Petition — Warminster Township v. Pitrone

,~ Supreme Court, U.S,

FILED

IN THE | MAY za 1978

SUPREME COURT OF THE UNITED|SRATPS.. 5 cso

October Term, 1977

—B7- 1666

No. 76-2593

PoLicke OFFicerR Louis J. \IERCADANTE:

Potice Orricer THOMAS MICCANN:

PoLice CAPTAIN ROWEN KELLEY:

WARMINSTER TOWNSHIP, Pa.., Petitioners

v.

JoHN Davin PitRONE, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

RaAvpH J. TET!

Assistant City Solicitor

JAMES M. PENNY, JR.

Deputy City Solicitor

SHELDON L. ALBERT

City Solicitor

Perer P. LIFBERT, Esq

\IARK D. TURETSKY,. ESQ

LIEBERT, SHORT,

FitzPatrick & LAVIN

15th Floor

Municipal Services Building

Philadelphia, Pennsylvania 19107

THE LEGAL INTELLIGENCER. 66 NORTH JUNIPER STREET. PHILA. PA 19107 (215) 561-050

TABLE OF CONTENTS

Page

NE es eae bi oieesawe een 1

PEERS OOP 2

I oS ed i ee Le 2

Statutory Provisions Involved .................. e 3

rs ce eee veeews oun,

Reasons for Granting the Writ .................. 6

Eas 8, het ke Res gee MOE TRE Lee 13

ID cnet nase eudadescauaeibeks 14

RI Gat irae eh i Soi Se a oe Al

TABLE OF CITATIONS

Cases:

Adlinger v. Howard, 427 U.S. 1(1976) . 2, 4, 8, 9, 12

Anderson v. Erwin, C.A. #76-2020 (E.D. Pa., Dec.

ee rn ae a ore, Soe ee en ee 6

Baker v. Carr, 369 U.S. 186 (1962) .............. 7

Bivens v. Six Unknown Named Agents of the Fed-

eral Government, 403 U.S. 388 (1971) ....... 7

Brault v. Town of Milton, 527 F.2d 730, 739 (2nd

la ely IS i Re a To A tae age 7

City of Kenosha v. Bruno, 412 U.S. 511 (1973) 9, 10

Cort v. Ash, 422 U.S. 66; 45 L.Ed. 2d 26(1975) . 7

Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.

hE elec ae ee eed be ae aan ke 7

Davis v. Passman, 46 U.S.L.W. 2577 (5th Cir., en

i re ne". 6 acecéeakeasvankiewans 7

Everett v. City of Chester, 391 F.Supp. 26 (E.D.

tee racer ual Se ae ee danawe 7

TABLE OF CITATIONS— Continued)

Cases: Page

Ex Parte Commonwealth of Virginia, 100 U.S. 399

Para cg ck ches ce basenbeenaeeunadana< 8

Fitzpatrick v. Bitzer, 426 U.S. 614(1976) ....... 8

Flint v. Gagliardi, 564 F.2d 112 (3rd Cir., 1977),

Petition for Cert filed 46 U.S.L.W. 3392 (U.S.

Nov. 7, 1977) (No. 77-657) ....... 10, 11, 12, 13

Gentile v. Wallen, 562 F.2d 193 (2nd Cir., 1977) 7

Gresham v. City of Chicago, 405 F.Supp. 410

DC EE ap clevsscccescceeenauabunseat 6

Hagans v. Lavine, 415 U.S. 528; 39 L.Ed. 2d 577

PN cvelocuvce aces certsonkesanens 6, 10, 11, 12

Jamison v. McCurrie, 388 F.Supp. 990 (W.D. I!!.,

DU fae sae acon eeLheaninanicearesecaeies 6

Jones v. McElroy, 429 F.Supp. 848 (E.D. Pa.,

D: ceeceavuu de hceauuious ans Cee ee ke ksene 6

Katzenbach v. Morgan, 384 U.S. 641 (1966) ..... 8

Kosta v. Hogg, 560 F.2d 37 (1st Cir., 1977) ...... 6

Mahone v. Waddle, 564 F.2d 1018 (3rd Cir., 1977). 11,

12, 13

Maybanks v. Ingraham, 378 F.Supp. 913 (E.D.

is MEN 6 te (sno a's ce eu Maaehuneneh cece eae 7

Milburn v. Giard, 429 F.Supp. 865(E.D. Pa., 1977) 6

Monroe v. Pape, 365 U.S. 107 (1961) ............ 10

Moor v. County of Alameda, 411 U.S. 693 (1973) . 2,

8. 10

Mt. Healthy School District v. Doyle, — U.S. —; 45

I oc ca caccnceinnéus ease 11

Myers v. United States, 272 U.S. 107; 71 L '.d. 2d

160 (19 D Lpscacctereusrecchbwasteetuueewess 8

TABLE OF CITATIONS— Continued)

Cases: Page

Newborn v. Morrison, 440 F.Supp. 623 (S.D. IIl.,

DE. dud wadeuudhes <ecbdiaxncbauuubeatuccedic 7

Owen v. City of Independence, 560 F.2d 925 (8th

ln MT Sc udea ben cicctannuseteeedesscéexeks 7

Patterson v. City of Chester, 389 F.Supp. 1093

SG Wns GEE a eereshndsGbeeease cucedenee< 7

Patzig v. O'Neill, —- F.2d —) 3rd Cir., Slip Opinion

ee ee ee vos eae. 11

Perry v. Linke, 394 F.Supp. 323 (N.D. Ohio, 1974) 6

Perzanowski v. Salvio, 369 F.Supp. 223 (D. Conn.,

BR Ei 9 Phe SE ME is OS ST ey pe REE A? 6, 7

Pinto v. Clark, 407 F.Supp. 1029 (E.D. Pa., 1976) 7

Siler v. Louisville & Nashville R.R., 213 U.S. 175

RNASE BU Ae PRC ho 2 2b Sc A aba OOS eR” oe Sas 11

Smetanka v. Borough of Ambridge, 378 F.Supp.

SCN as MI rh a ee et 6

United Mine Workers v. Gibbs, 383 U.S. 715

SE sdeeGiuccuse dese euvcddadcbnebdutcuwes 12,13

Statutes:

Federal Constitutional and Statutory Provisions

U.S. Constitution, Amendment XIV, Sections 1

I a el ee case ucuuneuuue 3

I ae eeuben okdu out 3,4

I I es cnn xin cnn snosdesasncacdenencsnes 3,4

ee is OO oe eka ebbebuacda 4,10

TABLE OF CITATIONS~— Continued)

Secondary References: Page

Comment, Implying A Damage Ready Against

Municipalities Directly Under the Fourteenth

Amendment, Congressional Action As An Ob-

stacle To Extension Of The Bivens Doctrine,

_ |) 2 ft... eS

Congressional Globe, 39th Cong. Ist Session,

oS. ft ee

Congressional Globe, 42nd Cong. 777-804 (1871)

Damage Remedies Against Municipalities, The

Constitutional Violations To Title 89 Harv. L.

me. GE CRED oc ccccccecducectwasuaseneeee

Flack, The Adoption Of The Fourteenth Amend-

amet CH) co ccccscwcccducesnsssunwennee

iv

9

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 76-2593

TOWNSHIP OF WARMINSTER

Uv.

DAVID PITRONE

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

TO: THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED

STATES, AND THE ASSOCIATE JUSTICES OF THE UNITED

STATES SUPREME COURT:

Petitioner, Township of Warminster, respectfully

prays that a Writ of Certiorari issue to review an Order

of the United States Court of Appeals for the Third Cir-

cuit entered in this proceeding on February 21, 1978.

OPINION BELOW

The opinion of the Court of Appeals for the Third

Circuit and the Order of the United States District

Court for the Eastern District of Pennsylvania appear

in the Appendix hereto.

2

JURISDICTIONAL STATEMENT

This Court's jurisdiction is invoked under 28

U.S.C. $1254(1).

QUESTIONS PRESENTED

1. Whether the decision of the Court of Appeals

that a federal court may simply assume the exence of

pendent power over wholly state based claims against

a municipality based on the mere assertion of a cause

of action against such municipality implied directly

from the Fourteenth Amendment is in direct conflict

with the terms of the amendment vesting in Congress

and not the judiciary, the power to enforce the terms of

this amendment by appropriate legislation?

2. Whether the decision of the Court of Appeals

that a federal court may simply assume the existence of

pendent jurisdiction over wholly state based claims

against a municipality based on the mere assertion of

a cause of action against such municipality implied di-

rectly from the terms of the Fourteenth Amendment

and without inquiry into the merits of such claim is in

conflict with this Court's prior decision in Aldinger v.

Howard, 427 U.S. 1 (1976) and Moor v. County of

Alameda, 411 U.S. 693 (1973)?

3. Whether the Court of Appeals erred in revers-

ing the trial court's dismissal of the pendent state law

claims against the Township of Warminster?

3

STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment XIV.

Section 1.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty or prop-

erty without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the law...

Section 5.

The Congress shall have power to enforce by

appropriate legislation the provisions of this Arti-

cle.

Title 28, United States Code, §1331. Federal Ques-

tions; Amount in Controversy; Costs.

(a) The District Courts shall have origina!

jurisdiction of all civil actions wherein the matter

in controversy exceeds the sum or value of $10,000

exclusive of interest and costs, and arises under

the constitution, laws or treaties of the United

States.

Title 28, United Code $1343. Civil Rights and

Elected Franchises.

The District Courts shall have original juris-

diction of any civil action authorized by law to be

commenced by any person:

(3) to redress the deprivation under color of any

State law, statute, ordinance, reguiation, custom

or usage of any right, privilege or immunity se-

cured by the Constitution of the United States or by

any Act of Congress providing for equal rights of

citizens or of all persons within the jurisdiction of

the United States;

4

STATEMENT OF THE CASE

Respondent, David Pitrone, filed this civil rights

action against the Township of Warminster and vari-

ous named and unnamed police officers, asserting

their responsibility for his alleged, unconstitutional ar-

rest, detention and beating. The Complaint, as

amended, rests on 42 U.S.C. §1983 and the Fourth and

Eighth Amendment as applied to the states through

the Fourteenth Amendment. The Court's jurisdiction is

based on 28 U.S.C. 1343(3) and (4) with respect to the

individual defendants, and 28 U.S.C. §1331(a) with re-

spect to the township. Respondent also sought to in-

voke the Court's pendent jurisdiction over various state

law claims against petitioner.

Respondent Pitrone premises his theory of liability

against the township largely on allegations that the

Township was negligent in failing to establish and en-

force guidelines for the use of force and on respondent

superior.

The Township filed a motion to dismiss the com-

plaint pursuant to Federal Rule of Civil Procedure

12(b)\(1) and (6) for lack of subject matter jurisdiction

and failure to state a claim upon which relief can be

granted. On September 30, 1976, the trial court, per

Judge Ditter, granted the Motion to Dismiss with re-

spect to the Township of Warminster, concluding that

a cause of action could not be implied against a munic-

ipality directly from the terms of the Fourteenth

Amendment. (A.4-10). The Court also dismissed the

pendent state claims against the Township of the au-

thority of this Court's decision in Aldinger v. Howard,

427 U.S. 1(1976), (A. 11-12) and entered judgment pur-

suant to Federal Rule of Civil Procedure 54() in favor

of the Township (A. 15)

Respondent timely filed a notice of appeal from the

above order, and the matter was listed for oral argu-

ment before the Court of Appeals on September 9,

1977.

5

Prior to argument, and with the consent of all par-

ties concerned, the City of Philadelphia filed a brief as

Amicus Curiae on behalf of the Township, and partici-

pated in the oral argument.

On February 21, 1978, the Court of Appeals ren-

dered its decision in this matter, and reversed the

judgment of the trial court dimissing the Fourteenth

Amendment cause of action against the Township. The

Court concluded that the trial court had incorrectly

reached a constitutional issue regarding the existence

of an implied Fourteenth Amendment cause of action

and should have addressed itself initially to the pen-

dent state law claims against the Township. The mere

assertion of the Fourteenth Amendment claim, the

Court stated, provided the basis for the exercise of pen-

dent jurisdiction and mandated avoidance of the con-

stitutional claim.

6

REASONS FOR GRANTING THE WRIT

I. The decision of the Court of Appeals that a Federal

Court may simply assume the existence of pendent

power over wholly state based claims against a

municipality based on the mere assertion of a cause

of action against such municipality implied directly

from the Fourteenth Amendment is in direct conflict

with the terms of the amendment vesting in Con-

gress and not the judiciary, the power to enforce the

terms of the amendment by appropriate legislation.

A condition precedent to the exercise of pendent

power over wholly state claims by a federal court is the

existence of a federal claim which is both colorable and

substantive in nature. Hagans v. Lavine, 415 U.S.

528, 39 L.Ed. 2d 577 (1974). In this vein, the Court of

Appeals concluded that:

... in this case, the plaintiffs’ assertion of a Four-

teenth Amendment cause of action was enough to

vest the district court with the jurisdiction over the

municipality. (A.20)

Petitioners assert that a cause of action cannot be

judicially created against a municipality directly from

the terms of the Fourteenth Amendment, for the very

reason that the judicial branch lacks the power to en-

force the terms of the Amendment, absent appropriate

congressional legislation.' Nor can such a federal

1. Courts considering the Fourteenth Amendment issue and

concluding that such a cause of action cannot be implied directly

from the Fourteenth Amendment include; Kostka v. Hogg, 560

F.2d 37 (1st Cir., 1977); Jamison v. McCurrie, 388 F.Supp. 990

(W.D. Ill, 1975); Perry v. Linke, 394 F.Supp. 323 (N.D. Ohio,

1974); Milburn v. Giard, 429 F.Supp. 865(E.D. Pa., 1977); Jones v.

McElroy, 429 F.Supp. 848 (E.D. Pa., 1977); Crosley v. Davis, 426

F.Supp. 389 (E.D. Pa., 1977); Anderson v. Erwin, C.A. #76-2020

(E.D. Pa., Dec. 20, 1976); Gresham v. City of Chicago, 405 F.Supp.

410 (N.D. Ill., 1975), Smetanka v. Borough of Ambridge, 378

F.Supp. 1366(W.D. Pa., 1974); Perzanowski v. Salvio, 369 F.Supp.

7

claim be properly utilized as a basis for a federal court’s

exercise of pendent jurisdiction over purely state law

claims against a municipality. Rather, Section 5 of the

Amendment represents a texturally demonstrable con-

stitutional commitment to a coordinate branch of gov-

ernment. See Baker v. Carr, 369 U.S. 186 (1962),

explicitly vesting in Congress the exclusive power to

enforce the provisions of the Amendment by appropri-

ate legislation.”

The proposition that the judiciary cannot enforce

the terms of the Fourteenth Amendment, absent ap-

propriate congressional legislation, has been consis-

tently reiterated by this Court since the seminal case of

223 (D. Conn., 1974); See also Comment, Implying A Damage

Remedy Against Municipalities Directly Under The Fourteenth

Amendment, Congressional Action As An Obstacle To Extension Of

The Bivens Doctrine, 36 Md. L. Rev. 123 (1976).

Cases deciding that a cause of action may be directly implied

from the terms of the Fourteenth Amendment include Owen v. City

of Independence, 560 F.2d 925 (8th Cir., 1977); Gentile v. Wallen,

562 F.2d 193 (2nd Cir., 1977); Brault v. Town of Milton, 527 F.2d

730, 739 (2nd Cir., 1975); vacated en banc 527 F.2d 746; Newborn

vu. Morrison, 440 F.Supp. 623 (S.D. Ill., 1977); Dahl v. City of Palo

Alto, 372 F.Supp. 647 (N.D. Cal., 1974); Everett v. City of Chester,

391 F.Supp. 26 (E.D. Pa., 1975); Patterson v. City of Chester, 389

F.Supp. 1093 (E.D. Pa., 1975); Maybanks v. Ingraham, 378

! Supp. 913 (E.D. Pa., 1974); Pinto v. Clark, 407 F.Supp. 1209

(E.D. Pa., 1976); Note: Damage Remedies Against Municipalities,

The Constitutional Violations to Title 89 Harv. L. Rev. 922 (1976).

Cf. Davis v. Passman 46 U.S.L.W. 2577 (Sth Cir., en banc April 18,

1978).

2. It should also be clear that, in addtion to the constitutional

prohibitions barring implication of the Fourteenth Amendment

cause of action against a municipality, the policy reasons advanced

by the Court in Bivens v. Six Unknown Named Agents of the Fed-

eral Government, 403 U.S. 388 (1971) requires that no such con-

stitutional remedy can be implied herein where a federal statutory

remedy, 42 U.S.C. 1983, is plainiy available and where countervail-

ing policies of federalism are involved or serve as a basis for exer-

cise of pendent jurisdiction over wholly state matters. See also Cort

v. Ash, 422 U.S. 66; 45 L.Ed. 2d 26 (1975).

8

Ex Parte Commonwealth of Virginia, 100 U.S. 339

(1879), in which the court stated:

All of the Civil War Amendments derive much of

their power from the enforcement clause. It is not

said the judicial power of the general government

should extend to enforcing the promibitions and to

protecting the rights and immunities guaranteed.

It is not said that branch of the government shall

be authorized to declare void any action of the state

in violation of the prohibition. It is the power of

Congress which has been enlarged. Congress is au-

thorized to enforce the prohibition by appropriate

legislation. Some legislation is contemplated to

make the amendment fully effective. Whatever

legislation is appropriate, that is, adopted to carry

out the objectives the amendments have in view,

whatever tends to enforce submission to the pro-

hibitions they contain, and to secure to all persons

the enjoyment of perfect quality of civil rights and

equal protection of the law against state denial or

invasion, if not prohibited, is brought within the

domain of congressional power. Ex Parte Com-

monwealth of Virginia, supra, at 679.

See also Katzenbach v. Morgan, 384 U.S. 641 (1966);

Fitzpatrick v. Bitzer, 426 U.S. 614 (1976).

The doctrine of separation of powers, i.e., that each

branch of government in the exercise of its power to be

free from limitations or interference from the other

branches, is literally the blueprint upon which this re-

public was founded. McCullach v. Maryland, 4 Wheat.

316; 4 L.Ed. 2d 579 (1816); Myers v. United States,

272 U.S. 107; 71 L.Ed. 2d 160 (19 __). In conformity

with this constitutional plan, the framers of the Four-

teenth Amendment vested its enforcement power

explicitly in Congress, Ex Parte Virginia, supra. The

same framers, in the exercise of their legislative power

pursuant to that amendment, subsequently rejected

9

legislation effectively imposing upon municipalities

the very liability which the Court of Appeals now con-

cludes is a proper basis for the exercise of pendent

power over purely state claims. See Monroe v. Pape,

365 U.S. 107 (1961); Moor v. County of Alameda, 411

U.S. 693 (1973); City of Kenesha v. Bruno, 412 US.

511 (1973); Aldinger v. Howard, 427 U.S. 1 (1976):

Congressional Globe, 39th Cong., Ist Session, 2766.

2768 (1866); Congressional Globe, 42nd Cong., 777-

804 (1871); Flack, the Adoption of the Fourteenth

Amendment (1908).

The Court of Appeals could not properly rely upon a

Fourteenth Amendment claim to support the exercise

of pendent jurisdiction over state law claims against

the Township of Warminster, since such power is

plainly not vested in the judicial branch absent imple-

menting congressional legislation. Since the Circuit

Court's asserted basis for the exercise of pendent juris-

diction is clearly beyond its constitutional power, the

Court erred in concluding that state law claims as-

serted as their basis for the liability herein could prop-

erly be entertained by a federal court. Aldinger v.

Howard, supra.

Il. The decision of the Court of Appeals that a federal

court may simply assume the existence of pendent

jurisdiction over wholly state based claims against a

municipality based on the mere assertion of a cause

of action against such municipality implied directly

from the terms of the Fourteenth Amendment, and

without inquiry into the merits of such a claim, is in

conflict with this court's pricr decision in Aldinger v.

Howard, 27 U.S. 1 (1976).

In Aldinger v. Howard, 427 U.S. 1 (1976), this

Court held that the joinder of a municipal corporation

for the purpose of asserting a state claim not otherwise

within federal jurisdiction is not within the jurisdic-

10

tional power of a federal court absent an independent

federal claim against such municipality. In so ruling,

this Court logically extended its holding, first espoused

in Monroe v. Pape, 365 U.S. 167 (1961) that mu-

nicipalities are immune from liability pursuant to

the Civil Rights Act, 42 U.S.C.A. 1983, and evidencing

the clear congressional statement underlying such

exemption. As succinctly stated by the court in Al-

dinger, supra:

Parties such as counties, whom Congress excluded

from liability in Section 1983, and therefore by ref-

erence in the grant of jurisdiction under 1343(3),

can argue with a great deal of force that the scope

of that “civil action” over which the district courts

have been given statutory jurisdiction should not

be so broadly read as to bring them back within

that power merely because the facts also give rise

to an ordinary civil action against them under state

law. In short, as against a plaintiff ‘s claim of addi-

tional power over a “pendent party”, the reach of

the statute conferring jurisdiction should be con-

strued in light of the scope of the cause of action as

to which federal jurisdictional power hass been ex-

tended by Congress. Aldinger, supra, at 18. See

also. Moor v. County of Alameda, 411 U.S. 693

(1973): City of Kenosha v. Bruno, 412 U.S. 511

(1973).

It is precisely this statement of congressional purpose

and underlying policy considerations concerning the

scope of federal jurisdiction in such matters which is

rendered nugatory by the actions of the Court of Ap-

peals.

Relying on this Court's decision on Hagans v.

Lavine, 415 U.S. 528 (1974), and its own very recent

decision in Flint v. Gagliardi, 564 F.2d 112 (3rd Cir.,

1977), Petition for Cert filed 46 U.S.L.W. 3392 (U.S.

Nov. 7, 1977) (No. 77-657), the Circuit Court con-

il

cluded that the mere assertion of a Fourteenth

Amendment claim against a municipality without

more vested a federal court with jurisdiction to enter-

tain wholly state claims alleged against the municipal-

ity, with no further inquiry into the substance of the

federal claim either necessitated or desired. The net

effect of this decision, in conjunction with the Circuit

Court's prior decision in the Gagliardi case, supra, is to

forever foreclose the federal courts of this circuit from

inquiring into the substantive allegations which form

the basis of the plaintiff's proposed federal jurisdic-

tion, and require these courts instead to reach only the

state law matters asserted. As so candidly pointed out

in the concurring opinion of Judge Gibbons herein:

The course adopted both here and in Gagliardi v.

Flint, supra, will probably make it unnecessary for

this Court ever again to impose liability on

municipalities directly under the Fourteenth

Amendment. (A.22-23).

See also: Mahone v. Waddle, 564 F.2d 1018 (3rd Cir..,

1977), Petition for Cert filed 46 U.S.L.W. 3430 (U.S.

Nov. 22, 1977) (No. 77-731), wherein the Court stated

at 1026, fn. 10 that a trial court would be required to

turn to the pendent state claims and never reach the

Fourteenth Amendment issue. See also Patzig v.

O'Neill, __ F.2d (3rd Cir., Slip Opinion filed April

17, 1978).

This Court has consistently reiterated the proposi-

tion that a federal question must not be alleged for the

sole purpose of permitting a court to exercise jurisdic-

tion over a pendent state law claim. Siler v. Louisville

& Nashville R.R., 213 U.S. 175 (1909); Mt. Healthy

School District v. Doyle, __U.S.__: 45 U.S.L.W. 4079

(1970). Nor must a constitutional question be avoided

where its effect is to abdicate the jurisdictional respon-

sibility of the federal court system. Hagans v. Lavine,

supra, (dissenting opinion Rehnquist, J.). Yet, the Court

12

uf Appeal’s decision mandates precisely this result. A

prospective suitor to federal court is invited to simply

plead a Fourteenth Amendment claim against a

municipality while appending state law claims to the

complaint, and then argue to the trial court that Ha-

gans, supra, Flint, supra, and the instant case man-

date that theconstitutional question not be pursued,but

that the case proceed to trial solely under state law

claims. In such case, the Fourteenth Amendment

claim becomes a mere jurisdictional subterfuge, unre-

lied upon, undisposed of, and serving only to buttress

federal jurisdiction over wholly state claims.

This Court's decision in Aldinger v. Howard,

supra, requires the existence of a substantive cause of

action against a municipality before pendent jurisdic-

tion may be exercised. The decision of the Court of Ap-

peals herein requires rejection of that proposition, in-

vites abdication of the Court's responsibility concern-

ing the scope of its jurisdiction, and ignores the very

explicit statement of congressional action with respect

to such actions. This clearly erroneous result must not

be permitted to stand.

Ill. The Court of Appeals erred in reversing the trial

court's dismissal of pendent state law claims against

the Township of Warminster.

This Court has consistently reaffirmed the proposi-

tion that the decision to exercise pendent power over

wholly state law claims is addressed in the first in-

stance, to the sound discretion of the trial court. United

Mine Workers v. Gibbs, 383 U.S. 715 (1976); Mahone

vu. Waddle, supra. In the exercise of this discretionary

power, the trial court herein dismissed the pendent

claims against the Township of Warminster on the au-

thority of Aldinger v. Howard, supra, concluding that

an implied cause of action directly from the Fourteenth

Amendment did not present a substantive claim.

13

In reversing the decision of the trial court, the

court of appeals effectively held that the lower court

had abused its discretion in dismissing such claims.

The inevitable conciusion emanating from this decision

is that a trial court, bound by the court of appeals’ deci-

sion in Gagliardi v. Flint, supra, and the instant mat-

ter, must not only address itself in the first instance to

the pendent state claims, but would abuse its discre-

tion if such claims were dismissed. See Mahone v.

Waddle, supra, at 1026, Fn. 10. Such a proposition is

totally inconsistent with the discretionary power to de-

cide pendent state claims vested in the trial court by

United Mine Workers v. Gibbs, supra, and further re-

sults in the total abdication by a federal court of its

responsibilities to safeguard the jurisdiction. As such,

the decision of the Court of Appeals must be reversed.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and the opinion of the Court of

Appeals for the Third Circuit.

Respectfully submitted:

Ralph J. Teti

Assistant City Solicitor

James M. Penny, Jr.

Deputy City Solicitor

Sheldon L. Albert

City Solicitor

Peter P. Liebert, Esquire

Mark Turetsky, Esquire

14

CERTIFICATE OF SERVICE

I, RALPH J. TETI, do hereby certify that on this 19th

day of May. 1978, three copies of the Petition for the

Writ of Certiorari were delivered by first class mail,

postage prepaid, to David Rudovsky, Esquire, 1427

Walnut Street, Philadelphia, Pennsylvania 19102,

Counsel for Respondent. I further certify that all par-

ties required to be served have been served.

en Le /

ae a

clk Vier ay Sy

i

—q_-

Ralph J. Teti

Assistant City Solicitor

Counsel for Petitioner

Room 1580

Municipal Services Building

Philadelphia, Pa. 19107

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DAVID PITRONE CIVIL ACTION

335 Aspen Street

Warminster, Pennsylvania

No. 75-2455

v.

POLICE OFFICER LOUIS J. MERCADANTE

POLICE OFFICER THOMAS MC MAHON

POLICE OFFICER JOHN LANGDON

OTHER UNKNOWN POLICE OFFICERS

CHIEF OF POLICE ROWEN KELLY

WARMINSTER TOWNSHIP

all situate at the intersection of

HENRY and GIBSON Avenues

Warminster, Pennsylvania

OPINION

DITTER, J. September 30, 1976

I. Introduction and Factual Background

Plaintiff filed this civil rights action against the Town-

ship of Warminster, Pennsylvania, its chief of police and

various named and unnamed police officers, alleging their

responsibility for his unconstitutional arrest, detention and

beating. The complaint, as amended, rests on 42 U.S.C.

$1983 and the Fourth and Fighth Amendments a. applied

to the states through the Fourteenth Amendment, with this

court's jurisdiction based on 28 U.S.C. §1343(3) & (4) as

to the individual defendants and 28 U.S C. §1331 as to the

township. Plaintiff also seeks to invoke this court’s pendent

jurisdiction over various state law claims against these de-

fendants. Presently before the court are motions on behalf

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of all the defendants, pursuant to Rule 12(b)(1) and (6),

to dismiss the complaint for lack of subject matter juris-

diction and/or failure to state a claim upon which relief

can be granted.

The essence of the complaint against Louis J. Merca-

dante, a Warminster Township police officer, is that he

violated Pitrone’s federally protected rights by an unjusti-

fiable arrest and physical abuse. The allegaiions against

defendants Thomas McMahon, John Langdon, and certain

unidentified Warminster police officers are that they ob-

served Marcadante beating plaintiff, took no action to stop

the beating, and, in fact, encouraged Mercadante to con-

tinue.

The Township’s and Police Chief Kelley’s liability is

premised on the allegation that they either knew or had

reason to know on the basis of prior complaints to both

Kelley's office and the Federal Bureau of Investigation that

the officers involved in this incident were prone to act with

‘excessive force and zeal . . . [and] would so act upon even

the slightest provocation.” ' In addition, the complaint also

seems to base the township’s liability on theories of negli-

gence (in failing to establish and enforce guidelines for

the use of deadly force )* and respondeat superior.

1. Complaint, paragraph 28.

2. At this juncture I accept the allegation, implicit in this

theory of liability, that plaintiff's injury resulted from the use of

“deadly” force, although I note that the complaint makes no men-

tion of the instruments with which Pitrone was allegedly beaten.

3. In the state law count of his complaint, Pitrone charges

Mercadante, McMahon. Langdon and the unidentified officers with

assault and battery; McMahon, Langdon and the others with negli-

gence in failing to restrain Mercadante; Kelley with negligence in

failing to prevent these o“icers from using excessive force when he

knew or had reason to know of their violent propensities; and the

township with negligence in hiring and retaining Kelly who was

not qualified as a police administrator and in retaining the other

officers after it knew or should have known of their violent pro-

pensities.

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Plaintiff seeks costs, injunctive relief against the town-

ship‘ and compensatory and punitive damages against all

the defendants.

II. The Individual Defendants

The primary thrust of the individual defendants’ argu-

ments in support of their motion to dismiss both on the

grounds of lack of subject matter jurisdiction and failure

to state a claim is that the complaint lacks sufficient specif-

icity. There is no question that “in this circuit, plaintiffs

in civil rights cases are required to plead facts with specif-

icity,” Rotolo v. Borough of Charleroi, 532 F.2d 920, 922

(3d Cir. 1976), and that broad conclusory allegations of

constitutional deprivatiois will not suffice. Kaufman v.

Moss, 420 F.2d 1270, 1275-76 (3d Cir.) cert. denied 400

U.S. 846, 91 S. Ct. 93 (1970); Negrich v. Hohn, 379 F.2d

213, 215 (3d Cir. 1967). However, when tested by the specif-

icity requirement imposed by the Rotolo-Kaufman-Negrich

line of cases, the complaint herein easily passes musicr

against Mercadante, Langdon, McMahon, Kelly and the un-

identified officers at the scene of the altercation.’

4. The equitable relief praved for is that the court

direct the defendant . . . [township] to make appropriate de-

terminations whether or not the defendants hereto are suit-

able to be retained as policeman within the Township of War-

minster, and to alter and change the present . . . internal

complaint system.

Complaint (prayer for relief) paragraph 5. To the extent that the

complaint can be construed as alleging that the violations of plain-

tiff's rights in fact resulted from inadequate internal complaint

procedures and assuming other jurisdictional requirements to be

met, Pitrone would have standing to challenge these inadequacies

as a basis for monetary relief. Sierra Club v. Morton, 405 U.S. 727.

92 S. Ct. 1361 (1972). However, within the perimeters of the

instant suit it appears extremely unlikely that plaintiff will be able

to obtain the type of equitable relief he seeks above. See Rizzo v.

Goode, — US. —, 96 S.Ct. 598 (1976).

5. The allegations that McMahon, Langdon and the other

officers on the scene encouraged Mercadante to continue with the

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Kelly makes the additional argument that his liability

cannot be predicated on the doctrine of respondeat supe-

rior. | agree. Milton v. Nelson, 527 F.2d 11358 (9th Cir.

1976); Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974);

Johnson v. Glick, 481 F.2d 1028 (2d Cir.) cert. denied sub

nom. Employee-Officer John, #1765 Badge Number v.

Johnson, 414 U.S. 1033, 94 S.Ct. 462 (1973): Padover v.

Gimbel Brothers, Inc., 412 F. Supp. 920 (E.D. Pa. 1976).

But the complaint here asserts that Kelly knew or had rea-

son to know beforehand of the violent propensities and

overzealousness of the officers involved in this incident,

yet took no remedial action. This is a sufficient allegation

of personal culpability on Kelly’s part to withstand a mo-

tion to dismiss. Compare Bracey v. Grenoble, supra, 494

F.2d at 571; Curtiss v. Everette, 489 [2d 516, 521 (3d Cir.

1973), cert. denied sub. nom. Smith v. Curtio, 416 U.S. 995,

94 S. Ct. 2409 (1974); and Johnson v. Glick, supra, 481

F.2d at 1034 with Wright v. McMann, 460 F.2d 126, 134-35

(2d Cir.), cert. denied 409 U.S. 885, 93 S.Ct. 115 (1972),

and Noon v. Winfield, 368 F. Supp. 843, 844-45 (N.D. II.

1973): see also Judge Huyett’s excellent discussion of the

personal involvement issue in Fialkowski v. Shapp, 405

F. Supp. 946, 949-54 (F.D. Pa. 1975).

III. Warminster Township

It is also clear that the motion to dismiss on behalf of

Warminster Township must be granted insofar as the com-

plaint is based on Section 1983 since the township is not

a “person” within the meaning of that statute. City of Ken-

osha v. Bruno, 412 U.S. 511, 93 S.Ct. 2222 (1973): Moor v.

County of Alameda, 411 U.S. 693, 93 S.Ct. 1785 (1973):

Note 5—Continued

beating of Pitrone or at least failed to protect the latter from the

ofhcer would, if proved at trial, be sufficient to subject them to Sec-

tion 1983 liability. See Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.

1972); Vun Cannon v. Breed, 391 F. Supp. 1371, 1374 (N.D. Cal.

1975); cf. Howell v. Cataldi, 464 F.2d 272, 282 (3d Cir. 1972).

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Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961). How-

ever, jurisdiction over the township is also asserted under

the general federal question statute, 28 U.S.C. §1331, and

since the requisite amount in controversy has been alleged ®

I must face the merits of this contenticn.

Two questions are invoived: (1) Is there jurisdiction

over the municipality pursuant to Section 1331? and (2)

Does the complaint state a cause of action? The notion

that a civil rights action may be maintained against a mu-

nicipality in federal court pursuant to 28 U.S.C. §1331 de-

spite the fact that the municipality is not a “person” within

the meaning of 42 U.S.C. §1983, seems to have stemmed

from certain dicta in City of Kenosha v. Bruno, supra. In

that case, after holding that a municipality is not a “per-

son” for Section 1983 purposes regardless of the nature of

the relief sought, the Supreme Court noted that the com-

plaint had also asserted jurisdiction under 28 U.S.C. §1331.

Since the lower court had not determined whether jurisdic-

tion over the municipalities was properly laid under Sec-

tion 1331, the court merely remanded the case to the dis-

trict court for consideration of that issue, without in any

way intimating what the appropriate disposition should be.”

6. The complaint seeks compensatory damages of $5,000.

and punitive damages of $10,000. against the township. Punitive

damages are recoverable under certain circumstances in civil

rights cases. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974);

Fisher v. Volz, 496 F.2d 333, 346-48 (3d Cir. 1974); and

since at this stage of the proceedings it is not clear to a legal

certainty that plaintiff, if otherwise entitled to recover, would not

be entitled to punitive damages of at least $5,000., I conclude that

the requisite jurisdictional amount has been satisfied with respect

to the claim against the township.

7. In relevant part, the Court stated:

We have had the benefit of neither briefs, arguments,

nor explicit consideration by the District Court of .. . the

availability of §1331 jurisdiction in view of the state of the

record below. We therefore remand the case to the District

Cour? for consideration of these issues.

412 U.S. at 514, 93 S.Ct. at 2227.

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Drawing from this relatively benign language,* several

federal courts have ruled that municipalities may not be

dismissed from civil rights cases where Section 1331 is

pleaded as a basis of jurisdiction. E.g. Brault v. Town of

Milton, 527 F.2d 730, 734 (2d Cir. 1975) (panel) rev'd on

other grounds on reconsideration en banc, id. at 736;

Skehan v. Board of Trustees of Bloomsburg State College,

501 F.2d 31, 44 (3d Cir. 1974) vacated, 421 U.S. 983, 95

S.Ct. 1986 (1975) on remand, slip op. filed June 21, 1976

(en banc ); Patterson v. City of Chester, 389 F. Supp. 1893,

1095-96 (E.D. Pa. 1975); Maybanks v. Ingraham, 378 F.

Supp. 913, 914-15 (E.D. Pa. 1974); Dahl v. City of Palo

Alto, supra, 372 F. Supp. at 649-51; see Rotolo v. Borough

of Charleroi, supra, 532 F.2d at 922; United Farmworkers

of Florida Housing Project, Inc. v. City of Delray Beach,

493 F.2d 799, 801-02 (5th Cir. 1974).° In one sense, of

course, these decisions are clearly correct; that is, given the

8. I disagree with the court's statement in Dahl v. City of

Palo Alto, 372 F. Supp. 647. 650 (N.D. Cal. 1974) that “. . . the

only fair reading of the opinion is that the Court [in Kenosha] as-

sumed that had the amount in controversy requirement been met,

jurisdiction would lie [against the city].” Only the concurring opin-

ion of Justice Brennan, joined in by Justice Marshall, made such

an assumption.

9. See also Hostrop v. Board of Junior College District Num-

ber 515, 523 F.2d 569 (7th Cir. 1975), cert. denied 44 USLW 3624

(U.S. May 3, 1976); Hanna v. Drobneck, 514 F.2d 393 (6th Cir.

1975); Adkins v. Duval County School Board, 511 F.2d 690 (5th

Cir. 1975); Clark v. Illinois, 19 Crim. L. Rptr. 2267 (N.D. IIL,

filed May 19, 1976); Marvasi v. Shorty, 70 F.R.D. 14 (ED. Pa.

1976); Barszca v. Board vf Trustees, 400 F. Supp. 675 (N.D. IIL.

1975); Devore v. Edgefield County School District, 68 F.R.D. 423

(D. S.C. 1975); Everette v. City of Chester, 391 F. Supp. 26 (E.D.

Pa. 1975); Peacock v. Board of Reagents, 380 F. Supp. 1081 (D.

Ariz. 1974), aff'd 510 F.2d 1324 (9th Cir.), cert. denied, 422 U.S.

1049, 95 S.Ct. 2668 (1975); Hines v. D’Artors, 383 F. Supp. 184

(W.D. La. i974); Waltenberg v. New York Dept. of Corrections,

76 F. Supp. 41 (S.D. N.Y. 1974): Moore v. City of Green Bay,

372 F. Supp. 40 (E.D. Wisc. 1974).

EEE eo

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requisite amount in controversy and a complaint alleging a

claim “arising under, inter alia, the Constitution,” Section

1331 by its terms grants the district courts jurisdiction over

a municipality or anybody else. Bell v. Hood, 327 U.S. 678,

66 S.Ct. 773 (1946); see Brault v. Town of Milton, supra,

527 F.2d at 736 n. 1. But Section 1331 is merely a jurisdic-

tional statute and provides no substantive basis for relief.

See Greshain v. City of Chicago, 405 F. Supp. 410, 412

(N.D. Ill. 1975); Jamison v. McCurrie, 388 F. Supp. 990,

991-92 (N.D. Ill. 1975); Perry v. Linke, 394 F. Supp. 323,

325 (N.D. Ohio 1974).

Because the township is not a person for Section 1983

purposes the only possible substantive basis for relief

against it would be through the implication of a private

cause of action directly from the Fourteenth Amendment.

Few of the cases cited above, and, in particular, none

emanating from the Court of Appeals for this Circuit, have

specifically addressed the Fourteenth Amendment cause of

action question.'® Cf. Roach v. Klugman, Civil Action No.

73-2428 (E.D. filed April 30, 1976) slip op. at 13-14. Most

of those courts which have considered the question and

concluded that the Fourteenth Amendment provides a pri-

vate cause action against municipalities based their hold-

ings on Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388, 91 S.Ct. 1999 (1971). See Brault, Patterson,

and Maybanks, supra. With deference to these courts, I do

10. I recognize that certain language in Skehan, supra, may

be interpreted as implying that there can be a direct Fourteenth

Amendment cause of action against municipalities; however, I

do not so read that case. Rather, I believe that a proper interpreta-

tion of this aspect of Skehan is merely that a nonfrivolous asser-

tion of a Fourteenth Amendment violation by a governmental sub-

division resulting in damages of over $10.000. gives the district

courts jurisdiction over the municipality pursuant to Section 1331.

See Bell v. Hood, supra. Even if Skehan were to be interpreted as

authorizing a Fourteenth Amendment cause of action against mu-

nicipalities its continuing validity in light of Aldinger v. Howard,

44 U.S.L.W. 4988 (U.S. June 24, 1976) would be questionable.

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not believe that the rationale of Bivens can be extended to

support a cause of action against a municipality based

directly on the Fourteenth Amendment.

In Bivens the court found a cause of action based on

the Fourth Amendment in a situation where, absent the

implication of such relief, the plaintiff would have had no

federal"' remedy for the violation of a clearly established

federal constitutional right. This anomaly resulted from

the combined facts that Section 1983 does not apply to

actions under color of federal law and that at the time

Bivens arose, the Federal Tort Claims Act did not provide

a remedy against the United States for the wrongful acts of

its law enforcement officers."* The case for implication of a

private cause of action against a municipality under the

Fourteenth Amendment is significantly less compelling.

See Graham, supra, 40 F.Supp. at 412.

First of all, unlike the situation in Bivens, the plaintiff

here is not without remedy absent the implication of a con-

stitutional cause of action since he unquestionably may

seek Section 1983 relief against the individual police offi-

cers. A second and more important factor distinguishing

this case from Bivens is that here Congress has spoken; the

legislative history of Section 1983 as described in Monroe,

Moor, and Bruno, supra, makes it clear that Congress did

not want municipalities to be subjected to damage suits for

civil rights violations. Thus, one of the major underpin-

nings of Bivens is missing. As construed in the Supreme

Court cases just cited, Section 1983 amounts to “an explicit

congressional declaration that persons injured by a [muni-

cipality’s] violation of the [Fourteenth Amendment] may

not recover money damages against [it].” The fact that in

11. The Bivens Court found inadequate whatever state law

tort remedies the plaintiff might have had available. 403 U.S. at

394-95, 91 S.Ct. at 2003-04.

12. The Federal Tort Claims Act has since been amended to

cover such activities. Act of March 16, 1974, Pub. L. 93-253, §2,

88 Stat. 50, amending 28 U.S.C. §2680(h).

‘

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Section 1983 Congress did provide a federal remedy against

individuals who commit civil rights violations also seems

to satisfy the requirement of “another remedy. equally

effective in the view of Congress,” which the Bivens court

indicated would weigh against implying a cause of action

directly from the Constitution."* 403 U.S. at 397, 71 S.Ct. at

2005. See Jamison, supra, 388 F.Supp. at 991-92; Perry,

supra, 394 F.Supp. at 326.

A third factor weighing against the implication of a

Fourteenth Amendment cause of action against munici-

palities is that where the plaintiff in a conventional civil

rights action is merely seeking declaratory or injunctive

relief it will generally make little difference whether the

named defendant is the governmental entity itself'* or the

appropriate governmental official responsible for carrying

out the challenged activity.'* Only where the plaintiff seeks

damages does the presence or absence of the municipality

13. I do not agree with the suggestion that the existence of

a direct Fourteenth Amendment cause of action should depend

upon whether the acts upon which the suit is based violate the

“specific mandates of the Constitution” or only more general no-

tions of due process. Clark, supra, 19 Crim. L. Rptr. at 2267-68;

Jamison, supra, 388 F. Supp. at 992. The conflict with Section

1983 remains the same whether the constitutional deprivation be

characterized as “general” or “specific”.

14. Prior to Kenosha, it had been held that the Fourteenth

Amendment did provide a basis for equitable relief 2 aimst politi-

cal subdivisions of states, but not for monetary damages. See e.g.,

Bennett v. Gravelle, 323 F. Supp. 203, 216-18 (D. Md.) affd 451

F.2d 1013 (4th Cir. 1971) cert. denied, 407 U.S. 917, 92 S.Ct.

2451 (1972). Kenosha’s holding that there is no distinction for

Section 1983 purposes between equitable and monetary relief un-

dermines the continuing validity of cases such as Bennett.

15. The possibility that there might be more than one official

involved in administering a particular program or that normal

personnel turnover might result in periodic changes in the iden-

tity of the official involved do not alter this conclusion in view of

the liberal joinder and substitution of parties provisions of the

Federal Rules of Civil Procedure. Neither is there cause for con-

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in the case make any significant difference. In that situa-

tion being able to sue the municipality would usually assure

the plaintiff of at least one party capable of satisfying a

substantial monetary judgment should he prevail ai trial."*

See Moor, supra, 411 U.S. at 700, 93 S.Ct. at 1791. But the

possibility of a monetary recovery against the municipality,

which is the practical basis for the plaintiff's desire to name

it as a defendant, is also the very reason why Congress

would not (and indeed believed it could not) include muni-

cipalities within Section 1983 and why the Supreme Court

in Monroe v. Pape, supra, held that Congress could not

have intended the word “person” in that statute to encom-

pass municipalities.

In addition to relying on Bivens, at least one court has

advanced a second rationale in support of a direct Four-

teenth Amendment cause of action against municipalities.

Drawing from the remarks of Senator Thurmon during the

floor debate on Section 1983, the court in Dahl,” supra,

suggested that what Congress was really concerned about

in excluding municipalities from Section 1983 was the

absence of a required amount in controversy in its juris-

dictional counterpart, now 28 U.S.C. §1343, thus leaving

open the possibility that municipalities might be subject to

suit in federal court on the most petty of claims. 372

F.Supp. at 651. The problem with this reasoning is that

as the Supreme Court pointed out in Moor, supra, 411 U‘S.

at 708, 93 S.Ct. at 1795, the primary reason for excluding

Note 15—Continued

cern that personnel changes might render a court's grant of de-

claratory or injunctive relief ineffectual since “[this court] would

.. . look with some disfavor upon anv City official's actions which

were inconsistent with [its rulings].” United Farmworkers, supra.

493 F.2d at 802 n. 3.

16. Plaintiff here frankly admits that this is one of his rea-

sons for naming the municipality as a defendant. See Plaintiff's

Arswer to the Motion to Dismiss, paragraph 5.

17. See also Judge Smith's opinion for the panel in Brault,

supra, 527 F.2d at 735.

All

municipalities from Section 1983 was “legislative concern

as to Congress’ constitutional power to impose liability on

political subdivisions of the States.” Whether this concern

was justified is not important. Id. at 709, 93 S.Ct. at 1795.

Rather, the important thing is that Congress’ exclusion of

municipalities on this basis could not have depended upon

the amount of the claim involved.

Furthermore, to the extent that Congress was also con-

cerned that municipalities not be subjected to crushing lia-

bilities which might threaten their very existence, see Note

89 Harv. L. Rev. 922, 948 & n. 139 (1976), limiting damage

suits to those claiming over $10,000 would certainly not

further the congressional goal.

Finally, there is the Supreme Court’s recent decision

in Aldinger v. Howard, 44 U.S.L.W. 4988 (U.S. June 24,

1976). Although that case did not specifically deal with the

question under consideration here.'* The Court's analysis of

the related problem of “pendent party” jurisdiction is in-

structive. In holding that the district courts may not exer-

cise pendent jurisdiction over a county on a state law

claim factually related to a Section 1983 claim against

county officials, the court relied heavily on Congress’ exciu-

sion of state governmental subdivisions from the reach of

that statute.

[T]he question whether jurisdiction over the instant

lawsuit extends not only to a related state law claim

but to the defendant against whom that claim is made,

turns initially not on the general contours of the lan-

guage in Art. III, ie., “Cases arising under,” but upon

the deductions which may be drawn from congres-

sional statutes as to whether Congress w.nted to grant

this sort of jurisdiction te federal courts. Parties such

as counties whom Congress excluded from liability in

§1983, and therefore by reference in the grant of juris-

diction under §1343(3), can argue with a great deal

18. 44 U.S.L.W. at 4989 n. 3.

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of force that the scope of the “civil action” over which

the district courts have been given statutory jurisdic-

tion should not be so broadly read as to bring them

back within that power merely because the facts also

give rise to an ordinary civil action against them under

state law.

| We think a fair reading of the language used in §1343,

together with the scope of §1985, requires a holding

that the joinder of a municipal corporation . . . for

purposes of asserting a state law claim not within

federal diversity jurisdiction, is without the statutory

jurisdiction of the district court. (footnote omitted ).

44 U.S.L.W. at 4993. The Supreme Court’s conclusion that

“Congress has by implication declined to extend federal

jurisdiction over [a municipality],” id., makes it highly

unlikely that the Court would be willing to sanction the

implication of a direct Fourteenth Amendment claim

against such a party either. After all, to do so would be

merely another way of subjecting to liability for civil rights

violations those whom Congress has by statute chosen to

exclude.

For the reasons stated, I believe that no direct Four-

teenth Amendment cause of action against the Township

of Warminster should be implied.

Having reached a decision with respect to plaintiff's

federal claims, I turn lastly to consideration of his pendent

state law claims of assault and batterv and negligence. It is

indisputable that the state and federal claims against the

individual defendants arise from a “common nucleas of

operative facts” thus giving this court judicial power over

both. United Mine Workers v. Gibbs, 363 U.S. 715, 725,

86 S.Ct. 1130, 1138 (1966). The defendants have pointed

to mo complex or unresolved questions of state law which

would counsel against adjudicating the state claims and

doing so will undoubtedly save time and conserve judicial

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resources. I will therefore exercise my discretion in favor of

having the pendent state <lezims against the individual de-

fendants decided in this court. With respect to the state

claims against the Township of Warminster, Aldinger,

supra is controlling. Since there is no basis for the federal

claims against the township, that case makes it clear that

I may not adjudicate any state law claims against it by

treating the township as a “pendent party.”

Although I conclude that the refusal to find an implied

Fourteenth Amendment cause of action against the town-

ship is appropriate, I nonetheless recognize that there are

legitimate arguments for reaching a different result and

that my decision is in conflict with those of three distin-

guished members of this court'® as well as with a permissi-

ble interpretation of the Court of Appeals decision in

Skehan. For these reasons, I believe that there is no just

reason to delay the plaintiff's seeking review in the Court

of Appeals of my decision dismissing the township. Since

my decision with respect to the township qualifies as a final

judgment completely disposing of the claims against one

or more but fewer than all the parties, I will therefore enter

an order expressly directing the entry of judgment for the

township pursuant to Federal Rule of Civil Procedure

54(b). thus permitting an immediate appeal.

19. Patziq v. O'Neill, Civil Action Nos. 76-514/1287 (E.D. Pa.

filed July 30, 1976): Patterson v. City of Chester, 389 F. Supp.

1093 (E.D. Pa. 1975) (Weiner. J.); Maybanks v. Ingraham, 378

F. Supp. 913 (E.D. Pa. 1974) (Lord, C.J.); Harris v. City of Phila-

delphia, Civil Action No. 75-3662 (E.D. Pa.) (unpublished order

of Cahn, J., filed September 7, 1976).

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IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DAVID PITRONE CIVIL ACTION

335 Aspen Street

Warminster, Pennsylvania

No. 75-2455

v.

POLICE OFFICER LOUIS J]. MERCADANTE

POLICE OFFICER THOMAS MC MAHON

POLICE OFFICER JOHN LANGDON

OTHER UNKNOWN POLICE OFFICERS

CHIEF OF POLICE ROWEN KELLY

WARMINSTER TOWNSHIP

all situate at the intersection of

HENRY and GIBSON Avenues

Warminster, Pennsylvania

ORDER

AND Now, this 30th day of September, 1976, for the

reasons set forth in the foregoing opinion, the motion to

dismiss is granted as to the Township of Warminster,

Pennsylvania, and it is expressly directed that final judg-

ment be entered in its favor pursuant to Federal Rule of

Civil Procedure 54(b). The motion to dismiss is denied as

to all other defendants.

BY THE COURT:

/s/

A-17

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-2593

JOHN DAVID PITRONE,

Appellant

v.

POLICE OFFICER LOUIS J. MERCADANTE;

POLICE OFFICER THOMAS MC MANN, POLICE

CAPTAIN ROWEN KELLEY; WARMINSTER

TOWNSHIP, PA., Appeliees

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 75-2455)

Argued September 9, 1977

Before: SEITZ, Chief Judge and GIBBONS and WEIS,

Circuit Judges.

David Rudovsky

Kairvs, Rudovsky & Maguigan

1427 Walnut Street

Philadelphia, Pa. 19102

National Emergency Civil

Liberties Committee

1427 Walnut Street

Philadelphia, Pa. 19102

Attorneys for Appellant

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Peter P. Liebert, 3rd

Mark D. Turetsky

Liebert, Short, Fitzpatrick

& Lavin

Suite 1900, Three Parkway

Philadelphia, Pa. 19102

Eiliot M. Drexler

320 West Street Road

Warminster, Pa. 18974

Attorneys for Appellees

Ralph J. Teti

Assistant City Solicitor

James M. Penny

Assistant City Solicitor

James M. Moran

Deputy City Solicitor

Sheldon L. Albert

City Solicitor

City of Philadelphia

Attorneys for Amicus Curiae

OPINION OF THE COURT

(Filed February 21, 1978)

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PER CURIAM.

This is an appeal from a district court determination

that a federal cause of action against 2 municipality may

not be implied from the Fourteenth Amendment. The

court also refused to hear the plaintiff's pendent state law

claims against the municipality, believing that the decision

of the Supreme Court in Aldinger v. Howard, 427 US. 1

(1976), prevented the court from exercising its discretion

to hear those pendent claims. After the district court had

entered its order, we decided in Gagliardi v. Flint, 564 F.2d

112 (3d Cir. 1977), petition for cert. filed, 46 U.S.L.W.

3392, (U.S. Nov. 7, 1977) (No. 77-657), that pendent juris-

diction may properly be exercised in circumstances similar

to this case. Accordingly, we remand to afford the district

court an opportunity to reconsider its decision.

Plaintiff Pitrone alleged that he was unconstitutionally

arrested, detained, and beaten by police officers employed

by the Township of Warminster. He brought an action in

the district court against the township alleging jurisdic-

tion under 28 U.S.C. §1343(3). Pendent state claims

against the municipality and the officers were also asserted.

The district judge held there was no cause of action against

the township directly under the Fourteenth Amendment,

then dismissed the pendent state claim, saying, “[s]ince

there is ne basis for the federal claims against the town-

ship, that case [Aldinger v. Howard, 427 U.S. 1 (1976)]

makes it clear that I may not adjudicate any state law

claims against it by treating the township as a ‘pendent

party.” 420 F. Supp. 1384, 1391 (E.D. Pa. 1976). The

district court then granted certification under Fed R. Civ.

P. 54(b) on the question of the township’s liability.

Aldinger v. Howard, supra, held “only that a city may

not be joined as a pendent party to an action when there

is no independent source of federal jurisdiction over” that

party. Gagliardi v. Flint, 564 F.2d at 115 n. 2. In Aldinger,

supra, the plaintiff asserted a federal cause of action based

on 42 U.S.C. §1983 against a county and certain individual

A20

defendants. She asserted jurisdiction under 28 U.S.C.

§1343(3). The courts below rejected the §1983 claim

against the municipality as foreclosed by the decisions of

the Supreme Court in City of Kenosha v. Bruno, 412 U.S.

507 (1973), and Moor v. Alameda County, 411 U.S. 693

(1973). Plaintiff argued alternatively that the county could

be joined as a pendent party on state law claims which

arose from the same facts as those underlying the federal

cause of action against the individual defendants. Because

those federal claims against the individuals also rested on

42 U.S.C. §1983 and 28 U.S.C. §1343(3), the Supreme

Court held that the congressional policy implicit in those

statutes against municipal liability prevented the exercise

of pendent jurisdiction over the county where no inde-

pendent basis of federal jurisdiction over the municipality

existed. Aldinger v. Howard, 427 U.S. at 16-19.

By way of contrast, in both Gagliardi and this case, an

independent basis for federal jurisdiction does exist. In

Gagliardi, as here, plaintiff asserted a cause of action di-

rectly under the Fourteenth Amendment, alleging jurisdic-

tion under 28 U.S.C. §1331. We held that the Fourteenth

Amendment issue was a sufficiently substantial federal

question to vest the court with jurisdiction under 28 U.S.C.

§1331.' Accordingly, Gagliardi approved the district court’s

exercise of its discretion to hear the pendent state claims

before deciding the federal constitutional question of the

existence of a cause of action. See Hagans v. Lavine, 415

U.S. 528 (1974): Siler v. Louisville & Nashville Railroad,

213 U.S. 175 (1909).

Similarly, in this case the plaintiff's assertion of a

Fourteenth Amendment cause of action was enough to vest

the district court with jurisdiction over the municipality.

1. The fact that courts of appeal have differed in resolving

the question demonstrates that the claim cannot be dismissed as

insubstantial. Compare, eg., Kostka v. Hogg, 560 F.2d 37 (lst

Cir. 1977), with Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977),

and Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977).

A21

Since an independent basis for federal jurisdiction

existed, Aldinger is no barrier to hearing the pendent state

claims. The district court therefore should be given an op-

portunity to exercise its discretion to hear the pendent state

claims before deciding the federal constitutional issue. We

note that the district judge did decide to exercise pendent

jurisdiction over the state claims against the individual

officers, and presumably the same evidence would be rele-

vant to the pendent claims against the township as well.

The judgment of the district court will be vacated, and

the case remanded to the district court for further con-

sideration consistent with this opinion.

TO THE CLERK:

PLEASE FILE THE FOREGOING OPINION.

A22

Re: John David Pitrone, Appellant, v.

Police Officer Louis J. Mercadante, et al.

No. 76-2593

GIBBONS, Circuit Judge, concurring

While I join the opinion of the Court, I continue to

subscribe fully to the views expressed in my concurring

opinion in Gagliardi v. Flint, 564 F.2d 112, 117 (3d Cir.

1977), petition for cert. filed, 46 U.S.L.W. 3392 (U.S, No-

vember 7, 1977). In Gagliardi 1 made three basic points.

First, the case law of this circuit already establishes that,

for suits against municipal corporations based on alleged

fourteenth amendment violations by their agents, 28 U.S.C.

§1331 affords jurisdiction and the Federal Rules of Civil

Procedure provide a law of remedies. Second, those prior

decisions are both sound and entirely consistent with the

existing pronouncements of the Supreme Court. Third,

when a pendent state law claim provides an available

ground of decision, the preferred course, dictated by the

policy announced in Siler v. Louisville & Nashville R.R.,

213 U.S. 175 (1909), is to decide the case on that ground.

The course adopted both here and in Gagliardi v. Flint,

supra, will probably make it unnecessary for this Court

ever again to impose liability on municipalities directly

under the fourteenth amendment. In two states in this cir-

cuit municipal corporations are already liable on a respon-

deat superior basis for the torts of their agents. Jackson v.

Hankinson, 51 N.J. 230, 238 A.2d 685 (N.J. Sup. Ct. 1968);

Ayala v. Philadelphia Bd. of Educ., 453 Pa. 584. 305 A.2d

877 (Pa.Sup.Ct. 1973). The current state of the law in

Delaware is not entirely clear. But in Pajewski v. Perry,

1. At least one of my brothers obviously disagrees with each

of these views. See Mahone v. Waddle, No. 76-1377/8 (3d Cir.

Aug. 24, 1977) (Garth, J., concurring in part and dissenting in

part).

A23

363 A.2d 429 (Del. Sup. Ct. 1976), the Supreme Court of

Delaware held that state sovereign immunity is waived if a

state insurance program covers the particular risk which

gave rise to the lawsuit. That decision, coupled with the

court's discussion of municipal immunity as an aspect of

sovereign immunity, may well point in Delaware toward

the abolition of municipal immunity for torts committed

by agents engaging in governmental activities, if, as is

usually the case, there is insurance coverage. These sensi-

ble state law developments demonstrate that governmental

entities employing agents whose activities may cause harm

have no less obligation to assume the risk of such harm

than do private persons or non-governmental business en-

tities. It is equally sensible for federal courts, in the exer-

cise of their pendent jurisdiction, to rely first on a state

tort cause of action and state law respondeat superior lia-

bility of municipalities rather than on a federal constitu-

tional cause of action and a respondeat superior liability

implied from the fourteenth amendment. Moreover, even

if a particular plaintiff has failed to plead the state cause

of action, he should be permitted to amend his complaint

in order to incorporate such a theory. Only by such a liberal

amendment practice will the policy enunciated in Siler v.

Louisville & Nashville R.R., supra, be served. At the same

time, the availability of jurisdiction over municipal cor-

porations under 28 U.S.C. §1331 ensures that a litigant’s

choice of a federal forum for complaints against state gov-

ernmenial agents will be preserved without the necessity

of a separate state-court action against the deep-pocket de-

fendant.

Although the preferred course is to decide cases such

as this on the basis of state tort law, cases may arise in the

future where the governmental agent is not liable under

state tort principles but is liable directly under the Federal

Constitution. See Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Whether

such suits take place in state or federal forums, the four-

tecnth amendment and the federal cases interpreting it

will measure the legality.

A225

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-2593

JOHN DAVID PITRONE,

Appellant

v.

POLICE OFFICER LOUIS J. MERCADANTE;

POLICE OFFICER THOMAS MC MANN, POLICE

CAPTAIN ROWEN KELLEY; WARMINSTER

TOWNSHIP, PA., Appellees

(D.C, Civil Action No. 75-2455)

On Appeal from the United States District Court

for the Eastern District of Pennsylvania.

Present: SEITZ, Chief Judge, GIBBONS and WEIS, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District of

Pennsylvania and was argued by counsel on September 9,

1977.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, filed September 30, 1976, he, and the same fs

hereby vacated, and the cause remanded to the said Dis-

trict Court for iurther consideration consistent with the

opinion of this Court.

ATTEST:

/s/

CLERK

February 21, 1978