anomaly there may be in the fact that plaintiff views his claim more narrowly than defendants do, the fact is that the complaint as now drawn, whichever way it is read, does not state a federal claim (and hence states no pendent state claims) against the City. This is so for the following reasons:
The Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), overruling Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), holds that a municipality is a "person" within the meaning of Section 1983 and hence suable thereunder. However, the narrow ground-rules of municipal suability laid down by Monell that a city is liable under Section 1983 only on proof that the unconstitutional conduct complained of was pursuant to declared municipal policy, or at least to "custom" effectively accepted as municipal policy are not met by any of the allegations relating to the City of Philadelphia contained in this complaint.
Since Monell has thus broadened Section 1983 so as to make it an apt statutory instrument for vindicating, as against municipalities, infringements of constitutional rights committed by municipal employees within the ambit of what may fairly be characterized as municipal policy, there appears no reason for plaintiffs to continue to invoke an essentially indistinguishable Fourteenth Amendment claim. Monell has made redundant the remedial palliative an implied constitutional cause of action against municipalities, patterned after Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1972) which had seemed calculated to fill an important constitutional need during the era of Monroe v. Pape. Jones v. City of Philadelphia, 481 F. Supp. 1053 (E.D.Pa.1979).
Accordingly, the complaint as it stands does not state a claim against the City; and an order will therefore be entered dismissing the City as a party defendant, albeit without prejudice to the filing of an amended complaint within thirty days if plaintiff can in good faith allege a legally viable cause of action against the City.
As noted above, the complaint, in setting forth claims arising out of the death of Alfred J. Baffa, Jr., asserts claims under the Civil Rights Act of 1871 (Section 1983) and also pendent claims under Pennsylvania's Wrongful Death and Survival Acts. Defendants urge, however, "that this action to redress the violation of personal rights does not survive the death of the holder of those rights, except under a Survival Act," wherefore, "the cause of action under the Civil Rights Act and Wrongful Death Act of Plaintiff, John Baffa, in his own right, should be denied and dismissed as to the Defendants."
It has of course been well established for many years that a cause of action arising under a federal civil rights statute does not die with the victim of the alleged constitutional wrong, provided that the relevant state law provides for the survival of causes of action belonging to the decedent. ". . . (It) defies history to conclude that Congress meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death." Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir. 1961), Cert. denied, 368 U.S. 921, 82 S. Ct. 243, 7 L. Ed. 2d 136 (1961).
Without, so it would seem challenging the rule of Brazier v. Cherry, supra, defendants seem to be making the point that John Baffa can maintain this lawsuit only in his representative capacity i. e., as the executor of the decedent's estate and not "in his own right." To the extent that defendants are asserting that the death which befell Alfred J. Baffa, Jr., vests no federal claim in John Baffa as an individual, whatever John Baffa's relationship to Alfred J. Baffa, Jr. may have been, defendants are on sound ground. So much is evident from Strickland v. City of Easton, Civ. 75-93 (E.D.Pa.1976), relied on by defendants, wherein Judge Fullam concluded that Sarah Strickland had no personal claim under Section 1983 for the death of her son. Accord, Denman v. Wertz, 372 F.2d 135 (3d Cir. 1966), Cert. denied, 389 U.S. 941, 88 S. Ct. 300, 19 L. Ed. 2d 293 (1967). However, Judge Fullam's opinion is also square authority for the proposition that under Pennsylvania law decedent's mother "as administratrix of the decedent's estate, undoubtedly had standing and capacity to maintain both the civil rights action and the pendent state claims under the Wrongful Death and Survival Acts." Strickland v. City of Easton, supra. And so it follows that John Baffa had like standing and capacity to initiate this lawsuit provided that he is suing by virtue of his status as executor of the decedent's estate.
The question, in short, is whether there is any basis for defendants' characterization of this lawsuit as one which John Baffa is in some measure pursuing "in his own right." The answer as a reading of the complaint makes plain is no. Accordingly, since John Baffa is suing as executor, and only as executor, he is fully entitled to maintain this lawsuit.
An order will enter granting the motion to dismiss of the City of Philadelphia (but without prejudice to the timely filing of an appropriately amended complaint) and denying the motions to dismiss of Officer Black and Commissioner O'Neill.
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