Professional Documents
Culture Documents
United States Court of Appeals, Third Circuit
United States Court of Appeals, Third Circuit
2d 466
26 Wage & Hour Cas. (BN 1302, 92 Lab.Cas. P 13,145
In a Memorandum and Order of June 11, 1980, the district court found Kenneth
and Linda Ambrose individually liable and the corporation, Kenneth R.
Ambrose, Inc., liable to the Carpenters Health and Welfare Fund of
Philadelphia and Vicinity1 (hereinafter the "Fund") for delinquent fringe benefit
contributions due under the applicable collective bargaining agreement.
Jurisdiction was invoked under 301 of the Labor Management Relations Act
of 1947 (LMRA)2 and the district court assumed pendent jurisdiction to
consider liability under Pennsylvania's Wage Payment and Collection Law.3
Although the district court noted that due to the close relationship of the
Ambroses' to the corporation they would "most likely" be considered
employers for 301 purposes, it is clear that the district court's grounds for
imposing liability, including a 25% liquidated damage award, was the
Pennsylvania statute.
On appeal, the appellants have argued strenuously that the Pennsylvania statute
is preempted. We cannot, however, reach the merits of this case because the
order appealed from is not final under our recent en banc opinion in Croker v.
The Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir. 1981). Therefore, the
appeal must be dismissed.
I.
Facts
3
The facts in this case are not contested and were heard in a one day trial
conducted on January 9, 1980. Kenneth and Linda Ambrose are the sole
officers and majority shareholders of the corporation, Kenneth R. Ambrose,
Inc.4 The corporation is engaged in the construction business and, apparently, at
the behest of the Carpenters Union undertook a job for which it was never
compensated. The failure to receive compensation resulted in an inability by the
corporation to make contributions to the Fund as required by the collective
bargaining agreement. At the January 9th hearing, the corporation stipulated to
the entry of judgment against it in the amount of $17,944.75 plus costs and
attorney's fees. This sum represented the total amount owing the Fund. The
corporation did not concede liability as to the liquidated damage claim under
Pennsylvania law. Similarly, Kenneth and Linda Ambrose denied all individual
liability for the contributions owing and the liquidated damages.
Trial was held on the issues of liquidated damages and the individual liability
of Kenneth and Linda Ambrose. As noted above, the district court found that,
because of the close relationship between the Ambroses' and the corporation,
the Ambroses' were individually liable for the delinquent contributions. The
district court then applied the Pennsylvania liquidated damage clause to both
the corporation and the individual defendants. Judgment was entered against
the corporation in the amount of $17,944.75 plus $4,486.19 in liquidated
damages. The Ambroses' were assessed $14,747.82 plus $3,686.95 liquidated
damages. Liability for the amount of judgment was determined to be joint and
several. Finally, the district court awarded the Fund costs, "including
reasonable attorney's fees, ..., to be determined at a later date." App. at 22. The
corporation has appealed insofar as the judgment provides for liquidated
damages and the Ambroses have appealed the entire judgment as it pertains to
them individually.
II.
Appealability
5
been determined," was the final order. 551 F.2d at 922, quoting St. Louis, Iron
Mountain and Southern Ry. Co. v. Southern Express Co., 108 U.S. 24, 28-29, 2
S.Ct. 6, 8, 27 L.Ed. 638 (1883). The court decided that, "the order of March 12,
which left the issue of attorney's fees unresolved, did not terminate the litigation
between (the plaintiff) and the (defendant) and, thus, was not a final order." Id.
Later in DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135 (3d Cir.
1980), at 1139 n.3, our court wrote:
6
When
the district court has determined that a party is entitled to an award of attorney
fees but has not yet calculated the amount of the award, the court's order disposing
of the merits of the case is, nevertheless, final and appealable.
7
In the present case, the order appealed from establishes entitlement to attorney's
fees but, as in DeLong, leaves open the calculation of a final amount. Under
Richerson, the Notice of Appeal would be premature. The advantage with the
approach taken in the Richerson case is that it presents the appellate court with
a truly final order. The conflict between DeLong and Richerson has been
resolved by our court's en banc decision in Croker v. The Boeing Co. (Vertol
Division), 662 F.2d 975 (3d Cir. 1981) which specifically overrules DeLong. In
Croker, Chief Judge Seitz wrote for the court that "(u) ntil the amount of
attorney's fees is set, or a fund from which they are to be awarded is
established, litigation over the extent of parties' liabilities has not been
terminated." At 984.
Under our court's recent decision in Croker, the appeal filed in this case was
premature and, consequently, we do not have appellate jurisdiction. In
accordance with the Croker decision, we will dismiss the appeal. After the
district court fixes the amount of attorney's fees, if any, an appeal will be
appropriate.
III.
9
Though we can not reach the merits of this case, our decision probably
exemplifies the "troubling result" which Judge Adams recently noted in his
concurring opinion in deMouy v. Ingvoldstad, 664 F.2d 21 (3d Cir. 1981),
when he stated that though "judicial tidiness has considerable virtues, ... when
applied inexorably it loses much of its attractiveness." As in deMouy, no 54(b)
certification was sought, and the result here may be even more troublesome
because on appeal the appellants' major argument has been that the
Pennsylvania statute is preempted by federal law. If appellants are correct, the
district court's future findings on counsel fees may have to again be redone if
ultimately it is determined that the liquidated damages awarded pursuant to the
IV.
11
12
organizations in the district courts of the United States, district courts shall be
deemed to have jurisdiction of a labor organization (1) in the district in which
such organization maintains its principal office, or (2) in any district in which
its duly authorized officers or agents are engaged in representing or acting for
employee members.
29 U.S.C. 185(a) & (c). The district court extended 301 jurisdiction over the
Ambroses' as employers because of "(t)he close relationship between the
individuals and the corporation...." App. at 20. It did not, however, conclusively
decide their liability under federal law.
3
The Wage Payment and Collection Law provides for suits by unions against
employers to recover delinquent pension and fringe benefit fund contributions.
43 P.S. 260.9a(a) (1977). It also provides for liquidated damages in the
amount of twenty-five percent (25%) of the total amount due for sums which
remain unpaid for more than 30 days. 43 P.S. 260.10 (1977)
The Ambroses' owned all of the shares of stock in the corporation except one
which was owned by a Mr. Thomas Stevens. Kenneth Ambrose serves as
President of the corporation and Linda Ambrose serves as the corporation's
Secretary and Treasurer
The oral argument of this case was a week after the en banc oral argument in
Croker and of course after oral argument in Croker all of the judges knew what
our tentative disposition was on the appealability issue. This case was marked
CAV on June 17, 1981 because of the pending disposition of Croker. The
Croker opinion was filed on September 30, 1981. The filing of this decision
was purposely delayed until Croker was filed so that there would not be even
further confusion caused by a possible conflict between a panel decision and an
en banc decision