dissenting.
I join in the majority’s determination that we have before us an appealable order despite the fact that there was no final judgment at the time the notice of appeal was filed. I do so only because reported precedent in our court permits the curing of such a defect under the present circumstances. Internal Operating Procedures of the United States Court of Appeals for the Third Circuit, Chapter 8C. Such precedent, in my view, is contrary to the appellate rules, particularly in situations when other matters rendering the judgment final are decided, as here, on an adversarial basis subsequent to the filing of the premature notice of appeal.
I turn now to the basis for my dissent, which I write, in part, for whatever energizing benefit it may have in the future. Given the then posture of the case, I believe the district court’s action in granting summary judgment to the defendants was, at best, premature. More specifically, at the time of its decision, the district court had pending before it for a considerable period of time, defendants’ opposed motion for a protective order with respect to Dowl-ing’s timely notice of the taking of the depositions of several individuals connected with the City of Philadelphia.
It is evident to me that the depositions were potentially relevant, at least in part, to issues asserted in the amended complaint. Had there been a disposition of the motion, any permitted depositions would have been before the district court when it ruled on the summary judgment motion. See- Fed.R.Civ.P. 56(c). Indeed, in her memorandum in opposition to the motion for summary judgment, Dowling stated: "As of this writing, Defendant, City of Philadelphia has not provided one iota of discovery that was requested by the plaintiff. There are material issues of fact that only a fact finder can decide.” It seems *144strange indeed to visit on Dowling the possibly negative consequences of the district court’s inaction by holding that she was required to invoke the protection of Federal Rule of Civil Procedure 56(f) to avoid what is characterized as a failure to resist the summary judgment motion. I cannot believe under the circumstances that Dowling was required to file an affidavit under rule 56(f) pointing out that noticed discovery was awaiting a ruling on defendant’s protective order and that the summary judgment determination should await such ruling.
The majority suggest that Dowling was, in any event, free to pursue other avenues of discovery and that she is, in effect, the victim of her own inaction. There are two fundamental weaknesses in this suggestion. First, it assumes that the discovery sought would not be relevant. That determination was for the district court to make in the first instance. Dowling could then have evaluated where she stood and what course of action to pursue.
Second, and related to the first point, to say that other discovery was available should not foreclose Dowling from relying on the discovery evidence she sought, the protective order aside. Subject to judicial oversight of discovery, a litigant should be permitted to pursue discovery by the means that she believes most useful. If it be suggested that the district court’s failure to rule on the motion for a protective order was harmless error, I ask, how can one tell?
Because I would reverse the district court order for failure to timely act on the motion for a protective order, I do not reach the merits of the summary judgment determination.