argued as amended december 6 1977.: February 25, 1977.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Civil Action No. 73-1233.
Gibbons, Forman, and Rosenn, Circuit Judges. Gibbons, Circuit Judge, concurring.
The City of Philadelphia and Robert Flint, a city police officer, appeal from the denial of their motion for a new trial. The judgment against them was the outcome of a wrongful death action resulting from the shooting death of Joseph Gagliardi, a 24 year old civilian, by Flint. It appears to be undisputed that in response to a police radio report concerning a man sleeping on a porch in the 4600 block of North 11th Street, Philadelphia, Officer Flint drove to that block and there observed Gagliardi running from the steps of a house. After using his car to pin Gagliardi against a wall but finding no weapon or burglary tools on his person, Flint attempted to take Gagliardi into custody. During the tussle which ensued, Flint failed to use his baton as required by police regulations but instead utilized first his blackjack and then his gun. Two shots were fired, the second of which proved fatal. Police reports showed that Flint fatally shot Gagliardi in the back as Gagliardi was running away from him. Gagliardi's mother thereafter initiated this action in the United States District Court for the Eastern District of Pennsylvania.
Both appellants rely on alleged trial errors. The City also claims that the district court erred in entertaining the pendent Pennsylvania law claim upon which its respondeat superior liability is predicated. It does not claim that the court misapplied Pennsylvania law. We affirm.
I. THE CITY'S JURISDICTIONAL CHALLENGE
The City, relying on Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), and Tully v. Mott Supermarkets, 540 F.2d 187 (3d Cir. 1976), contends that the district court erred in entertaining a pendent state law cause of action against it because there was no independent basis of federal jurisdiction over it. In addition to the state law wrongful death claims the complaint alleges causes of action under 42 U.S.C. § 1983 and directly under the fourteenth amendment. Though the complaint alleges violations based directly under the fourteenth amendment, and seeks damages far in excess of $10,000,*fn1 the jurisdictional allegations did not specifically refer to the general federal question jurisdiction statute. 28 U.S.C. § 1331. Rather, jurisdiction over the federal claims was premised on 28 U.S.C. § 1343. Relying, however, on 28 U.S.C. § 1653 the appellee moved before this court, at the argument of the appeal, to amend the jurisdictional statement by including a reference to section 1331. See Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976). We reserved decision on the motion in order to afford to the City the opportunity to file a brief setting forth any manner in which it would be prejudiced with respect to the issues tried in the district court if that motion were granted. The City's response indicated no such prejudice, but opposed the motion on the ground that in any event section 1331 affords no independent basis of jurisdiction over it for a claim based upon a fourteenth amendment violation. Since the City has not called attention to any way in which the trial would have differed had the complaint's jurisdictional statement referred to section 1331 we grant the motion to amend, and proceed to the merits of the City's contention that section 1331 provides no basis for jurisdiction over it.
The answer to the question of section 1331 jurisdiction depends on how substantial is the constitutional claim. In the case sub judice, the plaintiff's complaint against the City asserts both a federal claim based directly on the fourteenth amendment and pendent state law claims based on Pennsylvania's Wrongful Death Act. Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974), holds that a federal court may, and indeed usually should, decide pendent, nonconstitutional claims if by doing so the court can avoid the decision of difficult constitutional issues. This is true even if the pendent claims standing alone would be beyond the jurisdiction of the federal court. 415 U.S. at 546-47 and nn.12-13. The only requirement for this exercise of pendent jurisdiction over state law claims is that the federal constitutional claims herein asserted not be so insubstantial as to be incapable of supporting federal jurisdiction. Under Hagans, we may reverse the district court's determination to decide the pendent state law claims against the city only if the fourteenth amendment claim is so insubstantial that it cannot serve as the basis for federal question jurisdiction under the general federal question statute, 28 U.S.C. § 1331 (1970). See Hagans, supra, 415 U.S. at 542-43, citing Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946).*fn2
To determine whether the fourteenth amendment claim is insubstantial,*fn3 we need go no further than the recent pronouncement of the Supreme Court in Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471, 45 U.S.L.W. 4079 (1977). The Court there made clear that none of its prior opinions should be construed as deciding whether there can be a fourteenth amendment implied remedy of damages:
The question of whether the [defendant's] arguments should prevail, or whether as respondent urged in oral argument, we should, by analogy to our decision in Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983, is one which has never been decided by this Court.
Id. at 278. See also Aldinger v. Howard, 427 U.S. 1, 4, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976) (leaving the question open); City of Kenosha v. Bruno, 412 U.S. 507, 514-15, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1976) (leaving the question open).
Since there is no Supreme Court decision holding that a fourteenth amendment damage remedy may not be implied and numerous lower court decisions holding that such a remedy may be, see the cases cited in note 3 of Judge Gibbons' concurring opinion, we cannot say that the fourteenth amendment claim against the City is "so insubstantial, implausible, foreclosed by prior decision of the [Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court," Hagans, supra, 415 U.S. at 543, quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974). It may be that a respectable case can be stated in support of the proposition that a cause of action for damages on the basis of vicarious liability cannot be implied against a municipal corporation under the fourteenth amendment. Nonetheless, it is evident under Mt. Healthy, supra, that the question remains perplexing and substantial. Thus, we conclude that the fourteenth amendment claim against the City was sufficiently substantial to vest the district court with federal question jurisdiction under 28 U.S.C. § 1331.
Given the presence of federal jurisdiction, Hagans teaches that the district court did not abuse its discretion when it avoided the difficult constitutional question whether to imply a fourteenth amendment remedy in damages and proceeded instead to try the pendent state law claims. See also Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S. Ct. 451, 53 L. Ed. 753 (1909); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 636-37, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974) (White, J., dissenting); Doe v. Beal, 523 F.2d 611, 614 (3d Cir. 1975)(en banc), reversed on other grounds, 432 U.S. 438, 97 S. Ct. 2366, 53 L. Ed. 2d 464, 45 U.S.L.W. 4781 (1977).
The claimed trial errors advanced in support of the appellants' new trial motion need not detain us long. They consist of one exclusion and three admissions of evidence.
The excluded evidence consisted of a welfare record of the decedent, offered, in the damage phase of a bifurcated trial, in an effort to denigrate the decedent's potential employability. As the record was cumulative of oral testimony that was admitted, and was excluded on that ground, there was no abuse of discretion.
The appellants also urge as error that in rebuttal testimony the appellee, decedent's mother, was allowed to testify as to a hearsay statement by a police officer to a statement by an eyewitness, "they didn't have to kill the kid." The hearsay statement was arguably inconsistent with a written statement of the same eyewitness, admitted in evidence in appellants' case. As there was no timely objection, we will not consider the allegedly hearsay testimony as error. See Fed. R. Evid. 103(a)(1).
The defendant also contends that in the damage phase of the trial the court erred in admitting the testimony of a witness, Mrs. McGeehan, about negotiations between her son, who had been beaten by Flint in an unrelated incident, and Flint's superior. The court ruled that the testimony was admissible to show the City's knowledge of the incident. Such knowledge of Flint's dangerous propensities was relevant to the issue of punitive damages. The hearsay objection is groundless. See Fed. R. ...