City of Philadelphia Litigation, In re

Decision Date03 April 1995
Docket NumberC,No. 94-1277,G,No. 94-1231,Nos. 94-1280 and 94-1377,L,No. 94-1320,Nos. 94-1277,No. 94-1321,No. 94-1230,94-1233,A,W,R,No. 94-1276,No. 94-1322,No. 94-1279,Nos. 94-1229 and 94-1379,No. 94-1232,Nos. 94-1378,94-1277,94-1322,s. 94-1280 and 94-1377,94-1279,94-1321,s. 94-1378,94-1276,94-1320,s. 94-1229 and 94-1379,94-1230,94-1231,94-1232,s. 94-1277
Citation49 F.3d 945
PartiesIn re CITY OF PHILADELPHIA LITIGATION. (Three Cases) Ramona AFRICA v. CITY OF PHILADELPHIA; Willie Goode; Leo A. Brooks; Gregore Sambor; William C. Richmond; Frank Powell, Lt.; William Klein, Officer; Michael Tursi, Officer; Albert Revel, Sgt.; Edward Connor, Sgt.; Morris Demsko, Corporal; Richard Reed, State Trooper, Individually and in their present and/or former official capacities, Leo A. Brooks, Appellant inamona Africa, Appellant inity of Philadelphia, Appellant inilliam C. Richmond, Appellant inlfonso LEAPHART, Administrator of the Estate of Vincent Lopez Leaphart, a/k/a John Africa v. CITY OF PHILADELPHIA; W. Wilson Goode, Mayor, City of Philadelphia; Leo A. Brooks, Former Managing Director, City of Philadelphia; Gregore J. Sambor, Former Police Commissioner, City of Philadelphia; William C. Richmond, Fire Commissioner, City of Philadelphia; Frank Powell; William Klein; Michael Tursi; Albert Revel; Commonwealth of Pennsylvania; Richard Thornburgh, Former Governor, Commonwealth of Pennsylvania; Jay Cochran, Commissioner of State Police, Commonwealth of Pennsylvania; Richard Reed; Morris Demsko; E.I. DuPont de Nemours and Company, Alfonso Leaphart, Administrator of the Estate of Vincent Lopez Leaphart, a/k/a John Africa, Appellant inity of Philadelphia, Appellant in, and 94-1272, William C. Richmond, Appellant inLouise JAMES v. Frank POWELL; Gregore J. Sambor; Leo Brooks; William C. Richmond; W. Wilson Goode; City of Philadelphia; State of Pennsylvania; Du Pont de Nemours, E.I. & Company v. Ramona Johnson AFRICA; Alphonso Robbins Africa, Third-Party Defendants, Louise James, Administratrix of the Estate of Frank James, Appellant inity of Philadelphia, Appellant inregore Sambor, Appellant ineo A. Brooks, Appellant inilliam C. Richmond, Appellant into 94-1280, 94-1322, 94-1377, 94-1233, 94-1272, 94-1276, 94-1321, 94-1378, 94-1229 to 94-1232, 94-1320 and 94-1379.
CourtU.S. Court of Appeals — Third Circuit

Andre L. Dennis (argued), Jeffrey M. Lindy, Raymond S. Wierciszewski, Stradley, Ronon, Stevens & Young, Philadelphia, PA, for appellant/appellee Ramona Africa.

Fincourt B. Shelton (argued), Fincourt B. Shelton and Associates, Darby, PA, for appellant/appellee Louise James.

Rosemarie Rhodes (argued), Harper & Paul, Philadelphia, PA, for appellant/appellee Alfonso Leaphart.

Joseph A. Dworetzky, Acting City Sol., Michael F. Eichert, Divisional Deputy City Sol., E. Jane Hix (argued), Deputy City Sol., City of Philadelphia, Law Dept., Philadelphia, PA, for appellant City of Philadelphia.

Nolan N. Atkinson, Jr. (argued), Frank E. Noyes, II, Duane, Morris & Heckscher, Philadelphia, PA, for appellee W. Wilson Goode.

Steven R. Waxman (argued), Kleinbard, Bell & Brecker, Philadelphia, PA, for appellant Leo A. Brooks.

John W. Morris (argued), Pennsylvania, PA, for appellant Gregore Sambor.

Peter C. Kennedy (argued), James M. Marsh, Hecker Brown Sherry and Johnson, Philadelphia, PA, for appellant William C. Richmond.

Richard D. Malmed, Philadelphia, PA, for appellee Frank Powell.

E. Harris Baum, John R. O'Donnell, Zarwin & Baum, P.C., Philadelphia, PA, for appellee William Klein.

Before: GREENBERG, SCIRICA, and LEWIS, Circuit Judges.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

GREENBERG, Circuit Judge.

These consolidated appeals have been taken from judgments and orders in three civil actions against the City of Philadelphia and certain of its former officials and employees. The plaintiffs' claims arose out of an attempt by the Philadelphia Police Department on May 13, 1985, to execute search warrants and arrest warrants at a premises in Philadelphia occupied by a group known as MOVE. After hours of gunfire and failed attempts to inject tear gas into the residence in which the MOVE members had barricaded themselves, police officers dropped an explosive device on the roof of the house. The ensuing fire killed 11 persons, including five children, in the residence and destroyed dozens of homes in the vicinity.

The plaintiffs appeal from the district court's grant of summary judgment on qualified immunity grounds in favor of certain of the defendants with respect to claims arising from the dropping of the explosive device. Philadelphia Managing Director Leo A. Brooks, Police Commissioner Gregore Sambor, and Fire Commissioner William C. Richmond appeal from the district court's denial of their motions for summary judgment on qualified immunity grounds with respect to claims under 42 U.S.C. Sec. 1983 arising from their alleged decisions to let the fire burn. 1 They also appeal from the denial of their motions for summary judgment on state claims asserted against them. The city itself appeals from the denial of its motion for summary judgment.

The court is divided on the disposition of various issues and on certain issues there are majorities consisting of each of the three possible combination of judges. On other issues the court is unanimous. In this opinion I will set forth the ultimate conclusions reached and also will set forth the majority view on some points and my own view on other points. Judges Scirica and Lewis are filing separate opinions. As a matter of convenience I largely will deliver this opinion in the first person.

Judge Scirica and I conclude that all the individual defendants are immune because their actions on May 13, 1985, did not violate any clearly established constitutional rights of plaintiff Ramona Africa and decedents Frank James and Vincent Lopez Leaphart. Accordingly, we will affirm the grant of summary judgment to defendants Wilson Goode, the mayor of the city, and police officers Frank Powell and William Klein, and will reverse the denial of summary judgment on the section 1983 claims to defendants Brooks, Sambor, and Richmond. Judges Scirica and Lewis conclude that the City of Philadelphia is not entitled to summary judgment on the section 1983 claims and accordingly we will affirm the district court's denial of summary judgment to the city on those claims. Judge Lewis and I conclude that we do not have jurisdiction over the appeals from the district court's denial of summary judgment for Brooks, Sambor and Richmond on the state law claims based on letting the fire burn. Accordingly, we dismiss those appeals.

There also is a related property claim before us filed by Louise James seeking compensation for the destruction of the MOVE house. For the reasons we discuss below we all conclude that we do not have jurisdiction over the appeal from the dismissal of that claim. Consequently, we will dismiss for lack of jurisdiction James' appeal insofar as it relates to her property claim.

I. FACTUAL BACKGROUND

Because the motions for summary judgment involved the individual defendants' claims of entitlement to qualified immunity, the district court indicated that its rulings were based on the "plaintiff's well-documented version of the facts," as called for by Good The material undisputed facts are as follows. In 1978, pursuant to a court order, the city attempted to evict MOVE members from a residence in Powelton Village. However, the MOVE members resisted and a gunfight broke out. As a result, one police officer was killed and several other police officers and fire fighters were wounded. Subsequently, nine MOVE members were convicted for the murder of this officer.

                v. Dauphin County Social Serv., 891 F.2d 1087, 1094-95 (3d Cir.1989).  This court since has clarified that such a determination should be based on the undisputed facts as revealed by the record and on the plaintiff's version of the facts where there are disputes.  Melo v. Hafer, 13 F.3d 736, 745 (3d Cir.1994) ("If, after the summary judgment practice prescribed by that rule, the undisputed facts of record demonstrated entitlement to immunity, the Court would ignore the bare allegations of the complaint and grant summary judgment on grounds of immunity.");   see also Brown v. Grabowski, 922 F.2d 1097, 1110-11 (3d Cir.1990), cert. denied, 501 U.S. 1218, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991).  In this case, the extensive record includes the discovery and investigative reports from a state grand jury and a special commission which studied the incident.  These materials are particularly significant because Ramona Africa, the only surviving witness from inside the premises who has testified for the plaintiffs as to the events that occurred on May 13, 1985, has limited knowledge of the facts because she was in the cellar with the children for most of that day and did not hear any of the announcements made by either police officers or MOVE members.  See app. at 1362-65
                

In the early 1980's MOVE members took up residence at 6221 Osage Avenue, Philadelphia. By any standard they were a disrupting neighborhood force. Some used loudspeakers to communicate threats and dissatisfaction to their neighbors. Furthermore, the Probable Cause Affidavit (the Affidavit) supporting the issuance of the warrants executed on May 13, 1985, states that a MOVE member had threatened Mayor Goode, calling him "a nigger motherfucker" and indicating that "we have a bullet for [Mayor Goode] ... to blow his motherfucking head off. If we have to, we will go down to City Hall and put six in his head." App. at 2294. The Affidavit also states that the same MOVE member announced, "[w]e will kill any motherfucking cop that comes to the front, back or our goddamned roof," and threatened two police officers that if they "come back around here again, we'll kill you; put a bullet in your head." Id.

The Affidavit states further that several neighbors said that "they heard MOVE members say over the loudspeakers that they have...

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