Com. of Pa. v. Porter

• Decision Date: 05 August 1981
• Docket Number: 79-2684 and 79-2685,Nos. 79-2653,No. 79-2685,No. 79-2684,No. 79-2653,79-2653,79-2684,79-2685,s. 79-2653
• Citation: 659 F.2d 306
• Parties: 9 Fed. R. Evid. Serv. 1062 COMMONWEALTH OF PENNSYLVANIA and Richard W. Baumann, Joseph Blume, James Mages and Bernard W. Peitz, Jr., Individually and on behalf of all others similarly situated v. James D. PORTER, Chief of Police; Borough of Millvale; Frank L. Baranyai, Borough of Millvale Police Officer; Regis J. McCarthy, Mayor of the Borough of Millvale; Carl Seidl, President of the Millvale Borough Council; Maurice P. Bedel, Sr., James Beran, John L. Cavanaugh, Jerry Dawson, James H. Lawson and Stephen Mikus, Members of the Millvale Borough Council. Appeal of Frank L. BARANYAI, inAppeal of Regis J. McCARTHY, et al., inAppeal of James D. PORTER, in
• Court: U.S. Court of Appeals — Third Circuit

Page 306

659 F.2d 306

9 Fed. R. Evid. Serv. 1062

COMMONWEALTH OF PENNSYLVANIA and Richard W. Baumann, Joseph

Blume, James Mages and Bernard W. Peitz, Jr.,

Individually and on behalf of all others

similarly situated v. James D. PORTER, Chief of Police; Borough of Millvale; Frank

L. Baranyai, Borough of Millvale Police Officer; Regis J.

McCarthy, Mayor of the Borough of Millvale; Carl Seidl,

President of the Millvale Borough Council; Maurice P. Bedel,

Sr., James Beran, John L. Cavanaugh, Jerry Dawson, James H.

Lawson and Stephen Mikus, Members of the Millvale Borough Council.

Appeal of Frank L. BARANYAI, in No. 79-2653.

Appeal of Regis J. McCARTHY, et al., in No. 79-2684.

Appeal of James D. PORTER, in No. 79-2685.

Nos. 79-2653, 79-2684 and 79-2685.

United States Court of Appeals, Third Circuit.

Argued Oct. 6, 1980.

Reargued May 12, 1981.

Decided July 30, 1981.

As Amended Aug. 5, 1981.

Concurring and Dissenting Opinion

Daniel J. Weis, Weis & Weis, Bruce E. Dice (argued), Zimmer & Dice, Pittsburgh, Pa., for appellants James D. Porter and Frank L. Baranyai.

Alfred C. Maiello, Pittsburgh, Pa. (argued), for appellants Mayor and Members of the Council of the Borough of Millvale.

Paul D. Boas (argued), Berlin, Boas, Isaacson & Logan, Pittsburgh, Pa., for appellees Baumann, Blume, Mages and Peitz, Jr.

Frank P. Tuplin, Sp. Deputy Atty. Gen., Pittsburgh, Pa. (argued), for appellee Commonwealth of Pa.

Elizabeth M. Schneider (argued), Frank Askin, Constitutional Litigation Clinic, Newark, N. J., Charles S. Sims, Bruce J. Ennis, Jr., American Civil Liberties Union Foundation, New York City, for amici curiae Argued Oct. 6, 1980.

The American Civil Liberties Union and the Greater Pittsburgh Chapter of the American Civil Liberties Union.

Before ALDISERT, GARTH and VAN DUSEN, Circuit Judges.

Reargued In Banc May 12, 1981.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

PER CURIAM, announcing the judgment of the court:

To the extent the injunction of the district court is directed to the members of the Borough Council it will be reversed. In all other respects the judgment of the district court will be affirmed. Because neither appended opinion commands in its entirety a majority of the members of the court, their positions are noted as follows:

Judges Higginbotham and Sloviter join in Judge Gibbons' opinion in its entirety.

Chief Judge Seitz, and Judge Adams, because of the unusual factual situation present here, join in the conclusions reached in Judge Gibbons' opinion except as to part IV(D) dealing with the Borough Council. As to the Borough Council, they join in the conclusion reached in part IV of Judge Garth's opinion.

Judges Aldisert and Hunter join in Judge Garth's opinion in its entirety.

Costs to be taxed against Appellant Baranyai in No. 79-2653.

One-half the costs to be taxed against the Appellees and one-half the costs to be taxed against Appellant McCarthy in No. 79-2684.

Costs to be taxed against Appellant Porter in No. 79-2685.

GIBBONS, Circuit Judge, with whom HIGGINBOTHAM and SLOVITER, Circuit Judges, join fully, and with whom Judges SEITZ, Chief Judge, and ADAMS, Circuit Judge, join except for Part IV(D).

Frank L. Baranyai, a policeman, Regis J. McCarthy, Mayor, James D. Porter, Police Chief, Carl Seidl, President of the Borough Council, and six other council members, all of the Borough of Millvale, Pennsylvania appeal from a final injunction issued in an action brought by the Commonwealth of Pennsylvania and three individual plaintiffs, charging that Baranyai, with the instigation, acquiescence and ratification of the Mayor and Council, engaged in an extended pattern or practice of conduct denying persons lawfully in Millvale their constitutional rights to be free from physical violence, mistreatment, threats, harassment, illegal detention, illegal arrests, and illegal searches and seizures. Each defendant, for different reasons, contends that no injunctive relief should have been granted against him.

I

The Borough of Millvale is a small municipality in Allegheny County organized under the Pennsylvania Borough Code. 53 P.S. § 45101 et seq. That code vests in the Borough Council power to enact ordinances not inconsistent with the laws of the Commonwealth. 53 P.S. 46006(3). The Code also provides that it shall be the duty of the Mayor "(t)o preserve order in the borough, to enforce the ordinances ... (and) to exact a faithful performance of the duties of the officers appointed ...." 53 P.S. 46029(1). Borough Councils are authorized "to appoint and remove, or suspend, or reduce in rank, one or more suitable persons ... as borough policemen." 53 P.S. 46121. Moreover "(t)he borough council may designate one of said policemen as chief of police." Id. The Mayor of the Borough "shall have full charge and control of the chief of police and the police force, and he shall direct the time during which, the place where and the manner in which, the chief of police and the police force shall perform their duties ...." Id. While Section 46121 vests ultimate power of removal or suspension of policemen in the Borough Council, the Mayor may suspend any policeman for cause until the Council's next regular meeting.

53 P.S. § 46124. Thus the Mayor of a Pennsylvania borough is its chief law enforcement officer, charged with the responsibility of supervising the manner in which the police department functions, with ample authority to control the conduct both of the chief of police and of all police officers. Together, the Mayor and the Council exercise close control over Borough Police Force personnel.

53 P.S. § 46190 lists specific reasons for suspension or removal of policemen. Among those reasons are "violation of any official duty", besides the commission of a misdemeanor or a felony, "inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer." Anyone acting in an official capacity in Pennsylvania, including a policeman, commits a misdemeanor if, knowing his conduct is illegal, he subjects another to arrest, detention, search, seizure, mistreatment or other infringement of personal or property rights; or denies or impedes another in the exercise of any right, privilege, power or immunity. 18 Pa.C.S.A. § 5301.

In 1911, the Borough of Millvale passed an ordinance, No. 305, never amended nor repealed, defining disorderly conduct. (Joint Exhibit B). Disorderly persons include "(a)ll persons persisting in loitering upon the public highway or streetcorners and in front of any store, shops, places of business, place of amusement or place of worship after being requested to vacate such place or places and move on," "(a)ll habitual street or corner loafers," and "(a)ll suspicious persons or person who can give no reasonable account of themselves."

In the summer of 1973 the Council hired Baranyai as a policeman. In August of 1974 the Council at a meeting attended by the Mayor, received the first of a long series of citizen complaints about Officer Baranyai's behavior in that capacity. On that occasion three persons complained of verbal abuse or harassment. (Plaintiff's Exhibit 1). Subsequent complaints of more serious misconduct by Baranyai were made, and these eventually came to the attention of Community Advocate Unit of the Attorney General's office in Pennsylvania. That office conducted an investigation which resulted in the filing of criminal charges against Baranyai in the Court of Common Pleas of Allegheny County on July 14, and July 18, 1977. Those charges were called to the attention of the Council, the Mayor, and the Chief of Police, but Baranyai, nevertheless, was continued as a policeman dealing with the public. Indeed, after it learned of the Commonwealth's decision, the Council passed a resolution supporting Baranyai's conduct. ¹

On October 6, 1977 the Community Advocate Unit of the Attorney General's Office filed the complaint in this action, seeking preliminary and permanent injunctive relief prohibiting the defendants from subjecting residents of Millvale and others lawfully in Millvale from unconstitutional physical violence, mistreatment, threats, or harassment; from unconstitutional detention, searches, seizures, arrests and imprisonment; and from interference with the free exercise of their rights. The complaint alleges a course of conduct by Baranyai in violation of rights protected by the United States Constitution. It charges Baranyai with illegal arrests, illegal searches and seizures, excessive use of force, beatings of persons in custody, and intimidation of persons who would complain or testify against him. It alleges that the Council members, the Mayor and the Chief of Police, each of whom could exercise control over Baranyai, having full knowledge of this course of conduct, and of the danger he posed to all with whom he comes in contact during the course of his employment as a policeman, purposefully, unreasonably, and in bad faith refused to suspend, transfer, or otherwise limit his activities; publicly condoned and approved his unconstitutional actions; and in some instances intimidated or attempted to intimidate persons who would testify or complain against him.

The defendants responded to the complaint by filing a motion to dismiss. They pressed two principal grounds in support of that motion: (1) that the Commonwealth of Pennsylvania was not a proper plaintiff; and (2) that on the authority of Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) the complaint failed to state a claim upon which any injunctive relief could be granted. On February 24, 1978 the district court denied the motion unconditionally insofar as it relied on Rizzo v. Goode. The court also denied it insofar as it contested the Commonwealth's standing as a plaintiff, provided that within 20 days the Commonwealth filed an amended complaint joining as plainti...