Noreen A. Brzozowski v. Correctional Physician Services, Inc.; Prison Health Services, Inc.

1 Judge Garth’s Opinion Sur Denial of Rehearing is attached.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3659
NOREEN A. BRZOZOWSKI,
Appellant
v.
CORRECTIONAL PHYSICIAN SERVICES, INC.;
PRISON HEALTH SERVICES, INC.
Appellee
____________
BEFORE: SCIRICA, Chief Judge, SLOVITER, NYGAARD, ALITO,
ROTH, McKEE, RENDELL, BARRY, AM BRO, FUENTES, SMITH, CHERTOFF,
WEIS,* GARTH,1* and BECKER*, CIRCUIT JUDGES
_____________________
SUR PETITION FOR PANEL REHEARING
WITH SUGGESTION FOR REHEARING EN BANC
____________________
The petition for rehearing filed by Appellant having been submitted to the
judges who participated in the decision of this Court, and to all the other available circuit
judges in active service, and no judge who concurred in the decision having asked for
rehearing, and a majority of the circuit judges of the circuit in regular active service not
_______________________
* As to Panel Rehearing Only

-- 1 of 4 --

having voted for rehearing by the court en banc, the petition for rehearing is DENIED.
BY THE COURT:
/s/ Joseph F. Weis
United States Circuit Judge
DATED: April 5, 2004
CLW/cc: Harold I. Goodman, Esq.
Andrew J. Rolfes, Esq.

-- 2 of 4 --

OPINION SUR DENIAL OF REHEARING
Brzozowski v. CPS, No. 02-3659
Garth, Senior Circuit Judge:
As a Senior Circuit Judge, I am restricted to voting for panel rehearing.
See 28 U.S.C. § 46(c) (limiting voting for en banc rehearing to active circuit judges). I
do not, however, vote for panel rehearing in this case because, even though I dissented
from the majority opinion, I believe that voting for panel rehearing would be futile.
On the other hand, if I were not precluded from voting for en banc
rehearing, I would do so in this instance because I am convinced that the majority
opinion has materially changed the three-factor formula announced by Judge Greenberg
in Rego v. ARC Water Treatment Co. of Pennsylvania, 181 F.3d 396 (3d Cir. 1999), for
determining when successor liability is appropriate. In my opinion, the majority has read
out of the Rego formula the third factor, which considers the ability of the predecessor
company to provide adequate relief directly to the plaintiff. See Rego, 181 F.3d at 402.
This cannot, and should not, be condoned because it modifies the jurisprudence of this
Circuit, an act that lies beyond the authority of a three-judge panel. See 3d Cir. Internal
Operating Procedures § 9.1 (explaining that only the entire court, sitting en banc, may
overrule a precedential opinion).
Of further concern to me is the majority’s failure to acknowledge, and give
effect to, the equitable underpinnings of Rego and the successor liability doctrine under
the circumstances of this case, where the equities all favor the successor company.

-- 3 of 4 --

-- 4 of 4 --