Francis Huber v. Maurice Lawruk , 424 F. App'x 128 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2557
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FRANCIS V. HUBER;
JEAN L. HUBER,
Appellants
v.
MAURICE A. LAWRUK;
PENN ALTO HOTEL, INC.;
PENN ALTO SERVICES, INC.;
PENN ALTO ASSOCIATES LIMITED PARTNERSHIP
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 07-145)
District Judge: Honorable Kim R. Gibson
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Submitted Under Third Circuit LAR 34.1(a)
February 10, 2011
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Before: JORDAN, GREENAWAY, JR., GARTH, Circuit Judges
(Opinion Filed: March 3, 2011)
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OPINION
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GREENAWAY, JR., Circuit Judge
Francis V. Huber and Jean L. Huber (“Appellants” or “the Hubers”) seek review1
of the decision of the District Court for the Western District of Pennsylvania granting, in
part, Appellants’ motion for summary judgment. Specifically, the District Court found
Penn Alto Associates Limited Partnership (“PAA”) liable for the principal and interest
due under a promissory note for the sale of the Penn Alto Hotel. The District Court also
granted summary judgment in favor of the remaining defendants on all other claims in the
complaint.2 While we find the question of our appellate jurisdiction troublesome,3 we
1
The notice of appeal filed by the Hubers also sought to appeal the District
Court’s decision on the Huber’s claim for attorney’s fees. However, the Hubers did not
raise any arguments in their opening brief with respect to this order. As such, they have
waived this claim. See, e.g., U.S. v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well
settled that an appellant's failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.”); FED. R. APP. P. 28(a)(9).
2
In their complaint, the Hubers alleged that Penn Alto Hotel, Inc. (“PAH”), which
changed its name to Penn Alto Services, Inc. (“PAS”), and Maurice A. Lawruk
(“Lawruk”), as partners in PAA, were liable for PAA’s breach of the note. Additionally,
the Hubers sought to pierce the corporate veils of PAA, PAS and PAH in order to find
Lawruk liable for the damages associated with the breach of the note. The Hubers had
not sought summary judgment on the first count of their complaint, which they later
voluntarily dismissed.
3
Our concern about our jurisdiction arises from the timing of the filing of the
notice of appeal. On March 29, 2010, the District Court entered an order adopting the
parties’ stipulation of damages. The District Court ruled on the motion for attorney’s
fees on May 25, 2010. The notice of appeal was filed on May 27, 2010. In Budinich v.
Becton Dickinson and Co., 486 U.S. 196, 202 (1988), the Supreme Court adopted a
“uniform rule that an unresolved issue of attorney’s fees for the litigation in question does
not prevent judgment on the merits from being final.” We have recognized one exception
to the general rule established by the Supreme Court. The exception occurs “where the
attorneys’ fees are an integral part of the contractual relief being sought.” Local Union
No. 1992 of the Internat’l Brotherhood of Electrical Workers v. The Okonite Co., 358
F.3d 278, 287 n.13 (3d Cir. 2004). While the Hubers cited § 3.3 of the note in their briefs
seeking attorney’s fees, they made no mention of this section of the note in their
complaint. As such, we are unable to determine the true basis for their request for
attorney’s fees — the note or common law. If they sought relief under the note, their
appeal would be timely. If they sought relief under the common law, their appeal would
2
nonetheless conclude that the appeal has no merit. For the reasons set forth in the District
Court’s opinion, we will affirm the judgment of the District Court.
be untimely. Since the ultimate outcome of the case will be the same, we are assuming,
for the sake of this opinion, that the Hubers sought attorney’s fees pursuant to § 3.3, thus
avoiding a nettlesome jurisdictional question.
3