Michael Allen v. City of York, Pennsylvania

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 04-1946
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MICHAEL ALLEN; DEBRA TAYLOR, Individually and as
Co-Administrators of the Estate of Lillie Belle Allen,
Deceased; HATTIE DICKSON, Individually and as Administratix
of Estate of Murray Dickson, Deceased; JENNIE SETTLES, as
Administratix of the Estates of James and Beatrice Moseley,
Deceased
v.
CITY OF YORK, PENNSYLVANIA; RAY MARKEL, Individually and in
His Official Capacity as a Former City of York Police Officer;
DENNIS MCMASTER, Individually and in His Official Capacity as
a Former City of York Police Officer; CHARLES ROBERTSON,
Individually and in His Official Capacity as a Former City of
York Police Officer; JAMES VANGREEN, Individually and in His
Official Capacity as a Former City of York Police Officer; RONALD
ZEAGER, Individually and in His Official Capacity as a Former
City of York Police Officer
Ray Markel, Individually and in His Official Capacity
as a Former City of York Police Officer; Dennis McMaster,
Individually and in His Official Capacity as a Former
City of York Police Officer; Charles Robertson, Individually
and in His Official Capacity as a Former City of York
Police Officer; James VanGreen, Individually and in His
Official Capacity as a Former City of York Police Officer;
Ronald Zeager, Individually and in His Official Capacity
as a Former City of York Police Officer,
Appellants

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On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. No. 03-cv-00169)
District Judge: Honorable Yvette Kane
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Argued March 29, 2005
Before: ALITO, SMITH and BECKER, Circuit Judges.
(Filed: April 13, 2005)
JAMES D. YOUNG, ESQUIRE (Argued)
Lavery, Faherty, Young & Patterson
225 Market Street, Suite 304
Harrisburg, PA 17108
Attorney for Appellants
DONALD B. HOYT, ESQUIRE
Blakey, Yost, Bupp & Rausch
17 East Market Street
York, PA 17401
HAROLD I. GOODMAN, ESQUIRE (Argued)
Raynes McCarty Binder Ross & Mundy
1845 Walnut Street, Suite 2000
Philadelphia, PA 19103
Attorneys for Appellees
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BENCH OPINION
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BECKER, Circuit Judge.

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(Whereupon the following occurred in open court.)
JUDGE BECKER: I will deliver a bench opinion. This appeal will be dismissed
for lack of appellate jurisdiction. The entire appellate brief is devoted to the issue of
statute of limitations. Denials of statute of limitations defenses do not satisfy the
requirements of a collateral order and are therefore not subject to immediate appellate
review. We have so held in Bell Atlantic v. Pennsylvania Public Utility Commission, 273
F.3d 337 (3d Cir. 2001); Brown v. United States, 851 F.2d 615 (3d Cir. 1988), and in a
number of other cases.
In an attempt to avoid section 1291's jurisdiction bar, defendants have couched
their appeal in terms of their rights to qualified immunity. And they claim that the statute
of limitations defense is subsumed under qualified immunity. But, as I noted, all of the
arguments involve only the statutes of limitations defense; they contend that the
limitations period should not be tolled on the basis of fraudulent concealment because the
complaint is devoid of factual support for fraudulent concealment. They argued that the
plaintiffs failed to exercise reasonable diligence in bringing their claims, particularly
because the events underlying their claim were the subject of a class action suit against
City of York officials, which was the subject of detailed fact findings by Judge Nealon.
But at bottom, they admit that their appeal is based on their statute of limitations
defense. They urged the Court to expand the doctrine to encompass this time-bar issue,
even though they acknowledge that there is no reported case ever anywhere that supports
this proposition. But the law is clear that for purposes of interlocutory appeals, the

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distinction between a qualified immunity defense and a statute of limitation defense is
clear and significant. And Bell Atlantic and Brown make those points clearly. Insofar as
we might analyze this separately under the requisites of the collateral order doctrine as
explicated by the Supreme Court in Cohen v. Beneficial, plainly the third prong effective
on reviewability is not met here and there’s a question as to the second and perhaps even
to the first.
At all events, it is clear to this panel that we lack appellate jurisdiction to hear this
case. The appeal will be dismissed. However, exercising our discretion, we decline to
impose double costs under Rule 38 of the Federal Rule of Appellate Procedure.
This constitutes the opinion and judgment of this Court, subject to comments
which I will now solicit or elicit from Judge Alito and Judge Smith, will in due course be
transcribed and entered as a non-precedential opinion of the Court.
Judge Alito, any additions or corrections?
JUDGE ALITO: No. I have no additional comments.
JUDGE BECKER: Judge Smith?
JUDGE SMITH: Nothing to add, Judge Becker.
THE COURT: All right, thank you gentlemen.
(Proceeding adjourned.)

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