. denied, 481 U.S. 1070 (1987), we held that appellate
jurisdiction existed over an appeal where claims against one party had
been dismissed without prejudice because "the . .. statute of limitations
had already run as of the time of [the party’s] dismissal." Id. at 1155
(emphasis in original). We explained that because the plaintiffs "retained
no viable cause of action against" the dismissed party, "we conclude that
the dismissal, which was nominally without prejudice, was for our
purposes, a final dismissal." See also GFL Advantage Fund, Ltd. v.
Colkitt, 272 F.3d 189, 198-99 n.3 (3d Cir. 2001) (where district court
had twice dismissed defendant’s counterclaims for lack of specificity, we
nonetheless exercised appellate jurisdiction because district court’s
summary judgment order "effectively barred" defendant from "re-filing"
the counterclaims based on conclusion that defendant’s "affirmative
defenses [to plaintiff ’s claims] -- which were identical to his
counterclaims -- failed as a matter of law").
10
should not be able to avoid the final judgment rule without
fully relinquishing the ability to further litigate unresolved
claims." Dannenberg v. Software Toolworks, Inc., 16 F.3d
1073, 1077 (9th Cir. 1994) (emphasis added).
The Consent Judgment in this case was the product of
such a contingent settlement, and as such, lacked the
requisite finality to permit appellate jurisdiction under
S 1291.

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C. Purported Certification Under Rule 54(b) of
the Federal Rules of Civil Procedure
Even if the Consent Judgment were not final under
S 1291, the parties argued that the Consent Judgment had
been certified for appeal pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure and that this certification
vested us with appellate jurisdiction. We did not find such
arguments persuasive.
Where an order is not final under S 1291, a district court
may nonetheless certify the final disposition of fewer than
all claims in an action for appeal pursuant to Rule 54(b) of
the Federal Rules of Civil Procedure. That rule provides:
When more than one claim for relief is presented in an
action, . . . , or when multiple parties are involved, the
court may direct the entry of a final judgment as to one
or more but fewer than all of the claims or parties only
upon an express determination that there is no just
reason for delay and upon an express direction for
entry of judgment.
FED. R. CIV. P. 54(b).
We review a district court’s Rule 54(b) certification
decision for an abuse of discretion. As the Supreme Court
explained in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427
(1956), "[T]he District Court may, by the exercise of its
discretion in the interest of sound judicial administration,
release for appeal final decisions upon one or more, but
less than all, claims in multiple claim actions. . .. [A]ny
abuse of that discretion remains reviewable by the Court of
Appeals." Id. at 436-37 (emphasis in original).
11
At oral argument, counsel for Freddie Mac sought,
unsuccessfully, to distinguish the situation in the instant
case from that in Verzilli by pointing to the district court’s
purported Rule 54(b) certification, and asserting that, even
if the Consent Judgment was not final under S 1291, the
54(b) certification conferred finality upon the Consent
Judgment.
We disagree. The district court made only the stark-
naked statement that "this Consent Judgment shall be
deemed final pursuant to Rule 54(b) for purposes of
defendant’s intent to appeal this court’s Judgment of March
19, 2001 in favor of the plaintiffs in the amount of
$427,234.37." Consent Judgment at 2, App. 9 (emphasis
added). In so doing, the district court failed to make and
give reasons for the "express determination that there is no
just reason for delay," as the text of Rule 54(b) requires.
The district court left us with no grounds upon which to
review the district court’s exercise of its discretion. Nor
could we ascertain from the record a basis for such a
certification. See Carter v. City of Philadelphia, 181 F.3d
339, 346-47 (3d Cir. 1999).

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Were it not for Freddie Mac’s post-argument dismissal of
the remaining counts with prejudice, we would have held
that the district court’s certification was an abuse of its
discretion, and therefore would have dismissed the instant
appeal because it lacked finality and did not meet the 54(b)
requirement.7
In Allis-Chalmers Corp. v. Philadelphia Electric Co., 521
F.2d 360 (3d Cir. 1975), we explained, "A proper exercise of
discretion under Rule 54(b) requires the district court to do
more than just recite the 54(b) formula of ‘no just reason
for delay.’ The court should clearly articulate the reasons
and factors underlying its decision to grant 54(b)
certification." Id. at 364. Thus, in Allis-Chalmers, we
"incorporate[d] . . . as a requirement for all Rule 54(b)
certifications," id., the Second Circuit’s suggestion that
_________________________________________________________________
7. As it now stands, the Rule 54(b) certification is moot. Since Counts
Two and Three have been dismissed with prejudice , Freddie Mac’s action
now contains only a disposed-of "final" claim, and so a Rule 54(b)
certification would be irrelevant and unavailable.
12
"the court, rather than incorporating in the certificate
. . . the conclusory language of Rule 54(b), would make
a brief reasoned statement in support of its
determination that, ‘there is no just reason for delay’
and its express direction for ‘the entry of a final
judgment as to one or more but fewer than all of the
claims or parties’ where the justification for the
certificate is not apparent. . . ."
Id. (quoting Gumer v. Shearson, Hammill & Co., Inc., 516
F.2d 283, 286 (2d Cir. 1974)). We reasserted this
requirement in Anthuis v. Colt Indus. Operating Corp., 971
F.2d 999 (3d Cir. 1992), in which we explained that Allis-
Chalmers requires district courts to give "reasons to
support its exercise of discretion." Id. at 1003 (citing Allis-
Chalmers, 521 F.2d at 364).
Neither counsel at oral argument, nor we on our
independent review of the record, could identify any
relevant factors which would support a valid 54(b)
certification. See Allis-Chalmers, 521 F.2d at 364.
Therefore, because the district court failed to identify
reasons supporting its attempt at a Rule 54(b) certification;
because reasons supporting appealability were not
apparent from the record, cf. Carter, 181 F.3d at 347; and
because under no circumstances could an order which left
open a count for punitive damages, Count Two, be divorced
from a count for compensatory damages, Count One, it was
evident that we did not have appellate jurisdiction and
would be obliged to dismiss the appeal and cross-appeal.
Although we have explained that the district court
provided an insufficient certification in the Consent

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Judgment, we would be remiss in failing to identify the
centrality of the role of counsel in the 54(b) certification
process. In seeking a certification under Rule 54(b), we
expect counsel, as officers of the court and as advocates of
their particular position, to assist the court by making
appropriate submissions. Accordingly, it is not
unreasonable for us to require counsel to assume the
responsibility of filing a motion with the district court
expressing the reasons and basis for a 54(b) certification so
that the district court, if it adopts any or all of the bases
13
proffered by counsel, can provide us with a rationale to
review the Rule 54(b) certification appropriately. 8
The district court’s failure to explain why we should
review a decision with respect to only one count, leaving
other counts to be adjudicated thereafter does not permit
us to discharge our appellate function intelligently, nor to
accept for appeal the district court’s bare-bones statement
that its judgment met the requirements for appeal under
Rule 54(b).
D. Freddie Mac’s Post-Argument Representations
At oral argument, counsel for both parties essentially
conceded that they could not distinguish our recent
decision in Verzilli, nor could they identify reasons
supporting the district court’s Rule 54(b) certification.
Presumably, seeing the writing on the wall, counsel for
Freddie Mac requested in open court, after oral argument
had ended, that we not issue any order concerning our
jurisdiction for three days so that he could consult with his
clients. We granted his request.
On the third day after we had heard oral argument,
counsel for Freddie Mac sent the Court a letter in which it
dismissed Counts Two and Three with prejudice . This letter
stated, in relevant part, "[W]e write on behalf of . . . [Freddie
Mac] to advise this court that my clients are dismissing
Counts II and III of the Complaint ‘with prejudice’ in order
to remove the jurisdictional impediments raised by the
panel during the oral argument." Letter from Hanson to
Court of 12/13/2002, at 1 (emphasis in original). An order
to this effect was entered by the district court on December
23, 2002.
In light of the district court’s "after-the-fact" order
dismissing Counts Two and Three with prejudice, we
acknowledged that the previously non-final Consent
Judgment now constitutes a final, appealable order. See,
e.g., Erie County, 220 F.3d at 201-02 (holding that,
notwithstanding the plaintiff-appellants’ dismissal before
_________________________________________________________________
8. At oral argument, counsel apprised us that no such motion was made
before the district court.

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14
the district court without prejudice of one of the federal
claims involved in the case, court would exercise appellate
jurisdiction where plaintiffs-appellants represented on
appeal "that they withdraw finally and with prejudice" the
relevant claim).9
III.
On appeal, Scottsdale argues that the district court erred
in granting summary judgment to Freddie Mac on Count
One, and instead should have granted summary judgment
to Scottsdale. Scottsdale also claims that the district court
erred in granting attorney’s fees and pre-judgment interest
to Freddie Mac. Freddie Mac, in its cross-appeal, which we
consider in Part IV, challenges the date on which the
district court held that prejudgment interest should attach.
We consider each of Scottsdale’s arguments in turn.
A. Summary Judgment Motions
We have plenary review of a district court’s grant or
denial of summary judgment. See, e.g., Carter v. McGrady,
292 F.3d 152, 157 (3d Cir. 2002). Accordingly, we apply
those standards that the district court should have applied
below. Chisolm v. McManimon, 275 F.3d 315, 321 (3d Cir.
2001). Summary judgment is proper if there is no genuine
issue of material fact and if, viewing the facts in the light
most favorable to the nonmoving party, the moving party is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Our
function at the summary judgment stage is not to weigh the
evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
_________________________________________________________________
9. Given Freddie Mac’s ultimate decision, it is fair to assume that Freddie
Mac desired our appellate review sooner rather than later, and was
willing to surrender its right to reinstate Counts Two and Three to secure
our review. We feel constrained to remind counsel that both their time
and the Court’s time, as well as judicial resources, would have been
conserved by earlier recognition of a "flawed" final order and meaningful
consultations between Freddie Mac and its counsel.
15
The parties agree that New Jersey law applies to this
case, as do we. As in diversity cases, "we are not free to
impose our own view of what state law should be; we are to
apply state law as interpreted by the state’s highest court.
. . . In the absence of guidance from that court we are to
refer to decisions of the state’s intermediate appellate
courts for assistance in determining how the highest court
would rule." McKenna v. Pacific Rail Service , 32 F.3d 820,
825 (3d Cir. 1994) (citing Erie R.R. Co. v. Tompkins, 304

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U.S. 64 (1938)) (other citations omitted).
The district court concluded (1) that Freddie Mac came
within the coverage of the "additional insured" endorsement
of T&R’s policy with Scottsdale; (2) that Scottsdale owed
Freddie Mac a duty to defend Freddie Mac on the
underlying claims brought by those parties alleging injuries
due to the fire; consequently, Scottsdale had a duty to pay
the defense costs Freddie Mac incurred; and (3) that
Scottsdale’s delay in disclaiming coverage for Freddie Mac
estopped Scottsdale from denying that it had a duty to
indemnify Freddie Mac for the settlement expenses Freddie
Mac had paid to dispose of the underlying claims.
As we discuss below, we agree with all of the district
court’s conclusions.
1. "Coverage as an "Additional Insured" under the
Scottsdale Policy
An endorsement, or rider, to T&R’s policy with Scottsdale
listed Freddie Mac and Sibley as additional insureds. The
text of the endorsement states:
WHO IS AN INSURED (Section II) [of the policy] is
amended to include as an insured the person or
organization shown in the Schedule [listing Freddie
Mac and Sibley as well as other organizations], but
only with respect to liability arising out of ‘your work’
for that insured by or for you.
Scottsdale argues that the qualification of the endorsement
that limits coverage for additional insureds to"liability
arising out of ‘your work’ " places Freddie Mac outside the
scope of coverage. Essentially, Scottsdale argues that the
district court should have conducted a fact-intensive
16
inquiry, and that such an inquiry would have revealed that
T&R could not have been held liable for the injuries to the
residents who made the underlying claims against Freddie
Mac. Because T&R could not have been held liable,
Scottsdale says, the "additional insured" provision was not
triggered.
We find that this argument is unavailing, and that the
district court properly concluded that Freddie Mac was
covered as an additional insured under the endorsement to
the Scottsdale policy.
New Jersey courts have given a broad and liberal
interpretation to common insurance policy language
pertaining to coverage for additional insured parties for
injuries "arising out of " work performed by the main
policyholder. In County of Hudson v. Selective Ins. Co., 752
A.2d 849 (N.J. Super. Ct. App. Div. 2000), the New Jersey
Superior Court, Appellate Division analyzed language
equivalent to that contained in the Scottsdale policy, and

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held that the additional insured was covered under the
circumstances. In that case, a general contractor held a
commercial general liability insurance policy on which
Hudson County, which had hired the general contractor,
was an additional insured. The language in an endorsement
to that policy stated: "WHO IS AN INSURED (SECTION II) is
amended to include as an insured the person or
organization shown in the Schedule [Hudson County, its
agents, representatives & employees] but only with respect
to liability arising out of "your work" for that insured by or
for you." Id. at 851.
The Appellate Division reversed a lower court’s grant of
summary judgment for the insurance company and
remanded with directions to enter summary judgment for
Hudson County. Id. at 854. The court explained that
though there were multiple reasonable interpretations of
the policy language, New Jersey courts apply principles of
liberal construction in examining insurance policy
language:
[A]lthough insurance policies are contractual in nature,
they are not ordinary agreements; they are contracts of
adhesion and, as such, are subject to special rules of
17
interpretation. . . . Consequently, we are directed to
take a broad and liberal view so that the policy is
construed in favor of the insured. . . .
. . . [P]urchasers of insurance are entitled to the broad
measure of protection necessary to fulfill their
reasonable expectations. . . . And their policies should
be construed liberally in their favor to the end that
coverage is afforded to the full extent that any fair
interpretation will allow. . . .
Id. at 852 (emphasis added) (citations and internal
quotation marks omitted).
In light of this framework, the court concluded that the
language of the endorsement extended to cover an injury to
an employee of a subcontractor who visited the site where
the general contractor’s work was taking place. The court
held that the subcontractor’s employee’s "presence at the
worksite, and the ensuing accident, was sufficiently
connected to [the general contractor’s] ‘work’ for the County
to constitute a ‘substantial nexus’ between the contract and
the contractor’s "work" requiring [the insurer] to cover the
loss." Id.10 See also, e.g., Franklin Mut. Ins. Co. v. Security
Indem. Ins. Co., 646 A.2d 443, 446 (N.J. Super. Ct. App.
Div. 1994) (upholding grant of summary judgment for
insurer of office building owner for defense and indemnity
costs where office building owner was "additional insured"
under insurance policy of restaurant in office building; and
holding that a slip and fall accident on the steps of the
restaurant was an event for which there was "a substantial
nexus between the occurrence and the use of the leased

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premises"); Harrah’s Atlantic City, Inc. v. Harleysville Ins.
Co., 671 A.2d 1122, 1125 (N.J. Super. Ct. App. Div. 1996)
(reversing trial court’s judgment and holding that where
store’s insurance policy listed landlord, Harrah’s Casino, as
"additional insured," landlord came within the policy’s
coverage where injured parties were hit by automobile
driven by Harrah’s parking valet, since the injured
individuals had "parked in Harrah’s garage primarily to
_________________________________________________________________
10. The definition of "your work" in the policy at issue in County of
Hudson is identical to the definition contained in the policy in the
instant case.
18
shop at [the store]," and "[w]hen they completed their
shopping, they went directly toward the garage to retrieve
the car and were injured in that process. Thus, Harrah’s
liability arose out of the risk generated by [the store’s]
business on the premises.").
Here, where the resident’s underlying complaints alleged
problems with the fire and smoke alarm systems, the work
performed by T&R was squarely at issue in the complaints,
and so Freddie Mac fell within the coverage of the
Scottsdale policy.
Scottsdale argues that New Jersey case law mandates"a
fact-sensitive approach . . . to determine whether there is
coverage." Scottsdale Br. at 26. In this case, Scottsdale
asserts, "The underwriting is on the basis of liability for the
work of T&R, not on FHLMC’s [(Freddie Mac’s)] exposure for
claims when a fire occurs on its premises. Surely not every
fire at FHLMC would fall within the T&R policy." Id. at 33
(emphasis in original).
New Jersey case law suggests, however, that claims
against Freddie Mac for any fire at the apartment complex
that alleged problems with the fire and smoke alarm
systems or emergency lighting or exit signs would indeed
trigger the policy; such claims would "arise out of " T&R’s
"work." Indeed, in County of Hudson, the New Jersey
Superior Court, Appellate Division, interpreted the
equivalent policy language to cover a situation where the
general contractor’s relationship to the event was far more
attenuated. The connection here between T&R’s work on
the fire and smoke alarm systems and the claims related to
the February 1996 fire at the apartment building is without
question closer than the nexus found to trigger coverage in
County of Hudson.
2. Scottsdale’s Duty to Reimburse Freddie Mac for
Defense Costs
The district court properly concluded that Scottsdale had
a duty to defend, and thus to pay the defense costs
incurred by Freddie Mac. In Voorhees v. Perferred Mut. Ins.
Co., 607 A.2d 1255 (N.J. 1992), the New Jersey Supreme

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Court set out a simple test for determining when the duty
to defend arises:
19
"[T]he duty to defend comes into being when the
complaint states a claim constituting a risk insured
against." . . . Whether an insurer has a duty to defend
is determined by comparing the allegations in the
complaint with the language of the policy. When the
two correspond, the duty to defend arises, irrespective
of the claim’s actual merit. . . . If the complaint is
ambiguous, doubts should be resolved in favor of the
insured and thus in favor of coverage.
Id. at 1259 (citation omitted). The court further explained
"[t]hat the claims are poorly developed and almost sure to
fail is irrelevant to the insurance company’s initial duty to
defend. . . . ‘Liability of the insured . . . is not the criterion;
it is the allegation . . . of a cause of action which, if
sustained, will impose a liability covered by the policy.’ " Id.
(citation omitted).
We have concluded that district court properly applied
the clear test enunciated in Voorhees. The underlying
complaints all contained allegations that would, if
sustained, impose liability for activities within the coverage
of the policy.
Scottsdale’s arguments to the contrary are without merit.
In part, Scottsdale claims that certain of the underlying
complaints did not allege any negligent behavior by T&R;
and in any event, T&R did not commit a negligent act or
omission that led to the injuries alleged in the underlying
complaints (or at least, did not do so until Freddie Mac filed
its third-party complaint against T&R). But these
arguments miss the point of Voorhees: allegations, even if
meritless, trigger the insurer’s duty to defend if they
constitute claims relating to a risk against which the policy
insures.
In this case, the risk insured against was any damage
resulting from problems with the fire and smoke alarm
systems provided by T&R and T&R’s services related to
those systems. The underlying complaints involved claims
relating to this risk.
Thus, the district court did not err in holding that
Scottsdale owed a duty to reimburse Freddie Mac for the
costs of defense.
20
3. Estoppel of Scottsdale from Denying Duty to Indemnify
Freddie Mac for Settlement Expenses
The district court also held that Scottsdale had a duty to
indemnify Freddie Mac for the settlement amounts paid to

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the residents who had brought claims against Freddie Mac.
The district court determined that Scottsdale was estopped
from asserting that it did not have a duty to indemnify
Freddie Mac for settlement expenses:
I find that [Freddie Mac was] prejudiced by Scottsdale’s
wrongful refusal to defend. And I conclude that it is
irrelevant whether the insurer would have been liable
under the policy because of the very clearly articulated
case law. Because of its actions, Scottsdale is equitably
estopped from denying coverage and liable to indemnify
plaintiffs for the settlements that have been entered.
District Court Bench Op. at 71-72, App. 81-82 (emphasis
added).
We conclude that the district court did not err in holding
that Scottsdale was equitably estopped from denying an
obligation to indemnify Freddie Mac for the costs of settling
the underlying claims.11
In Griggs v. Bertram, 443 A.2d 163 (N.J. 1982), the New
Jersey Supreme Court explained that "[u]nreasonable delay
in disclaiming coverage, or in giving notice of the possibility
of such a disclaimer, even before assuming actual control of
_________________________________________________________________
11. We could have disposed of this issue by Scottsdale’s waiver of this
argument on appeal. Scottsdale did not raise an objection to the district
court’s application of estoppel in its initial brief; indeed, Scottsdale made
no mention of estoppel until its reply brief. See, e.g., F.D.I.C. v. Deglau,
207 F.3d 153, 169 (3d Cir. 2000) (because appellants"did not raise this
issue in their opening brief on appeal[, t]hey have therefore waived it,
and we will not address it"). In any event, we are satisfied, as we indicate
in the text, that the district court did not err.
We would also note that Freddie Mac has argued that Scottsdale has
waived several of the other arguments it makes on appeal because
Scottsdale allegedly failed to raise these arguments before the district
court. We have no need to address Freddie Mac’s contentions about
Scottsdale’s waivers because, as the text demonstrates, we have
concluded that Scottsdale’s arguments (waived or not) are without merit.
21
a case or a defense of an action, can estop an insurer from
later repudiating responsibility under the insurance policy."
Id. at 168. The Griggs court stated that"an insurer is
entitled to a reasonable period of time in which to
investigate whether the particular incident involves a risk
covered by the terms of the policy." Id. (citations omitted).
This right, however, is accompanied by a corresponding
duty, "once an insurer . . . has learned of grounds for
questioning coverage . . . promptly to inform its insured of its
intention to disclaim coverage or of the possibility that
coverage will be denied or questioned." Id. (emphasis added)
(citations omitted). The New Jersey court reasoned that
"disclosure is especially important where the results of an
investigation reveal a conflict between the interests of the

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insured and its insurer," id. at 170 (citations omitted), and
that "[f]ailure to give prompt notice of such a conflict, or
potential conflict, is inconsistent with the overriding
fiduciary duty of an insurer to deal with an insured fairly
and candidly so that the insured can, if necessary, protect
itself." Id. (citation omitted).
Based on these principles, the Griggs court ultimately
held that
where, after timely notice, adequate opportunity to
investigate a claim, and the knowledge of a basis for
denying or questioning insurance coverage, the
insurance carrier fails for an unreasonable time to
inform the insured of a potential disclaimer, it is
estopped from later denying coverage under the
insurance policy in the event a legal action is
subsequently brought against its insured.
Id. at 171.
As the district court held, Griggs is directly applicable to
the case at hand. The delay involved in Scottsdale’s
announcing to Freddie Mac its intent to disclaim coverage
was at least approximately as long as the eighteen-month
delay that the New Jersey Supreme Court found sufficiently
prejudicial in Griggs to invoke equitable estoppel.12
_________________________________________________________________
12. In Griggs, the court observed:
22
The district court determined that just under eighteen
months elapsed from the date of Freddie Mac’s demand to
Scottsdale for coverage, October 29, 1998, to the date when
Scottsdale disclaimed coverage in its answer of April 24,
2000, filed in response to Freddie Mac’s complaint. Indeed,
the district court indicated that T&R, which had the same
counsel as Scottsdale, was aware that it should provide
discovery to Freddie Mac on the availability of additional
insured coverage as early as November 1997, when Freddie
Mac filed its third-party complaint against T&R. 13 The
district court noted that Freddie Mac made a number of
discovery requests of T&R regarding insurance coverage in
March and June 1998. It was not until August 1998 that
T&R responded to interrogatories by stating that T&R was
insured by Scottsdale at the time of the fire, and it was not
until October 1998 that T&R, under an order from the
magistrate judge, provided a copy of the Scottsdale policy to
Freddie Mac.
Furthermore, the district court observed:
Scottsdale was well aware of the underlying matter
because it defended T&R against the claims asserted in
third-party complaint[s] brought by the plaintiffs.
_________________________________________________________________

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In this case a period of 18 months elapsed between the notice of the
incident and possible claim and the attempted disclaimer by the
insurance carrier. Shortly after the initial occurrence the carrier was
alerted to sufficient facts to cause it to question or possibly reject
coverage under the policy. Yet it chose to say absolutely nothing to
its insured as to the applicability and availability of insurance
protection under the policy. Clearly the insurer failed in its duty
promptly to notify its insured of the results of its investigation-that
the claim was not, or might not be, covered by the terms of the
policy.
Griggs, 443 A.2d at 170.
13. Rule 26 of the Federal Rules of Civil Procedure requires the
automatic disclosure of "any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy part
or all of a judgment which may be entered in the action or to indemnify
or reimburse for payments made to satisfy the judgment." FED. R. CIV. P.
26(a)(1)(D).
23
Unlike plaintiffs, T&R [and] Scottsdale had access to
their own policies and where aware of named
additional insureds, yet despite repeated requests
shirked their obligation to provide discovery, to
investigate the matter and provide a timely and
reasonable explanation of its disclaimer of coverage. Its
failure to respond forced plaintiffs into defending
themselves at a given point of time and into this
litigation.
District Court Bench Op. at 71, App. 81.
Based on the facts identified by the district court, we
think it clear that the district court did not err in applying
equitable estoppel, per Griggs, to Scottsdale. Scottsdale
does not dispute any of the district court’s determinations
regarding its behavior. Nor does Scottsdale cite any cases
that militate against the district court’s application of
Griggs.
Scottsdale does argue that there was a twenty-month
delay between the filing of the first underlying complaint
against Freddie Mac and the filing of the third-party
complaint by Freddie Mac against T&R and that Freddie
Mac failed to comply with certain discovery obligations, and
that in light of these facts, the district court should not
have estopped Scottsdale from denying a duty to indemnify
for settlement expenses. See Scottsdale Reply Br. at 14-16.
These assertions, however, do not negate the district court’s
conclusions. The fact remains that T&R and Scottsdale,
represented by the same counsel, delayed informing Freddie
Mac of the existence and contents of the Scottsdale policy;
and that Scottsdale engaged in inordinate delay before it
announced to Freddie Mac that it would disclaim coverage,
and the reasons for doing so.
We therefore hold that the district court did not err in

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granting summary judgment to Freddie Mac on Count One
and in ordering Scottsdale to reimburse Freddie Mac for
defense costs and to indemnify Freddie Mac for settlement
expenses.
B. Attorney’s Fees
Scottsdale argues that the district court erred in granting
attorney’s fees to Freddie Mac. We review the
24
reasonableness of a district court’s award of attorney’s fees
for abuse of discretion. Goodman v. Pennsylvania Turnpike
Comm’n, 293 F.3d 655, 676 (3d Cir. 2002).
First, Scottsdale claims that even if there were a duty to
defend Freddie Mac, there was not a duty to defend Sibley,
because Sibley was not a party to the proceedings before
the district court. Because expenditures for attorney’s fees
were made on behalf of both Freddie Mac and Sibley,
Scottsdale argues that it should not have to reimburse legal
fees. Scottsdale Br. at 49.
We find this argument unpersuasive. Though it is true
that Sibley is not a party in this case, Sibley is listed as an
additional insured on the relevant endorsement to the
Scottsdale policy. It is clear that Sibley would be on the
same footing as Freddie Mac with respect to a potential
claim against Scottsdale. Scottsdale does not suggest by
what proportion, if any, the legal fees or any other amount
of damages should be reduced to account for Sibley’s
absence from the case. Indeed, it is unclear from the record
how counsel fees and the settlement amounts were
apportioned between Freddie Mac and Sibley (if they were
apportioned at all) who paid all of the fees and whether
Freddie Mac paid the settlement amounts itself. 14
Scottsdale also argues that Freddie Mac, in moving for
attorney’s fees, failed to follow the requirements of the
district court’s Local Civil Rule 54.2(b) and New Jersey
Court Rule 4:42-9(b). The district court rejected both
arguments below, holding that Scottsdale had not cited to
any case law requiring compliance with the rules.
Even if Freddie Mac did not comply with these rules--
and we express no opinion as to whether Freddie Mac has
done so -- it does not follow that we should reverse the
_________________________________________________________________
14. Scottsdale also argues that if we uphold the judgment of the district
court, we should remand "so that Scottsdale be permitted to examine
these bills in order to determine which fees were paid on behalf of Sibley,
to challenge them if necessary, and to make apportionment arguments
with respect to Sibley." Scottsdale Br. at 52. We decline to do so.
Scottsdale could have and should have raised these arguments before
the district court in a proper and timely fashion.
25

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award of attorney’s fees. As to Local Civil Rule 54.2,
subsection (c) of that rule states:
In appropriate circumstances, including but not limited
to those where counsel fees are sought as sanctions in
connection with discovery and other pretrial motions,
the Judge or Magistrate Judge to whom the application
is directed may order that any one or more of the items
enumerated in L.Civ.R. 54.2(a) and (b) will not be
required.
D.N.J. L. CIV. R. 54.2(c). The local rule thus authorizes a
district court to accept a noncompliant application for fees.
Under these circumstances, where Scottsdale has not
identified any prejudice that would flow from Freddie Mac’s
alleged failure to comply with the local rule, we will not
conclude that the district court abused its discretion in
awarding attorney’s fees to Freddie Mac.
As to the New Jersey rule, Scottsdale does not cite any
authority requiring absolute compliance with the rule’s
terms.15 To the contrary, at least one New Jersey court has
explained that "an award of counsel fees may be affirmed
even if the affidavit of services is deficient." Elizabeth Bd. of
Educ. v. New Jersey Transit Corp., 776 A.2d 821, 827 (N.J.
Super. Ct. App. Div. 2001). See also Dotsko v. Dotsko, 583
A.2d 395, 402 (N.J. Super. Ct. App. Div. 1990) (in light of
record, counsel’s failure to submit certification required
under Rule 4:42-9(b) was "harmless" error that did not
justify reversal of attorney’s fees for a hearing). In the
instant case, the district court reviewed all of Scottsdale’s
challenges to Freddie Mac’s claimed fees, and made
findings that the objections were without merit. Federal
Home Loan Mortgage Corp., Civ. No. 99-05056, slip op. at
11-17. Particularly in light of the district court’s careful
review of Scottsdale’s challenges, we cannot say that
Scottsdale has shown any harm caused by Freddie Mac’s
noncompliance with the New Jersey rule.
Finally, Scottsdale complains about the reasonableness of
_________________________________________________________________
15. Under this rule, counsel fees are allowable"[i]n an action upon a
liability or indemnity policy of insurance, in favor of a successful
claimant." N.J. CT. R. 4:42- 9(a)(6).
26
the fees by making the conclusory assertion that"it is
unreasonable and not customary for a law firm to expend
over $38,000 in a 9 month time period in fees and costs
when very little substance was done." Scottsdale Br. at 54.
Scottsdale provides no reason why this is so, beyond
reference to its argument before the district court.
We are not persuaded by Scottsdale’s arguments that the
district court abused its discretion in granting attorney’s

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fees. Scottsdale has failed to make a colorable argument
that the district court’s award of attorney’s fees constituted
an abuse of discretion, and we will affirm the district
court’s grant of attorney’s fees.
C. Prejudgment Interest
Scottsdale claims that even if there was a duty to
represent Freddie Mac, the district court should not have
granted prejudgment interest because, in Scottsdale’s view,
"since no demand for a copy of the policy and/or coverage
was made before the settlement was reached, no pre-
judgment interest is owed." Id. at 56.
In Liberty Lincoln-Mercury Ford Motor Co. v. Ford Motor
Co., 134 F.3d 557 (3d Cir. 1998), we held that"[u]nder New
Jersey law, a court may award prejudgment interest in its
discretion in accordance with equitable principles, and the
court’s exercise of its discretion should not be disturbed on
appeal unless it represents a manifest denial of justice." Id.
at 574 (citations and internal quotation marks omitted).
Scottsdale does not make any argument that there was a
manifest denial of justice, and we therefore reject this
challenge.
IV.
Freddie Mac’s cross-appeal, at No. 01-4356, raises only a
single issue. In Freddie Mac’s view, the district court erred
in setting October 25, 1999, as the date from which
prejudgment interest would run.
As we noted above, we review a district court’s award of
prejudgment interest to determine whether such award
constituted a manifest denial of justice. Freddie Mac has
27
merely argued that because the New Jersey court rule
governing prejudgment interest applies by its terms to tort
actions only, the district court did not have to consider
itself bound to apply the rule’s terms literally when it
awarded prejudgment interest in its discretion. Instead,
Freddie Mac claims that the district court should have
concluded that prejudgment interest should run from the
dates when Freddie Mac issued settlement payments-- in
June and August 1998. Freddie Mac. Br. at 59.
Freddie Mac has made no argument, nor given us reason
to hold, that the district court’s exercise of discretion
constituted a manifest denial of justice. We will therefore
affirm the district court’s judgment against Freddie Mac in
its cross-appeal.
V.
For the foregoing reasons, we will affirm the judgment of
the district court in all respects.

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A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
28

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