The opinion
Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
7-28-2000
Orvosh v. Program Grp. Ins. for Volkswagon of
America, Inc.
Precedential or Non-Precedential:
Docket 99-3589
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Filed July 28, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 99-3573/3589
DONALD ORVOSH,
Appellant in 99-3589
v.
THE PROGRAM OF GROUP INSURANCE FOR SALARIED
EMPLOYEES OF VOLKSWAGEN OF AMERICA, INC.;
THE VOLKSWAGEN OF AMERICA, INC. EMPLOYEE
BENEFIT PLAN COMMITTEE, individually and as Plan
Administrator of the Program of Group Insurance for
Salaried Employees of Volkswagen of America, Inc.;
VOLKSWAGEN OF AMERICA, INC.,
Appellants in 99-3573
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil No.: 98-cv-0166
District Court Judge: Honorable Robert J. Cindrich
Argued: May 11, 2000
Before: GREENBERG, McKEE, Circuit Judges and
SHADUR,* District Judge
(Filed: July 28, 2000)
_________________________________________________________________
* Hon. Milton I. Shadur, Senior Judge of the United States District Court
for the Northern District of Illinois, sitting by designation.
Paul Amato, Esq. (Argued)
Richard J. Antonelli, Esq.
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
301 Grant Street, 20th Floor
Pittsburgh, PA 15219-1410
Attorneys for Appellants/
Cross Apellees
Abby S. DeBlassio, Esq. (Argued)
FISHER, LONG & RIGGONE
101 West Pittsburgh Street
Greensburg, PA 15601
Attorneys for Appellee/
Cross Appellant
OPINION OF THE COURT
McKEE, Circuit Judge.
The defendants appeal the district court's grant of
summary judgment in favor of plaintiff, Donald Orvosh, and
against defendants on Orvosh's claim under the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C.
SS 1001 et seq. Orvosh has also cross-appealed from the
district court's denial of attorney fees. For the reasons that
follow, we will reverse the district court's grant of summary
judgment in favor of Orvosh. Moreover, we will affirm the
order of the district court denying attorney's fees as we see
no reason to reverse that denial.
I.
David Orvosh entered the job market with a high school
diploma and some college credit. He worked from 1962 to
1967 as a lab technician in Paint Research for PPG
Industries. From 1967 to 1973 he worked first as a
research technician in Paint Production, then as supervisor
of a paint line for Season-All Industries. Orvosh also
worked as a material foreman at Chrysler Corporation from
1973 until 1977.
2
On January 7, 1977, Orvosh was hired by Volkswagen of
America, Inc. and he stayed with the company until March,
1987. During his time with Volkswagen, Orvosh worked in
both the Paint Process Department and Paint Production
Departments holding a variety of positions including senior
chemist, senior lab engineer and general supervisor.
In March of 1987, Orvosh's treating physician, Dr. Angelo
DeMezza, diagnosed him with asbestosis,1 atelectasis,2 deep
vein thrombophlebitis ("DVT"),3 hyperthyrodism, and right
pleural effusion.4 A year later, Orvosh suffered a heart
attack and was diagnosed with coronary artery disease. He
underwent a cardiac catherization in 1989, and in 1991 a
piece of his lung was removed due to a left pleural tumor.
In 1994, Orvosh had a second cardiac catherization, which
disclosed that his right coronary artery had a 100%
blockage, and his left coronary artery had a 30% blockage.
In addition, Orvosh suffers from Graves' disease which
_________________________________________________________________
1. Asbestosis is defined as a "lung disease caused by inhalation of
asbestos fibers, characterized by interstitialfibrosis, and associated
with
mesothelioma and bronchogenic carcinoma." This and all other
definitions of Orvosh's medical conditions were taken from the district
court's opinion. The district court adopted definitions from a medical
encyclopedia that Volkswagen included in its motion for summary
judgment. Orvosh did not challenge the definitions, and indeed relies on
the same definitions in his briefs to us. Therefore, we will rely on the
definitions as well.
2. Atelectasis is defined as "a collapsed or airless state of the lung,
which
may be acute or chronic, and may involve all or part of the lung."
3. DVT is defined as the formulation of a thrombus, which impedes the
flow of blood in the arteries or veins. Venous thrombosis occurs most
often in the legs or pelvis. The symptoms of venous thrombosis -- a
feeling of heaviness, pain, warmth, or swelling in the affected part, and
possibly chills and fever -- do not necessarily indicate its severity.
Immediate medical attention is necessary in any case. Treatment
requires bed rest with the legs elevated and application of heat to the
affected areas, and the affected part must be immobilized to prevent the
clot from spreading, and anticoagulant drugs may be given. Immobility
is a prime factor in the development of thrombosis; an exercise routine
is necessary in treatment and prevention.
4. Pleural effusion is defined as "an accumulation of fluid in the space
between the membrane encasing the lung and that lining the thoracic
cavity," threatening the collapse of the lung.
3
impairs his vision. Over time, his condition worsened and
he also developed a pulmonary embolism.5
Volkswagen paid Orvosh short-term and long-term
disability ("LTD") benefits in accordance with its Salaried
Group Insurance Plan which had been adopted in October,
1977. In June, 1995, Volkswagen adopted the "Program of
Group Insurance for Salaried Employees of Volkswagen of
America, Inc." ("the Plan"). Both parties agree that the 1995
plan governs this case and that it is covered by ERISA.
The Plan defines "disabled" as follows:
For the first 12 months that you are receiving long
term benefits, `disabled' means you cannot engage in
your specific position at the Company. For the
remainder of your disability you must be unable to
work for any employer in a paying job for which you
are reasonably fitted by education, training, or
experience. However, you can take part in rehabilitative
employment and still be considered disabled.
App. at R68.
Benefits are payable under the Plan for a covered
disability if the following conditions are satisfied:
1. You are "disabled" (as defined by the Plan)
2. You are under a doctor's care
3. You provide required proof of your disability
4. You submit to an examination by an impartial
doctor, at the company's expense, if requested. The
results of this examination will determine whether
or not you receive or continue to receive disability
benefits.
Id.
The Plan further provides that:
Long-Term Disability benefits start on the day after
_________________________________________________________________
5. Pulmonary embolisms occur when an embolus or blood clot detaches
itself from a vein in the leg or pelvis and blocks the pulmonary artery or
one of its branches.
4
Short-Term Disability benefits stop. These benefits can
continue through the end of the month in which you
attain age 65, provided your Long-Term disability
benefits began before age 60, and you are certified by
your physician as being totally disabled.
Id. at R69.
Volkswagen concluded that Orvosh met all prerequisites
for LTD benefits, and it paid those benefits for ten years
without dispute. During that time, Dr. DeMezza repeatedly
certified that Orvosh was totally disabled, and he identified
several of Orvosh's disabling conditions including: DVT,
chest pain, and asbestosis.
In 1995, Volkswagen changed the administrator of its
LTD benefits from Metropolitan Life Insurance Company to
UNUM Life Insurance Company of America. UNUM reviewed
Orvosh's claim shortly after the change. In August of 1995,
UNUM received copies of Orvosh's medical records and
asked Dr. DeMezza to complete a questionnaire regarding
Orvosh's condition. Pursuant to that inquiry, Dr. DeMezza
told UNUM that Orvosh's diagnosis included
arteriosclerosis, heart disease, recurrent pulled groin, and
DVT. Dr. De Mezza further indicated that Orvosh was being
treated with medication and that the prognosis for his
return to gainful employment was "bleak" because of
dyspnea.6
UNUM then had its own physician, Dr. Charles Perakis,
review Orvosh's medical history. Dr. Perakis concluded that
Orvosh's pulmonary function appeared to be adequate for
sedentary work but that reevaluation of his coronary artery
disease was necessary to assess his true functioning
status.
On January 10, 1996, UNUM forwarded a follow-up
questionnaire to Dr. DeMezza. Dr. DeMezza responded that
the only symptom causing impairment was "difficulty
_________________________________________________________________
6. Dyspnea is a condition of difficult or painful breathing due to
inadequate ventilation or insufficient amounts of oxygen circulating in
the blood. People suffering from this condition cannot get enough oxygen
in the blood, and oxygen therapy is required.
5
breathing with exertion," but that in his opinion, Orvosh
was unable to work in any type of gainful employment.
UNUM interviewed Orvosh in early 1996. During that
interview, Orvosh reported that he did housework including
cleaning dishes and making dinner. He also reported an
ability to perform various house cleaning tasks. Orvosh also
reported that he engaged in various recreational activities
including hunting and walking his dog. Finally, Orvosh
reported that he drove his wife home from work every day,
but that his wife drove herself to work because Orvosh
experienced double vision upon waking in the morning.
Also in January, 1996, Jackie Roberts, an UNUM
Disability Benefits Specialist, submitted a Regional
Consulting Physician Referral Sheet to Mary Hearn, an
UNUM Registered Nurse, asking Hearn to assess Orvosh's
claim. After reviewing Orvosh's entire file, Hearn concluded
that although the medical information was insufficient to
determine the severity of his cardiac status, Orvosh
appeared to have the capacity for sedentary to light work.
Sometime after Hearn reviewed Orvosh's file, Roberts
requested that Triebold & Associates perform a Transferable
Skills Assessment ("TSA") to determine whether Orvosh had
the functional capacity to perform sedentary work.
However, UNUM did not give Triebold a complete picture of
Orvosh's health. Rather, UNUM told Triebold only that
Orvosh suffered from asbestosis. Triebold reviewed Orvosh's
work history, educational background, and personal data to
prepare the TSA. Triebold assumed "for the purposes of this
assessment . . . a functional capacity for work at the
sedentary level of physical exertion." App. at R200. Triebold
concluded that Orvosh's past highly skilled work"would
not provide him with transferable skills for work at the
sedentary level of physical exertion given his over 9 years
absence from the work force at age 57." App. at R200-1.
However, Triebold suggested that "retirement type
positions" such as gate attendant, surveillance system
monitor, and information clerk would be appropriate for
Orvosh, given his health. According to the TSA, such
retirement type positions,
would utilize Mr. Orvosh's basic work skills that he
gained from performing his past work [including] his
6
ability to perform simple to complex tasks within a
schedule and without special supervision, interact
appropriately with co-workers and supervisors, adhere
to company procedures and safety policies, etc.
App. at R201.
Based on the TSA and other information gathered during
the investigation, UNUM recommended that Volkswagen
terminate Orvosh's LTD benefits. However, Volkswagen did
not immediately act on that recommendation. Instead
Volkswagen instructed UNUM to obtain an independent
medical exam ("IME") to confirm that termination of those
benefits was appropriate. Pursuant to that request, UNUM
sought recommendations for appropriate testing through a
Regional Consulting Physician Referral Form.
On September 23, 1996, UNUM sent Dr. DeMezza a copy
of the TSA and asked him whether he agreed with its
conclusion that Orvosh was capable of performing in
"retirement type positions." Dr. DeMezza disagreed with the
TSA and advised UNUM that sedentary work of any kind
was contraindicated because of recurrent episodes of DVT
and pulmonary embolism. Dr. DeMezza also stated that
Orvosh could not have periods of prolonged sitting without
movement.
In November, 1996, UNUM contacted Dr. Seymoure
Krause, a cardiac specialist, and asked him to conduct an
IME. Krause reviewed Orvosh's medical history, evaluated
his physical capabilities, and tested his functional capacity
by means of a thallium stress test which measures heart
rate at the peak of stress. Krause issued a report in which
he noted that Orvosh's chest discomfort and dyspnea were
more likely related to pulmonary disease and thoracotomy
than coronary heart disease. Krause recommended that
Orvosh "have pulmonary function tests and also obtain an
opinion from a pulmonary specialist." App. at R253. As part
of his report, Dr. Krause also filled out a physical
capabilities evaluation form. Krause answered an inquiry
into Orvosh's ability to work that was contained on that
form by stating: "it depends on the job assignment." App. at
R254.1. Dr. Krause opined that in an eight hour work day,
with rest, Orvosh could sit for up to six hours, stand for up
to six hours, and walk for up to one hour.
7
Several of UNUM's doctors and nurses reviewed the
results of the IME and concluded that Orvosh could work
at a sedentary job. Similarly, after reviewing the IME,
Triebold concluded that Orvosh could perform any of the
"retirement type positions" previously referred to as well as
"numerous additional occupations." App. at R307-8. Dr.
DeMezza received a copy of both the IME report and
Triebold's most recent report for review. However, he
remained unpersuaded and maintained his opinion that
Orvosh was totally disabled.
Nevertheless, despite Dr. DeMezza's opinion to the
contrary, UNUM concluded that Orvosh was not "totally
disabled" under the Plan, and advised Orvosh that his LTD
benefits would be terminated. Orvosh filed an unsuccessful
administrative appeal of that decision, and then sued
Volkswagen in state court seeking reinstatement of his LTD
benefits. Volkswagen removed the case to the United States
District Court for the Western District of Pennsylvania
because it arose under federal law.
On cross-motions for summary judgment, the district
court held that Volkswagen's decision to terminate Orvosh's
benefits was arbitrary and capricious and ordered
Volkswagen to reinstate Orvosh's benefits retroactive to the
date of termination. The court also considered, but denied,
a motion for attorney's fees Orvosh filed as a prevailing
party pursuant to 11 U.S.C. S 1132 (g)(1). Volkswagen's
appeal of the district court's grant of summary judgment
and Orvosh's cross-appeal of the court's denial of attorney's
fees are now before us.
II.
When we review a grant of summary judgment we must
apply the same test as the district court. See Carter v.
Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987). Namely,
summary judgment is only appropriate when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). We exercise "plenary review over
8
the trial court's choice and interpretation of legal precepts
and its application of those precepts to the historical facts."
Louis W. Epstein Family Partnership v. Kmart Corp. , 13 F.3d
762, 766 (3d Cir. 1994).
In reviewing a denial of benefits under an ERISA plan, we
must first determine the extent to which the plan
administrator has discretion to interpret the Plan. If the
Plan grants the administrator the authority to determine
eligibility, we review a denial of benefits under an "arbitrary
and capricious" standard. Under that standard, a plan
administrator's decision will be overturned only if it is
"clearly not supported by the evidence in the record or the
administrator has failed to comply with the procedures
required by the plan." Abnathya v. Hoffman- La Roche, Inc.,
2 F.3d 40, 41 (3d Cir. 1993). " `[A] court is not free to
substitute its own judgment for that of the defendants in
determining eligibility for plan benefits.' " Id. at 45 (quoting
Lucash v. Strick Corp., 602 F.Supp. 430, 434 (E.D. Pa.
1984). Here, the Plan vests the administrator with the
authority to "interpret the plan and make final decisions on
such things as eligibility and payment of benefits," App. at
R90, and we must therefore undertake a deferential review.
Moreover, the parties have stipulated that the arbitrary and
capricious standard governs our inquiry. See Stip. P 2 at
App. at R58.7
III.
Thus, our inquiry turns on whether defendants were
arbitrary and capricious in their interpretation of the Plan's
LTD requirement. Under that requirement Orvosh was not
eligible for LTD benefits unless he was unable to perform in
_________________________________________________________________
7. After this case was argued, we decided that a heightened standard of
review applies where the same entity both funds and administers an
ERISA plan. See Pinto v. Reliance Standard life Ins. Co., ___ F.3d ___,
2000 WL 696383 (3d Cir. May 31, 2000). Here, UNUM provides
important administrative functions, but the Plan itself states that the
official Plan administrator is "Volkswagen of America Inc." App. at R90.
However, valid stipulations entered into freely and fairly should not be
lightly set aside. See Waldorf v. Shuta, 142 F.3d 601, 616 (3d Cir. 1998).
Thus, we will apply the arbitrary and capricious standard of review.
9
a position for which he was "reasonably fitted by education,
training, or experience." As noted above, while at
Volkswagen, Orvosh worked as a senior chemist and a
senior lab engineer in the Paint Process Department, and
as a general supervisor in the Paint Production
Department. Even though several ailments prevented
Orvosh from performing any of those jobs, the Plan
Administrator concluded that he was no longer totally
disabled because subsequent medical evaluations found
him capable of working as a gate attendant, surveillance
system monitor, information clerk; or performing similar
"retirement type" jobs. Given the totality of circumstances
here, we can not conclude that Volkswagen was arbitrary
and capricious in concluding either that Orvosh was
capable of performing the duties required by such
positions, or that the positions provided a reasonable fit
with Orvosh's training, education, and experience.
Volkswagen argues that its assessment of Orvosh's ability
to work was substantially supported by the evidence.
Several physicians and health care workers reviewed
Orvosh's medical history. They provided Orvosh's treating
physician with copies of the assessments and solicited his
opinion as to whether Orvosh was capable of working.
Although Dr. DeMezza constantly and continually
expressed his disagreement with Volkswagen's
determination that Orvosh could perform sedentary
"retirement type" employment, that doesn't negate the fact
that Volkswagen solicited Dr. DeMezza's opinion as part of
its inquiry into Orvosh's capacity to work.8 Volkswagen
therefore argues that its decision not to continue paying
benefits cannot be arbitrary and capricious because of the
quantity and quality of its inquiry.
Orvosh essentially argues that the investigation is
irrelevant. He asserts that, under the plain language of the
Plan, once long term disability benefits are established,
_________________________________________________________________
8. We do not intend to suggest that an employer or plan administrator
can insulate its decision to deny benefits merely by asking an employee's
treating physician for his/her opinion. A pro forma request for such an
opinion will not camouflage a denial of benefits that is otherwise
arbitrary and capricious.
10
they cannot be terminated unless an impartial doctor
examines the patient/employee and determines that the
individual is capable of working at a job for which he or she
is reasonably suited. It is true that neither the TSA nor the
assessments by UNUM physicians were conducted by an
impartial physician. However, Orvosh was also examined by
Dr. Seymoure Krause, and his impartiality is not
challenged.
As noted above, Krause concluded that Orvosh could: sit
or stand for six hours during an eight hour workday with
rest, walk for one hour with rest, lift up to twenty pounds
for up to 1/3 of the day; and bend, stoop, squat, kneel,
climb stairs, crawl, reach above his shoulders, and walk on
uneven surfaces for up to 1/3 of the day. Dr. Krause also
reported that Orvosh's manual dexterity appeared good and
that there were no other potential environmental
restrictions which Orvosh's medical condition would
require. When asked whether Orvosh could work, Krause
responded, "it depends on the job assignment." App. at
R254.1. Although it can be argued that Dr. Krause's
response was so equivocal as to be of little use, it can not
be successfully argued that Krause's evaluation confirmed
that Orvosh was incapable of working at all, or that it was
arbitrary and capricious for Volkswagen to rely on Krause's
report.
Dr. Krause did qualify his conclusions by stating that
Orvosh's chest discomfort and dyspnea were more likely
related to pulmonary disease and his thoracotomy rather
than his coronary heart disease, and Krause recommended
that Orvosh "have pulmonary function tests and also obtain
an opinion from a pulmonary specialist." App. at R253. We
realize that, despite Dr. Krause' recommendation,
Volkswagen did not consult a pulmonary specialist.
Volkswagen decided against ordering a second IME
directed at Orvosh's pulmonary condition. Instead, it relied
upon Orvosh's lifestyle, medical history, and the initial IME
to conclude in essence that no matter what his precise
pulmonary condition, it was not consistent with afinding of
total disability. For example, on May 23, 1997, Dr. Feagin,
a UNUM physician, reviewed Orvosh's file, specifically
addressing his pulmonary and vascular conditions. Dr.
11
Feagin concluded that test results showed Orvosh to have
"no significant pulmonary DVT or peripheral vascular
disease impairment for at least medium work." App. at
R322. Dr. Feagin's conclusions were also supported by
Anne Giradot, a UNUM registered nurse, and Orvosh's
chest X-rays which revealed only a modest degree of
pulmonary emphysema.
Thus, Volkswagen's decision to terminate Orvosh's long
term benefits was clearly consistent with the weight of the
medical information available to it, and we can not
conclude that Volkswagen's decision, or UNUM's
recommendation, was arbitrary or capricious. Volkswagen
considered Orvosh's overall medical condition and his well
documented medical history before deciding that he was
capable of performing the duties of a sedentary, retirement
job such as a gate attendant, surveillance system monitor
or information clerk. Moreover, it is important to note that
Volkswagen continued to pay Orvosh while it investigated
his medical condition. There was no rush to cut off the
payments that Volkswagen had been making for over 10
years. Accordingly, we can not agree that the decision to
terminate Orvosh's benefits was arbitrary and capricious.
The more difficult question before us is whether these
"retirement-type positions" are reasonably suited to
Orvosh's education, training, and experience. In arguing
that they are, Volkswagen relies in part upon Buchanan v.
Reliance Standard Life Ins. Co., 5 F.Supp.2d 1172 (D.Kan.
1998) and Brooks v. Protective Life Ins. Co., 883 F.Supp.
632 (M.D.Ala. 1995), aff 'd 77 F.3d 498 (11th Cir. 1996).
The plaintiff in Buchanan was a machinist who lost an
eye while working on a fireworks display. Under his
employer's disability plan, "Permanent Total Disability"
meant that the participant was "not able to perform the
duties of any occupation for which he is suited by
education, training or experience." Buchanan , 5 F.Supp.2d
at 1174. The defendant insurance company performed a
TSA and concluded that the plaintiff was not disabled
under the plan because he could perform other jobs within
the company even though he could no longer work as a
machinist. Id. at 1176. Upon review, the court concluded
that the decision to deny total disability coverage was not
12
arbitrary and capricious even though plaintiff would need
additional training to perform some of the suggested jobs.
Id. at 1184-5. The court found that the language of the
plan did not require an "exact fit" with the employee's
background, but was merely intended to ensure that the
employee had the "minimum education or experience to
perform the job. For example, the defendant could not avoid
payment by insisting that plaintiff 's eye problems would
not disqualify him from being the Chief Justice of the
Supreme Court." Id. at 1185.
The plan at issue in Brooks defined an individual as
disabled if he/she was "unable to engage in any business
or occupation or to perform any work for compensation,
gain or profit for which he[/she] is reasonably fitted by
education, training, or experience." Brooks , 883 F.Supp. at
634, n.1. The court upheld the administrator's decision to
terminate benefits because Brooks, a power company
lineman prior to his injury, could reasonably work as a
meter reader. The court concluded that the administrator
was under no "legal duty to concern itself with the
occupational position for which Brooks was best-suited." Id.
at 640. See also Duhon v. Texaco, Inc., 15 F.3d 1302, 1307
(5th Cir. 1994) (holding plaintiff not totally disabled
because although no longer able to perform his former
occupation as a truck driver, he remained both capable and
"qualified by training, education, or experience" to complete
sedentary to light work).
The defendants urge us to adopt the analysis of Brooks,
Buchanan and Duhon. They argue that we should conclude
that the language of the Plan is intended to ensure only
that an employee has the minimum qualifications for the
suggested jobs.
Given the deference that must be afforded here, we need
not agree with the administrator's interpretation of a
"reasonable fit." We need only determine that its
interpretation is not contrary to the Plan language and that
it is rationally related to a legitimate Plan purpose.
Volkswagen's interpretation easily survives both inquiries.
It appears that, although Orvosh is no longer able to fulfill
the duties of his former job, he is capable of securing other
gainful employment for which he is reasonably suited. The
13
administrator's conclusion is thus not contrary to the plain
language of the Plan and it clearly is rationally related to
the legitimate purpose of preserving the Plan's resources for
legitimately disabled claimants.
Accordingly, we conclude that the district court erred in
granting summary judgment in favor of Orvosh, and its
judgment will therefore be reversed. Further, we hold that
Volkswagen did not act arbitrarily or capriciously in
discontinuing total disability benefits, and we will therefore
order that summary judgment be entered in favor of the
defendants.
IV.
Orvosh cross-appeals the district court's decision to deny
him attorney fees pursuant to 29 U.S.C. S 1132(g).
Obviously, we need not dwell on this point given our
reversal of the district court's grant of summary judgment.
See Noorily v. Thomas and Betts Corp., 188 F.3d 153, 162
(3d Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1555
(2000).
V.
For the foregoing reasons, we will reverse the district
court's grant of summary judgment in favor of Orvosh, and
remand with instructions to enter summary judgment in
favor of the defendants. Consequently, we will affirm the
district court's denial of attorney's fees.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
14