Petition for Writ of Certiorari — Thomas P. Gannon, Petitioner v. Riverwatch Condominium Owners' Assn., et al.

APP.- I

APPENDIX

THIRD CIRCUIT OPINION AND JUDGMENT

(DECEMBER 10, 2018) ................................... APP.- II

DISTRICT COURT AMENDED ORDER (MARCH

20, 2018) .......................................................... APP. -IX

DISTRICT COURT ORDER (ENTERED: APRIL 25,

2018) ................................................................ APP.-XI

THIRD CIRCUIT DENIAL OF REHEARING

(JANUARY 30, 2018) ................................... APP.-XIII

NOTICE OF APPEAL (MAY 22, 2018) ......... APP.-XV

LITIGANT'S MOTION (MAY 25, 2018).. .....APP.-XVI

APP.- II

THIRD CIRCUIT OPINION AND JUDGMENT

(DECEMBER 10, 2018)

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 18-2152

DANIEL KING,

Appellant

v.

JUDGE CHARLES B. BURR, II, Individually;

RIVER WATCH CONDOMINIUM OWNER'S

ASSOCIATION

Appeal from the United States District Court for

the Eastern District of Pennsylvania (D.C. Civil

Action No. 2-17-cv-02315)

District Judge: Honorable Michael M. Baylson

Submitted Under Third Circuit L.AR. 34.l(a)

November 5, 2018

Before:AMBRO, SCIRICA, and RENDELL,

Circuit Judges

(Opinion filed: December 10, 2018)

OPINION*

AMBRO, Circuit Judge

APP.- III

* This disposition is not an opm1on of the full

Court and pursuant. to I.O.P. 5.7 does not constitute

binding precedent.

This is the second appeal filed in this case. See

King v. Burr et al., 728 F. App'x 83 (3d Cir. 2018).

Plaintiff Daniel King was the owner of a

condominium in the Riverwatch Condominium

complex in Delaware County, Pennsylvania. After a

dispute concerning Riverwatch's right of access to

King's residence to make repairs to the roof.

Riverwatch obtained a judgment for approximately

$8,500 in a bench trial before Judge Charles Burr in

the Court of Common Pleas in June 2010. After King's

post-trial motions were denied, he-or more

specifically his attorney Thomas Gannon filed

dozens upon dozens of appeals in the Pennsylvania

courts, along with an unsuccessful petition for a writ

of certiorari to the United States Supreme Court. King

v. Riverwatch Condo. Owners' Ass'n, 138 S.Ct. 520

(2017). In May 201 7 King filed this action in federal

court against Riverwatch and against Judge Burr,

alleging that the latter had acted without

jurisdiction and thereby violated King's due process

rights and that Riverwatch was seeking to enforce

void court orders. The District Court dismissed

under the Rooker-Feldman doctrine, 1 and we

affirmed. See King, 728 F. App'x at 86. On remand,

the District Court imposed sanctions against

1 This doctrine, named for Rooker v. Fidelity Trust Co., 263

U.S. 414 (1923), and District of Columbia Court ofAppeals v.

Feldman, 460 U.S. 462 ·(1983), states that a federal District

Court should not sit in direct review of a state court

decision.

APP.- IV

Gannon under 28 U.S.C. § 1927, 2 which states that

"[a]ny attorney or other person admitted to conduct

cases in any court of the United States or any

Territory thereof who so multiplies the proceedings

in any case unreasonably and vexatiously may be

required by the court to satisfy personally the

excess costs, expenses, and attorneys' fees

reasonably incurred because of such conduct." The

District Court held that Gannon had multiplied the

proceedings "in willful bad faith," such that § 1927

sanctions were appropriate, and awarded attorneys'

fees against him in the amount of $3,985.00. On

appeal, King now argues it was improper for the

District Court to impose sanctions under § 1927

without giving Gannon notice and an opportunity to

be heard, the Court lacked jurisdiction under §

1927 because King's initial lawsuit had been

dismissed for want of jurisdiction, the sanctions

were wrongly imposed on Gannon for his conduct in

state rather than federal court, and the District

Court did not adequately find on the record that the

amount of the award was proper. We cannot

address the merits of these arguments because we

lack jurisdiction to entertain the appeal. Federal

Rule of Appellate Procedure 3(c) states that the

notice of appeal must "specify the party or parties

taking the appeal." In 1988, the Supreme Court

held that this is a jurisdictional requirement, and

that because failure to name a party in a notice of

2 The District Court's award of attorneys' fees to

defendants was initially entered against King himself, but on

March 20, 2018 it amended its earlier award to be against

Gannon instead after defendants clarified that they were only

seeking fees against him.

APP.-V

appeal "constitutes. a failure of that party to

appeal," it deprives the Court of Appeals of power

over that party. Torres v. Oakland Scavenger Co.?

487 U.S. 312, 314 (1988). Four years later, we held

accordingly that we lack jurisdiction where a

district court has imposed sanctions under Federal

Rule of Civil Procedure 11 only against a party's

lawyer, but the notice of appeal names only the

client, not the lawyer, as the appellant. See Collier

v. Marshaa Dennehey,

Warner, Coleman &

Goggin? 977 F.3d 93, 95 (3d Cir. 1992). In such a

case, the real party in interest on appeal is the

lawyer against whom sanctions were imposed and

who therefore has something riding on the outcome

of the appeal. The lawyer's failure to appeal, by

listing only his client as the appellant, thus means

there is no live controversy on appeal for us to

decide.

That is what happened here: the notice of appeal

listed only King as tl)e appellant in the case caption,

and in its body text stated that:

Notice is hereby given that Daniel

King, plaintiff, in the above named

case hereby appeals to the United

States Court of Appeals for the Third

Circuit from Judgment entered on

March 20, 2018 by Judge Michael B.

Baylson, granting the defendant,

Riverwatch Condominium Owners'

Association attorney fees under 28

u.s.c. § 1927.

APP.- VI

Notice of Appeal at 1. This is materially identical

to the notice of appeal in ColHer. See 977 F.3d at

94. Our case, in which Gannon has pursued endless

appeals to his own client's detriment, underscores

the observation in (}olHer that a lawyer's interests

and his client's may well diverge in cases involving

attorney sanctions. Id. at 95

And while CoJHer concerned sanctions under Rule

11, rather than 28 U.S.C. § 1927, this distinction has

no significance. See CTC Imports and Exports v.

Nigerian Petroleum Co.zp., 951F.3d573, 576 (3d Cir.

1991) (no jurisdiction as to lawyer sanctioned under§

1927 who filed appeal only in his client's name). See

alsoAgee v. Paramount Communications, Inc., 114

F.3d 395, 399-400 (2d Cir. 1997) (same).

Accordingly, the appeal is dismissed.

APP.· VII

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 18-2152

DANIEL KING,

Appellant

v.

JUDGE CHARLES B.BURR, II, Individually;

RIVER WATCH CONDOMINIUM OWNER'S

ASSOCIATION

Appeal from the United States District Court for the

Eastern District of Pennsylvania (D.C. Civil Action

No. 2-17-cv-02315)

DistrictJ udge: Honorable MichaelM. Baylson

Submitted Under Third Circuit L.A.R. 34. l(a)

November 5, 2018

Before: AMBRO, SCIRJCA, and RENDELL, Circuit

Judges

JUDGMENT

This cause came on to be heard on the record before the

United States District Court forthe Eastern District of

Pennsylvania and was submitted pursuant to Third

Circuit L.A.R. 34.l (a) on November 5, 2018.

Onconsiderationwhereof,IT lSORDERED AND

ADJUDGEDbythisCourtthat the appeal of the

judgment of the District Court entered on March 22,

2018,ishereby dismissed. Costs taxed against

APP.· VIII

Appellant. All of the above in accordance with the

opinion of this Court.

ATTEST:

sf Patricia S. Dodszuweit Clerk

Dated: December 10, 2018

APP.- IX

DISTRICT COURT AMENDED ORDER (MARCH

20, 2018)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

Daniel KING,

Plaintiff:

CMLACTION

NO. 2=17-cv-02315-

v.

MMB

Judge Charles B.

BURR, Il et al.,

Defendants.

AMENDED ORPER

AND NOW this 20th day of March, 2018, in light

of the Third Circuit's affirmance of the Court's Order

(ECF 17) granting Defendants' Motion to Dismiss

Plaintiff's Amended

Complaint, and having

considered Plaintiff's Motions to Vacate (ECF 24,

modified on January 8, 2018 by ECF 26), the

Motions (ECF 24, 26) are GRANTED IN PART AND

DENIED IN PART. The Court will modify its Order

issued on December 7, 2017 (ECF 23).

Plaintiff's counsel has multiplied the proceedings

unreasonably and vexatiously, in willful bad faith,

in violation of 28 U.S.C. § 1927. This is the latest in

a long line of cases filed and pursued in various

courts by Plaintiff's counsel. None of the cases has

had any merit, and the case in this Court is no

APP.-X

exception. Thus, Plaintiffs counsel "transcend[ed]

the bounds of zealous advocacy on behalf of a client."

Baker Industries. Inc. v. Cerberus Ltd., 764 F.2d

204, 211 (3d Cir. 1985). In doing so, he improperly

imposed costs of defense

on Riverwatch

Condominium Owner's Association.

Moreover, Plaintiffs counsel filed motions such as

a Motion to Dismiss Defendants' Motion to Dismiss,

an improper motion, on the grounds that it was

Defendant who sought review of a state court

judgment on the merits, in violation of the RookerFeldman doctrine. These vexatious motions

unreasonably multiplied the proceedings and abused

access to this Court by "violati[ng] recognized

standards." LaSalle Nat. Bank v. First Connecticut

Holding Gro .. LLC, 287 F.3d 279, 289 (3d Cir. 2002).

Judgment is hereby entered in favor ofRiverwatch

Condominium

Owner's

Association

against

Plaintiffs counsel, Thomas P. Gannon, in the

amount of $3,985.00. The Clerk shall close this

case.

BY THE COURT:

Isl Michael M. Baylson

MICHAEL M. BAYLSON

Unitied States District Court Judge

APP.- XI

DISTRICT COURT ORDER (ENTERED: APRIL 25,

2018)

Case 2:17-cv-02315-MMB Document 32 Filed

04/25/18 Page 1of1 ·

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

CIVIL ACTION

Daniel KING,

Plaintiff,

N0.2: 17-cv-02315MMB

v.

Judge Charles B.

BURR, II et al,

Defendants,

ORDER

AND NOW this 24th day of April, 2018, Plaintiff

King's Motion to Vacate (ECF 30) and Motion for

Leave to File Supplemental Appendix (ECF 31) are

DENIED.

The Motion to Vacate repeats prior

arguments, which this Court previously considered

in Plaintiffs previously-filed Motions to Vacate (ECF

24 and 26). The Motion for Leave seeks to submit

old complaints filed by Plaintiff against Defendant

Riverwatch. These materials are neither new nor

relevant to Plaintiffs case, which this Court has

already dismissed. (ECF 17, Order Dismissing

Amended Complaint).

The Court has previously noted King's prolific

filings. (See ECF 22 at 2, Memorandum Awarding

Counsel Fees to Defendant Riverwatch ("King has

APP.- XII

filed approximately forty-eight appeals related to

this litigation.")). This Order serves as notice to

Plaintiff King that any further frivolous filings will

justify additional sanctions.

BY THE COURT:

Isl Michael M. Baylson

MICHAEL M. BAYLSON

United States District Court Judge

APP.- XIII

THIRD CIRCUIT DENIAL

(JANUARY 30, 2018)

OF

REHARING

UNITED STATE COURT OF APPEALS FOR

THE TlllRD CIRCUIT

DANIEL KING,

No. 18-2152

Appellant

v.

JUDGE CHARLES B.

BURR, II, Individua~ly;

RIVER WATCH

CONDOMINIUM

OWNER'S

ASSOCIATION

Appeal from the United States District Court for

the Eastern District of Pennsylvania (D.C. Civil

Action No. 2- l 7-cv-02315)

District Judge: Honorable

Michael M. Baylson

SUR PETITION FOR REHEARING

Before: SMITH, Chief Judge, McKEE, AMERO,

HARDIMAN

,

CHAGARES,

JORDAN,

Jr.,

SHWARTZ,

KRAUSE,

GREENAWAY,

RESTREPO, BIBAS, PORTER, SCIRICA* and

RENDELL*, Circuit' Judges

APP.- XIV

The petition for rehearing filed by Appellant in

the above-entitled case having been submitted to

the judges who participated in the decision of this

Court and to all the other available circuit judges of

the circuit in regular active service, and no judge

who concurred in the decision having asked for

rehearing and a majority of the judges of the circuit

in regular service not having voted for rehearing,

the petition for rehearing by the panel and the

Court en bane, is denied.

By the Court,

s/ Thomas L.Ambro, Circuit Judge

Dated: January 30, 2019

* Judge Scirica's and Judge Rendell's votes

limited to panel rehearing only.

APP.- XV

NOTICE OF APPEAL (May 22, 2018)

CASE NO.: 2: 17-CJZ315-lVIlvt:B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

Daniel King,

Plaintiff-Appellant

v.

Judge Charles B. Burr II, and Riverwatch

Condominium Owners' Association

Defendants- Appellees

NOTICE OF APPEAL

Notice is hereby given that Daniel

King, plaintiff, in the above named

case hereby appeals to the United

States Court of Appeals for the Third

Circuit from Judgment entered on

March 20, 2018 by Judge Michael B.

Baylson, granting the defendant,

Riverwatch Condominium

Owners'

Association attorney fees under 28

u.s.c. § 1927.

s/Thomas P. Gannon

Attorney for Appellant

APP.- XVI

LITIGANT'S MOTION (May 25, 2018)

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

DANIEL KING,

Appellant

v.

Case# 2018 - 02152

JUDGE CHARLES B.

BURR II,

and

RIVERWATCH

CONDOMINIUM

OWNERS

ASSOCIATION

A pellees

MOTION TO QUASH APPEAL DUE TO FILING

BEYOND THIRTY DAY DEADLINE

****

17. On May 22, 2018 Attorney Gannon filed an

appeal to this Third Circuit of Judge Baylson's

March 20, 2018 Order.

****

WHEREFORE,

Petitioner,

Riverwatch

Condominium Owners Association, respectfully

request this Honorable Court of Appeals to Quash

this latest appeal filed by Thomas P. Gannon,

Esquire.

s/ Robert C. Ewing, Esquire

Attorney for Petitioner/Appellee

Riverwatch Condominium Owners Assn

Date: May 25, 2018