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PATTERSON v. CITY OF CHESTER

February 21, 1975

BESSIE PATTERSON a/k/a BESSIE P. ALLISSON
v.
CITY OF CHESTER, et al



The opinion of the court was delivered by: WEINER

 WEINER, J.

 This § 1983 action involves the summary dismissal by the City of Chester of an employee in the city's Bureau of Health. It is alleged that the plaintiff was dismissed without a hearing and in violation of her First Amendment rights. It is also alleged that the dismissal violates Pennsylvania's "Anti-Macing" Act. Defendants have presently moved to dismiss the action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure alleging: (1) that § 1983 does not provide jurisdiction nor is there $10,000 in controversy to permit general federal question jurisdiction; (2) that plaintiff was not entitled to a pre-termination hearing; (3) that there is no foundation for the claim that First Amendment rights were violated; and (4) that the court does not have pendant jurisdiction over the state law claim and that even if it did, the claim is without merit.

 The general procedural and factual background of this case will be briefly set forth. Plaintiff was permanently employed for a number of years as a secretary in the Bureau of Health for the City of Chester. During this period she became the leader of a local consumer protection citizens group. Her supervisors were aware of her activities and had on several occasions permitted her to take time off to pursue her consumer organization activities. On October 24, 1974, she led a march to protest certain practices of the Philadelphia Electric Company. As a result she was late getting back from her lunch break. The next day she had an acrimonious meeting with Mr. Sharp, the Director of Public Safety, where her tardiness of the previous day was said to be the culmination of a pattern of misconduct which now required her dismissal. Her dismissal was made effective immediately and she commenced this action shortly thereafter.

 Initially plaintiff sought immediate reinstatement by means of a temporary restraining order. After a conference with the court, the parties agreed that the City of Chester would as soon as possible conduct a full evidentiary hearing to determine whether plaintiff was properly terminated for cause. On November 20, 1974, the hearing was held before Mayor Nacrelli and two City Council members. A finding was made that the dismissal was justified and that the evidence adduced at the hearing substantiated her dismissal on the grounds of excessive lateness, insufficient and poor work production, and being a disruptive influence in the office. Thereafter, this motion was filed.

 I. JURISDICTION

 We will first address the question of whether the court has jurisdiction over the City of Chester. If the complaint states a cause of action under 42 U.S.C. § 1983, then jurisdiction over the constitutional claims is conferred by 28 U.S.C. § 1343(3), otherwise plaintiff must satisfy the requirements of general federal question jurisdiction under 28 U.S.C. § 1331. *fn1" The Supreme Court has specifically held that a municipality cannot be sued under § 1983, regardless of whether damages or injunctive relief is sought. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Therefore, jurisdiction, if any, must lie under § 1331.

 Having found that jurisdiction over the City of Chester is proper, we must determine whether a cause of action is stated despite the unavailability of § 1983. Plaintiff contends that a cause of action can be derived directly from the constitutional guarantees of the First and Fourteenth Amendments. Plaintiff analogizes this proposition to the case of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), where the Court found that a federal remedy for damages could be based directly on the Fourth Amendment. The use of the equitable power of the federal courts against municipalities in the manner suggested by plaintiff has been implicitly approved by our Circuit Court and expressly applied by one of our brothers in this court. Skehan v. Board of Trustees of Bloomsburg State Col., 501 F.2d 31, 44 (3d Cir. 1974); Maybanks v. Ingraham, 378 F. Supp. 913, 914-916 (E.D. Pa. 1974) (Lord, Ch. J.). See also, United Farm. of Fla. H. Proj. Inc. v. City of Delray Beach, 493 F.2d 799, 802-803 (5th Cir. 1974); Dahl v. City of Palo Alto, 372 F. Supp. 647, 649-651 (N.D. Cal. 1974); Note, 87 Harv. L. Rev. 252, 261-262 (1973). While this question is certainly not one free of doubt, we believe a presumption in favor of providing a federal remedy should exist when federally protected rights have allegedly been violated. Therefore, we will follow the precedent already set in this court and permit the plaintiff to assert a cause of action based directly on the First and Fourteenth Amendments of the United States Constitution. *fn2"

 The individual defendants also challenge subject matter jurisdiction over them. They contend that § 1983 and § 1343(3) are inapplicable because any relief awarded against them would be equivalent to ordering relief against the city which cannot be reached under § 1983. See Kenosha, supra. A similar argument that § 1983 cannot be used against state officials who act within the scope of their authority was recently rejected by our Circuit Court. Rochester v. White, 503 F.2d 263, 266-267 (3d Cir. 1974). § 1983 has always been used to redress the deprivation of constitutional rights by state and local officials and to accept defendants' argument would eliminate most of its potency. In any event, as we have found the city subject to our jurisdiction under § 1331 and as the identical federal claims are also made against the individual defendants, these defendants would a fortiori also be subject to § 1331 jurisdiction. Our conclusion is that the individual defendants are properly before the court either under § 1983 and § 1343(3) or under § 1331.

 II. PLAINTIFF'S RIGHT TO A PRE-TERMINATION HEARING

 Plaintiff argues that she had the right to a hearing prior to her dismissal. See Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The crucial question in determining whether plaintiff had such a right is whether under state law plaintiff has a property interest in her continued employment. See Roth, supra at 577 ; Skehan, supra at 37-38. In Skehan, the court set forth guidelines for determining whether a state employee had been improperly dismissed without a hearing:

 
The appropriate analysis is to determine, under applicable state law, the nature and extent of the contract right and, if the contract right has been terminated other than by expiration of its term, to consider whether the method of termination comported ...

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