Shirey v. Bensalem Tp., 81-1045

• Citation: 663 F.2d 472
• Decision Date: 12 November 1981
• Docket Number: No. 81-1045,81-1045
• Parties: SHIREY, Gerald A., Jr. and McCullough, Stephen and Hamilton, William R. and Hamilton, Donna L. on behalf of themselves and all others similarly situated Stephen McCullough, Appellant, v. BENSALEM TOWNSHIP and Bristol Borough and Bristol Township and Buckingham Township and Falls Township and Middletown Township and Tullytown Borough and Warminster Township and City of Philadelphia and Police Chief Michaels, Lawrence and Police Chief Faragalli, Vincent and Acting Police Chief Templeton, Richard, and Police Chief Kettler, James and Police Chief Shook, Howard C. and Police Chief Favoroso, Gaspar and Doe, John and other individuals whose identities are not known with sufficient exactitude by Plaintiffs but whose identities are known by the other Defendants named herein Defendant-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 472

663 F.2d 472

SHIREY, Gerald A., Jr. and McCullough, Stephen and Hamilton,

William R. and Hamilton, Donna L. on behalf of

themselves and all others similarly

situated Stephen McCullough, Appellant, v. BENSALEM TOWNSHIP and Bristol Borough and Bristol Township and Buckingham Township and Falls Township and Middletown

Township and Tullytown Borough and Warminster Township and

City of Philadelphia and Police Chief Michaels, Lawrence and

Police Chief Faragalli, Vincent and Acting Police Chief

Templeton, Richard, and Police Chief Kettler, James and

Police Chief Shook, Howard C. and Police Chief Favoroso,

Gaspar and Doe, John and other individuals whose identities

are not known with sufficient exactitude by Plaintiffs but

whose identities are known by the other Defendants named

herein Defendant-Appellees.

No. 81-1045.

United States Court of Appeals, Third Circuit.

Argued July 20, 1981.

Decided Nov. 12, 1981.

Gary Green (argued), Neil A. Morris, Sidkoff, Pincus, Greenberg & Green, P.C., Philadelphia, Pa., for appellant; John M. McClure, Doylestown, Pa., of counsel.

Charles W. Craven (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for Bensalem Township & Lawrence Michaels.

Richard A. Kraemer, Philadelphia, Pa., for Warminster Township.

Thomas A. Shovlin, White & Williams, Philadelphia, Pa., for Borough of Bristol.

Ralph J. Teti, Philadelphia, Pa., for City of Philadelphia.

Daniel J. Allan, Quinn, Allan & Raab, Philadelphia, Pa., for Bristol Township.

William B. Moyer, Anita F. Alberts, Power, Bowen & Valimont, Doylestown, Pa., for Bristol Township Acting Police Chief Richard Templeton.

Richard R. Fink, Doylestown, Pa., for Tullytown Borough & Police Chief Gaspar Favoroso.

Mindy M. Brook, Moskowitz, Zamparelli & Weiss, Longhorne, Pa., for Falls Township & Police Chief James Kettler.

Peter J. Hoffman, Duane, Morris & Hecksher, Philadelphia, Pa., for Buckingham Township.

Richard M. Shusterman, White & Williams, Philadelphia, Pa., for Borough of Bristol.

Richard B. Hardt, Detweiler, Hughes & Kokonos, Philadelphia, Pa., for Falls Township & Police Chief James Kettler.

Clyde W. Waite, Sokolove, Pechter, Stief & Waite, Bristol, Pa., for Township of Bristol.

Before ADAMS, HUNTER and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The principal issue before us is the appealability of an order dismissing the complaint as to one of four plaintiffs when the complaint seeks, inter alia, injunctive relief. We hold that the order in this case is not appealable at this time, and dismiss the appeal.

II.

The appellant, Stephen McCullough, was one of four plaintiffs who brought a class action against nine Pennsylvania municipalities, six chiefs of police and certain unnamed defendant police officers, denominated as John Doe defendants. The complaint alleged that defendants engaged in a conspiracy to unlawfully stop, arrest, and abuse citizens present at or traveling through a two-mile radius of the intersection of five streets in Bucks County, Pennsylvania, referred to as "Five Points," during the two-day period beginning on June 23, 1979 and continuing through June 24, 1979. The action was brought pursuant to two civil rights statutes, 42 U.S.C. §§ 1983 and 1985(3), and directly under various constitutional provisions, i. e., the First, Fourth, Fifth, Eighth and Fourteenth Amendments. State law claims were also alleged.

In ruling on a motion to dismiss filed by the defendants, the district court (1) dismissed plaintiffs' claims brought pursuant to 42 U.S.C. § 1985(3) with prejudice; (2) dismissed plaintiffs' claims brought pursuant to 42 U.S.C. § 1983 without prejudice to plaintiffs' amendment of the complaint within 20 days in accordance with the accompanying opinion; (3) dismissed plaintiffs' claims brought pursuant to the First, Fourth, Fifth, Eighth and Fourteenth Amendments with prejudice; (4) dismissed plaintiffs' prayer for injunctive and declaratory relief with prejudice; and (5) dismissed plaintiffs' pendent state claims without prejudice.

In its opinion, reported as Shirey v. Bensalem Township, 501 F.Supp. 1138 (E.D.Pa.1980), the court explained its decision as follows: (1) plaintiffs failed to and could not plead the requisite class-based discriminatory animus which the district court interpreted as required in a § 1985(3) action by the decisions in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), and Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979); (2) the § 1983 claims were deficient as pleaded because the complaint failed to identify specific acts of specific defendants and failed to allege an adequate basis for assertion of liability against the municipalities and the police chiefs, but plaintiffs were given leave to file an amended § 1983 complaint; (3) the claims premised directly on the Constitution were redundant because § 1983 provides an effective statutory remedy for the claims pleaded; and (4) in considering plaintiffs' challenge to Pennsylvania's disorderly conduct statute facially and as applied, the court, relying on the anti-injunction statute, 28 U.S.C. § 2283, and the principles enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), stated that it would deny the injunctive and declaratory relief requested by those plaintiffs "currently being prosecuted for disorderly conduct because they have failed to demonstrate any of the exceptional circumstances which would warrant this Court's intervention in a state criminal prosecution," 501 F.Supp. at 1145; further, the court stated that those plaintiffs against whom no state prosecution was currently pending failed to show the existence of a "credible threat of prosecution" and therefore failed to demonstrate the existence of an " 'actual controversy' within the meaning of Article III of the United States Constitution." Id. at 1146.

Three of the four plaintiffs amended their § 1983 claims, and the action proceeds as to them in the district court. The fourth plaintiff, McCullough, chose not to amend, and instead filed this appeal. Appellees have filed motions to dismiss the appeal for lack of an appealable order.

Appellant suggests alternate bases for appellate jurisdiction. He argues, on one hand, that the appeal can be considered as taken from a final order pursuant to 28 U.S.C. § 1291 in that his complaint was dismissed, he did not file an amended complaint and, therefore, he no longer has a claim pending. Appellant's alternate theory is that we have jurisdiction over his appeal under 28 U.S.C. § 1292(a)(1) in that the court dismissed with prejudice the prayer of all plaintiffs for injunctive and declaratory relief, making the appeal one from the denial of an injunction which gives us jurisdiction to review the merits of the entire case.

III.

In contesting our jurisdiction under § 1291, some of the appellees argue that because the dismissal of the § 1983 claim was without prejudice, it cannot be deemed final since appellant had the same opportunity to amend as did his co-plaintiffs. Appellant replies that since he chose not to amend, and instead to stand on the complaint as originally pleaded, the complaint was in fact dismissed as to him. ¹ Even if we construe the court's order as a final adjudication of appellant's claims in light of his failure to amend, there is a compelling basis to deny appellant's claim of appealability under § 1291.

At common law, it was generally accepted that an appeal would not lie from a decision, albeit final, which adjudicated less than the whole case. The concept of the entire case as a single judicial unit was developed primarily in situations where the trial court had adjudicated one or more, but not every, claim asserted in the controversy. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 431-32, 76 S.Ct. 895, 897-98, 100 L.Ed. 1297 (1956). The promulgation of the Federal Rules of Civil Procedure did not alter the common law view of the judicial unit. However, the increased opportunity for assertion of multiple claims in one lawsuit led the framers of the Rules to provide a vehicle through Rule 54(b), as amended in 1946, whereby upon appropriate certification by the district court an appeal might be taken from a final decision on one or more claims without waiting for final decisions to be rendered on all the claims in the case. Id. at 432-35, 76 S.Ct. at 897-99. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980).

The Rules as originally promulgated failed to deal expressly with an order dismissing an action as to less than all the parties suing or being sued. Appealability of such an order at common law was not clear. See Sears, Roebuck & Co. v. Mackey, 351 U.S. at 432 n.3, 76 S.Ct. at 897 n.3. See generally 6 Moore's Federal Practice P 54.19 (2d ed. 1981). Conflicting decisions by the courts of appeals on the applicability of Rule 54(b) to this situation ² led to the amendment of Rule 54(b) in 1961 to cover expressly cases of multiple parties as well as cases of multiple claims. Notes of Advisory Committee on Fed.R.Civ.P. 54(b) (1961 Amendment). Rule 54(b) now provides that when multiple parties are involved, the district court may expressly direct the entry of a final judgment as to one or more but fewer than all the parties upon making the necessary determination that there is no just reason for delay. In the absence of such a determination and direction, any order which adjudicates the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the parties. This court, among others, has interpreted Rule 54(b), as amended, to preclude appealability of a determination as to less than all parties in the action, whether plaintiffs or defendants. School District of Kansas City v. Missouri, 592 F.2d 493 (8th Cir. 1979); Melancon v....