In re City of Philadelphia Litigation, Master File No. 85-2745. Civ. A. No. 87-2678

• Decision Date: 18 January 1996
• Docket Number: Master File No. 85-2745. Civ. A. No. 87-2678,85-3528 and 87-2756.
• Citation: 938 F. Supp. 1264
• Parties: In re CITY OF PHILADELPHIA LITIGATION. Ramona AFRICA v. CITY OF PHILADELPHIA, et al. Louise JAMES, Administratrix of the Estate of Frank James v. CITY OF PHILADELPHIA, et al. Alfonso LEAPHART, Administrator of the Estate of Vincent Leaphart v. CITY OF PHILADELPHIA, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

938 F. Supp. 1264

In re CITY OF PHILADELPHIA LITIGATION.

Ramona AFRICA v. CITY OF PHILADELPHIA, et al.

Louise JAMES, Administratrix of the Estate of Frank James v. CITY OF PHILADELPHIA, et al.

Alfonso LEAPHART, Administrator of the Estate of Vincent Leaphart v. CITY OF PHILADELPHIA, et al.

Master File No. 85-2745. Civ. A. Nos. 87-2678, 85-3528 and 87-2756.

United States District Court, E.D. Pennsylvania.

January 18, 1996.

Andre L. Dennis, Stradley, Ronon, Stevens & Young, LLP, Philadelphia, PA, for Ramona Africa.

Ramona Africa, Philadelphia, PA, pro se.

Arlene F. Bell, City of Philadelphia, Law Department, Philadelphia, PA, Debra M. Russo, Philadelphia, PA, E. Jane Hix, City of Philadelphia Law Dept., Philadelphia, PA, for City of Philadelphia.

Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, for Willie Goode.

Steven R. Waxman, R. James Kravitz, Fox, Rothschild, O'Brien & Frankel, Philadelphia, PA, Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, for Leo A. Brooks.

Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, John W. Morris, Philadelphia, PA, for Gregore Sambor.

Stephen J. Imbriglia, Hecker, Brown, Sherry and Johnson, Philadelphia, PA, Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, Peter C. Kennedy, Hecker, Brown, Sherry and Johnson, Philadelphia, PA, for William Richmond.

Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, for Frank Powell, Lt.

John R. O'Donnell, Zarwin & Baum, P.C., Philadelphia, PA, Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, for William Klein.

Laura Fredricks, Deputy Attorney General, Philadelphia, PA, Arlene F. Bell, City of Philadelphia, Law Dept., Philadelphia, PA, Debra M. Russo, Philadelphia, PA, John O.J. Shellenberger, III, Office of Attorney General, Philadelphia, PA, for Morris Demsko, Richard Reed.

Fincourt B. Shelton, Darby, PA, for Louise James.

Rosemarie Rhodes, Harper & Paul, Philadelphia, PA, for Alfonso Leaphart.

OPINION^*

LOUIS H. POLLAK, Senior District Judge.

The questions to be addressed this afternoon are motions filed by the defendants Brooks, Sambor and Richmond.

The motions filed by these defendants relate to the claims which the plaintiffs have brought against these defendants under state law, that is to say the law of Pennsylvania, alleging that the events surrounding the dropping of the bomb back in May of 1985 generated liability under state law against these defendants.

As those familiar with this litigation know and know well, the state law claims are one portion of a litigation which, insofar as the jurisdiction of this court is concerned, took its inception in claims arising under federal law both against these defendants and other individual defendants who are no longer in the case and against the City of Philadelphia.

And the entire controversy has been before the courts at various levels for many years. The litigation was before Magistrate Judge Hall, it was before me, and most recently it was before the Court of Appeals which disagreed with various rulings which I had made and the matter is now back before me once again.

Certain issues have, since the remand from the Court of Appeals, already been addressed in a memorandum opinion issued last month that dealt with certain motions by the plaintiffs to reinstate certain claims which had theretofore been dismissed by me. And I have concluded that reinstatement of those claims was appropriate.

What today we are addressing are the claims that remain under the law of Pennsylvania as they relate to the defendants Brooks, Sambor and Richmond. There are two grounds on which dismissal or, in the alternative, summary judgment is sought with respect to those claims.

The first ground to be discussed is the contention that because there are no longer any federal claims pending in this litigation against these three defendants, there is no longer occasion for this court to address state claims against these defendants.

The second ground for the motions is that, so it is contended, even if this court has authority — that is to say jurisdiction, and a jurisdiction that discretion suggests should be exercised — to entertain state law claims against these defendants notwithstanding that there are no longer federal claims pending against them, the record would not support a finding of liability against any of these three defendants.

Specifically, the contention is that these three defendants are immune from liability under the law of Pennsylvania unless they have engaged in what the statute law of Pennsylvania calls "willful misconduct." And it is contended on behalf of all three of these defendants that the record could not support a finding of willful misconduct.

Now, let me turn first to the contention of the defendants that I am without jurisdiction or, as it may alternatively be phrased, that if I have jurisdiction to entertain the state law claims, it would be an abuse of discretion to exercise that jurisdiction.

Basically, what is at issue here is the following: this case was brought in this federal district court on the ground that the actions of the many individual defendants who were initially named, and of the City of Philadelphia, were actions that gave rise to liability under federal law, specifically, the Constitution of the United States and, most precisely, the Fourth Amendment of the Constitution (via the Fourteenth Amendment).

There were, to be sure, other constitutional claims made but those have gone by the wayside as this case has proceeded and the focal issue on the federal side of the case was whether the dropping of the bomb, the events attendant on that dropping, and the fire that ensued, constituted transgressions of the Fourth Amendment which had victimized these plaintiffs.

Conjoined with the federal claims were state law claims arising out of precisely the same events and asserting that, under the law of the Commonwealth, public officials had engaged in conduct which constituted, within the meaning of the law of Pennsylvania, a use of excessive force: the dropping of a bomb and the letting a fire burn in order to undertake to accomplish the arrests of the several persons — members of the so-called MOVE group — whom the law enforcement authorities of the City were trying to arrest.

The state law claims could be pursued in this court because they were linked to federal claims which grew out of the very same events. It was the federal claims that provided the basis in federal jurisdiction for this court to have the state law claims, known as pendent claims, claims that depend on the existence of the initiating federal claims.

After extended litigation it was my view as of early 1994 that this case could go to trial both on federal claims and on state claims, that federal claims were assertable against the City of Philadelphia and also against these three individual defendants. General Brooks was the City's Managing Director, Commissioner Sambor was the Commissioner of Police, and Commissioner Richmond was the Fire Commissioner. It was my view that that set of federal claims could be tried together with state law claims.

The Court of Appeals, in a decision last year, concluded that I was in error in supposing that Messrs. Brooks, Sambor and Richmond were suable on the federal claims. Those three officials, the Court of Appeals concluded, were entitled to immunity from suit and hence as to them these actions cannot be maintained.

That meant that the federal claims to be tried in this court would be claims that would lie solely against the City of Philadelphia.

The three individual defendants having been dismissed from the federal case now take the position that there are no longer federal claims against them to which state claims against them can be attached as so-called pendent claims.

Their argument is not without force. As I have undertaken to suggest, the general architecture of this lawsuit was one which predicated the state law claims as claims which were assertable in this court because they were pendent to claims against the same defendants, Messrs. Brooks, Sambor and Richmond, which were in this court because of their federal character.

With the federal claims against these three defendants removed, so the argument runs, there is no longer a basis for a federal court to entertain lawsuits which are solely based on state law against these three defendants.

It would appear that the argument would lead to the conclusion that the proper place for assertion of the state law claims is in a court of the Commonwealth, a Common Pleas Court, and not in this United States District Court.

There is language in the rulings of the United States Supreme Court that lends credence to the proposition that a dismissal of federal claims leads to the dismissal of pendent state claims. A lot of authority running in this direction can be found in the Gibbs case which is perhaps the principal early doctrinal exposition of the relationship between federal claims and pendent state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-29, 86 S.Ct. 1130, 1138-41, 16 L.Ed.2d 218 (1966).

More fully articulated, however, the jurisprudence of the Supreme Court appears to be that when federal jurisdiction has attached as an initial matter through the assertion of federal claims together with pendent state claims, and those federal claims remain before the Court for some significant period of development of the case, that is to say they are not dismissed right at the outset on a motion to dismiss, the question whether the later dismissal of the federal claims in turn calls for dismissal of the state claims is no longer a question of power, that is jurisdiction in...