Africa's claims under the First and Fourteenth Amendments are unavailing since there is no evidence to substantiate her claim that her free speech and freedom of religion interests were being violated by the defendants or any of them. So, too, the conspiracy charge under Section 1985(3) fails for the reasons presented by Judge Hall. There is no evidence of a racial or class or caste-based conspiracy against Ms. Africa.
With respect to the claims under state law, I conclude that Commissioners Sambor and Richmond are suable on the state law claims since they could be perceived as having engaged in "willful misconduct," to use the state statutory term. I do not say that that is in any sense a necessary reading of the record, but it is simply that that is a factual question which ultimately is to be addressed by a jury.
So, too, in view of my decision to address this record in its more broadly clarified status with respect to Managing Director Brooks, though Judge Hall would have dismissed him from liability on the state claims, I believe that he is not entitled to summary judgment with respect to the state claims.
The City is, however, right, though not for the reasons argued before Judge Hall, that it, the City, is not liable on the state law claims. Before Judge Hall, the City relied upon the relatively recent -- I think it was 1990 -- repealer by the City Council of a City ordinance which expanded the area of suability of the City with respect to the conduct of police officers beyond that contemplated by the state statute that deals with the tort liability of political subdivisions.
Relying on the repealer, the City argued that Ms. Africa could not sue the City because her case was pending at the time of the repealer. Judge Hall rightly rejected that argument in the face of the then applicable law since both decisions of the Commonwealth Court and, indeed, of this court had recognized that there were remarkable constitutional problems presented by a retrospective attempt to insulate oneself from liability for actions that had already taken place.
However, on November 3, 1993, the Supreme Court of Pennsylvania in the case called, Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090, came to the interesting conclusion that the City Council of Philadelphia had never had authority to expand the categories of cases in which it could be suable beyond those contemplated by the Pennsylvania Political Subdivision Tort Claims Act. And, so for that reason, as Judge Hall recognized in a report and recommendation issued subsequent to the Ramona Africa report, the City is insulated from liability on the state claims.
That completes my analysis of the problems to be addressed on review of Judge Hall's report and recommendation. And, I will embody what I have announced in a written order, which I will undertake to file tomorrow.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 849 F. Supp. 331.]
We have remaining the matters to be addressed in the Leaphart and James suits. It is later in the day than I had anticipated that it would be when we got underway. I had hoped to deal with the Leaphart and James actions this afternoon too, but I will not trespass on your patience further. I will undertake to rule tomorrow on those two cases if Ms. Bozzelli will tell me when I am allowed to come in here.
MS. BOZZELLI: Any time in the morning is fine, Judge.
THE COURT: With respect to those counsel who are interested in attending, would tomorrow morning at some early hour be agreeable to you, 9:00?
MS. HIX: Your Honor, with respect to the City, the earlier the better because I am scheduled to be in a hearing at 10:00 tomorrow.
THE COURT: Would you prefer that it is 8:30?
MS. HIX: 8:30 would be fine. Earlier is fine.
MS. RHODES: Your Honor, 8:30 is fine with me because I am scheduled to be in Superior Court at 10:00 tomorrow morning.
MR. SHELTON: I am scheduled at 9:30 in Upper Darby, so I don't know whether you're going to do the James matter first or Leaphart matter first.
THE COURT: I'll be glad to address the James matter first if that will simplify things for you. How long do you think it will take you to get from here to there.
MR. SHELTON: Without breaking the law?
THE COURT: I would encourage you to think of it that way, yes.
MR. SHELTON: Probably 20 minutes; 30 minutes.
THE COURT: Thirty minutes would be sufficient. All right. So 8:30. I will promise you that I will not be as long-winded tomorrow as I have been today.
MR. SHELTON: Fine, Your Honor.
THE COURT: So we will meet tomorrow at -- Mr. Atkinson, I beg your pardon?
MR. ATKINSON: 8:30 is fine.
THE COURT: It is fine?
MR. ATKINSON: It is fine.
THE COURT: Anybody else have any difficulties with that? All right. I thank you all and we will reconvene at 8:30.
Louis H. Pollak, J.
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