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DI MAGGIO v. O'BRIEN

August 14, 1980

Peter DI MAGGIO, Individually and Trading as Continental Decorators
v.
James L. O'BRIEN, John C. J. Plunkett, Ronald R. Hammel, Borough of Jenkintown



The opinion of the court was delivered by: LORD, III

The defendants, John C. J. Plunkett, council member of the Borough of Jenkintown, Ronald R. Hammel, building inspector for the Borough of Jenkintown, and the Borough of Jenkintown, a municipal corporation, have moved to dismiss this civil rights suit brought by Peter Di Maggio, a decorator. Plaintiff originally filed a multi-count complaint on June 7, 1978. By my order of July 21, 1978 I dismissed his 42 U.S.C. § 1985 claim as to all the defendants and at the same time ordered plaintiff to file a more definite statement under Rule 12(e), Fed.R.Civ.P. Plaintiff filed an amended complaint August 18, 1978 with the Borough of Jenkintown as an additional defendant. *fn1" In his amended complaint plaintiff reasserts his § 1985 claim against Plunkett and Hammel, original defendants, and against the Borough. I will not analyze the § 1985 claim as to Plunkett and Hammel, since that claim was dismissed by the July 21 order; I will, however, discuss the claim as to the Borough, not a party at the time of the order.

  In his complaint plaintiff alleges defendants intentionally and systematically harassed and discriminated against him by such acts as forcing him to draft and redraft architectural plans, denying him building permits, charging him with criminal neglect for nonexistent building violations, and arresting and bringing him to trial without probable cause on a criminal complaint that had been withdrawn. He claims the defendants conspired and acted in concert to deprive him of his rights under article I section 8, article IV section 4, the thirteenth and fourteenth amendments, and 42 U.S.C. §§ 1981-1988. Jurisdiction is invoked under 28 U.S.C. §§ 1331 & 1343. Plaintiff also claims that his rights under the laws of the Commonwealth of Pennsylvania have been abridged and denied. Although he has not specifically invoked the pendent jurisdiction of the court, his assertions are sufficient on which to predicate such jurisdiction. Accord, Kedra v. City of Philadelphia, 454 F. Supp. 652, 679 n.28 (E.D.Pa.1978). In addition plaintiff has not been specific as to his state law cause of action, but that too is not necessarily a bar to the exercise of pendent jurisdiction. In Patzig v. O'Neil, 577 F.2d 841 (3d Cir. 1978), the court of appeals remanded for decision by the district court as to whether it should exercise pendent jurisdiction over the state law claims. The Third Circuit stated that, "(from) the prolix and rather inartfully drawn complaint, we can glean claims sounding in negligence, as well as a claim for false arrest under state law." Id. at 846 (footnote omitted). In this prolix and inartfully drawn complaint I too can so glean. The facts as alleged by plaintiff, and taken as true for purposes of defendants' motion to dismiss, chronicle a rather bizarre series of events culminating in an arrest and aborted trial, with Justice of the Peace O'Brien, according to plaintiff's recitation, announcing during the trial in open court that the criminal complaint filed against the plaintiff had been withdrawn, and then quitting the courtroom abruptly. Amended Complaint P IX, sub-paragraph 21. It is not necessary to repeat in detail plaintiff's allegations. Suffice it to note that whereas it was impossible to discern the nature of the allegations in the original complaint, plaintiff has indeed provided defendants with a more definite statement in the amended complaint. See infra, Section II. C. & n. 9 & accompanying text infra.

 I. Legal Claims in General

 I dismiss plaintiff's claims under article I section 8 and article IV section 4 and the thirteenth and fourteenth amendments of the United States Constitution for the following reasons.

 Article I section 8 of the Constitution enumerates the lawmaking powers of the United States Congress, including the power to lay and collect taxes, regulate commerce, coin money, establish post offices, declare war, etc. None of plaintiff's allegations challenges Congress's exercise of its article I section 8 powers.

 Plaintiff also asserts a cause of action under article IV section 4, the guaranty clause of the Constitution. Plaintiff does not allege any deprivation of a republican form of government as guaranteed by the article. Indeed when such a claim has been advanced, the Supreme Court has held it to be a non-justiciable political question. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Luther v. Borden, 48 U.S. (7 How.) 1, 12 L. Ed. 581 (1849).

 The thirteenth amendment to the Constitution prohibits slavery and involuntary servitude except as punishment for a crime of which one is convicted. Plaintiff has not alleged that the defendants' acts constituted imposition of slavery or the badges or incidents of slavery; nor has he alleged anything remotely connected to a state of involuntary servitude.

 Plaintiff's cause of action asserted under the fourteenth amendment requires more extensive discussion. I understand plaintiff to be asserting a Bivens -type claim under the fourteenth amendment. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Plaintiff's 42 U.S.C. § 1983 claim against defendants Plunkett and Hammel is coextensive with any claim under the fourteenth amendment. Therefore, in accordance with established constitutional jurisprudence, a constitutional question will not be addressed if a statutory claim is dispositive. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed. 688 (Brandeis, J., dissenting in part). This principle was further refined by the reasoning in Bivens and applicable here, that the existence of a substantial federal statutory cause of action precludes the necessity of implying a constitutional remedy. The fourteenth amendment claim against the Borough will be addressed infra, section II. C.

 With regard to the federal statutory rights at issue, plaintiff's amended complaint states claims under 42 U.S.C. §§ 1981 through 1988. In his reply to defendants' motion to dismiss, however, he states that he referred to the provisions "cumulatively," and that the violations alleged in the complaint refer, in fact, only to §§ 1983 and 1985(2) & (3). I therefore treat plaintiff's statutory claims as arising under these two sections only.

 II. Claims Against the Borough

 A. Section 1983

 In Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court reversed its seventeen year old precedent and held that municipalities can be sued directly under § 1983 for monetary, declaratory, or injunctive relief. The Court, however, limited the scope of the statutory cause of action by holding that a municipality could not be held liable on a respondeat superior theory:

 
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, ...

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