# Abraham v. Pekarski

> Court of Appeals for the Third Circuit · February 13, 1984 · 728 F.2d 167

URL: https://www.frixlaw.com/law-library/cases/8919652

## Case

- **Full name:** ABRAHAM, Abraham K. v. PEKARSKI, James W., ind. and as President, Board of Commissioners, Township of Bristol, Catania, Jerry, ind. and and as Vice Pres., Board of Commissioners, Township of Bristol, Cotungo, Chaser J., ind. and as Commissioner, Township of Bristol, Sommerer, William H., ind. and as Commissioner, Township of Bristol, Gesualdi, Anthony V., ind. and as Commissioner, Township of Bristol, Lewis, Robert, Jr., ind. and as Commissioner, Township of Bristol, Cattani, Jennie, ind. and as Commissioner, Township of Bristol, Wurm, Albert W., ind. and as Commissioner, Township of Bristol, Melio, Anthony J., ind. and as Commissioner, Township of Bristol, and Township of Bristol. Appeal of TOWNSHIP OF BRISTOL, James W. Pekarski, Marie L. Mascia, Chaser J. Cotungo, William H. Sommerer, Anthony V. Gesualdi, Robert Lewis, Jr., Jennie Cattani, Jerry Catania, Albert M. Wurm, and Anthony J. Melio, in Nos. 83-1135 and 83-1419. Appeal of Abraham K. ABRAHAM, in No. 83-1151
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** February 13, 1984
- **Citations:** 728 F.2d 167; 1984 U.S. App. LEXIS 25481
- **Precedential status:** Published
- **Opinion:** Concurrence by Sloviter
- **Judges:** Gibbons, Sloviter
- **Cited by:** 95 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8919652

## How later opinions describe it (automated extraction)

- holding that evidence supported punitive damages in a § 1983 case because the jury could find that defendants acted with “ill will and oppressively”
- concluding that the commissioners' vote to fire plaintiff was not a legislative function, but rather a "managerial" function
- holding that a “just cause” provision gives rise to a property right
- noting without comment that instruction used preponderance burden for punitive damages

## Opinion text

SLOVITER, Circuit Judge,
concurring.
I join in Parts I through IV and Parts VI and VII of the majority’s opinion.
As to Part V, I agree that because defendants did not raise in the district court the claim that they were entitled to a legislative immunity defense, they have waived that claim. Given that disposition, I see no reason for the majority opinion to have included, altogether gratuitously, the remainder of Part V. As obiter dictum, the discussion is without precedential value. *176 Even more troublesome, that discussion addresses an issue that was never briefed before us and never presented in the first instance to the district court. In this circumstance, I have more hesitancy than does my colleague Judge Gibbons in asserting that “the decision to fire Abraham was as a matter of ¡aw managerial, not legislative.” Majority Op. at 175 (emphasis added). The parties and the district court, in particular, might have had some useful light to shed on that question. Had this issue been dispositive, the normal procedure would have been to remand it to the district court for resolution.
I believe that it is unsound, both for prudential and jurisprudential reasons, to reach to decide issues which are unnecessary to our disposition and have not been fully developed in the district courts. While a departure from our well-established procedure may be justified in an unusual situation, I see nothing in the record or this case which warrants that action here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8919652. Public record. Not legal advice.