Petition for Writ of Certiorari — Wenturine v. Parfett

i

64-1108

No.

in the Supreme Court of the

UnjtedD States

October Term, 1984

JOHN R. WENTURINE,

Petitioner

v.

RICHARD A. PARFETT, SEVEN SPRINGS

MOUNTAIN RESORT, INC., BOROUGH

OF SEVEN SPRINGS,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT [CA-3 No. 83-5742 ]

THOMAS A. CRAWFORD, JR.

PA I.D. No. 30215

Attorney for Petitioner

Suite 500, Triangle Bldg.

701 Smithfield Street

Pittsburgh, PA 15222

(412) 355-0888

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244

Questions Presented

QUESTIONS PRESENTED

I. Is a municipal corporation immune from sui: for

civil rights violations?

II. Is acorporation immune from suit for civil rights

violations?

III. Must pendent jurisdiction be declined where a

party’s inclusion in the case rests solely upon such juris-

diction?

TABLE OF CONTENTS

PAGE

ee er rere ee eee i

Table of Citations .............4.% rere ii

Opinions and Orders Below ...... Teen awe neue 1

Statement of Jurisdiction ...............-2000% 8

EE Oe I nines coven aneseteneen ees 11

I CI 6, ti5db ic 605 5 oe en sies a een ee 12

Statement of the Case:

ge 8 er rrr rss 13

Argument:

The district court erroneously dismissed the case

aga’nst the corporate and municipal defend-

errr ire rye ae 16

Reasons for Granting Relief ................-. 31

TABLE OF CITATIONS

CASES:

Adickes v. Kress & Co., 398 U.S. 144, 26 L.Ed. 2d

162, GO BA. (508 Cree 6 csascbseceie. 18

Almeneres v. Wyman, 453 F.2d 1075 (2d Cir. 1971) 29

Alston v. Allegheny Ludlum Steel Corp., 465 F.

Supp. 171 (W.D. Pa. 1978) .............. 18, 22

Augenti v. Cappellini, 84 F.R.D. 73 (M.D. Pa.

BOTS) nc ca vtvcdavecdncdeunnespeeeeeee 21,22

Barnhart v. Hensow, 7 Pa. D. & C. 3rd 678 (1978) 29

Black v. Stephens, 662 F.2d 181 (3rd Cir. 1981) . .26, 28

Bowling v. Matthews, 511 F.2d 112 (5th Cir. 1975) 10

Burton v. Wiimaington Parking Authority, 345 US.

715, 6 L.Ed. 2d 45,81 S.Ct. 856 (8961) .... 18

Carter v. Carlsom, 477 F.2d 258 (D.C. Cir. 1971) .. 22

Carter v. Estelle, 519 F.2d 1136 (5th Cir. 1975) .. 22

Chuy v. Philadelphia Eagles Football Club, 595 F.2d

a 29

Comtronics, Inc. v. Puerto Rico Telephone Co., 409

, ouee. Gee (OC. PR. S75) ............ 18

Crowder v. Lash, 687 F.2d 996 (7th Cir. 1982) .. 26

Croy v. Skinner, 410-F. Supp. 117 (N.D. Ga. 1976)

t8, 22

Dalgleish v. Oppenheimer, Collins & Co., 302 Pa.

ES a are 30

Davis v. National Mortgage Corp., 320 F.2d 90. (2nd

EET a eee ae 10

DeCarlo v. Joseph Horne Co., 251 F. Supp. 935

| ee 21,22

Dennis v. Sparks, 449 U.S. 24, 66 L.Ed. 2d 185, 101

er 18

District 65, Office Workers v. McKague, 216 F.2d

a ES” eee ae 10

Duriso v. K Mart Div. of S. S. Kresge Co., 559 F.2d

oo EE | ere y 4 ee.

Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.

ge ee als ook os ke 6 8 oo 8 wee 26

Fitzgerald v. McCutcheon, 270 Pa. Superior Ct. 102,

GIO Fume TRF CUBED oink ce wkenccscevces 30

Hardy v. City of Philadelphia, 66 D. & C. 2d 71

SOOO aN bs Chee tN ues setoha renal 29

Hatridge v. Aetna Casualty and Surety Co., 415

F.ce GOD (Oth Cir. 1900)... cc ccc ccnss 29

Heath v. Huth Engineers, Inc., 279 Pa. Superior Ct.

ee, Gare Pie Foe EDU ive c's vo ckwe rics 29, 30

Hill v. Toll, 320 F. Supp. 185 (E.D. Pa. 1970) .... 22

Holiday v. Connors, 491 F.2d 539 (5th Cir. 1974) 22

Hudgens v. N.L.R.B., 424 U.S. 507, 47 L.Ed. 2d

Sa, ee es SO RE 6 53 0 6 hee enes 20, 21

Illinois Migrant Council vy. Campbell Soup Co., Inc.,

i ee Bm Ey. Be ae.) Ga nneere 21,22

Jacobson v. Atlantic City Hospital, 392 F.2d 149

Ce CD, ah See eras ree ee ees 29

Jaconski v. Avison Corp., 359 F.2d 931 (3rd Cir.

DEES cis Kiara eae eS Re ee 11

Johnson v. Riverside Hotel, Inc., 399 F. Supp. 1138

REE. ea er Et a ee 18

Kerry Coal Company v. United Mine Workers, 637

ye Me Ee A | | errs 17, 29

Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d

ee Se, SO eee hes eee ee eee 29

Lineaweaver v. Wanamaker, 299 Pa. 45, 149 A. 91

eS ca oe ha ee rk ee ee ee 30

Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1982) .. 26

Louise B. v. Coluatti, 606 F.2d 392 (3rd Cir. 1979) 11

Lucas v. Kale, 364 F. Supp. 1345 (N.D. W. Va.

1973) 22, 30

se = ew ew. @ 2 8s 2.60 2.4 2S 8 8 P28 2 2S. S FSe-e a eS SS

Marsh v. Alabama, 326 U.S. 507, 90 L.Ed. 265,

ot Re ee) 20, 21

McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.

DN erin eee rae eee ee oe es 26

Monell v. New York City, 436 U.S. 658, 56 L.Ed. 2d

611, 98 S.Ct. 2018 (1978) .......... 23, 24, 25, 26

Monroe v. Pape, 365 U.S. 167, 5 L.Ed. 2d 492, 81

en ST OEE hed 6 ch aNd cn ne kes 23

Moore v. County of Alameda, 411 U.S. 693, 30 L.Ed.

an SOG, SS BAA. TFES CEST) «2 ko cc ec casss 29

Nelson v. Keffer, 451 F.2d 289 (3rd Cir. 1971) .. 29

Parker v. McKeithen, 488 F.2d 553 (5th Cir. 1974) 22

Reed v. Philadelphia Housing Authority, 372 F.

Me eer rere 21

Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971) 22

Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir.

SR ce ere a Sr alee ae es area rae ae a 26

Schnur & Cohan, Inc. v. McDonald, 328 F.2d 103

CO OE POND vive areca ne cube coneaess 10

Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973) .. 22

Sheridan v. Williams, 333 F.2d 58 (9th Cir. 1964) 22

Skehan v. Board of Trustees, 501 F.2d 31 (3rd Cir.

epee re rrr et rere yy rere ri 22

Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476

CNN ink ee yen bea on eons Reena 29

Thomas v. Johnson, 295 F. Supp. 1025 (D. D.C.

ener errs eee re ere ee ee 22

Turley v. Heyd, 482 F.2d 590 (5th Cir. 1973) .... 22

Williams v. Brown, 398 F. Supp. 155 (N.D. Til.

Ares re rer re ee ee 22

CONSTITUTION:

United States Constitution, Fourteenth Amendment

14, 16

STATUTES:

Title 28, United States Code, Sec. 1254 .......... 10

Title 28, United States Code, Sec. 1331 .......... 14

Title 28, United States Code, Sec. 1343 .......... 14

Title 28, United States Code, Sec. 2101 .......... 10

Title 42, United States Code, Sec. 1983 ....8, 12, 14, 16,

21, 22, 26

Title 53, Purdon’s Statutes, Sec. 46121 .......... 19

RULE:

Rule 54, Federal Rules of Civil Procedure ...... 8, 2 ie

Opinions and Orders Below

OPINIONS BELOW

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 83-5742

JOHN R. WENTURINE,

Appellant

V.

RICHARD A. PARFETT, and SEVEN SPRINGS MOUN-

TAIN RESORT, INC., BOROUGH OF SEVEN SPRINGS

(Civil No. 80-1866—W.D. Pa.—Pittsburgh)

District Judge: Honorable Gustave Diamond

Submitted Under Third Circuit Rule 12 (6)

June i2, 1984

Before: Seitz, Chief Judge, Adams, Circuit Judge, and

Latchum, Circuit Judge.*

* Honorable James L. Latchum, United States District

Court for the District of Delaware, sitting by designation.

Opinions and Orders Below

JUDGMENT ORDER

After consideration of the contention raised by ap-

pellant, it is

ADJUDGED: AND ORDERED that the judgment of

the district court be and is hereby affirmed.

Costs taxed against appellant.

By the Court,

(s) Seitz

Chief Judge

ATTEST:

(s) Saily Mrvos

Sally Mrvos, Clerk

DATED: JUN 13 1984

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 83-5742

JOHN R. WENTURINE,

Appellant

V.

RICHARD A. PARFETT, and SEVEN SPRINGS MOUN-

TAIN RESORT, INC., BOROUGH OF SEVEN SPRINGS

(Civil No. 80-1866—W.D. Pa.—Pittsburgh)

SE

I

|

|

'

Opinions and Orders Below

SUR PETITION FOR REHEARING

Present: Aldisert, Chief Judge, Seitz, Adams, Gibbons,

Hunter, Weis, Garth, Higginbotham, Sloviter, Becker,

Circuit Judges, and Latchum, District Judge.*

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 circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court

(s) Seitz

Circuit Judge

DATED: AUG 23 1984

*The Honorable James L. Latchum, United States

District Judge for the District of Delaware, sitting by

designation.

Opinions and Orders Below

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 80-1866

JOHN R. WENTURINE,

Plaintiff

vs.

RICHARD A. PARFETT, SEVEN SPRINGS MOUN-

TAIN RESORT, INC., and THE BOROUGH OF SEVEN

SPRINGS,

Defendants

TRANSCRIPT OF PROCEEDINGS

* * * * * * * * ”

THE COURT: If you find that they caused him by

some conspiratorial—

MR. CRAWFORD: No, no. I’m not saying—

THE COURT: That would be one thing. But to

say that they took him down to have him sworn in as a

constable or some such thing as that and thereafter they

are responsible for his conduct, I think that’s rather—

MR. CRAWFORD: I think what they have done is,

they have clothed their security guards with the State or

the Commonwealth authority by obtaining the municipal

charter and employing them as a dual position.

Se

Opinions and Orders Below

THE COURT: Well, that could be.

MR.CRAWFORD: It’s hard to say. It is not some-

thing I found a lot of law on.

THE COURT: No. We have done our own re-

search and we have read the law cited to us by counsel,

and I think we have done the best we can with it. They

are dismissed at this point, and maybe the Circuit can en-

lighten us if that—unless you could come up with some

reason why we should reconsider with regard to the cor-

poration, but I think that—

MR. CRAWFORD: I came up with what I had.

THE COURT: | think we have all the law that we

need for the time being.

All right. We can go ofi the record for a moment.

(Discussion off the record.)

(Proceedings adjourned at 3:05 p.m.)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 80-1866

JOHN R. WENTURINE,

Plaintiff

V.

RICHARD A. PARFETT, et al.,

Defendants

Order Below

ORDER OF COURT

AND NOW, this 25th day of November, 1981, after

consideration of the defendants’ motions to dismiss, IT IS

ORDERED that the motion of defendant Seven Springs

Resort, Inc. be, and the same hereby is, granted and the

motion of the defendant Richard A. Parfett be, and the

same hereby is, denied for the reasons stated and tran-

scribed on the record of this court’s bench opinion ren-

dered on November 24, 1981.

(s) Gustave Diamond

United States District Judge

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 80-1866

JOHN R. WENTURINE,

Plaintiff

Vv.

RICHARD A. PARFETT, and SEVEN SPRINGS MOUN-

TAIN RESORT, INC., BOROUGH OF SEVEN

SPRINGS,

Defendants

Order Below

ORDER OF COURT

AND NOW, this 12th day of October, 1983, the court

having granted a motion to dismiss the defendant Borough

of Seven Springs on the 4th day of June, 1981, and having

granted a motion to dismiss the defendant Seven Springs

Mountain Resort, Inc., on the 25th day of November, 1981,

and now concluding that there is no just reason for delay,

IT IS ORDERED that final judgment be, and the same

hereby is, entered in favor of each of the above-named

defendants and against the plaintiff, John R. Wenturine.

(s) Gustave Diamond

United States District Judge

Statement of Jurisdiction

STATEMENT OF JURISDICTION

On 4 June 1981 and 25 November 1981, the district

court ruled that Seven Springs Mountain Resort, Inc., and

the Borough of Seven Springs were not “persons” for the

purpose of a civil suit seeking damages filed pursuant to

Title 42, United States Code, Section 1983. The defend-

ant Richard A. Parfett was not dismissed. See Exhibit A,

appendix pp. 1-3.

On 3 December 1981 the Petitioner filed a notice of

appeal which was docketed by The Third Circuit Court

of Appeals at No. 81-3122. See Exhibit B, appendix pp.

4-5.

On 30 September 1982 The Third Circuit Court of

Appeals dismissed Petitioner’s previous appeal because the

district court did not make an express direction for the

entry of judgment pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure, without prejudice to Petitioner’s

right to apply to the district court for a determination and

direction under Rule 54(b). See Exhibit C, appendix pp.

6-8.

On 22 August 1983, after conferences with the dis-

trict court and counsel for the Respondents, it was re-

quested that the district court enter final judgment pursu-

ant to Rule 54(b) against the plaintiff and in favor of de-

fendants Seven Springs Mountain Resort, Inc., and Bor-

ough of Seven Springs to facilitate having this appeel

heard before trial.

-_— + - ,

Statement of Jurisdiction

On 12 October 1983 the district court entered final

judgment pursuant to Rule 54(b) in favor of Seven

Springs Mountain Resort, Inc., and the Borough of Seven

Springs in accordance with the directions of The Third

Circuit Court of Appeals to permit the hearing of this ap-

peal. See Exhibit D, appendix pp. 9-10.

On 17 October, 1983, the Petitioner filed notice of

appeal from the final order of the district court entered

12 October 1983. See Exhibit E, appendix pp. 11-12. .

The Third Circuit Court of Appeals directed the Peti-

tioner in this very same matter to apply for a final judg-

ment pursuant to Rule 54(b), Federal Rules of Civil Pro-

cedure against the Petitioner and in favor of the two (2)

dismissed Respondents. See Exhibit C, appendix pp. 6-8.

Rule 54(b) states:

When more than one claim for relief is pre-

sented an action, whether as a claim, counterclaim,

cross-claim, or third-party claim, or when multiple

parties are involved, the court may direct the entry

of a final judgment as to one or more but fewer than

all of the claims or parties only an express deter-

mination that there is no reason for delay and upon

an express direction for the entry of judgment. In

the absence of such determination and direction, any

order or other form of decision, however designated,

which adjudicated fewer than all the parties shall not

terminate the action as to any of the claims or parties,

and the order or the form of decision is subject to

revision at any time before the entry of judgment ad-

judicating all the claims and the rights and liabilities

of all the parties.

10

Statement of Jurisdiction

The Petitioner followed The Third Circuit Court of Ap-

peals’ directions and the final judgment against him and

in favor of Seven Springs Mountain Resort, Inc., and the

Borough of Seven Springs pursuant to Rule 54(b) was

applied for and granted.

In the cases where final judgment pursuant to Rule

54(b), The Third Circuit Court of Appeals had jurisdic-

tion to hear an appeal of that judgment even though an-

other defendant remains pending trial. See Bowling v.

Matthews, 511 F.2d 112 (5th Cir. 1975); Davis v. Na-

tional Mortgage Corp., 320 F.2d 90 (2nd Cir. 1963);

Schnur & Cohan, Inc. v. McDonald, 328 F.2d 103 (4th

Cir. 1964); District 65 Office Workers v. McKaguue,

216 F.2d 153 (3rd Cir. 1954). Because final judgment

has been rendered in favor of the Respondents in this case

with the express determination that there was no just rea-

son for delay, The Third Circuit Court of Appeals had

jurisdiction to hear this appeal.

On 13 June 1984 the Third Circuit Court of Appeals

affirmed the decision of the district court, and on 23 Au-

gust 1984 denied the Petitioner’s petition for rehearing.

Petitioner files this petition for a writ of certiorari

pursuant to Title 28, United States Code, §§1254 and

2101, and Rule 20 of the Rules of the United States

Supreme Court.

11

Standard of Review

STANDARD OF REVIEW

Because this case involves only issues of jurisdic-

tional allegations, questions of law, the district court de-

cision is entitled to no deference. Louise B. v. Coluatti,

606 F.2d 392 (3rd Cir. 1979); Jaconski v. Avisun Corp.,

359 F.2d 931 (3rd Cir. 1966).

Statute Involved

STATUTE INVOLVED

Title 42, United States Code, §1983:

Every person who under the color of statute,

ordinance, regulation, custom, or usage, of any State,

Territory, or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or any other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

For the purpose of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

13

Statement of the Case

STATEMENT OF THE CASE

Statement of Facts

On 31 December 1978 the plaintiff visited the Seven

Springs Mountain Resort, Inc., a corporate resort complex

which owns land in Somerset County, Pennsylvania. The

Borough of Seven Springs is wholly owned by the resort

company. There are no residents or other occupants other

than employees and guests of the resort company. During

the early morning hours c. 1 January 1979, after attending

several New Year parties, the plaintiff found himself in

the main resort building. For no clear reason he was

grabbed and savagely beaten by defendant Richard A.

Parfett, a Seven Springs Mountain Resort, Inc., security

guard who was also a Seven Springs Borough police of-

ficer (the two titles describe but one job). Defendant

Parfett broke plaintiff’s back by throwing him against fil-

ing cabinets and desks as well as striking and kicking him.

As a result the plaintiff has suffered partial disability, pain,

body-casts, and will remain partially disabled for the re-

mainder of his life.

Defendant Parfett beat the plaintiff at the Police

Headquarters at Seven Springs Borough located in the main

resort building of Seven Springs Mountain Resort, Inc.

Plaintiff filed suit on 30 December 1980 invoking the

jurisdiction of the United States Court for the Western

14

Statement of the Case

District of Pennsylvania, under the Fourteenth Amend-

ment of the United States Constitution, Title 28, United

States Code, Sec. 1331 and 1343; and Title 42. United

States Code, Sec. 1983. See Exhibit F, appendix pp. 13-

y iM

On 4 June 198i and 25 November 1981, the district

court ruled that Seven Springs Mountain Resort, Inc., and

the Borough of Seven Springs were not “persons” for the

purpose of a civil suit seeking damages filed pursuant to

Title 42, United States Code, Section 1983. The defend-

ant Richard A. Parfett was not dismissed. See Exhibit A,

appendix pp. 1-3.

On 3 December 1981 the Petitioner filed a notice of

appeal which was docketed by The Third Circuit Court of

Appeals at No. 81-3122. See Exhibit B, appendix pp. 4-5.

On 30 September 1982 The Third Circuit Court of

Appeals dismissed Petitioner’s previous appeal because

the district court did not make an express direction for the

entry of judgment pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure, without prejudice to Petitioner’s

right to apply to the district court for a determination and

direction under Rule 54(b). See Exhibit C, appendix pp.

6-8.

On 22 August 1983, after conferences with the dis-

trict court and counsel for the Respondents, it was re-

quested that the district court enter final judgment pursu-

ant to Rule 54(b) against the plaintiff and in favor of

defendants Seven Springs Mountain Resort, Inc., and Bor-

ough of Seven Springs to facilitate having this appeal

heard before trial.

15

Statement of the Case

On 12 October 1983 the district court entered final

judgment pursuant to Rule 54(b) in favor of Seven Springs

Mountain Resort, Inc., and the Borough of Seven Springs

in accordance with the directions of The Third Circuit

Court of Appeals to permit the hearing of this appeal. See

Exhibit D, appendix pp. 9-10.

On 17 October, 1983, the Petitioner filed notice of

appeal from the final order of the district court entered 12

October 1983. See Exhibit E, appendix pp. 11-12.

16

Argument

ARGUMENT

The District Court Erroneously Dismissed the Case Against

the Corporate and Municipal Defendants

In the case at bar, the corporate and municipal de-

fendants contend that the sole basis for recovery claimed

by plaintiff is under a theory of respondeat superior trying

to hold a municipality responsible for the civil rights vio-

lations of its employee, Parfett. Plaintiff denies that the

sole basis alleged for recovery against the corporation and

the municipality is the theory of respondeat superior under

the civil rights act, Title 42, United States Code, Section

1983.

Plaintiff has also submitted other bases for jurisdic-

tion: First, plaintiff has alleged a claim based upon pen-

dent jurisdiction over the Commonwealth cause of action

for the negligent actions of the corporation and munici-

pality for permitting the beating of the plaintiff by defend-

ant Parfett, for the failure to render assistance to plaintiff,

who was so severely beaten, and permitting its own pro-

cess to be abused by falsely charging the plaintiff with

crimes. Second, plaintiff has alleged a claim directly un-

der the authority of the Fourteenth Amendment to the Con-

stitution of the United States of America for the substan-

tial deprivation of his constitutional rights without due

process of law.

17

Argument

Unlike the factual situations frequently cited by de-

fendants, this was a case where high borough and corpo-

rate officials, acting in their official capacity on behalf of

the borough and corporation, were present and, as a matter

of borough and corporate policy, participated negligently

and approved of the activities of defendant Parfett and

the failure to render assistance and the abuse of process as

alleged in paragraphs ten (10) and twelve (12) of the

complaint. See Exhibit F, appendix pp. 17-18.

Perhaps in recognition of their responsibility for the

acts of defendant Parfett, Harold Martin, sales coordinator

for Seven Springs Mountain Resort, Inc., accepted service

for the municipality and for defendant Parfett, stating that

he was authorized to accept service for all Seven Springs

employees. This again illustrated the fact that the Bor-

ough of Seven Springs is, in reality, a sham municipality

and is totally the creature of Seven Springs Mountain Re-

sort, Inc., with no real governmental function other than

permitting corporate officials and employees to act under

the color of law, statute, ordinance and custom as bor-

ough officials and employees.

It is significant that the District Court did not exer-

cise its discretion to decline pendent jurisdiction over

these defendants but merely held, citing Kerry Coal Com-

pany v. United Mine Workers, 637 F.2d 957 (3rd Cir.

1981), that the Court had no jurisdiction at all.

Civil Rights Act Application to Corporate Entities

It is well established that where a corporation, public

or private, through its agents and employees violates any

18

Argument

citizen’s civil rights under color of official right it can be

held liable for civil rights violations through the Civil

Rights Act of 1871. See Burton v. Wilmington Parking

Authority, 365 U.S. 715, 6 L.Ed. 2d 45, 81 S.Ct. 856

(1961); Alston v. Allegheny Ludlum Steel Corp., 465

Supp. 171 (W.D. Pa. 1978), aff'd, 594 F.2d 854 (1979),

cert. denied, 442 U.S. 493 (1979); Croy v. Skinner, 410

F. Supp. 117 (N.D. Ga. 1976) ; Comtronics, Inc. v. Puerto

Rico Telephone Co., 409 F. Supp. 800 (D.C. P.R. 1975),

aff'd, 553 F.2d 701 (ist Cir. 1977): and Johnson v. River-

side Hotel, Inc., 399 F. Supp. 1138 (S.D. Fla. 1975).

A “person” does not have to be an officer of a state

or subdivision thereof to act “under the color of” state law,

and a “person” may be a corporation for Section 1983

jurisdiction. See Dennis v. Sparks, 449 U.S. 24, 66 L.Ed.

2d 185, 101 S.Ct. 183 (1980); Burton v. Wilmington

Parking Authority, supra. In the case at bar the corpora-

tion, by hiring, cooperating with, providing assistance to,

and providing a location for defendant Parfett to act was

every bit as much a participant with the state agent

(Parfett) as was the Kress Co. in Adickes v. Kress and Co.,

398 U.S. 144, 26 L.Ed. 2d 142, 90 S.Ct. 1598 (1970);

or the Deval County Ranch Co., Inc. in Dennis v. Sparks,

supra.

With these points in mind, a review of the complaint

is in order (see Exhibit F, appendix pp. 13-23):

(a) In paragraphs 5 and 6 of the complaint,

deferidant Parfett is alleged to be the joint employee

of defendants Seven Springs Borough and Seven

Springs Mountain Resort, Inc.

19

Argument

(b) In paragraph 7 of the complaint Parfett is

alleged to have taken his illegal actions in behalf of

both co-defendants.

(c) In paragraph 8, the Borough of Seven

Springs is identified as the municipal corporate em-

ployer of Parfett.

(d) In paragraph 10, the corporate defendant

is identified as the owner of the resort which com-

prises the totality of Seven Springs Borough, and

again alleges that Parfett was acting on behalf of both

of the other defendants.

(e) In paragraph 12 of the complaint, it is al-

leged that other employees of the municipal and cor-

porate defendant stood by while Parfett beat the

plaintiff and rendered no assistance.

(f) Paragraph 13 alleges that constitutional

rights to freedom from seizure, arrest and detention,

physical abuse, and the enjoyment of the facilities of

the resort in interstate commerce were denied to

plaintiff.

Thus, acting on behalf of both employers as a police

Ufiicer and security guard (one and the same as the

municipality is wholly owned by the corporation) Parfett

administered an uncalled for beating upon the plaintiff in

the borough owned by the corporation. Parfett acted un-

der the color of state law, that is: Title 53, Purdon’s Penn-

sylvania Statute, §46121, providing Commonwealth au-

thority for the powers of borough police officers and as a

security guard for the corporation. He was protecting

corporate property only. His activities were controlled

20

Argument

by corporate officials. Clearly while acting under color

of state law, both the corporation and the municipality

serve only the same master—the corporate shareholders

as was the case in Marsh v. Alabama, 326 U.S. 507, 90

L.Ed. 265, 66 S.Ct. 276 (1946). Unlike Hudgens v.

N.L.R.B., 424 U.S. 507, 47 L.Ed. 2d 196, 96 S.Ct. 1029

(1976), the Borough of Seven Springs is wholly the

creature of Seven Springs Mountain Resort, Inc. Plaintiff

has the burden of proving that the defendant Parfett was

acting on behalf of both co-defendants under color of

state law, but for the purpose of a motion to dismiss, the

allegation is in the complaint clearly and unequivocally.

Clearly the plaintiff had the right to enjoy the facilities of

the resort, which was involved in interstate commerce,

without a police official/security guard submitting him

to a beating in the corporate security headquarters which

doubles as a police department at the main resort build-

ing.

In Marsh v. Alabama, 326 U.S. 501, 90 L.Ed. 265

(1946), it was held that in a company-owned town, “‘cor-

porate” action and “municipal” action were both “state”

action for the purpose of Section 1983. Of course, direct

constitutional guarantees protect citizens only from actions

taken by governmental authorization. In the case at bar,

this situation is even more pronounced than in Marsh.

The municipality is merely a sham with no voters, no nor-

mal municipal functions, no property, no residents, only

a resort which owns all of its land. Its municipal em-

ployees are paid with corporate funds generated by the

resort, including the police, who have no citizens to pro-

tect. no businesses other than the corporation to protect,

and whose jurisdiction exists only on corporate property.

21

Argument

Unlike a shopping center in Hudgens, the Borough of

Seven Springs is a municipality and its police who are

also corporate employees do in fact act under color of

Pennsylvania law. This is not a freedom of speech or

assembly case. This case involves a brutal arrest and as-

sault by Parfett acting as a security guard for Seven

Springs Mountain Resort, Inc. and as a police officer for

the Borough of Seven Springs and Commonwealth of Penn-

sylvania. Either role would be sufficient to bring him and

his corporate superior under the jurisdiction of Title 42,

United States Code, Section 1983. See DeCarlo v. Joseph

Horne Co., 251 F. Supp. 935 (W.D. Pa. 1966): Duriso v.

K Mart Division of S. S. Kresge Co., 559 F.2d 1274 (5th

Cir. 1977). See also Reed v. Philadelphia Housing Au-

thority, 372 F. Supp. 686 (E.D. Pa. 1974); and Augenti

v. Cappellini, 84 F.R.D. 73 (M.D. Pa. 1979).

Stated another way, particularly in “Company Town”

cases, the corporate owner dominates the municipality to

such a degree, or is so interrelated with the municipality,

that the corporate owner’s acts become “State’’ acts for

the purpose of acting under the color of state action. See

Illinois Migrant Council v. Campbell Soup Company, Inc.,

519 F.2d 391 (7th Cir. 1975), and on remand, 438 F.

Supp. 222 (N.D. Ill. 1977). The special status of such

“Company Towns” in the abridgement of civil rights and

constitutional guarantees was recognized in Marsh v. Ala-

bama, 326 U.S. 501, 90 L.Ed. 265 (1946), by virtue of

the corporate action became state action and, thus, cog-

nizable under the Constitution which limits State but not

individual action. See also Hudgens v. N.L.R.B., 424

U.S. 507, 47 L.Ed. 2d 196 (1976). However, in this

22

Argument

case the action of arrest, detention, prosecution, and beat-

ing by a security guard/ police officer was so clearly “State

action” taken on behalf of the “Company Town” as to be

clearly an action contemplated by Title 42, United States

Codé, Section 1983. See Illinois Migrant Council v.

Campbell Soup Company, Inc., supra; Duriso v. K Mart,

Division of S. S. Kresge Co., supra; DeCarlo v. Jaseph

Horne and Co., supra; Augenti v. Cappellini, 84 F.R.D.

73 (M.D. Pa. 1979).

In many jurisdictions, including the Western District

of Pennsylvania, the doctrines of respondeat superior in-

direct and direct corporate liability have been held to be

sufficient to hold the actor’s (agent’s) principal corpo-

rate, municipal, or individual principal, vicariously respon-

sible for the acts of the agent. See Holiday v. Connors,

491 F.2d 539 (5th Cir. 1974); Parker v. McKeithen, 488

F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838 (1974);

Turley v. Heyd, 482 F.2d 590 (5th Cir. 1973); Carter v.

Estelle, 519 F.2d 1136 (5th Cir. 1975); Carter v. Carlson,

477 F.2d 258 (D.C. Cir. 1971); Skehan v. Board of Trus-

tees, 501 F.2d 31 (3rd Cir. 1974); Scott v. Vandiver, 476

F.2d 238 (4th Cir. 1973); Sheridan v. Williams, 333 F.2d

58 (9th Cir. 1964); Roberts v. Williams, 456 F.2d 819

(5th Cir. 1971); Thomas v. Johnson, 295 F. Supp. 1025

(D.D.C. 1968); Williams v. Brown, 398 F. Supp. 155

(N.D. Ill. 1975); Lucas v. Kale, 364 F. Supp. 1345 (N.D.

W. Va. 1973); Croy v. Skinner, 410 F. Supp. 117 (N.D.

Ga. 1976); Hill v. Toll, 320 F. Supp. 185 (E.D. Pa.

1970); Alston v. Allegheny Ludlum Steel Corp., 465 F.

Supp. 171 (W.D. Pa. 1978); DeCarlo v. Joseph Horne

Co., 250 F. Supp. 935 (W.D. Pa. 1966).

23

Argument

Thus, clearly, a cause of action was set out against

both the individual defendant (Parfett) and the corporate

defendant (Seven Springs Mountain Resort, Inc.), which

employed him and owned the town which also employed

him at the time of plaintiff’s injury.

Jurisdiction Over the Municipal Corporatioa

Initially, Monroe v. Pape, 365 U.S. 167, 5 L.Ed. 2d

492, 81 S.Ct. 473 (1961), relied upon by the trial court

and Respondent for the proposition that a municipality is

not a “person” within the civil rights act of 1871 has been

overruled by Monell v. City of New York, 436 US. 658,

56 L.Ed. 2d 611, 98 S.Ct. 2018 (1978). Specifically

Monell holds:

Our analysis of the legislative history of the

Civil Rights Act of 1871 compels the conclusion that

Congress did intend municipalities and other local

government units to be included among those per-

sons to whom Section 1983 applies. Local governing

bodies, therefore, can be sued directly under Section

1983 for monetary, declaratory, or injunctive relief

where, as here, the action that is alleged to be uncon-

stitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers. Moreover,

although the touchstone of the Section 1983 action

against a government body is an allegation that offi-

cial policy is responsible for a deprivation of rights

protected by the Constitution, local governments,

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24

Argument

like every other Section 1983 “person,”’ by the very

terms of the statute, may be sued for constitutional

deprivations visited pursuant to governmental “‘cus-

tom” even though such a custom has not received

formal approval through the body’s official decision-

making channels. As Mr. Justice Harlan, writing

for the Court, said in Adickes v. S. H. Kress & Co.,

398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.

2d 142 (1970): ‘Congress included customs and

usages [in Section 1983] because of the persistent

and widespread discriminatory practices of state of-

ficials. .. . Although not authorized by written law,

such practices of state officials could well be so per-

manent and well settled as to constitute a ‘custom or

usage’ with the force of law.”’ On the other hand,

the language of Section 1983, read against the back-

ground of the same legislative history, compels the

conclusion that Congress did not intend municipali-

ties to be held liable unless action pursuant to official

municipal policy of some nature caused a constitu-

tional tort. In particular, we conclude that a munici-

pality cannot be held liable solely because it employs

a tortfeasor—or, in other words, a municipality can-

not be held liable under Section 1983 on a respondeat

superior theory.

We begin with the language of Section 1983 as

originally passed: “[A]ny person who, under color

of any law, statute, ordinance, regulation, custom, or

usage of any State, shall subject, or cause to be sub-

jected, any person . . . to the deprivation of any

rights, privileges, or immunities secured by the Con-

25

Argument

stitution of the United States, shall, any such law, stat-

ute, ordinance, regulation, custom, or usage of the

State to the contrary notwithstanding, be liable to

the party injured in action at law, suit in equity, or

other proper proceeding for redress... .” 17 Stat.

13. (emphasis added). The italicized language

plainly imposes liability on a government that, under

color of some official policy, ‘‘causes’” an employee

to violate another’s constitutional rights. At the

same time, that language cannot be easily read to

impose liability vicariously on governing bodies solely

on the basis of the existence of an employer employee

relationship with a tortfeasor. Indeed, the fact that

Congress did specifically provide that A’s tort be-

came B’s liability if B “caused’”’ A to subject another

to a tort suggests that Congress did not intend Sec-

tion 1983 liability to attach where such causation

was absent [436 U.S. 690-692].

In this case, as pointed out previously and in the com-

plaint, the defendant Parfett did not administer a beating

to the Petitioner in a vacuum. In fact others including the

Chief of Police were present. Clearly the defendant

Parfett was merely carrying out the policy, custom, and

practice of the municipal and corporate defendants with

their approval. Thus, just as clearly, both the municipal

and corporate ‘“‘persons’”’ within the act were, under color

of state law, imposing the complained of violations of the

Petitioner’s civil rights upon him. The jurisdictional re-

quirement is satisfied if the supervisor (chief) represent-

ing the company or municipality “fails to act, with a de-

liberate or reckless disregard of plaintiff’s constitutional

26

Argument

rights, or if the conduct causing the constitutional depriva-

tion occurs at her direction or with her knowledge and

consent.” Lojuk v. Quandt, 706 F.2d 1456, 1468 (7th

Cir. 1982); Crowder v. Lash, 687 F.2d 996 (7th Cir.

1982).

Since Monell, the cases decided by the Court of Ap-

peals have made it clear that a municipal corporation or

other corporation may be held liable if the violation of

the victim’s rights occurs as a matter of official policy, or

at the behest or within the knowledge of that official [in

this case the Chief of Police/Chief of Security for the de-

fendant] who is authorized to make final decisions for the

defendants. See Familias Unidas v. Briscoe, 619 F.2d 391,

404 (5th Cir. 1980); Schneider v. City of Atlanta, 628

F.2d 915, 920 (5th Cir. 1980); McKinley v. City of Eloy,

705 F.2d 1110, 1116 (9th Cir. 1983). However, most

similar to this case is Black v. Stephens, 662 F.2d 181,

191 (3rd Cir. 1981), cert. denied, 455 US. 1008 (1982),

decided by The Third Circuit Court of Appeals holding the

City of Allentown and the police chief liable for damages

resulting from unreasonable force under the same statute

(Title 42, United States Code, Section 1983) as charged

in the case at bar stating:

The City of Allentown also appeals the trial

court’s denia! of its motion for judgment n.o.v. The

City argues that Monell v. Department of Social Ser-

vices of the City of New York, 436 U.S. 658, 693,

98 S.Ct. 2018, 2037, 56 L.Ed. 2d 611 (1978), pre-

vents a municipality from being held liable for the

actions of its agents under a theory of res pondeat

superior. While we agree with this position, Allen-

» BEST AVE

27

Argument

town was not found Hable under such a theory.

Rather, the city was held liable because of a govern-

mental policy that proximately caused detective

Stephens to file unwarranted charges against Elwood

Black.

In Monell, the court held that municipalities may

be sued directly under section 1983 for constitutional

deprivations inflicted upon private individuals pur-

suant to a governmental custom, policy, ordinance,

regulation, or decision. Id. at 690-91, 98 S.Ct. at

2035-36; Landrigan v. City of Warwick, 628 F.2d

736, 746 (1st Cir. 1980). The Court went on to

emphasize, however, that a city’s liability can be

triggered by persons other than the municipality’s

official lawmakers: “[I]t is when execution of a

government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury

that the government as an entity is responsible under

Section 1983.”" Monell, 435 U.S. at 694, 98 S.Ct.

at 2037. (emphasis supplied) .

In this case Chief Gable ‘“‘may fairly be said to

represent official policy” for the city of Allentown.

Id. He wrote and implemented an official police regu-

lation concerning disciplinary hearings which the jury

found proximately caused Stephens to file unwar-

ranted charges against Elwood Black. Chief Gable is

the final authority in charge of the police force in

Allentown. He is a member of the Mayor’s cabinet,

proposes and manages the budget and establishes

policies and procedures for the entire police depart-

LABLE COPY

28

Argument

ment. (Trial Trans. Vol. 4 at 118-19). Acting in this

capacity, Chief Gable’s promulgation of the regula-

tion was an official act of policy which the jury found

proximately caused Stephens to file unwarranted

charges. Cf. Schneider v. City of Atlanta, 628 F.2d

915, 920, (5th Cir. 1980) (Prison director can en-

gage the city’s liability if he is the final authority or

ultimate repository of city power). Landrigan, 628

F.2d at 747 n.8 (municipality is absolved from lia-

bility under section 1983 because of plaintiff’s failure

to allege an official whose actions might be con-

sidered those of the town). This is sufficient basis

for the municipality’s liability under Monell and

section 1983.

In the case at bar it was alleged in the complaint

at paragraph 12 (appendix p. 18) that:

The acts alleged in paragraph 10 herein were

committed before and in front of other employees of

defendant Seven Springs Mountain Resort, Inc., and

defendant Borough of Seven Springs, who were de-

fendant Richard A. Parfett’s superiors who neither

made any effort to stop the beating of plaintiff nor

to assist or aid plaintiff.

Thus, clearly as in Black v. Stephens, the municipality

(and the corporation) may be held liable for the damages

done to the plaintiff, punative damages, and attorneys’

fees and costs as sought under a theory of direct responsi-

bility. It should be noted that neither the chief nor any

other employee of defendants withdrew the false charges

‘against plaintiff; they merely failed to show up at the

preliminary hearing.

et er ne OE

ne ate

Nene Cate ne OR | etal Be ee

29

Argument

The District Court might also have asserted pendent

jurisidiction over the municipal and corporate defendant

under the laws of the Commonwealth of Pennsylvania.

New parties may be added to the case over which the

Court can exercise pendent jurisdiction. See Leather’s

Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir.

1971); Almeneres v. Wyman, 453 F.2d 1075 (2nd Cir.

1971), cert. denied, 405 U.S. 944, 30 L.Ed. 2d 815, 92

S. Ct. 962 (1972); Hatridge v. Aetna Casualty and Surety

Co., 415 F.2d 809 (8th Cir. 1969). This body of law

was recognized and allowed to stand in Moore v. County

of Alameda, 411 U.S. 693, 30 L.Ed. 2d 596, 93 S. Ct.

1785 (1973), which upheld the District Court’s discretion

in accepting or rejecting jurisdiction over pendent state

claims in factual situations similar to the case at bar. The

Third Circuit Court of Appeals has adopted that position

as well. See Nelson v. Keffer, 451 F.2d 289, 291 (3rd

Cir. 1971); Jacobson v. Atlantic City Hospital, 392 F.2d

149, 153-154 (3rd Cir. 1968). Recall that the Court be-

low specifically did not decide to exercise its discretion

to preclude the exercise of its pendent jurisdiction, rather

it held that it could not exercise jurisdiction in this case

citing Kerry Coal Company v. United States Mine Workers,

supra, at 965. At the time of the assault Pennsylvania de-

cisions would have held both a municipality and corpora-

tion responsible on the theory of respondeat superior or

on the theory of direct responsibilty. See Chuy v. Phila-

delphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.

1979); Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476

(1970); Hardy v. City of Philadelphia, 66 Pa. D. & C. 2d

71 (1974); Barnhart v. Henson, 7 Pa. D. & C. 3rd 678

(1978); Heath v. Huth Engineers, Inc., 279 Pa. Superior

\

30

Argument

Ct. 90, 420 A.2d 758 (1980); Lineaweaver v. Wana-

maker, 299 Pa. 45, 149 A. 94 (1930); Deigleisk v. Oppen-

heimer, Collins and Co., 302 Pa. 88, 152 A. 759 (1930).

The theory of direct responsibility is in addition to and

not inconsistent with that of respondeat superior. See

Lucas v. Kale, swpra. Also clearly liability attaches for

intentional as well as negligent torts. See Fitzgerald v.

McCutcheon, 270 Pa. Superior Ct. 102, 410 A.2d 1270

(1979).

31

Reasons for Granting Relief

REASONS FOR GRANTING RELIEF

For the above stated reasons, the plaintiff-Petitioner

respectfully submits that the dismissal of the Borough of

Seven Springs and of Seven Springs Mountain Resort, Inc.,

for lack of jurisdiction was in error and respecifully re-

quests that such decision be reversed and the case re-

manded to the United States Court for the Western

District of Pennsylvania for trial against all three (3)

original defendants. The United States Court for the

Western District of Pennsylvania and the United States

Court of Appeals for the Third Circuit have decided the

important federal jurisdictional questions discussed herein

—-particularly the decision that private corporations are

immune from jurisdiction, direct or pendent, of the Civil

Rights Act of 1871—in a manner inconsistent with prior

decisions of the Courts of Appeals, This Honorable Court,

the Constitution of the United States, and the statutes cited

herein. Clearly private, if not municipal corporations, are

subject to the Act as individuals, and have never before

been held immune or unincluded from its coverage since

the nineteenth century. Therefore, the writ of certiorari

should be granted.

Respectfully submitted,

THOMAS A. CRAWFORD, JR.

Aitorney for Petitioner