The opinion of the court was delivered by: FOGEL
I. PROCEDURAL AND FACTUAL HISTORY OF THE CASE
Presently before the Court are motions to dismiss filed by Defendants Mayor Frank L. Rizzo and the City of Philadelphia and cross motions for summary judgment filed by Plaintiffs and Defendant Leonard. Due to the record before us, we will treat the motions to dismiss as motions for summary judgment as provided for in F.R.Civ.P. 56.
On September 4, 1975, the Retail Clerks International Association, AFL-CIO, Local 1357 (Retail Clerks), filed a petition with the Pennsylvania Labor Relations Board (PLRB), for representation of the employees of the office of the Register of Wills. The PLRB ordered that a representation election be held on January 19, 1976. The election resulted in a tie and was therefore a vote against union representation. Defendant Leonard was sworn in on January 5, 1976 as Register of Wills/Clerk of the Orphan's Court Division of the Court of Common Pleas of Philadelphia. On January 12, 1976, Defendant Leonard discharged the named Plaintiffs. Leonard has admitted that the discharges were politically motivated. On January 22, 1976, Retail Clerks filed unfair labor practice charges, claiming the discharges were in violation of the Pennsylvania Labor Relations Act. Hearings were held by the PLRB on the unfair labor practice charges on March 5, 1976, and on April 5, 1976. The hearing examiner recommended the charges be dismissed. The instant action was filed on July 28, 1976.
Defendants are Thomas Leonard, individually and in his capacity as Register of Wills, the City of Philadelphia, and Frank L. Rizzo, individually and in his capacity as Mayor of Philadelphia.
III. NATURE OF PLAINTIFFS' CLAIMS
Plaintiffs are all present or former employees of the office of the Register of Wills of Philadelphia. Jurisdiction is founded on 28 U.S.C. §§ 1331, 1343, 2201, and 2202. They contend that their discharge by Defendant Leonard, after his assumption of office, for political and patronage reasons constitutes a violation of and infringement upon Plaintiffs' right of freedom of association and the right to political beliefs of their own choosing, in violation of the First and Fourteenth Amendments and 42 U.S.C. §§ 1983, 1985. Plaintiffs also allege a conspiracy among Defendants to deprive them of (a) freedom of association and (b) the right to exercise political beliefs of their own choosing by virtue of the discharges, allegedly in violation of 42 U.S.C. § 1985.
IV. MOTION TO DISMISS OF THE CITY OF PHILADELPHIA AND MAYOR FRANK L. RIZZO
It is well settled that local government entities are not "persons" within the meaning of 42 U.S.C. §§ 1983, 1985 and the First and Fourteenth Amendments. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973). Therefore, the motion of the City of Philadelphia must be granted, and Plaintiffs' motion for summary judgment, as to the City, must be denied.
It is clear from Plaintiffs' original and amended complaints, the cross motions for summary judgment and supporting memoranda, that the allegation against the City is that it was a co-employer of Plaintiffs at the time of their discharge, and thus culpable; the allegation against Mayor Rizzo is that he was responsible for implementing city-wide personnel policies of the City and was therefore responsible for the politically motivated discharges. However, in response to the City's and Mayor Rizzo's motions to dismiss, Plaintiffs admit that the City has no power to hire any employees in the office of the Register of Wills and was a co-employer only for the sole purpose of paying salaries.3 See Walsh v. Tate, 444 Pa. 229, 282 A.2d 284 (1971); Pa. Const. Sched. Art. 5, § 16. Mayor Rizzo argues that because the City is not a "person under the Civil Rights Act of 1871, and acts as a co-employer of Plaintiffs only for purposes of paying salaries, there is no derivative right against him, either individually or in his capacity as chief executive officer. We agree with the City and the mayor. There is not a sufficient nexus between the acts complained of and the role the City plays as a co-employer; therefore, we do not find any derivative cause of action against Mayor Rizzo as chief executive officer of the City, and his motion to dismiss, also treated as a motion for summary judgment, must and will be granted.