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HIXON v. DURBIN

July 27, 1982

BARRY C. HIXON
v.
JOHN DURBIN, et al.



The opinion of the court was delivered by: NEWCOMER

 Newcomer, District Judge.

 Defendants in this civil rights action, which arose out of a dispute over a state employment contract, have raised a number of jurisdictional challenges to the complaint. Before me now are the motion of defendants Harvey Bartle III and Jay Waldman to dismiss the complaint pursuant to Rule 12(b)(6) and the motion of defendants Fred Heddinger and John Durbin for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 Plaintiff Barry Hixon claims that the actions of all defendants in this case deprived him of his rights, embodied in two employment contracts, to serve as financial consultant to the Pennsylvania Public School Employees' Retirement Board (the "Board"), an independent state agency. He charges that defendants Bartle (then Acting Attorney General) and Waldman (General Counsel), who refused to approve these contracts, conspired to interfere with his liberty and property interests in these contracts in violation of his rights to procedural and substantive due process guaranteed by the 14th Amendment to the United States Constitution and 42 U.S.C. § 1985. Plaintiff also charges that their actions defamed him and violated his contractual, privacy and liberty rights protected under state law. For the reasons set forth below, the motion of defendants Bartle and Waldman to dismiss the complaint is granted as to the substantive due process, irrebuttable presumption, and conspiracy Counts (Complaint, Counts II, III and IV) and denied as to the procedural due process and state law Counts (Complaint, Counts I, V - XI).

 Plaintiff also alleges that defendants Durbin (former Deputy State Treasurer) and Heddinger (ex-Board member) conspired to violate his civil rights, in violation of 42 U.S.C. § 1985, and that they conspired with Bartle and Waldman to violate various state law rights. For the reasons given below, Durbin's and Heddinger's motion for partial judgment on the pleadings is granted in part, as unopposed, and the remainder of the complaint against these two defendants is dismissed for lack of jurisdiction, with leave to amend so as properly to plead diversity jurisdiction.

 On June 15, 1978, the Board signed a two year contract with Barry Hixon under which Hixon was to provide full-time professional service as a financial consultant in return for $46,000 a year (Contract 1). On September 7, 1979 and May 25, 1980, the Board voted to enter a new two-year contract with Hixon at the increased compensation of $58,500 per year. The contract (Contract 2) was submitted to the Office of the Attorney General for approval as to form and legality as required by the then-applicable regulations, 37 Pa. Admin. Code § 161.12 (Shepard's 1982). Defendant Bartle, then Acting Attorney General, refused to approve the contract, citing as his reason an eighteen-year old criminal conviction which Hixon had failed to report on the application form he filled out prior to signing Contract 1 in 1978. The information upon which Bartle relied was obtained, the complaint alleges, from defendant Durbin, then Deputy State Treasurer, who used a State Treasury investigator to examine Hixon's past. The letter in which Bartle set forth his reasons for refusing to approve the contract was immediately released to the press. Efforts by James Killian, Chairman of the Board, to induce Bartle to rescind his decision proved unavailing.

 In 1981, the law governing responsibility for approving state contracts was changed. By the terms of the new Pennsylvania Commonwealth Attorneys' Act, Pa. Stat. Ann. tit. 71 § 732-301(11) (Purdon Supp. 1981) (effective Jan. 20, 1981), the new General Counsel to the Governor, defendant Waldman, became the officer responsible for approving the relevant contracts. The Board, after considerable debate, again voted to approve a two-year contract with Hixon (Contract 3) dated April 1, 1981, for compensation of $58,500 per year. On April 14, 1981, Waldman refused to approve the contract, citing Bartle's letter and additionally referring to certain revelations by State Senator Edward L. Howard which bore upon Hixon's competence as a financial manager. He also noted the disapproval of Hixon's appointment voiced by interested private professional associations. This letter, too, was released to the press.

 The complaint further charges that these actions by the Acting Attorney General and the General Counsel were coordinated and furthered by defendant Heddinger, a Board member, because Heddinger disapproved of Hixon's reform recommendations and opposed their implementation.

 Hixon accordingly filed suit on February 17, 1982, alleging that defendants Bartle and Waldman deprived him of his liberty and property interests in his contract with the state in violation of the procedural and substantive due process guarantees of the 14th Amendment, and 42 U.S.C. § 1983; that all defendants conspired to deprive him of these rights in violation of 42 U.S.C. § 1985 and that the actions of all defendants violated the state constitution, Pa. Const. Art. I, §§ 1 and 26, and state common law by defaming him, interfering with his prospective contractual relations, invading his privacy, and inflicting emotional distress.

 Defendants Durbin and Heddinger

 Defendants Durbin and Heddinger move for partial judgment on the pleadings as to plaintiff's claim under 42 U.S.C. § 1985 (Count IV) and his state-law claim that defendants committed the tort of "official oppression" (Count X). Their motion as to Count IV is granted as unopposed (Plaintiff's Answer to Motion for Partial Judgment on the Pleadings at 7). Because the elimination of this Count leaves no basis for federal jurisdiction over the subject matter of the complaint against Durbin and Heddinger as it is currently framed, it is dismissed in its entirety. However, as it appears that plaintiff may be able to invoke this Court's diversity jurisdiction, plaintiff is granted leave to file an amended complaint. *fn1"

 With the dismissal of the claim under 42 U.S.C. § 1985, there is no longer a basis for federal question jurisdiction over defendants Durbin and Heddinger. Similarly, there is no basis for extending pendent jurisdiction to Durbin and Heddinger simply because the state law claims against them and the federal law claims against the other two defendants stem from the same factual situation. Aldinger v. Howard, 427 U.S. 1, 14-15, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976). In Aldinger, as in the present case, the underlying federal claims were brought under 42 U.S.C. § 1983. The Court refused to allow the impleading of a new defendant on the basis of a state law claim over which there was no independent basis of federal jurisdiction. Here, there are no remaining federal claims against Durbin and Heddinger and the only basis for extending pendent jurisdiction involves the identical state law claims against defendants Bartle and Waldman for whom independent federal question jurisdiction does exist. As in Aldinger, the policy interest in consolidating all related claims in one trial does not encompass the stretch of federal jurisdiction that would be necessary to extend pendent jurisdiction to the state law claims against Durbin and Heddinger.

 The lack of any basis for federal question jurisdiction would not be fatal to the complaint, of course, if diversity jurisdiction existed. The complaint (paras. 4-8) alleges that diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a), exists as to all defendants, in that Hixon is a resident of Ohio and all defendants reside and work in Pennsylvania. However, residence is insufficient to establish citizenship for diversity purposes. Diversity requires that the non-resident be domiciled in another state at the commencement of the suit. Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980); Krasnov v. Dinan, 465 F.2d 1298 (3rd Cir. 1972); Fleming v. Mack Trucks, Inc., 508 F. Supp. 917 (E.D. Pa. 1981). Residence is evidence of domicile, but it must be coupled with evidence of other factors which prove an intent to remain indefinitely, such as voting, payment of taxes or location of business. C. Wright, Federal Courts § 26, at 87 (2d ed. 1970). The burden of establishing domicile rests with the complainant, and the presumption is that a federal court lacks jurisdiction until such burden has been satisfied. Avins v. Hannum, 497 F. Supp. 930 (E.D. Pa. 1980); Coggins v. Carpenter, 468 F. Supp. 270 (E.D. Pa. 1979). The plaintiff here has simply alleged residence in Ohio which, even if true, is not of itself sufficient to establish domicile and thereby citizenship for diversity purposes.

 It is unclear whether there is a genuine factual issue as to where plaintiff is domiciled. If plaintiff used the term "residence" in the complaint as though it were the equivalent of "domicile," a simple amendment can cure the jurisdictional flaw. I will therefore allow plaintiff fifteen (15) days to amend his complaint to plead diversity jurisdiction properly. If plaintiff chooses to amend his complaint, he is directed to state specifically the facts he relies upon to establish diversity. Thereafter, of course, I anticipate that defendants will alert the Court ...


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