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AVELLINO v. HERRON

December 16, 1997

HONORABLE BERNARD J. AVELLINO, Plaintiff,
v.
HONORABLE JOHN W. HERRON, et al., Defendants.



The opinion of the court was delivered by: ROBRENO

 And Now, this 16th day of December, 1997, following oral argument with counsel for the parties, and upon consideration of the motion to dismiss by the defendants, and plaintiff's response thereto, it is hereby ORDERED that the motion is DENIED as to Judge Herron as to Counts 1 & 2. It is FURTHER ORDERED that the motion is GRANTED as to Judge Bonavitacola as to Counts 1 & 2. It is FURTHER ORDERED that the motion is GRANTED for both defendants as to Count 3. The Court's decision is based upon the following reasoning:

 1. This case presents complex issues involving principles of federalism and comity. On the one hand, the federal courts have an unflagging obligation to remedy violations of constitutional rights. *fn1" On the other hand, such superintendency must be performed consistent with respect for the sovereignty of the states. Over the past decade, this court and our court of appeals have been repeatedly called upon to harmonize these principles in the course of adjudicating disputes between the Supreme Court of Pennsylvania and individual state judges. See, e.g., Guarino v. Larsen, 11 F.3d 1151 (3d Cir. 1993) (justices of Supreme Court of Pennsylvania and their state-wide administrator revoked senior judge status of Philadelphia Court of Common Pleas judge); Blake v. Papadakos, 953 F.2d 68 (3d Cir. 1991) (challenge to Supreme Court of Pennsylvania's exercise of administrative powers belonging to president judge of Philadelphia Court of Common Pleas); Cuffeld v. Supreme Court of Pennsylvania, 1996 U.S. Dist. LEXIS 18722, 1996 WL 729045 (E.D.Pa. 1996), aff'd, 133 F.3d 909, 1997 U.S. App. LEXIS 35340, No. 96-2155, slip op. (3d Cir. Nov. 7, 1997)(challenge to removal of administrative powers of president judge of Philadelphia Traffic Court by Supreme Court of Pennsylvania); White v. Judicial Inquiry and Review Bd. of Pennsylvania, 744 F. Supp. 658 (E.D.Pa. 1990) (state trial judge challenging removal from elected office). Given the sensitivity of the interests involved, caution and surefootedness on the part of the Court is warranted before adjudicating this action.

 2. The parties to this lawsuit are duly elected and commissioned judges of the Court of Common Pleas of Philadelphia County. Defendant John W. Herron is also the administrative judge of the Trial Division of the Court of Common Pleas. Defendant Alex W. Bonavitacola is the president judge of the Court of Common Pleas.

 3. On October 17, 1996, acting pursuant to his authority as administrative judge, Judge Herron assigned Judge Avellino to preside over felony-waiver proceedings in criminal cases for the 1997-98 term.

 4. On January 6, 1997, Judge Avellino refused to report to his judicial assignment to preside over felony waiver cases characterizing his reassignment as a "demotion." On January 7, 1997, Judges Herron and Bonavitacola filed a petition with the Supreme Court of Pennsylvania seeking a rule to show cause why Judge Avellino should not be compelled to comply with his assignment. The next day, the Supreme Court of Pennsylvania issued a rule to show cause upon Judge Avellino directing him to show cause within five days why he should not comply with his assignment and ordering him to report to his assignment.

 5. Judge Avellino, however, did not comply with the rule to show cause. Instead, on January 9, 1997, Judge Avellino filed a lawsuit in federal court pursuant to 42 U.S.C. § 1983 naming as defendants Judge Herron, Judge Bonavitacola, and the Supreme Court of Pennsylvania, alleging violations of his First Amendment right to free speech. Judge Avellino claimed that Judges Bonavitacola and Heron had "retaliated" against him by transferring or demoting him to a less desirable judicial post in response to his private and public criticism of, and complaints about, Judge Heron's alleged judicial misconduct. Judge Avellino sought damages and injunctive relief preventing the defendants from enforcing the transfer. Following a hearing on January 10, 1997, the Court denied Judge Avellino's motion for a temporary restraining order. The Court also denied the defendants' motion to dismiss as to Judges Herron and Bonavitacola, granted the motion to dismiss as to the Supreme Court of Pennsylvania, and afforded Judge Avellino leave to file an amended complaint to name individually as defendants the Justices of the Supreme Court of Pennsylvania.

 6. Judge Avellino then filed a written response to the Supreme Court of Pennsylvania's show cause order raising as a defense, inter alia, the claim that his assignment to preside over felony waiver proceedings violated his constitutional right to free speech protected by the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. In this vein, Judge Avellino again asserted that the transfer was made in retaliation for various complaints of alleged judicial misconduct which he previously had made against Judge Herron.

 7. On February 7, 1997, following a show cause hearing, the Supreme Court of Pennsylvania decided that: (1) it had jurisdiction over the proceedings; (2) the assignment of Judge Avellino to the felony waiver program was lawful; and that (3) as a matter of law, the assignment of Judge Avellino to the felony waiver program did not constitute "retaliation" in violation of Judge Avellino's right to exercise his free speech under the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. *fn2"

 8. On April 10, 1997, Judge Avellino filed an amended complaint in the instant case naming as defendants Judges Herron and Bonavitacola only.

 9. Presently before the Court is the defendants' motion to dismiss.

 10. The defendants first move to dismiss the case under Rule 12(b)(1) of the Federal Rules of Civil Procedure asserting that the Court lacks subject matter jurisdiction over the allegations of Judge Avellino's amended complaint. Specifically, the defendants contend that the Court is without subject matter jurisdiction to hear the case pursuant to the Rooker-Feldman doctrine.

 11. Because federal courts are courts of limited jurisdiction, when the defendants raise the issue of whether Rooker-Feldman divests the Court of subject matter jurisdiction, the Court must satisfy itself that it has the power to hear the case. See Ernst v. Youth & Child Services, 108 F.3d 486, 491 (3d Cir. 1997). In considering a motion to dismiss under Rule 12(b)(1) involving a facial attack upon the allegations in the pleadings, the Third Circuit has instructed district courts to apply the standard for dismissals under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Pinewood Estates of Michigan v. Barnegat Twp. Leveling Bd., 898 F.2d 347, 349 n. 4 (3d Cir. 1990) (concluding that it was "undoubtedly the correct approach" for the district court to treat the defendants' motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) as a motion to dismiss under Rule 12(b)(6) and citing the "no set of facts" standard under Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); See also Larsen v. Senate of the Commonwealth of Pennsylvania, 955 F. Supp. 1549 at 1557-59 (applying Rule 12(b)(6) standard to a motion to dismiss under Rooker-Feldman); White v. Judicial Inquiry and Review Bd. of Pennsylvania, 744 F. Supp. 658, 667 (E.D. Pa. 1990)(same and citing Pinewood Estates). Accordingly, the Court must "accept as true the facts ...


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