The opinion of the court was delivered by: HIGGINBOTHAM
The defendants in this action have filed a Motion to Dismiss both the Complaint and the Amended Complaint for: (1) lack of subject matter jurisdiction; (2) for failure to state a claim upon which relief can be granted; (3) for lack of specificity; and (4) for failure to exhaust both state and federal administrative remedies. The plaintiff contends that she is a highly qualified laboratory technician denied employment at Philadelphia General Hospital solely by reason of her epilepsy. It is claimed that Philadelphia General Hospital and the City of Philadelphia had a policy to deny employment to anyone who had experienced an epileptic seizure within two years from the date of his or her job application. Ms. Drennon was within this group of individuals allegedly denied employment for the above reason. The plaintiff asserts that the procedures and policies of the various defendants deprived her of due process and equal protection under the 14th Amendment, abridged her right to be free from discrimination as a result of a non-job-related disability -- a statutory claim under the Rehabilitation Act of 1973, 29 U.S.C. §§ 793 and 794 -- and violated her rights under 42 U.S.C. § 1983. Along with her response to the defendants' Motion to Dismiss, the plaintiff has filed a Motion to Compel Answers to Interrogatories. After full consideration of the parties' respective motions and briefs filed in support of and in opposition thereto, I must DENY the Motion to Dismiss but STAY these proceedings pending consideration of plaintiff's claims by the Department of Labor. Because of my decision to STAY the present proceedings, I will, at this time, DENY plaintiff's Motion to Compel Answers to Interrogatories, without prejudice to its renewal should plaintiff be entitled to relief in this Court after her administrative remedies have been exhausted.
II. Plaintiff's Amended Complaint is Valid and She Has Established Subject Matter Jurisdiction
The defendants complain that the plaintiff was not entitled to submit an Amended Complaint to the Court in an attempt to cure jurisdictional defects. However, Rule 15(a) of the F.R.Civ.P. provides that a "party may amend his pleading once as a matter of course at any time before a responsive pleading is served." The Court of Appeals for the Third Circuit long ago rejected the notion that a motion to dismiss constituted a responsive pleading. Kelly v. Delaware River Joint Commission, 187 F.2d 93, 94 (3d Cir. 1951); accord, Beck v. Athens Building Loan & Savings Assn., 65 F.R.D. 691, 694 (M.D.Pa. 1974) (Nealon, J.). Therefore, the plaintiff did not need the permission of this Court in order to file this first Amended Complaint. Because of this valid amendment to plaintiff's Complaint, the Court need not consider defendants' objections to jurisdiction under §§ 1981 and 1985(3).
The defendants assert that the plaintiff has not stated a claim, even in her Amended Complaint, against the City of Philadelphia and Philadelphia General Hospital, a city-owned and operated institution. While the City of Philadelphia and Philadelphia General Hospital are not "persons" within the meaning of § 1983, and therefore not subject to suit thereunder, it is clear that this Court can exercise jurisdiction over both entities under 28 U.S.C. § 1331. See City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, 512-514, 93 S. Ct. 2222, 2226-2227, 37 L. Ed. 2d 109 (1973).
Apparently various judges in this district have expressed divergent opinions on whether a municipality can be held subject to general federal question jurisdiction under 28 U.S.C. § 1331(a), and thus subject to suit for damages for an alleged violation of a plaintiff's 14th Amendment rights -- a cause of action which would, if municipalities are included within the ambit of § 1331, arise under the United States Constitution. See Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 44 (3d Cir.), remanded on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975), vacated on other grounds, 538 F.2d 53 (3d Cir. 1976); Maybanks v. Ingraham, 378 F. Supp. 913 (E.D.Pa. 1974) (Lord, J.) Patterson v. City of Chester, 389 F. Supp. 1093 (E.D.Pa. 1975) (Weiner, J.); Stretz v. Bristol Township, Civil Action No. 76-3414 (E.D.Pa. filed January 10, 1977) (Fullam, J.); but see Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D. Pa. 1976) (Ditter, J.); Anderson v. Erwin, Civil Action No. 76-2020 (E.D.Pa. filed December 20, 1976) (Van Artsdalen, J.). The comments of the Court of Appeals for the Second Circuit on this issue, in Brault v. Town of Milton, 527 F.2d 730, 735, rev'd on other grounds on reconsideration en banc, 527 F.2d at 736 (2d Cir. 1975), are most instructive. The court found that certain land owners had stated a cause of action against the municipality under § 1331(a) for infringement of their property rights under the Due Process Clause of the Fourteenth Amendment. The court, considering the very arguments on the history of 42 U.S.C. § 1983 raised by Judge Ditter in his opinion in Pitrone, found that:
Bell v. Hood and Bivens itself, moreover, caution against assuming that Congress' exemption for municipalities under § 1983 informed its efforts four years later in establishing federal question jurisdiction. For while Congress placed suits against federal officials beyond the scope of § 1983 with no less -- and, indeed, probably far more -- clarity than it proscribed suits against municipalities, the Court in these two cases confirmed that § 1331 vested federal jurisdiction over civil rights actions against federal officers. We reject the view, therefore, that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973) (concurring opinion of Brennan & Marshall, JJ.) (other citations omitted).
Until there is an authoritative interpretation of the limits, if any, of § 1331 jurisdiction over municipalities by the Court of Appeals for the Third Circuit and/or by the United States Supreme Court, I am unwilling to read the footnote in Aldinger v. Howard, 427 U.S. 1 n.3, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976), so broadly as to preclude the exercise of § 1331 jurisdiction over a municipality. The pertinent footnote appearing in the majority opinion in Aldinger reads as follows:
. . . Thus, neither the district court nor the court of appeals reached the question whether the complaint stated a cause of action over which § 1331 jurisdiction would lie. Petitioner did not raise the question in her petition for certiorari, and it is therefore not before us.
As Judge Fullam recently pointed out, that footnote can be read as either undermining the "holding" of City of Kenosha v. Bruno, supra, (which affords, by implication, a cause of action against municipalities for violations of 14th Amendment rights pursuant to § 1331, despite the lack of such an action under § 1983), or as limiting the precedential value of Aldinger in any discussion of the limits of § 1331. Stretz v. Bristol Township, supra, at 4. I conclude that the latter interpretation of Aldinger is appropriate and reject the position "that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights;" the plaintiff in this case states a colorable cause of action against the City of Philadelphia and Philadelphia General Hospital under § 1331. The proper jurisdictional amount has been alleged and the nature of the claims (for lost wages plus interest since approximately October, 1973, coupled with a claim for damages for loss of reputation), precludes this Court from finding to a legal certainty that the $10,000,000 jurisdictional amount cannot possibly be met by the existing allegations of the Amended Complaint. In view of the allegation of 14th Amendment violations, and the purported breaches of 29 U.S.C. §§ 793 and 794,
the plaintiff's claims obviously arise under the Constitution and laws of the United States. That violations of a person's constitutional rights can give rise to a cause of action for damages against a city and a municipal agency or instrumentality has been well established. Skehan v. Board of Trustees of Bloomsburg State College, supra; Everett v. City of Chester, 391 F. Supp. 26, 29 (E.D.Pa. 1975) (Bechtle, J.); See City of Kenosha, Wisconsin v. Bruno, supra. The City of Philadelphia, as well as Philadelphia General Hospital, is a proper party to this suit since it is alleged that the policies and practices about which plaintiff complains are not only those of the hospital but also those of the City. Furthermore, it is averred that plaintiff's rejection for employment barred her not only from employment at Philadelphia General Hospital but also from all municipal employment. The named defendants in this action are employed by entities within the City and paid from City funds. The Court, therefore, without more information, cannot grant a motion to dismiss this action against the City.
III. Does the Plaintiff State a Cause of Action Under the 14th Amendment and § 1983?
In recent years there have been increasing tensions in attempting to define with specificity the rights which persons are guaranteed by the equal protection and due process provisions of the 14th Amendment.
As one reads the abstract pronouncements in behalf of liberty, due process and property or the condemnation against governmental arbitrariness there is very little guidance for those cases which courts have not previously considered and probably never anticipated. On the level of pure abstraction we can find language in cases, always arising in quite different factual situations, which state that "The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974); See also Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir. 1976). But the "arbitrary actions of government" in Wolff v. McDonnell pertained to a prisoner's losing good time credit or the imposition of solitary confinement -- thus a different milieu than the present case.
In contrast to the broad condemnation of arbitrary conduct by the government as announced in Wolff, only last term a majority of the Supreme Court said that:
The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review of every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be ...