Gregris v. Edberg

• Decision Date: 18 September 1986
• Docket Number: Civ. A. No. 81-497. Misc. No. 12826.
• Citation: 645 F. Supp. 1153
• Parties: Jim GREGRIS, Elaine Nesser, Randolph Zacour and American Federation of State, County and Municipal Employees, District Council 84, AFL-CIO, Plaintiffs, v. Sanford EDBERG, individually and as Coroner of Allegheny County, Pennsylvania; Michael Cassidy, individually and as Chief Deputy Coroner of Allegheny County; Tom Foerster, individually and as Chairman of the Allegheny Commission; Dr. William Hunt, individually and as a member of the Allegheny County Commission and Cyril H. Wecht, individually and as a member of the Allegheny County Commission, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

645 F. Supp. 1153

Jim GREGRIS, Elaine Nesser, Randolph Zacour and American Federation of State, County and Municipal Employees, District Council 84, AFL-CIO, Plaintiffs, v. Sanford EDBERG, individually and as Coroner of Allegheny County, Pennsylvania; Michael Cassidy, individually and as Chief Deputy Coroner of Allegheny County; Tom Foerster, individually and as Chairman of the Allegheny Commission; Dr. William Hunt, individually and as a member of the Allegheny County Commission and Cyril H. Wecht, individually and as a member of the Allegheny County Commission, Defendants.

Civ. A. No. 81-497. Misc. No. 12826.

United States District Court, W.D. Pennsylvania.

September 18, 1986.

Alaine S. Williams, Philadelphia, Pa., for plaintiffs.

Vincent C. Murovich, Ira Weiss, Deputy County Sol., Arnold Friedman, Pittsburgh, Pa., for defendants.

OPINION

ROSENBERG, District Judge.

This matter presently before me is an outgrowth of a final judgment entered in this Court on August 23, 1985 and affirmed by the Court of Appeals for the Third Circuit, Gregis et al. v. Sanford Edberg et al., 787 F.2d 581, 582 (1986).

A new previously mutually dismissed party, the County of Allegheny, has interjected itself again on an issue which threatens to obstruct the jurisdictional functioning of the court. Three employees of the Coroner's office were dismissed politically and without cause. They brought suit in this court and recovered a judgment against the incumbent, dismissing Coroner, Sanford Edberg, and against the Coroner's office for the sum of $29,196.94, and as heretofore stated, affirmed. The plaintiffs' counsel then issued an attachment execution against the personal assets of the Coroner's office, and the County of Allegheny brought itself in as a party and claimed ownership of all the assets of the Coroner's office.

The present proceeding took an untoward turn after the matter was called for two arguments on the basis of first, whether or not the personal property in the Coroner's possession was subject to attachment and execution; and second, for attorneys' fees.

Counsel for the plaintiffs was permitted to open the arguments into a hearing and a court reporter was called for this occasion. Counsel presented evidence through his county employee witnesses that the claims for salaries of the plaintiffs were presented by warrant to the County Commissioners for payment and that these particular salaries had not been included in the budget for the regular salaries of the Coroner's office; that the matter was presented to the proper authorities, and especially to the County Commissioners, for authorization of payment of the warrant by the Commissioners and the County Treasurer; and that it was rejected without any recorded reason, and no reason was introduced into evidence by the County. Therefore, it is undoubted that there was an appropriate process by the Controller's office to have the County pay the salaries in the usual course of business and for the money to come out of the County Treasury, but that the Commissioners neglected to honor that warrant; and I so find.

Since no reason was shown, one may conclude that because this was a political matter originally, the political aspect may have continued, but to draw this conclusion would not be fair without evidence to that effect. The more logical conclusion is that since the County Commissioners are advised by the County Solicitor and his staff, the matter had been referred to the Solicitor and the Commissioners were not advised to make payment of the claims. Since such action amounts also as well to the rejection and dishonoring of the judgment of the Federal Court, and since no reasons have been given or appear on why such a judgment was dishonored, this court finds it judicially appropriate to enforce its judgment by due process of law.

What is due process of law here? The evidence in this case shows that all the revenue and income of the Coroner's office was and is turned over to the County Treasurer, and that warrants were and are issued for payment of all expenses of the office to the County Treasurer by the County Commissioners and processed for payment of these amounts. Since the income of the Coroner's office enriched the County Treasurer, and it is through the County Treasury that all expenses are taken out of presumably this fund contributed and submitted by the Coroner's office, it would seem unreasonable that the County should be legally entitled to retain all of the funds and not pay legitimate, legal and judicial obligations imposed upon the office in the same way it would for all other debts of the Coroner's office, which includes salaries. Thus, the claims for which judgment was entered here are such obligations and became the obligations of the County Commissioners, who controlled the payment of debts by warrant to the County Treasurer.

The deputy county solicitor who represented the County Commissioners has himself suggested that the plaintiffs' appropriate remedy was by mandamus; and there is sufficient evidence in this case which would warrant the issuance of a writ of mandamus. Counsel for the plaintiffs was asked why he did not request such a writ of mandamus to the court, and his explanation was flimsy. He said primarily it would take six years for termination of such a proceeding. The fact that counsel's judgment was such, is not necessarily factual, since it is incumbent upon this court now no matter what counsel may have had in mind, to act expeditiously to bring justice to fruition as soon as possible.

Here are three former employees of the Coroner's office who are entitled to their salaries and all three of whom have not been paid since 1981. It is strengthened and supported by a judgment of this court, and payment of this judgment should be honored.

This action has been delayed so overlong that it is not to the credit of this court nor for the benefit of the parties that it be delayed any longer. That delay must be stopped and without further incurrence of potential enormous expenses for attorneys' fees to the public. Thus, it is incumbent that the salaries of the former employees be paid as soon as possible and the attorneys' fee claims be stopped.

Odd as it may seem, it would be unthinkable to attach public property such as that which the Coroner uses every day in the week for vital purposes and deprive the public, as well as the Coroner, of its use. This I cannot sanction. Therefore, I deem it incumbent upon me to provide a remedy that will produce justice for the plaintiffs and not permit an obligor to flaunt the judgment of this court. Federal courts are deemed to be courts of justice and equity. This is a case in which justice can be done even though not in accord with the prayer of the plaintiffs or the present defendant, County of Allegheny.

As I stated before, counsel for the County mentioned that it would have been appropriate for the plaintiffs to have procured a Writ of Mandamus against the County Commissioners to compel payment. Although he was logically correct, he was not legally correct in this court as a follow-up for enforcement of its judgment. Ordinarily, where the court has the power, mandamus does lie to compel officers with discretionary powers to take action. Drew v. Lawrimore, 380 F.2d 479 (C.A. 4, 1967), cert. den. 389 U.S. 974, 88 S.Ct. 475, 19 L.Ed.2d 467 (1967). Only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined will mandamus issue. Ralph Jackson v. Cecil McCall, 509 F.Supp. 504 (D.C. D.C., 1981). No new rights can be acquired in a mandamus action, the purpose of which is to enforce rights already vested. Klupt v. Blue Island Fire Dept., 489 F.Supp. 195 (D.C.Ill., 1980). Mandamus generally does not lie where there is another remedy available. Spacil v. Crowe, 489 F.2d 614 (C.A. 5, 1974.)

However, we are required to follow the Federal Rules of Civil Procedure. Rule 81(b) states:

"(b) Scire Facias and Mandamus. The writs of scire facies and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules."

Thus it is that a writ of mandamus does not exist in the district court jurisdiction. Finley v. Chandler, 377 F.2d 548 (C.A.9), cert. den. 389 U.S. 869, 88 S.Ct. 146, 19 L.Ed.2d 147 (1967). Even though the writ of mandamus has been abolished, the court can give the same relief that would be called for by mandamus by using other methods provided by law. Willis v. White, 310 F.Supp. 205 (D.C.La., 1970). A motion to enforce judgment is a proper procedure to be utilized to compel compliance with the court's decision where the court's decree had been willfully and deliberately violated. Mississippi Valley Barge Line Co., et al. v. United States, 273 F.Supp. 1 (D.C.Mo.1967), aff'd. 389 U.S. 579, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968).

The abolition of a writ of mandamus does not proscribe a district court from the efficacious undertaking by Congress when it enacted the following:

"§ 1651. Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." All Writs Statute, 28 U.S.C. § 1651, as amended May 24, 1949, c. 139, § 90, 63 Stat. 102.

In the careful reading of Rule 81(b), it will be seen that "relief ... may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules", and § 1651 says that the Supreme Court and federal courts established by the Act of Congress " ... may issue all writs necessary or appropriate in aid of their respective jurisdictions ..."

While Rule 81(b) did indicate that relief was to be initiated by one seeking the aid of the court, § 1651 vests all initiative in "The Supreme Court and all courts established by ...