Adapt of Philadelphia v. Philadelphia Housing Authority: The Third Circuit Correctly Determined Prematurely Appealed Discovery Orders Could Not Later Ripen with Subsequent Entry of Final Judgment but Failed to Examine the Validity of the Criticized Cape May Greene Rule
Smeltzer, Katrina L.
INTRODUCTION|By statute, the United States federal appellate courts only have jurisdiction to hear appeals from final judgments. However, Federal Rule of Appellate Procedure 4(a)(2) ("Fed. R. App. P. 4(a)(2)") allows certain prematurely filed appeals from nonfinal orders to become effective upon the subsequent entry of final judgment in the case if the final judgment is entered before a hearing on the appeal. In 1991, the United States Supreme Court determined the case of FirsTier Mortgage Co. v. Investors Mortgage Insurance Co. and limited the application of Fed. R. App. P. 4(a)(2) to those situations in which the appealed order would have been appealable if immediately followed by final judgment. But, prior to the Supreme Court's interpretation of Fed. R. App. P. 4(a)(2) in FirsTier,the United States Court of Appeals for the Third Circuit created the Cape May Greene rule, which like Fed. R. App. P. 4(a)(2), worked to save premature appeals. After the Supreme Court's ruling in FirsTier, several circuits abrogated their rules similar to the Cape May Greene rule. Unlike other circuits, the Third Circuit determined in Lazy Oil Co. v. Witco Corp. the Cape May Greene rule was not overruled by FirsTier...
40 Creighton L. Rev. 807 (2006-2007)
Creighton University School of Law