United States District Court, Middle District of Pennsylvania
January 29, 1999
DECIO D'ANGIO, PLAINTIFF
BOROUGH OF NESCOPECK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McCLURE, District Judge.
On June 10, 1998, plaintiff D'Angio, individually and d/b/a Sammy's
Hide-a-way Lounge, commenced these two actions in the Court. of Common
Pleas of Luzerne County. Both actions were removed to this court on June
Although both actions recite a common set of facts and involve common
questions of law, no party has filed a motion to consolidate. Instead,
the parties have filed duplicative motions, briefs and affidavits in each
case. The court finds consolidation clearly appropriate. and therefore,
under and pursuant to Fed.R.Civ.P. 42(a), will now order their
consolidation. As the initiating document in No. 98-1115 was in the form
of a detailed complaint and the initiating document in No. 98-1116 was in
the form of a more limited "Appeal," the surviving case will be No.
98-1115, and in this memorandum and the ensuing order, we will refer to
the complaint filed in No. 98-1115.
Plaintiff owns and operates Sammy's Hide-a-way Lounge, an adult
entertainment establishment that features totally nude dancers. In his
complaint, plaintiff seeks a judgment declaring that the Public Indecency
Ordinance enacted by Nescopeck on May 11. 1998, violates (1) his freedom
of speech under the United States and Pennsylvania Constitutions because
the ordinance prohibits public nudity and therefore prohibits dancers
from performing totally nude at his place of business, and (2) his rights
under the Equal Protection provisions of both constitutions.
Presently before the court is defendants' motion to dismiss the
complaint pursuant to FED. R. Civ. P. 12(b)(6), (record document no.
2), filed July 17, 1998. For the reasons which follow, we will grant in
part defendants' motion.
A motion to dismiss under FED. R. Civ. P. 12(b)(6) admits the
of the complaint, but denies their legal sufficiency. Hospital Building
Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 48
L.Ed.2d 338 (1976). The complaint must be construed in favor of the
plaintiff with every doubt resolved in the plaintiff's favor. In re Arthur
Treacher's Franchise Litigation, 92 F.R.D. 398, 422 (E.D.Pa. 1981). That
is, the court must accept as true all factual allegations set forth in
the complaint as well as all reasonable inferences that can be drawn from
them. Nami v. Fauver; 82 F.3d 63, 65 (3d Cir. 1996); Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250. 1261 (3d Cir. 1994). The
court looks only to the facts alleged in the complaint and any
attachments, without reference to any other parts of the record. Jordan
at 1261. "[A] case should not be dismissed unless it clearly appears that
no relief can be granted under any set of facts that could be proved
consistently with the plaintiffs allegations." Id. (citing, inter alia,
Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984)).
Plaintiff's complaint alleges that Ordinance No. 434, An Ordinance of
the Borough of Nescopeck to Prohibit Public Indecency (the "Ordinance" or
the "Nescopeck ordinance"), violates plaintiff's civil rights guaranteed
under the United States and Pennsylvania Constitutions. Specifically,
plaintiff complains of Sections 1 and 2 of the Ordinance, which state:
Sec. 1. The Borough Council hereby declares the
following conduct to be illegal as hereinafter set
forth, and further, that such activities are hereby
declared to be and constitute public indecency.
Sec. 2. (a) A person who knowingly or intentionally,
in a public place:
(1) engages in sexual intercourse;
(2) engages in deviate sexual conduct;
(3) appears in a state of nudity; or
(4) fondles the genitals of himself or another
(b) `Nudity' means the showing of human male or
female genitals, pubic area, or buttocks with less
than a fully opaque covering, the showing of the
female breast with less than a fully opaque covering
of any part of the nipple or the showing of covered
male genitals in a discernibly turgid state.
Ordinance No. 434 at ¶¶ 1-2(a), (b) (emphasis added) (Complaint,
For the reasons which follow, we find that the Ordinance does not
violate plaintiffs rights under the United States Constitution. We
conclude that Barnes v. Glen Theatre, Inc., et al., 501 U.S. 560, 111
S.Ct. 2456, 115 L.Ed.2d 504 (1991), is binding precedent on the First
Amendment free speech issue raised by plaintiff, despite the recent
decision to the contrary rendered by the Pennsylvania Supreme Court in
Pap's A.M. v. City of Erie [Pap's II], 553 Pa. 348, 719 A.2d 273 (1998),
a strikingly similar case. Moreover, we find the equal protection
argument to be without merit. Finally with respect to the Pennsylvania
constitutional claims, we will decline to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367 (c)(1) and (3), as the free
speech claim, at least, raises a complex issue of state law, and the court
is dismissing all claims over which it had original jurisdiction.
Therefore, we will grant in part defendants' motion to dismiss
plaintiff's complaint for failure to state a claim upon which relief can
A. First Amendment — Freedom of Speech
We will now address the alleged violation of plaintiff's rights under
the First Amendment to the United States Constitution in light of
Barnes. We do not believe that the Ordinance in any way violates
plaintiff's federally guaranteed rights. Defendants cite Barnes in support
of their argument that the Ordinance is within the ambit of the state's
police power and unrelated to the suppression of the freedom of expression
guaranteed by the First Amendment. We agree with defendants.
In Barnes, five members of the Supreme Court agreed that an Indiana
statute prohibiting public nudity, as applied to nude dancing performed
as entertainment, did not
violate the First Amendment.*fn2 That case involved two Indiana
establishments (the respondents) that wished to provide totally nude
dancing as entertainment. The respondents sought to enjoin enforcement of
Indiana's state public indecency law, which in pertinent part, provided
Sec.1.(a) A person who knowingly or intentionally,
in a public place:
(1) engages in sexual intercourse;
(2) engages in deviate sexual conduct;
(3) appears in a state of nudity; or
(4) fondles the genitals of himself or another
person; commits public indecency, a Class A
(b) `Nudity' means the showing of the human male or
female genitals, public area, or buttocks with less
than a fully opaque covering, the showing of the
female breast with less than a fully opaque covering
of any part of the nipple, or the showing of the
covered male genitals in a discernibly turgid state.
Id. at 569, n. 2, 111 S.Ct. 2456 (quoting IND. CODE § 35-45-4-1
The effect of the statute was to require female dancers to wear no less
than "pasties" and a "G-string" while performing in public. The
respondents contended that the statute violated their freedom of
expression guaranteed by the First Amendment to the United States
Constitution. Id. at 563, 111 S.Ct. 2456. Chief Justice Rehnquist, joined
by Justices O'Connor and Kennedy (the Rehnquist plurality) first
determined that nude dancing of the kind sought to be performed here is
expressive conduct within the outer perimeters of the First Amendment.
Id. at 565, 111 S.Ct. 2456 (citing Doran v. Salem Inn, Inc., 422 U.S. 922,
95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)).*fn3
Next, the Rehnquist plurality proceeded to determine the level of
protection to be afforded to the expressive conduct at issue. They turned
to the Supreme Court's analysis in United States v. O'Brien, 391 U.S. 367.
88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a case involving the burning of a
draft card on the steps of a South Boston Courthouse. In that case,
O'Brien was convicted of violating an amendment to a statute that
prohibited the knowing destruction or mutilation of draft cards. O'Brien,
391 U.S. at 376, 88 S.Ct. 1673. O'Brien contended (1) that the amendment
was unconstitutional in its application to him because his act of burning
his registration certificate was protected "symbolic speech" within the
First Amendment, and (2) that the amendment was unconstitutional because
it was enacted to abridge free speech and served no legitimate
legislative purpose. Id.
As to O'Brien's first argument, the Supreme Court stated:
when `speech' and `nonspeech' elements are combined in
the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech
element can justify incidental limitations on First
Amendment freedoms. To characterize the quality of the
governmental interest which must appear, the Court has
employed a variety of descriptive terms: compelling;
substantial; subordinating; paramount; cogent;
Id. at 376-77, 88 S.Ct. 1673 (citations omitted). Further, in O'Brien the
Court espoused the following four-prong test for determining whether a
government regulation is "sufficiently justified":
if it is within the constitutional power of the
(1) if it is within the constitutional power
of the Government;
(2) if it furthers an important or substantial
(3) if the governmental interest is unrelated to the
suppression of free expression; and
(4) if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential
to the furtherance of that interest.
Id. at 377, 88 S.Ct. 1673.
Applying this test to the statute in O'Brien, the Court concluded that all
four requirements were met and that O'Brien could be constitutionally
convicted for violating the statute. O'Brien, 391 U.S. at 377, 88 S.Ct.
1673. The Supreme Court stated:
In conclusion, we find that because of the
Government's substantial interest in assuring the
continuing availability of issued Selective Service
certificates, because [the amendment] is an
appropriately narrow means of protecting this interest
and condemns only the independent noncommunicative
impact of conduct within its reach, and because the
noncommunicative impact of O'Brien's act of burning
his registration certificate frustrated the
Government's interest, a sufficient governmental
interest has been shown to justify O'Brien's
Id. at 382, 88 S.Ct. 1673.
The Rehnquist plurality also applied this four-prong test in Barnes to
determined whether the Indiana public indecency statute was justified.
[W]e find that Indiana's public indecency statute is
justified despite its incidental limitations on some
expressive activity. The public indecency statute is
clearly within the constitutional power of the State
and furthers substantial governmental interests . . .
the statute's purpose of protecting societal order and
morality is clear from its text and history. Public
indecency statutes of this sort are of ancient origin
and presently exist in at least 47 States . . . Public
indecency statutes such as the one before us reflect
moral disapproval of people appearing in the nude
among strangers in public places.
Barnes, 501 U.S. at 567-568, 111 S.Ct. 2456 (emphasis added). Moreover,
the Rehnquist plurality reiterated that enacting such public indecency
statutes falls within the purview of the states' police power. "This and
other public indecency statutes were designed to protect morals and
public order. The traditional police power of the States is defined as the
authority to provide for the public health, safety, and morals, and we
have upheld such a basis for legislation." Id. at 569, 111 S.Ct. 2456
(citing Paris Adult Theatre I v. Slaton, 413 U.S. 49
, 93 S.Ct. 2628, 37
L.Ed.2d 446 (1973) (emphasis added)). Along this same vein, the Supreme
Court in Bowers v. Hardwick, 478 U.S. 186
, 106 S.Ct. 2841, 92 L.Ed.2d 140
(1986), stated, "The law, however, is constantly based on notions of
morality, and if all laws representing essentially moral choices are to
be invalidated under the Due Process Clause, the courts will be very busy
indeed." Bowers, 478 U.S. at 196, 106 S.Ct. 2841.
Moreover, the Supreme Court in O'Brien reiterated a well-settled
principle of constitutional law, "that this Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit
legislative motive." O'Brien, 391 U.S. at 383, 88 S.Ct. 1673. In that
case, O'Brien's second contention (that the amendment was
unconstitutional because it was enacted to abridge free speech and it
served no legitimate legislative purpose) was rejected by the Supreme
Court on the basis that the statute was otherwise constitutional. The
Court stated: "Inquiries into congressional motives or purposes are a
hazardous matter." Id.
Examining the facts of the case at bar, it is clear that the rationale
of the Rehnquist plurality in Barnes and the Court in O'Brien is
controlling with respect to the First Amendment issue. The public
indecency statute in Barnes and the Nescopeck ordinance are identical in
language; in fact, plaintiff concedes this fact in his brief in
opposition to defendants' motion to dismiss. See Plaintiff's Brief in
Opposition at 5. Moreover, the plaintiffs in Barnes and in our case are
nude dancing establishments seeking to enjoin enforcement of the statute
or ordinance. After a view of the well-settled principles espoused by the
Supreme Court, we conclude that the
public indecency ordinance enacted by Nescopeck does not violate the First
Amendment. For the reasons which follow, we find that in applying the
O'Brien four-prong test to the facts in our case, the Ordinance is
First, enacting legislation to provide for the public health, safety
and morals is clearly within the state's traditional police power. See
Barnes, 501 U.S. at 569, 111 S.Ct. 2456. Therefore, the enactment of the
Ordinance is within the constitutional power of the government.
Second, we find that the Ordinance furthers an important or substantial
governmental interest. Plaintiff argues that "the purpose of Nescopeck
Borough in passing this Ordinance is not clear." See Plaintiff's Brief in
Opposition at 6. We disagree. It may be inferred that the purpose of the
Ordinance is to protect societal order and morality, in accordance with
other public indecency statutes that have been enacted in the past.*fn4
Moreover, the Rehnquist plurality in Barnes found that such was the
purpose of Indiana's statute, despite that state's lack of legislative
history and the lack of additional direction from the state's supreme
court. See Barnes, 501 U.S. at 567-68, 111 S.Ct. 2456.
Third, we find that this governmental interest is unrelated to the
suppression of free expression. Indeed, the Ordinance's effect of having
dancers wear G-strings and pasties "does not deprive the dance of
whatever erotic message it conveys; it simply makes the message slightly
less graphic . . . Public nudity is the evil the State seeks to prevent,
whether or not it is combined with expressive activity." Barnes, 501
U.S. at 571, 111 S.Ct. 2456. It is not the dancing per se that the
Ordinance seeks to prohibit, but simply its being done in the nude.
Lastly, we find that the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of
the governmental interest in preventing public nudity. Again, the
interest the Borough of Nescopeck seeks to protect is the societal
disapproval of nudity in public places and among strangers. "The
statutory prohibition is not a means to some greater end, but an end to
itself." Barnes, 501 U.S. at 572, 111 S.Ct. 2456. Clearly. the
requirement of wearing pasties and G-strings "is the bare minimum
necessary to achieve the State's purpose." Id.
Therefore, we conclude that the Ordinance passes muster under the
O'Brien four-prong test, and that its enactment does not violate
plaintiff's right to freedom of expression guaranteed by the First
Furthermore, regardless of the rationales variously expressed in the
opinions of the Rehnquist plurality, Justice Scalia and Justice Souter in
Barnes, this court is bound by the decision of the five justices
upholding the constitutionality of the Indiana statute, identical in all
material respects to the Nescopeck ordinance.
Recent Pennsylvania Supreme Court Decision in Pap's A.M. v. City of Erie
Defendants in our case filed their motion to dismiss on July 17, 1998.
In Pap's A.M. v. City of Erie, 674 A.2d 338 (Pa.Commw. 1996) (Pap's I),
the Pennsylvania Commonwealth Court on March 27, 1996, determined that a
public indecency ordinance nearly identical to the one in our case passed
muster under the United States and Pennsylvania Constitutions. Id., 674
A.2d at 338. However, at the time the present motion to dismiss was
filed, a Petition for Allowance of Appeal had been granted by the
Pennsylvania Supreme Court and the state's highest court had not yet
rendered its decision.
On October 14, 1998, the Pennsylvania Supreme Court reversed the
Pennsylvania Commonwealth Court and held that the
public nudity sections of Erie's ordinance violated the plaintiff's First
Amendment free speech guarantee, and that severance of public nudity
sections from the ordinance was appropriate. Pap's II, 719 A.2d at 274.
In so doing, the Pennsylvania Supreme Court found no binding precedent in
Barnes, due to the split opinions. The Pennsylvania Supreme Court then
expressly declined to render a decision on the constitutionality of the
ordinance under Article I, § 7 of the Pennsylvania Constitution. Id.
at 281, n. 12.
In view of the foregoing, we believe a brief discussion of the recent
Pennsylvania Supreme Court decision is appropriate, if only to shed
further light on the rationale behind the decision we render today.
The facts in Pap's are strikingly similar to those in our case as well
as in Barnes. In Pap's, an operator of a nude dancing establishment
brought an action challenging the constitutionality of Erie's public
indecency ordinance proscribing nudity in public places. The ordinance in
Pap's is nearly identical to the one in Barnes, as well as in the case at
bar. However, one significant difference exists in the ordinance found in
Pap's: it contained the following language which expressed the reason for
enacting the ordinance:
for the purpose of limiting a recent increase in nude
live entertainment within the City, which activity
adversely impacts and threatens to impact on the
public health, safety and welfare by providing an
atmosphere conducive to violence, sexual harassment,
public intoxication, prostitution, the spread of
sexually transmitted diseases and other deleterious
Id. at 279. The statute in Barnes and the ordinance in our case contained
no such preamble. In fact, the Rehnquist plurality in Barnes looked to
past public indecency statutes to infer the Indiana ordinance's purpose of
protecting societal order and morality. Indeed, no language aimed
expressly at nude dancing exists either in the statute in Barnes or the
ordinance in our case.
We find no need to engage here in a detailed analysis of the rationale
employed by the Pennsylvania Supreme Court in Pap's II, in declaring that
the Erie ordinance violates the First Amendment. Suffice it to say that
the court found that the stated purpose of the ordinance was
"inextricably linked with the content-based motivation to suppress the
expressive nature of nude dancing," Id., at 279, and that the "strict
scrutiny" test therefore applicable could not be satisfied.
In reviewing the Nescopeck ordinance, which contains no language in a
preamble or elsewhere directed at curbing erotic dancing, we find the
reasoning of the Rehnquist plurality in Barnes most convincing, and more
importantly, consider the decision in Barnes determinative of our case.
Justice Castille's view, as expressed in his concurring opinion in
Pap's II, although not accepted by that court's majority, is a clear
expression of our view in this case:
I believe that the majority herein strains to find
discord in Barnes where none exists.
My disagreement with the majority centers on the fact
that five Justices, and thus a majority, voted to
uphold the ordinance in Barnes on the basis that the
ordinance at issue in Barnes could not be
characterized as relating to the suppression of free
expression for purposes of the First Amendment.
Therefore, a five-Justice majority declined to apply
the strict scrutiny test.
Pap's II, 719 A.2d at 282.
B. Equal Protection — Fourteenth Amendment
Plaintiff further alleges that the Nescopeck ordinance violates the
Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution. See Plaintiff's Brief at 9. In support of his argument,
plaintiff contends that the Nescopeck ordinance "unlawfully
discriminate[s] against nude dancing establishments while allowing other
types of much more graphic adult entertainment." Id. These adult
entertainment businesses include adult bookstores, adult cabarets, adult
drive-in theaters, adult
massage parlors, adult mini-motion pictures theaters, adult motion
pictures theaters and adult videocassette rentals. See id.
We disagree with plaintiff that the Nescopeck ordinance violates the
Equal Protection Clause of the Fourteenth Amendment. In City of
Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985), the Supreme Court stated:
The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall `deny to any
person within its jurisdiction the equal protection of
the laws,' which is essentially a direction that all
persons similarly situated should be treated alike.
The general rule is that legislation is presumed to be
valid and will be sustained if the classification
drawn by the statute is rationally related to a
legitimate state interest. When social or economic
legislation is at issue, the Equal Protection Clause
allows the States wide latitude and the Constitution
presumes that even improvident decisions will
eventually be rectified by the democratic process.
City of Cleburne, Texas, 473 U.S. at 439-40. 105 S.Ct. 3249 (emphasis
added). The Court went on to state that "[o]nly when a statute classifies
through the use of impermissible factors, such as race, alienage,
national origin or gender, or impinges on fundamental rights, is a
heightened standard of review applied." Id. at 440, 105 S.Ct. 3249.
By making an Equal Protection claim, plaintiff essentially is asking
the court to throw nude individuals into a suspect classification, or
quasi-suspect classification. Such classifications are those that "almost
always serve no legitimate governmental purpose or . . . impact a group
traditionally politically unable to protect itself." See Philadelphia
Police and Fire Ass's For Handicapped Children, Inc. v. City of
Philadelphia, 874 F.2d 156, 162-63 (3d Cir. 1989)*fn5 (citing Plyler v.
Doe, 457 U.S. 202, 216-17, n. 14, 102 S.Ct. 2382, 72 L.Ed.2d 786
(1982)). "These suspect or quasi-suspect classifications, however,
represent a very limited exception to the general rule." Philadelphia
Police, 874 F.2d at 163. As previously stated, such classifications
trigger courts to apply strict scrutiny to such laws. See id.
Here, the Nescopeck ordinance does not involve any discernible
fundamental rights and does not affect with particularity any protected
class. The Ordinance classifies on the basis of public nudity, which is
not one of the stated factors such as race, alienage, national origin, or
gender, that triggers a suspect or quasi-suspect classification. Indeed,
plaintiff has cited no authority for the proposition that nude individuals
comprise a suspect or quasi-suspect classification which requires a court
to apply a heightened standard of review. We decline to do so here.
Thus, the test is whether the Ordinance has a rational relationship to
a legitimate state interest. Western & S. Life Ins. Co., 451 U.S. 648,
656-57, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). There is a presumption in
favor of the state's action in cases involving social or economic
legislation. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108
S.Ct. 2481, 101 L.Ed.2d 399 (1988). "This presumption imposes upon
plaintiffs the heavy burden of making a `clear showing of the
arbitrariness and irrationality' in order to upset legislation."
874 F.2d at 163 (citing Hodel v. Indiana, 452 U.S. 314, 331-32, 101
S.Ct. 2376, 69 L.Ed.2d 40 (1981)). Along this same vein, a statutory
classification violates the equal protection clause "only if the
statute's classification rests on grounds wholly irrelevant to the
achievement of the State's objective." Kadrmas, 487 U.S. at 462, 108
S.Ct. 2481 (quoting Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71, 99
S.Ct. 383, 58 L.Ed.2d 292 (1978) (quoting, inter alia, McGowan v.
Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961))).
We have determined previously that the Nescopeck ordinance was enacted
to ensure the health, safety and welfare of Nescopeck's population, which
is a legitimate state interest. Banning live public nudity is rationally
related to this stated purpose. We cannot find that the Ordinance's
classification rests on grounds "wholly irrelevant to the achievement of
the State's objective." Kadrmas, 487 U.S. at 462, 108 S.Ct. 2481.
Indeed, the rational basis test places upon plaintiff a heavy burden and
he has failed to satisfy it here. Therefore, we find that the Nescopeck
Ordinance does not violate the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution.
C. State Constitutional Claims
Plaintiff also contends that the Ordinance violates the Pennsylvania
Constitution. However, for the reasons which follow, we decline to
exercise supplemental jurisdiction over plaintiff's state law claims
The Pennsylvania Supreme Court in Pap's II struck down the ordinance
under the First Amendment to the United States Constitution, but it found
no need to determine whether it violated the free speech provision of the
Pennsylvania Constitution. In a footnote, Justice Cappy states:
As we have determined that the Ordinance violates
Appellant's freedom of expression guaranteed by the
United States Constitution, there is no need for us to
determine whether the comparable provision found in
Article I, § 7 of the Pennsylvania Constitution is
Pap's II, 719 A.2d at 281, n. 12.
Thus, we are left only with the decision from the Pennsylvania
Commonwealth Court in Pap's I, whereby the court upheld the ordinance
under the Pennsylvania Constitution.
Therefore, in the face of silence from the Pennsylvania Supreme Court,
we decline to hear plaintiff's state constitutional claims pursuant to
28 U.S.C. § 1367 (c)(1) and (3). As a starting point, in any civil
action of which a district court has original jurisdiction,
28 U.S.C. § 1367 provides for a district court's supplemental
jurisdiction over "all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution."
28 U.S.C. § 1367 (a). Therefore, since this court has original
jurisdiction over plaintiff's federal constitutional claims, plaintiff's
state constitutional claims are properly before us.
However, a district court may decline to exercise supplemental
jurisdiction over any claim under 28 U.S.C. § 1367 (a) if one of the
following situations exists:
(1) the claim raises a novel or complex issue of State
(2) the claim substantially predominates over the
claim or claims over which the district court has
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367 (c)(1)-(4).
Here, we believe that plaintiff's state constitutional claims raise a
complex issue of state law, at least with respect to the free speech
issue. Indeed, since the Pennsylvania Supreme Court expressly declined to
address its own constitution in its opinion in Pap's II, we are left
confronted with the task of predicting how the state's highest court
would have ruled on the matter. We decline to take on that task in light
of the ramifications such a decision would have on Pennsylvania's
constitution and its citizens. Accordingly, we
decline to exercise supplemental jurisdiction pursuant to
28 U.S.C. § 1367 (c)(1).
Moreover, a district court may decline to exercise supplemental
jurisdiction over a state claim if the court has dismissed all claims
over which it had original jurisdiction. 28 U.S.C. § 1367 (c)(3).
Here, we are dismissing plaintiff's federal constitutional claims and,
accordingly, decline to exercise supplemental jurisdiction pursuant to
28 U.S.C. § 1367 (c)(3).
D. Remaining Argument
We mentioned previously that Plaintiff filed two actions, one being in
the form of an Appeal and the other in the form of a Complaint. We note
here the only claim plaintiff avers in the Appeal which is not found in
15. The Petitioner believes and therefore avers that
the Ordinance enacted on or about May 11, 1998, was
enacted improperly. including procedural
irregularities, the manner of passage, artifice,
misunderstanding and mistake and is therefore
Appeal at ¶ 15.
We find no need to address the merits of this argument as plaintiff
failed to address it in his brief in opposition to defendants' motion to
dismiss. See LR 7.6 of the Local Rules for the Middle District of
Pennsylvania. Accordingly, plaintiff has waived this argument for
purposes of deciding the motion before us.
We hold that the Ordinance does not violate the freedom of expression
guarantee of the First Amendment of the United States Constitution, in
accordance with the United States Supreme Court's decision in Barnes.
Moreover, we find that the Ordinance does not violate the Equal
Protection Clause of the Fourteenth Amendment of the United States
Further, we decline to exercise supplemental jurisdiction over
plaintiff's state constitutional claims and therefore do not reach the
merits of whether the Ordinance violates the free speech and equal
protection provisions of the Pennsylvania Constitution — Article I,
§ 7 and Article I, §§ 26 and 28, respectively.
The consolidated case will therefore be remanded to the Court of Common
Pleas of Luzerne County, Pennsylvania.
An appropriate order will issue.
For the reasons stated in the accompanying memorandum, IT IS ORDERED
1. The cases docketed to No. 98-CV-1115 and No. 98-CV-1116 are
consolidated for all purposes, with No. 98-CV-1115 as the surviving
2. Defendants' motion to dismiss (record document no. 2) is granted,
with prejudice, as to plaintiff's federal constitutional claims.
3. We decline to exercise supplemental jurisdiction over plaintiff's
state constitutional claims pursuant to 28 U.S.C. § 1367 (c)(1) and
4. The consolidated case is remanded to the Court of Common Pleas of
Luzerne County, Pennsylvania.
5. The clerk is directed to close the file.