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January 18, 1996

In Re City of Philadelphia Litigation; RAMONA AFRICA
CITY OF PHILADELPHIA, et al.; LOUISE JAMES, Administratrix of the Estate of Frank James v. CITY OF PHILADELPHIA, et al.; ALFONSO LEAPHART, Administrator of the Estate of VINCENT LEAPHART v. CITY OF PHILADELPHIA, et al.

The opinion of the court was delivered by: POLLAK

 The questions to be addressed this afternoon are motions filed by the defendants Brooks, Sambor and Richmond.

 The motions filed by these defendants relate to the claims which the plaintiffs have brought against these defendants under state law, that is to say the law of Pennsylvania, alleging that the events surrounding the dropping of the bomb back in May of 1985 generated liability under state law against these defendants.

 As those familiar with this litigation know and know well, the state law claims are one portion of a litigation which, insofar as the jurisdiction of this court is concerned, took its inception in claims arising under federal law both against these defendants and other individual defendants who are no longer in the case and against the City of Philadelphia.

 And the entire controversy has been before the courts at various levels for many years. The litigation was before Magistrate Judge Hall, it was before me, and most recently it was before the Court of Appeals which disagreed with various rulings which I had made and the matter is now back before me once again.

 Certain issues have, since the remand from the Court of Appeals, already been addressed in a memorandum opinion issued last month that dealt with certain motions by the plaintiffs to reinstate certain claims which had theretofore been dismissed by me. And I have concluded that reinstatement of those claims was appropriate.

 The first ground to be discussed is the contention that because there are no longer any federal claims pending in this litigation against these three defendants, there is no longer occasion for this court to address state claims against these defendants.

 The second ground for the motions is that, so it is contended, even if this court has authority -- that is to say jurisdiction, and a jurisdiction that discretion suggests should be exercised -- to entertain state law claims against these defendants notwithstanding that there are no longer federal claims pending against them, the record would not support a finding of liability against any of these three defendants.

 Specifically, the contention is that these three defendants are immune from liability under the law of Pennsylvania unless they have engaged in what the statute law of Pennsylvania calls "willful misconduct." And it is contended on behalf of all three of these defendants that the record could not support a finding of willful misconduct.

 Now, let me turn first to the contention of the defendants that I am without jurisdiction or, as it may alternatively be phrased, that if I have jurisdiction to entertain the state law claims, it would be an abuse of discretion to exercise that jurisdiction.

 Basically, what is at issue here is the following: this case was brought in this federal district court on the ground that the actions of the many individual defendants who were initially named, and of the City of Philadelphia, were actions that gave rise to liability under federal law, specifically, the Constitution of the United States and, most precisely, the Fourth Amendment of the Constitution (via the Fourteenth Amendment).

 There were, to be sure, other constitutional claims made but those have gone by the wayside as this case has proceeded and the focal issue on the federal side of the case was whether the dropping of the bomb, the events attendant on that dropping, and the fire that ensued, constituted transgressions of the Fourth Amendment which had victimized these plaintiffs.

 Conjoined with the federal claims were state law claims arising out of precisely the same events and asserting that, under the law of the Commonwealth, public officials had engaged in conduct which constituted, within the meaning of the law of Pennsylvania, a use of excessive force: the dropping of a bomb and the letting a fire burn in order to undertake to accomplish the arrests of the several persons -- members of the so-called MOVE group -- whom the law enforcement authorities of the City were trying to arrest.

 The state law claims could be pursued in this court because they were linked to federal claims which grew out of the very same events. It was the federal claims that provided the basis in federal jurisdiction for this court to have the state law claims, known as pendent claims, claims that depend on the existence of the initiating federal claims.

 After extended litigation it was my view as of early 1994 that this case could go to trial both on federal claims and on state claims, that federal claims were assertable against the City of Philadelphia and also against these three individual defendants. General Brooks was the City's Managing Director, Commissioner Sambor was the Commissioner of Police, and Commissioner Richmond was the Fire Commissioner. It was my view that that set of federal claims could be tried together with state law claims.

 The Court of Appeals, in a decision last year, concluded that I was in error in supposing that Messrs. Brooks, Sambor and Richmond were suable on the federal claims. Those three officials, the Court of Appeals concluded, were entitled to immunity from suit and hence as to them these actions cannot be maintained.

 That meant that the federal claims to be tried in this court would be claims that would lie solely against the City of Philadelphia.

 Their argument is not without force. As I have undertaken to suggest, the general architecture of this lawsuit was one which predicated the state law claims as claims which were assertable in this court because they were pendent to claims against the same defendants, Messrs. Brooks, Sambor and Richmond, which were in this court because of their federal character.

 With the federal claims against these three defendants removed, so the argument runs, there is no longer a basis for a federal court to entertain lawsuits which are solely based on state law against these three defendants.

 It would appear that the argument would lead to the conclusion that the proper place for assertion of the state law claims is in a court of the Commonwealth, a Common Pleas Court, and not in this United States District Court.

 There is language in the rulings of the United States Supreme Court that lends credence to the proposition that a dismissal of federal claims leads to the dismissal of pendent state claims. A lot of authority running in this direction can be found in the Gibbs case which is perhaps the principal early doctrinal exposition of the relationship between federal claims and pendent state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-29, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).

 More fully articulated, however, the jurisprudence of the Supreme Court appears to be that when federal jurisdiction has attached as an initial matter through the assertion of federal claims together with pendent state claims, and those federal claims remain before the Court for some significant period of development of the case, that is to say they are not dismissed right at the outset on a motion to dismiss, the question whether the later dismissal of the federal claims in turn calls for dismissal of the state claims is no longer a question of power, that is jurisdiction in the formal sense, but one of discretion.

 It is my view that in this case which has been before this Court for many, many years (it is to be recalled that the underlying events took place almost eleven years ago) I have jurisdiction to entertain the state claims against these three defendants, notwithstanding that there are no longer any federal claims pending against them. The question is whether it is prudent for me to exercise that jurisdiction.

 If there were no federal case to be tried I think it would be very difficult to make a persuasive case -- not impossible but at least difficult to make a persuasive case -- that I should retain the state claims and convert myself, as it were, into a Court of Common Pleas trying a case that had no federal dimension.

 Even under those circumstances I would be slow to dismiss pendent state claims unless it were fully understood that those claims could be reasserted in state courts without any state statute of limitations problems -- that is to say in effect that the papers here in the federal courts could simply be transferred to a Court of Common Pleas with the expectation that the state claims would be tried promptly in that state court.

 The fact is, however, that there is to be a trial of the federal claims. The action brought by the plaintiffs against the City of Philadelphia poses within the framework of federal law questions which arise out of exactly the events which are the stuff of the state law claims against these three defendants.

 Given the fact that the federal case is to be tried, and indeed to be tried and relatively soon (trial is scheduled for this spring), I conclude that it would not be a sensible exercise of my discretion to dismiss the state claims and relegate them to state court adjudication in a separate trial at some future time.

 The considerations of judicial economy would seem to me clearly to call for my continuing with the responsibility of trying the entire case rather than directing that it be cut in half and imposing upon the parties the burden and expense of trying entirely separately in a state court matters which are congruent in their fact pattern with the matters to be tried here in the federal court between the plaintiffs and the City of Philadelphia.

 So I reject that basis for the defendants' motion to dismiss the state law claims against them.

 I turn now to the contention that the three individual defendants -- Messrs. Brooks, Sambor and Richmond -- are immune from suit under the law of Pennsylvania. The question of immunity from suit is, under the law of Pennsylvania, better understood as a question of immunity from liability, and the difference is one of some importance.

 Immunity in the federal setting focuses on an entitlement on the part of an official not to be sued for certain activities carried out by that official in the course of his or her duties and under certain circumstances such immunity from suit is conferred. And this very litigation exemplifies that.

 The Court of Appeals concluded with respect to the three defendants who are the movants here that they were immune from suit for the reason that, so the Court of Appeals concluded, their actions which they were said to be accountable for were actions which a reasonable public official might have thought -- responsibly thought, that is -- were agreeable to the Constitution of the United States, not violations of the Fourth Amendment.

 Because the Court of Appeals viewed the record before me and before it in that light and disagreed with me in that assessment, the Court of Appeals reversed my conclusion that the three defendants were not immune from suit under federal law and remanded the case to me with directions to dismiss those three former officials as defendants in the federal lawsuit.

 The question of immunity under state law differs in two important respects from the question of immunity under federal law. First, the issue of immunity under state law is an issue of immunity from liability. If one is entitled to immunity, damages cannot be imposed on such a person. By contrast, one who is relying on federal immunity would claim that one is immune from suit and would make that claim early on in the litigation and assert that he or she cannot even be brought into the trial court.

 And it was because that was an issue that had to be settled prior to trial that the matter of federal immunity came to the Court of Appeals as it did, rather than waiting as one usually waits for the Court of Appeals to review trial action until after the trial court has tried the case.

 Because immunity under state law is a question of immunity from liability rather than from being sued as such, the Court of Appeals which reviewed my 1994 ruling concluded through two of the three judges, that it did not have authority to address the question of state law immunity -- that that issue arose prematurely, that it was not an issue to be addressed by an appellate court prior to the trial. Now, to be sure, one member of the Court of Appeals disagreed with that view, but I am bound by the ruling of the two members of the majority on that issue.

 The result is that the question of whether Messrs. Sambor, Brooks and Richmond, or any of them, should be deemed immune from liability in this case was a question which the Court of Appeals did not rule on.

 One judge, Judge Scirica, the judge who thought that the Court of Appeals had authority to review that issue, did opine that yes, indeed, the individual defendants were entitled to immunity from liability under the laws of Pennsylvania. But because his two colleagues felt that the Court of Appeals did not have authority to rule on that issue at this phase of the case, Judge Scirica's observations with respect to the issue of immunity, though quite clearly entitled to very great respect, are not observations that control my disposition of the issue one way or another.

 I have said that there are two salient differences between the question of immunity under federal law and the question of immunity under state law. I have noted that the first salient difference is that the federal law addresses immunity from suit by contrast with the state law's immunity which focuses on immunity from liability.

 The issue of immunity under state law is of a different nature. It does not focus on what some disembodied personage in the position of police commissioner or fire commissioner or city director might reasonably have thought was a reasonable way of carrying out his law enforcement and fire prevention responsibilities.

 The issue under state law focuses on the actions of the individual person and what that person intended to accomplish. The basis for immunity under state law is a statute which I will read. It is not a model of clarity, but generally speaking statutes are not models of clarity. I will read it and then I will, in the course of my subsequent discussion, try to explain my understanding of it.

 I am reading from Section 8550 of Title 42 of the Pennsylvania Consolidated Statutes. This is a section of the Pennsylvania Tort Claims Act. It provides as follows:

In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.

 For our purposes I think it is fair to say that the question of immunity from liability focuses on the phrase "willful misconduct." If there is a basis on which it could be found properly under the evidence that one or another or all of these defendants engaged in "willful misconduct," then that official or those officials would not be immune from liability.

 Now, when I addressed these issues before prior to the decision of the Court of Appeals back in January of 1994, I said:

With respect to the claims under state law, I conclude that Commissioners Sambor and Richmond are suable under 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.

 849 F. Supp. 331, 347 (E.D. Pa. 1994).

 What the second paragraph that I quoted from myself refers to is this: Magistrate Judge Hall had concluded that Commissioner Sambor and Richmond were suable but that Managing Director Brooks was not, that there was no evidentiary basis for a finding of willful misconduct on his part.

 I disagreed with Magistrate Judge Hall with respect to the situation of Managing Director Brooks and I did so because as the record was developed on the argument before me, reviewing the Report and Recommendation of Magistrate Judge Hall, it turned out in the course of resolving an ambiguity in the record that there was some basis, namely the recollection of Police Commissioner Sambor, for concluding that Managing Director Brooks had concurred, albeit very briefly, in a decision jointly taken by Police Commissioner Sambor and Fire Commissioner Richmond to let the fire, which had begun after the dropping of the bomb at 6221 Osage Avenue, burn until it consumed the bunker on the top of the MOVE home.

 The recollection of Police Commissioner Sambor did not, I hasten to say, conform to Managing Director Brooks' recollection. It was his testimony that he, when he first saw any evidence of fire, directed that it be put out, that he never acquiesced in any burning at all.

 At the summary judgment stage it was not within my province to resolve a conflict in the testimony since it was conceivable that a factfinder would conclude that Commissioner Sambor rather than General Brooks was right with respect to whether General Brooks had at any point acquiesced in letting the fire burn. And since, conceivably, the factfinder would also conclude that that was an excessive use of force to effectuate the arrests at that stage, I concluded that Managing Director Brooks was suable on the state law claims along with Commissioners Sambor and Richmond, suable that is to say in the sense of being a person who could not merely be brought into court but exposed to liability.

 The case is now back here, but the question is whether these three individual defendants or any of them should be found to be immune from liability. Is there a ground on which I should now conclude that the determination that I made in January of 1994, two years ago, that these three defendants ...

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