Oburn v. Shapp, Civ. A. No. 75-619
| Decision Date | 05 March 1975 |
| Docket Number | Civ. A. No. 75-619,75-631. |
| Citation | 393 F. Supp. 561 |
| Parties | Robert Paul OBURN et al. v. Milton SHAPP et al. Donald LUTZ and Michael Warfel, Plaintiffs, v. Milton SHAPP et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Allen E. Ertel, William S. Kieser, Williamsport, Pa., for plaintiffs.
Norman J. Watkins, Lawrence F. Clark, Jr., Harrisburg, Pa., Harold I. Goodman, Philadelphia, Pa., for defendants.
Plaintiffs in both of the above captioned actions have moved for a preliminary injunction enjoining defendants "from appointing, seating or training any applicants to the State Police Academy or otherwise hiring any personnel for the State Police as police officers and from promoting any persons within said organization", pending the final hearing and determination of the actions. In C.A. 75-619, hereinafter referred to as the Oburn case, Mr. Oburn and five other individuals filed a complaint alleging that it was filed individually and on behalf of all other persons similarly situated alleging that the procedure followed by defendants in selecting a class of cadets for training to be members of the State Police violated certain rights of plaintiffs, most particularly plaintiffs' rights to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and alleged rights of plaintiffs under the Civil Rights Law of the United States, 42 U.S.C.A. § 1983. All of the individual plaintiffs alleged that their scores on a written examination were higher than the scores achieved by certain minorities and Spanish-surnamed individuals who have been selected for the class and plaintiffs contend that by virtue of the higher scores plaintiffs should have been selected for further processing which is a necessary step to admission to the class. The Oburn case also has as named plaintiffs the Conference of State Police Lodges of the Fraternal Order of Police which is described as an unincorporated association representing all Pennsylvania State Police throughout the state. The Conference is described as the official bargaining agent in labor negotiations for the Pennsylvania State Police and the complaint alleges that the Conference brings this action on behalf of all members of the State Police and all others who may become similarly situated. The Conference seeks to enjoin the admission of the class of cadets scheduled to start training on March 6, 1975 and also to enjoin the promotion procedures of the State Police as they are now being administered. Promotion examinations are not presently scheduled and the parties have agreed that a determination of plaintiffs' request for injunctive relief in regard to promotion procedures be deferred and that the only matter presently before the Court for determination is plaintiffs' motion to enjoin the admission of the class of cadets scheduled for March 6.
The defendants named in the suit are Governor Milton Shapp, the Commissioner of the Pennsylvania State Police, James D. Barger, then Attorney General, Israel Packel, the Director of the Office of Administration, Richard Madison, the Lieutenant Governor, Ernest P. Kline, and the Director of the State Civil Service, Richard Rosenberry. All of said defendants are sued both individually and in their official capacities.
In C.A. 75-631, hereinafter referred to as the Lutz case, there are two plaintiffs who claim to bring the action on their own behalf and of all others similarly situated pursuant to Rule 23(a) and (b) of F.R.Civ.P. Plaintiffs Lutz and Warfel allege that after final processing they placed number 139 and number 122 respectively on the list of those eligible for appointment as cadets, and that in fact they were not accepted, notwithstanding the fact that 153 persons were accepted for entrance into the cadet class. They allege that 40 of the persons accepted were not among the persons receiving the 153 highest scores and that they were passed over in favor of persons classified as minority or Spanish-surnamed. In the Lutz complaint, the same persons are named as defendants as are set forth in the Oburn complaint with the exception that the present Attorney General, Robert T. Kane, is named as a party defendant instead of the former Attorney General, Israel Packel.
The history of the Oburn case reveals that the action was first filed in the United States District Court for the Middle District of Pennsylvania and that, pursuant to plaintiffs' motion, Judge Herman to whom the case was assigned requested the convening of a three-judge court. On February 18, 1975 a three-judge court was convened, consisting of the Hon. Joseph F. Weis, Jr., United States Circuit Judge, and the Hon. Michael H. Sheridan, Chief Judge, and the Hon. R. Dixon Herman of the United States District Court of the Middle District of Pennsylvania. The order further provided: "The Court so convened is free to determine whether the subject matter of the action creates a proper case for a Three-Judge Court." After hearing on February 27, 1975, the Three-Judge Court deferred ruling on any of the motions pending before the Court except the motion filed on behalf of defendants to transfer the case to the Eastern District of Pennsylvania, and after entering the transfer order the statutory Three-Judge Court was dissolved. The Oburn case was filed on January 3, 1975, and the ruling of the Three-Judge Court concerned only the Oburn case.
The Lutz case was filed in the United States District Court for the Middle District of Pennsylvania on February 24, 1975. On February 27, Judge Herman, in an action independent of the Three-Judge Court, denied the preliminary injunction requested by plaintiffs Lutz and Warfel; however, on the 28th day of February, 1975, Judge Herman vacated his order of February 27, denying the preliminary injunction, and transferred the Lutz case to the United States District Court for the Eastern District of Pennsylvania, "because the above case is a companion to Bolden v. Pennsylvania State Police, C.A. No. 73-2604 (E.D.Pa.)."
On Monday, March 3, 1975, I received a request from counsel for plaintiffs to set a time for hearing on their request for a preliminary injunction and the Court advised counsel for plaintiffs that said hearing would be scheduled for later in the afternoon of March 3. Counsel for plaintiffs requested additional time for preparation and the hearing was then scheduled for 9:30 A.M. on Tuesday, March 4. The hearing scheduled for March 4, was held as scheduled and was finally concluded at 10:30 P.M. on March 4, after both plaintiffs and defendants had full opportunity to offer all of the evidence which they desired and to make full legal argument to the Court. Now, March 5, 1975, we enter an order determining the issues presented to the Court and, by said order, deny plaintiffs' request for a preliminary injunction to enjoin the defendants from admitting a class to the State Police Academy as scheduled on March 6, 1975.
To understand the issues involved in Oburn and Lutz, we must judicially notice and discuss the Consent Decree entered in the matter of Bolden, et al. v. Penna. State Police, et al. filed in the United States District Court under C.A. No. 73-2604. Bolden filed an action, on his own behalf and behalf of all others similarly situated, seeking injunctive and declaratory relief against the Pennsylvania State Police; Col. James D. Barger, the Commissioner of the Pennsylvania State Police; Governor Milton J. Shapp; Lieutenant Governor Ernest P. Kline; Richard Madison and Richard Rosenberry; all of whom are also defendants in the Oburn and Lutz civil actions. In addition, Bolden named as defendants Ronald G. Lynch, the Secretary of the Office of Administration; Grace Hatch, John McCarthy and C. Herschel Jones, Commissioners of the State Civil Service. All of the defendants named in the Bolden civil action were sued both in their official capacity and individually. The jurisdiction of this Court was invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4), plaintiff alleging that the action arose under the Thirteenth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §§ 1981, 1983, 1985(3) and 1988. The thrust of the complaint charged that the Pennsylvania State Police discriminated against minorities and Spanish-surnamed in its hiring and promotional practices and said discrimination was alleged to be based on race.
On February 12, 1974, plaintiffs in the Bolden action moved for a preliminary injunction. Thereafter, on February 26, 1974, plaintiffs sought an order pursuant to Rule 23(b)(2) of the F.R. Civ.P. that the action proceed as a class action on behalf of the following subclasses:
On March 8, after a hearing, an order was entered reinstating plaintiff Bolden as a member of the Pennsylvania State Police and the action thereafter continued in regard to the class action relief. On March 19, 1974, Howard Richard, Esq., entered his appearance for one Leo Pierce who moved to intervene as a defendant in the action. Said motion stated in pertinent part:
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Oburn v. Shapp
...as the minimum passing score 60 correct answers out of 120 questions on the written examination. 8 In Oburn v. Shapp, 393 F.Supp. 561 (E.D.Pa.1975) (hereinafter the Oburn case), the individual plaintiffs were white 9 applicants who scored 60 or more on the written examination. 10 In their c......
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Rode v. Dellarciprete
...PSP administrative regulations under which Rode was suspended.3 See Bolden v. Penna. State Police, 73-2604 (E.D.Pa.1973); Oburn v. Shapp, 393 F.Supp. 561, aff'd 521 F.2d 142 (3d Cir.1975); Bolden v. Penna. State Police, 491 F.Supp. 958 (1980).4 Rode's claim for damages is predicated on her ......
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Bolden v. Pennsylvania State Police
...either a reasonable probability of eventual success or irreparable injury sufficient for Pendente lite relief. Oburn v. Shapp, 393 F.Supp. 561 (E.D.Pa.1975). The plaintiffs appealed pursuant to 28 U.S.C. § 1292(a), but this court affirmed the decision below. Oburn v. Shapp, 521 F.2d 142 (3d......
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Navarro-Ayala v. Hernandez-Colon
...pursuant to the stipulated terms, this may sufficiently imply certification for purposes of Fed.R.Civ.P. 23(c)(1). See Oburn v. Shapp, 393 F.Supp. 561 (E.D.Pa.) (holding that where the action was filed as a class action and a consent decree was entered into, entry of the consent decree was ......