Circuit in Jackson.9 To the extent that there is a conflict, the Supreme Court's expressed view must, of course, prevail. I conclude, therefore, that although the Utility Defendants have no constitutional obligation to furnish gas service to citizens of Philadelphia, their voluntary decision to do so means that such service, once extended, may not be terminated on the ground of non-payment except through fundamentally fair procedures to determine whether, in fact, the disputed bill is correct and has not been paid.
Here, too, as in Goss, there is a specific statutory basis for plaintiffs' claim of entitlement to continued service. Pennsylvania law mandates that "[every] public utility shall furnish and maintain adequate, efficient, safe and reasonable service and facilities . . . Such service also shall be reasonably continuous and without unreasonable interruption or delay." 66 P.S. § 1171. This statute gives plaintiffs and their class a "legitimate claim of entitlement" to uninterrupted gas service, and this property interest cannot be interfered with except in a manner consistent with the requirements of the due process clause. 419 U.S. at 573.
Goss also lays to rest the argument, pressed by defendants here, that only "fundamental" interests in liberty or property are entitled to pre-deprivation procedural safeguards. The defendants contend that plaintiffs are adequately protected by post-payment refund procedures and are merely required to suffer temporary and de minimis deprivation by having to pay a disputed bill in order to forestall termination of service. This is plainly wrong.
To require low-income customers either to pay (on short notice) a sum of money representing a good portion of their entire monthly income or to face termination of their gas service is a grievous interference with their constitutionally protected property interest in continuous service, and can by no stretch of the imagination be characterized as " de minimis." Goss v. Lopez, supra, 419 U.S. at 575-76. It must be assumed, therefore, that some form of pre-deprivation procedural safeguards are required. At bottom, then, defendants' argument goes to the merits of plaintiffs' due process claim and has no place in the context of a motion to dismiss for failure to state a claim. The question is not what due process requires, but simply whether due process is required. I have ruled that it is. The Complaint states a claim for relief under § 1983, there is subject matter jurisdiction under 28 U.S.C. § 1343(3), and the Utility Defendants' motions to dismiss will be denied.
III. The Municipal Defendants' Motions to Dismiss
The City of Philadelphia (the City) and the Philadelphia Gas Commission (PGC) (collectively, the "Municipal Defendants") have moved to dismiss the Complaint for lack of jurisdiction and failure to state a claim. Their motions will be granted on the first of these grounds.
Plaintiffs concede that the City is not a "person" within the meaning of 42 U.S.C. § 1983 and therefore is not amenable to suit, either for damages or equitable relief, under that statute. 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). Neither is PGC, which is an arm of City government pursuant to Article III, §§ 3-100(f), 3-309 of the Philadelphia Home Rule Charter. Jorden v. Metropolitan Utilities District, 498 F.2d 514 (8th Cir. 1974); Edwards v. Philadelphia Elec. Co., 371 F. Supp. 1313, 1316-17 (E.D. Pa. 1974), aff'd without opinion, 510 F.2d 969 (3d Cir. 1975); U.S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3d Cir. 1969), cert. denied 396 U.S. 1046, 24 L. Ed. 2d 691, 90 S. Ct. 696 (1970).
The issue, then, is whether there is an alternate basis for the exercise of federal subject matter jurisdiction over the Complaint as against the Municipal Defendants. Plaintiffs propose federal question jurisdiction, 28 U.S.C. § 1331(a). The Municipal Defendants dispute this, contending, among other things, that the "matter in controversy" here does not surpass the jurisdictional sum of $10,000.
I have reviewed the Complaint and the motion papers on this point. With all due deference to the plaintiffs' proposed valuation of the claims asserted in this case,
I nevertheless have concluded, for the reasons stated below, that the Municipal Defendants' position is correct, and that there is no jurisdiction here under § 1331(a).
The rule enunciated by the Supreme Court in Hague v. CIO, 307 U.S. 496, 507-08, 83 L. Ed. 1423, 59 S. Ct. 954 (1939), and recently cited approvingly in City of Kenosha v. Bruno, 412 U.S. 507, 514, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973), is that where a defendant disputes the value of the matter in controversy -- even in a case seeking to redress the alleged denial of the most precious constitutional rights
-- the plaintiff must present "substantial proof" in support of his position that the jurisdictional amount requirement indeed has been met. At bottom, of course, this is nothing more than an elaboration of the fundamental principle that the party asserting federal subject matter jurisdiction has the burden of proving it. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). Jurisdiction under § 1331(a) cannot be assumed, although in the absence of a defense challenge, the plaintiff's good faith claim is usually accepted. As the Third Circuit recently admonished, it is "incumbent" upon the courts to make findings of "jurisdictional facts" in support of the exercise of federal question jurisdiction, given the "Congressional mandate" to restrict jurisdiction in this area. Sedivy v. Richardson, 485 F.2d 1115, 1117 (3d Cir. 1973), cert. denied, 421 U.S. 910, 95 S. Ct. 1559, 43 L. Ed. 2d 774 (1975). But see Lynch v. Household Finance Corp., 405 U.S. 538, 550, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972) (suggesting that this policy of constricted jurisdiction is aimed primarily at the burgeoning diversity caseload under § 1332).
Plaintiffs' position is that even under the stiffer requirement of Hague, they have carried their burden of demonstrating that the "matter in controversy" here has a value in excess of $10,000 excluding interest and costs. In support of this position, however, they have adduced no new "proof" (much less "substantial proof") of the value of their claims, but rather have rested on the allegations contained in the Complaint and have sought to draw inferences therefrom to justify their conclusion that there is a requisite sum in controversy. My analysis of the pleadings does not support plaintiffs' position.
I note, first, that there is no specific allegation, either in the original Complaint or the Complaint in Intervention, that "the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs," 28 U.S.C. § 1331(a), although para. 2 of the Complaint asserts jurisdiction under that statute. This, of course, could be considered merely a technical defect in pleading, were it possible to conclude, from a reading of the entire Complaint, that the value of the claims asserted on behalf of each of the named plaintiffs surpassed the jurisdictional amount.
Put another way, if it appeared that the claim of any named plaintiff failed to exceed $10,000, plaintiffs' entire argument for § 1331(a) jurisdiction would fail. Amen v. City of Dearborn, 532 F.2d 554, 559 (6th Cir. 1976). So it is here.
Flora Bowman is one of the named plaintiffs in this case. She alleges that she was forced, as a condition for obtaining gas service, to agree to pay an exorbitant security deposit. The gist of her claim is that because she is on welfare, it is a great hardship for her to pay this deposit, even in installments, and that should she default, defendants might terminate her gas service. The actual sum of money involved in the Bowman case is, at most, $200 (the security deposit originally demanded of her, which later was reduced to $120 or $60 after negotiations between Mrs. Bowman's attorney and PGW personnel.)
Mrs. Bowman's gas service has not been shut off, nor is she immediately threatened with termination. Thus, she cannot claim, as other plaintiffs do, that the defendants' conduct has caused her to suffer severe physical hardship, illness, or other problems allegedly attendant on termination of service.
No additional evidence has been proffered by the plaintiffs in response to the Municipal Defendants' § 1331(a) challenge which might justify a finding that the claim of Flora Bowman exceeds in value the sum of $10,000. Accordingly, and for this reason alone, I would hold that plaintiffs have failed to carry their burden of persuasion on the issue of jurisdictional amount, at least with respect to the subclass of plaintiffs represented by Mrs. Bowman (i.e., persons challenging the security deposit policies whose gas service has not actually been terminated). Amen v. City of Dearborn, supra. As for the other named plaintiffs and their subclasses, the Complaint seeks "compensatory damages" for various named plaintiffs in amounts ranging from $25,000 to $100,000, and "appropriate" monetary relief for other members of the plaintiff class. A comparison of these prayers for relief with specific allegations in the Complaint demonstrates that the plaintiffs' estimate of the value of their claims is not supported by specific allegations or evidence of injury.
Paragraphs 42 through 46, for example, describe the harm allegedly caused to the Dawes family as a result of termination of their gas service. By definition, of course, the family for a time was deprived of heat, hot running water, and cooking facilities; the Complaint also cites "severe hardships, deprivation and severe mental distress and suffering." The most specific allegations of injury are that Mrs. Dawes' younger daughter suffered "severe respiratory infections and illness" (aggravating, or aggravated by, a pre-existing heart murmur), that Mrs. Dawes herself on one occasion suffered a severe respiratory ailment, and that the entire family was forced to relocate in different housing "to escape the unbearable and intolerable situation" caused by termination of their gas service.
In other portions of the Complaint, the remaining named plaintiffs are alleged to have suffered colds, aggravation of pre-existing medical problems (hypertension, gout, allergies, back pain), and "severe mental distress" as a result of termination of gas service. None of these claims are substantiated with proof of medical bills or hospital visits, and, generally speaking, all are couched in conclusory language unsupported by "substantial proof" of monetary value. See Randall v. Goldmark, 495 F.2d 356, 360 (1st Cir. 1974) (per curiam).
Given these jurisdictional facts, plaintiffs' arguments in favor of § 1331(a) jurisdiction can succeed only if this Court is persuaded to (1) ignore the amount in controversy requirement of the statute; (2) fashion a per se rule to the effect that the constitutional rights sought to be protected here have, by definition, a value exceeding $10,000; or (3) apply the Hague rule, but with such great elasticity that broad, conclusory, and unsupported allegations of injury will qualify as "substantial proof" of monetary value beyond the jurisdictional minimum. None of these approaches is faithful to the spirit of § 1331(a) or to the commands of the higher courts on this subject. In short, I do not believe that plaintiffs have met their burden under Hague, and I find, therefore, that there is no jurisdiction under § 1331(a). The Complaint will be dismissed as against the Municipal Defendants. Moreover, as required by the Supreme Court's recent decision in Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), plaintiffs' state claims against the Municipal Defendants also will be dismissed for lack of jurisdiction.
IV. Individual Defendants' Motions to Dismiss
As presently constituted, this lawsuit seeks classwide equitable relief and individual awards of compensatory damages against a number of individuals who hold official positions with the Utility and Municipal Defendants, to wit: the Mayor of Philadelphia, the members of PGC, and the Vice-President and members of the Board of Directors of PFMC. These Individual Defendants have filed motions to dismiss the Complaint for failure to state a claim. Although less stringent pleading requirements are imposed on § 1983 suits for equitable, as opposed to monetary, relief,
I think that the present Complaint fails to state a claim for either category of relief against the Individual Defendants, and the motions to dismiss therefore will be granted.
The Individual Defendants are named in the caption of the Complaint, and their respective official capacities and areas of responsibility are set forth in para. 11 of that document. Beyond that, however, no Individual Defendant is mentioned even a single time in the body of the Complaint. Plaintiffs have made no attempt to allege that any Individual Defendant personally directed, acquiesced or participated in, or even had knowledge of, the collection, termination and security deposit policies and practices which are challenged here on constitutional grounds. As against these defendants, there simply is no claim stated.
In the Third Circuit, well-settled rules govern pleading requirements in civil rights actions. Several are pertinent here. First, where it is claimed that a named individual actually participated in unconstitutional conduct under color of state law, the Complaint must specifically allege that personal involvement and state (consistent with liberal standards of notice pleading) in what manner the defendant deprived the plaintiff of his civil rights. Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973). Second, where an individual is not charged with having participated directly in the complained-of conduct but rather is alleged to be liable for that conduct by virtue of his position as supervisor of those directly responsible, the Complaint nevertheless must aver "personal involvement" on the part of the supervisor, at least to the extent that he knew of, and acquiesced in, the unconstitutional conduct of his subordinates. U.S. ex rel. Bennett v. Prasse, 408 F. Supp. 988, 991 (E.D. Pa. 1976) (citing cases). Although the rule is more often stated in cases seeking damages against supervisory personnel,
it also applies to suits for equitable relief. See Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976).
Implicit in what I have just said is that the common law tort doctrine of respondeat superior is not available to the plaintiffs in the present case and that, for this reason, they may not rely simply on allegations of the Individual Defendants' official supervisory capacities to hold such persons liable under § 1983 for the challenged policies and practices of the Utility Defendants or its employees. This point requires amplification.
The Mayor of Philadelphia and the members of the PGC are, strictly speaking, employees of the City and are not the "employers" of any agency or individual (whether named in the Complaint or not) who, it is claimed, has deprived plaintiffs of constitutional rights in violation of § 1983. Thus, they are not proper targets for a claim of vicarious liability even if that theory were recognized in § 1983 cases. The true "employer" is the City, and it is not amenable to suit under that statute, vicariously or otherwise.
Jennings v. Davis, 476 F.2d 1271, 1274-75 (8th Cir. 1973); Downs v. Dept. of Public Welfare, 368 F. Supp. 454, 463-64 (E.D. Pa. 1973). Cf. Hill v. Toll, 320 F. Supp. 185, 189 (E.D. Pa. 1970) (distinguishing between a municipal employer and a truly "private" one).
The status of the remaining Individual Defendants as potential targets for vicarious liability under § 1983 poses similar problems. Again, a threshold issue is whether these people are themselves "employees" of the Utility Defendants and, as such, not proper subjects for imposition of vicarious liability as a matter of the basic common law of torts, wholly apart from the special policy considerations which attend § 1983. See Jennings v. Davis, supra.22 Even if these Individual Defendants were deemed to be "employers" there is a serious question whether § 1983 can be a vehicle for the imposition of vicarious liability upon them for the conduct of their subordinates. Compare Hill v. Toll, 320 F. Supp. 185 (E.D. Pa. 1970) (§ 1983 incorporates doctrine of respondeat superior where employer is private party), with Draeger v. Grand Central, Inc., 504 F.2d 142, 146 (10th Cir. 1974) (no vicarious liability under § 1983 even for purely private employer) and Weiss v. J.C. Penney Co., 414 F. Supp. 52 (N.D. Ill. 1976) (following Draeger). All three cases involved actions for damages under § 1983. I am not aware of any decision which expressly holds that there can be no vicarious liability against a private employer in suits for equitable relief under § 1983.
Even affording plaintiffs the widest latitude, and assuming that the doctrine of respondeat superior would, in theory, be available in an appropriate case to impose liability upon the Vice-President and Board of Directors of PFMC, the Complaint fails to allege that the complained-of conduct was undertaken by employees of the Individual Defendants acting within the scope of their employment. No "employees" of PGW or PFMC are named in the Complaint as, for example, having unlawfully entered customers' homes without consent to shut off gas service. There is simply no basis here for vicarious liability even if such a theory were, as Chief Judge Lord held in Hill v. Toll, supra, available under § 1983 against private employers.
The Complaint will be dismissed as against all Individual Defendants, but I will give plaintiffs an opportunity to replead in this respect. I caution them, however, to consider the rule in this Circuit requiring allegations of "personal involvement" on the part of supervisory personnel. In connection with plaintiffs' hopes for individual damage awards they should be mindful, too, of the numerous decisions which have established a good faith defense to civil rights damage claims for individuals who, acting on behalf of public agencies, have reasonably relied on the validity and constitutionality of agency policies and procedures. Even if such policies subsequently are ruled unconstitutional, the individuals who implemented them in good faith cannot be forced to answer in damages for doing so. See Wood v. Strickland, 420 U.S. 308, 321, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975); Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975); Clark v. Zimmerman, 394 F. Supp. 1166, 1176 (M.D. Pa. 1975); Bauer v. Sielaff, 372 F. Supp. 1104 (E.D. Pa. 1974); U.S. ex rel. Bracey v. Rundle, 368 F. Supp. 1186 (E.D. Pa. 1974) (Lord, C.J.).
With these caveats, I will dismiss plaintiffs' claims as against the Individual Defendants, without prejudice, and afford plaintiffs an opportunity to replead.
V. All Defendants' Motions to Dismiss and for Summary Judgment on Plaintiffs' "Second Claim "
Plaintiffs' second claim for relief charges all defendants with having deprived class members of their constitutional rights by "breaking and entering upon [plaintiffs'] property without benefit of a search warrant or court order, and without . . . consent" for the purpose of disconnecting gas service. Although the operative paragraphs of the Complaint also mention the First and Ninth Amendments to the Constitution, it is obvious to me that the claim which plaintiffs have attempted to state here arises under the Fourth Amendment, as rendered binding on the States through the due process clause of the Fourteenth. For the balance of this discussion then, and indeed for the balance of the lawsuit, I will disregard plaintiffs' characterization of this grievance as anything but a Fourth Amendment claim.
In the entire body of the original Complaint there is only one factual allegation in support of this claim for relief. It appears in para. 38, which reads in pertinent part:
On or about July 11, 1973, at about 9:00 a.m., when no one was at home, employees of defendants knowingly and forcibly, without warning, and without any permission, consent, search warrant, or court order, breached the basement of 1711 Dickinson Street where the Dawes family was residing, and disconnected their gas service.
A substantially similar allegation appears in para. 5 of the Provotero Complaint in Intervention (on behalf of the tenant subclass).
There is nothing in the pleadings, other than these two paragraphs, to suggest that any of the defendants have engaged in a classwide pattern of unlawful intrusions into customers' homes. No PGW employee (collection agent, claims representative, or the like) is identified by name as having effected unlawful entries into plaintiffs' homes as part of PGW "collection" procedures, and no such person is a defendant as yet. Indeed, there is no allegation, to speak of, that a classwide pattern of such unlawful entries exists. Finally, there is no claim, as there must be to resist a motion to dismiss, that the Utility Defendants, through their officers or directors, were personally involved in formulating, promulgating, implementing, or enforcing any such policy of unconstitutional intrusions, or that they knew of and countenanced it.
Under these circumstances the "Second Claim" must be dismissed for failure to state a claim upon which relief can be granted. I have no doubt that the intrusions complained of, if proved, would constitute a denial of the Fourth Amendment rights. See Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975); Laprease v. Raymours Furniture Co., 315 F. Supp. 716, 721-22 (N.D.N.Y. 1970). The present allegations, however, are altogether too vague and fail to assert the requisite involvement on the part of the named defendants. I note, too, that plaintiffs' failure to identify which PGW employees allegedly carried out these intrusions might, if not cured on repleading, affect the availability of appropriate equitable relief on the merits. See Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976).
The Motions to Dismiss the "Second Claim" will be granted, without prejudice, and plaintiffs may replead. My earlier comments on the subject of respondeat superior under § 1983 are equally applicable here. The defense motions for summary judgment will be denied, without prejudice, in view of my decision to grant the motions to dismiss. I would have denied the motions for summary judgment on the present record, however, had they not been mooted.
To the extent that plaintiffs' "Second Claim" also purports to state a claim for relief under Pennsylvania law, alleging invasion of privacy, see Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959) it of course is not dismissed. Defendants' only challenge to this and other state claims asserted by plaintiffs is based on the argument that there is no pendent jurisdiction over such claims. Whether, under Pennsylvania law, this and plaintiffs' other "pendent" causes of action state claims for relief is not before me at this time. As for defendants' motions to dismiss for lack of pendent jurisdiction, see Part VIII of this Memorandum at slip op. page 30.
VI. All Defendants' Motions to Dismiss Plaintiffs' "Third Claim "
Plaintiffs' third claim for relief alleges that the
. . . [defendants] have tortiously caused plaintiffs to suffer severe emotional and mental distress and illness in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983 and Pennsylvania Common Law by the use of threats to discontinue service and abusive and harassing demands for payment of past bills with negligent, reckless, wanton and willful disregard for the effects of termination on the life and health of consumers and [for] the existence of billing disputes.
On its face, this is simply a common law tort claim, and merely to insert the phrase "in violation of . . . § 1983" does not (and cannot) convert it into a cause of action for denial of constitutional rights. Howell v. Cataldi, 464 F.2d 272, 277-79 (3d Cir. 1972).
Plaintiffs apparently recognize the tenuous federal character of this claim, for they have made no attempt to specify in what way defendants' "tortious" collection practices violate the civil rights statute, or of which constitutionally protected rights these practices deprive them.
The plaintiffs' "Third Claim" therefore will be dismissed, with prejudice, insofar as it purports to state a claim for relief under § 1983. As noted earlier, defendants have not challenged the vitality of this claim under the law of Pennsylvania but have moved to dismiss solely on the ground that this Court lacks pendent jurisdiction to hear it. That issue is discussed below.
VII. All Defendants' Motions to Dismiss Plaintiffs' "Fourth Claim "
The final claim for relief which appears in the original Complaint focuses on "[defendants'] security deposit policies and practices," which, it is alleged, discriminate arbitrarily and invidiously against members of the plaintiff class, are not reasonably related to their intended purpose of reducing PGW's bad debt losses, and therefore violate plaintiffs' rights to due process and equal protection of the laws guaranteed by the Fourteenth Amendment. The gist of the claim is that PGW demands payment of security deposits which are so exorbitant, relative to plaintiffs' very low (and fixed) incomes, that plaintiffs simply cannot afford to obtain gas service. In view of my earlier discussion of the "property interest" asserted here, it should be stated for the record that plaintiffs can claim no "fundamental" constitutional right to gas service in the first instance; on this issue, in my judgment, the Third Circuit's decision in Jackson retains vitality in this Circuit and must be read to foreclose such a claim. Cf. Donnelly v. City of Eureka, Kansas, 399 F. Supp. 64, 67 (D. Kan. 1975). However, given the Utility Defendants' decision to furnish gas service to citizens of the City, there is a constitutionally protected expectation, shared by all potential customers, that this service will be made available in a reasonably fair manner, unhampered by arbitrary, capricious, or discriminatory policies which, without any justifiable basis, would operate to exclude certain classes of potential customers from obtaining it.
That, essentially, is the interest which plaintiffs have asserted in their "Fourth Claim," and of which, they say, the defendants have deprived them. I find, therefore, that this cause of action states a claim upon which relief can be granted under § 1983. See Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684 (6th Cir. 1976); Davis v. Weir, 497 F.2d 139 (5th Cir. 1974); Koger v. Guarino, 412 F. Supp. 1375, 1390-92 (E.D. Pa. 1976). The defendants' motions to dismiss this claim will be denied.
VIII. Defendants' Motions to Dismiss Plaintiffs' State Law Claims for Lack of Pendent Jurisdiction
Plaintiffs' state law claims appear in the second and third claims for relief in the original Complaint and are discussed in Parts V and VI of this Memorandum, respectively. Essentially, they seek relief under the common law of Pennsylvania for invasion of privacy (wrongful intrusions into customers' homes for the purpose of terminating gas service) and intentional or reckless infliction of physical and emotional distress (dunning, harassment, and other outrageous collection techniques). The defendants have filed motions to dismiss both state claims for lack of pendent jurisdiction. The motions will be granted in part and denied in part.
First, as noted earlier, there is no federal subject matter jurisdiction over plaintiffs' state claims against the Municipal Defendants. That a state court, applying state law, might hold either or both of the Municipal Defendants liable for the actions complained of in the present case
is immaterial; there is no "pendent party" jurisdiction in this forum to hear such claims. Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276, 44 U.S.L.W. 4988 (1976). They will be dismissed, together with plaintiffs' federal claims against the Municipal Defendants.
As against the remaining defendants (including the Individual Defendants in the event they are reinstated as parties defendant through an amended pleading), plaintiffs' state law claims may be resolved in this forum if they are so related to the federal claims that all of the causes of action can be said to derive from a common nucleus of operative fact and would ordinarily be expected to be tried, together, in a single judicial proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). I believe that the Gibbs test is met in this case and that I have the jurisdictional power to adjudicate plaintiffs' state claims. For the following reasons, however, I have decided not to exercise that power.
Plaintiffs' state claim for invasion of privacy parallels their "Second Claim" for relief under § 1983 -- which has been dismissed from the case with leave to replead. Whether pendent jurisdiction should be exercised will depend upon whether plaintiffs attempt to amend; I need not resolve that issue now.
Plaintiffs' other state claim has no present or potential federal counterpart in the lawsuit, because I have dismissed with prejudice the "Third Claim" for relief under § 1983. Despite its common factual link with the federal claims which have remained in the case, this state claim cannot be adjudicated, in my judgment, without a detailed collateral inquiry into the collection techniques allegedly used by PGW employees against numerous individual members of the plaintiff class, which would divert attention from the main issues in the case. I therefore decline to exercise pendent jurisdiction over the state claim for infliction of emotional and physical distress.
IX. Abstention and the Johnson Act
The defendants urge abstention on the ground that the relief sought in this case ultimately will affect an area regulated almost exclusively by state agencies. They rely on Alabama Public Services Comm'n v. Southern Ry., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951). That case stands for the proposition that federal courts should hesitate before interfering in the operation of public utilities. It does not say, however, that federal courts necessarily must decline to hear all suits against public utilities, especially where the federal court's intervention would not bypass the state's regulatory system or directly affect the continuance of the service. I know of no case in which a federal court, faced with similar challenges to the constitutionality of utility termination policies, has declined to adjudicate the claims on the ground of abstention. One court which addressed this issue directly on appeal concluded that while "the exercise of the abstention doctrine is purely discretionary . . . we do not find that it was an abuse of the [District] Court's discretion to refuse to abstain from taking jurisdiction of this important civil rights case . . . ." Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 170 (6th Cir. 1973). I see no reason to abstain in this case and decline to do so.
Nor is there any basis for a finding that the Johnson Act, 28 U.S.C. § 1342, deprives this Court of jurisdiction over the present controversy. None of the courts which have dealt with similar utility cases has found that the Johnson Act strips it of jurisdiction over the constitutional claim asserted. Moreover, the Johnson Act is inapplicable in the context of the present case because "this is not an action to enjoin the operation of 'any order affecting rates chargeable by' [the utility], and [it] is . .. [therefore] outside the operation of 28 U.S.C. § 1342." Limuel v. Southern Union Gas Co., 378 F. Supp. 964 (W.D. Tex. 1974).
An Order will be filed reflecting the decisions set forth in this Memorandum.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 421 F. Supp.]
AND NOW, this 5th day of October, 1976, upon consideration of the plaintiffs' Motion for Class Certification and the defendants' opposition thereto, and upon consideration of the defendants' Motions to Dismiss and for Summary Judgment, and the plaintiffs' opposition thereto, and upon review of the pleadings and the supplemental briefs and other materials filed by the parties, it is ORDERED that:
1. The plaintiffs' Motion for Class Certification pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure is GRANTED, such certification to be limited, unless and until otherwise ordered by this Court, to plaintiffs' claims for classwide equitable relief; the three subclasses proposed by plaintiffs are hereby certified as set forth on Page 4 of the Memorandum which accompanies this Order.
2. The Utility Defendants' Motions to Dismiss the Complaint are DENIED.
3. The Municipal Defendants' Motions to Dismiss the complaint are GRANTED, and the Complaint as against the Municipal Defendants is DISMISSED WITH PREJUDICE, for lack of jurisdiction.
4. The Individual Defendants' Motions to Dismiss the Complaint are GRANTED, and the Complaint is DISMISSED WITHOUT PREJUDICE against the Individual Defendants.
5. Defendants' Motions to Dismiss plaintiffs' "Second Claim" for relief under § 1983 are GRANTED, and the "Second Claim" is DISMISSED, WITHOUT PREJUDICE.
6. Defendants' Motions to Dismiss plaintiffs' "Third Claim" for relief under § 1983 are GRANTED, and the "Third Claim" is DISMISSED, WITH PREJUDICE.
7. Defendants' Motions to Dismiss plaintiffs' "Fourth Claim" are DENIED.
8. Defendants' Motions to Dismiss plaintiffs' State Claims are GRANTED in PART and DENIED in PART, to wit:
a. All state claims against the Municipal Defendants are DISMISSED, WITH PREJUDICE, for lack of jurisdiction;
b. The Motions to Dismiss plaintiffs' state claim for invasion of privacy are DENIED, pending further Order of this Court;
c. The Motions to Dismiss plaintiffs' state claim for infliction of physical and emotional distress are GRANTED, in the exercise of discretion, and this claim is DISMISSED, WITH PREJUDICE.
9. Defendants' Motions to Dismiss on Grounds of Abstention and the Johnson Act are DENIED.
10. Plaintiffs may have 30days from the date of this Order within which to file an amended Complaint (a) against the Individual Defendants; and (b) with respect to their "Second Claim" for relief under § 1983, if they so desire.
11. With respect to plaintiffs' "First Claim" concerning pre-termination notice and hearing requirements, the parties may have thirty (30) days from the date of this Order within which to file motions for summary judgment, supported by such additional briefs, affidavits, or other material as they deem appropriate, and to request a hearing thereon, if desired. If disputed issues of material fact remain, the Court will promptly schedule a trial thereof upon request.
John P. Fullam / J.