The opinion of the court was delivered by: William W. Caldwell United States District Judge
I. Introduction and Procedural History We are considering the motion for judgment on the pleadings filed by third-
party defendants, James E. Ellison, Esq., and Rhoads & Sinon, the law firm where he practices. Plaintiffs are the former superintendent of the Harrisburg School District, the deputy superintendent, and the assistant superintendent, respectively. They sued the School District and other defendants to contest the termination of their employment, accomplished without notice or a hearing. Their complaint has two main claims. One is under 42 U.S.C. § 1983, alleging the terminations violated Plaintiffs' Fourteenth Amendment right to due process. The other is under state law, alleging breach of contract because Plaintiffs' employment agreements allowed termination only for good cause and only after notice and a hearing.
Third-party defendants Ellison and Rhoads & Sinon are named in a third-party complaint filed by the defendant School District. The third-party defendants had previously filed a motion to dismiss the School District's claims against them. In a memorandum and order, dated May 7, 2012, Kohn v. Sch. Dist. of the City of Harrisburg, 2012 WL 1598096 (M.D. Pa.), we dismissed some of the claims against the third-party defendants but allowed the following School District claims to proceed by way of contribution: (1) the federal civil-rights conspiracy claim; and (2) the tortious-interference claim. 2012 WL 1598096, at *13-14. Because these claims remained in the case, under Fed. R. Civ. P. 18(a), we also permitted the School District's independent claim for legal malpractice against attorney Ellison and Rhoads & Sinon to proceed, although we concluded that on its own, the legal malpractice claim was not a proper third-party claim. Id. at *4, 7.
In allowing the two third-party claims to proceed, we acted on the assumption that a defendant had a right to contribution on a section 1983 claim against it. We noted that some courts had ruled that there is no right of contribution on a section 1983 claim, but we declined to rule on the issue because the parties had not briefed it. Id. at *6. n.9. The pending motion for judgment on the pleadings argues that there is no right to contribution on section 1983 claims, and hence the School District's civil-rights conspiracy and tortious-interference claims should be dismissed as violative of Fed. R. Civ. P. 14(a)(1).*fn1 The motion also argues that there is no procedural basis for keeping the legal malpractice claim in the case after these two third-party claims are dismissed.
A. There Is a Right to Contribution on a Section 1983 Claim
When Pennsylvania Law Applies Pursuant to 42 U.S.C. § 1988(a) Fed. R. Civ. P. 14(a)(1) governs the filing of third-party complaints. Essentially, it allows a third-party complaint if a defendant can plead that the third-party defendant is liable to the defendant for contribution or indemnity. Kohn, supra, 2012 WL 1598096, at *3.*fn2 For our purposes, we need only decide whether contribution is available for section 1983 claims. If not, then the School District's remaining third-party claims must be dismissed, and its independent legal malpractice claim as well since that claim would no longer be able to rely on the presence in the suit of either of the third-party claims.*fn3
Attorney Ellison and Rhoads & Sinon argue that the School District's civil-rights conspiracy and tortious-interference claims are invalid under Rule 14(a)(1) because there is no right to contribution on section 1983 claims.*fn4 Among other cases, they cite Rocuba v. MacKrell, No. 10-1465, 2011 WL 5869787, at *3 (M.D. Pa. Nov. 22, 2011), in support. Rocuba collects many cases that have held there is no right to contribution in section 1983 actions. As Rocuba's chain-cite shows, the overwhelming majority of cases have concluded that there is no right to contribution on section 1983 claims, a conclusion with which Rocuba agrees. As that chain-cite also shows, however, some of those in the minority are cases from the Third Circuit, as the School District points out in opposing the motion.
The split arises from the Third Circuit's decision in Miller v. Apartments & Homes of New Jersey, Inc., 646 F.2d 101 (3d Cir. 1981). In some unfortunate timing, back in 1981, Miller was decided only two days after the Supreme Court's decision in Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). Both cases addressed whether there was a right to contribution on federal statutory causes of action. Miller dealt with contribution on a claim made under 42 U.S.C. § 1982. Northwest Airlines dealt with contribution under Title VII, 42 U.S.C. § 2000e-2, and the Equal Pay Act, 29 U.S.C. § 206(d).
Both cases addressed whether federal common law could supply a right to contribution.*fn5 Their approaches materially differed. In Northwest Airlines, the Supreme Court started by acknowledging that federal courts have the authority to create federal common law, even though federal courts, unlike state courts, are courts of limited jurisdiction. 451 U.S. at 95, 101 S.Ct. at 1582. Nonetheless, the Court stated that "federal common-law "'is subject to the paramount authority of Congress.'" Id. at 95, 101 S.Ct. at 1582 (quoted case and footnote omitted). It then described the situations where a federal court has the authority to create common law; first, when dealing with "[b]roadly worded constitutional and statutory provisions," id., 101 S.Ct. at 1582; second, "in cases raising issues of uniquely federal concern, such as the definition of rights or duties of the United States; and third, "the resolution of interstate controversies." Id., 101 S.Ct. at 1582. The Court gave admiralty law as an example of a "narrow exception to the limited lawmaking role of the federal judiciary," id., 101 S.Ct. at 1583, and said that the creation of a right to contribution in admiralty cases in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974), was based upon "the power of the federal judiciary to fashion rules of law in admiralty." 451 U.S. at 96-97, 101 S.Ct. at 1583. Significantly, in making this observation, the Court disapproved of Glus v. G.C. Murphy Co., 629 F.2d 248, 253 (3d Cir. 1980), where the Third Circuit relied on Cooper Stevedoring to support the existence of a federal common-law right of contribution in areas outside of admiralty. 451 U.S. at 96, 101 S.Ct. at 1583.*fn6
The Northwest Airlines Court decided against creating a common-law right to contribution in Title VII and Equal Pay Act cases because both statutes were "comprehensive legislative scheme[s], including enforcement procedures, id. at 97, 101 S.Ct. at 1584, thereby indicating that Congress had intentionally omitted a right of contribution. The Court concluded it could not contradict the statute by using its authority to create common law.
Miller's approach to the authority of federal courts to create common law for a statutory right, and specifically a common-law right of contribution, was materially different. It essentially asserted, relying on Glus, supra, that federal courts have the authority to create common law in the interstices of any federal remedial statute, i.e., when the statute is silent on the issue, as long as it would serve the goals of the statute. As support, it cited a number of cases recognizing a common-law right to contribution, without regard to the federal source of the right. 646 F.2d at 106-07. For example, and in contrast to Northwest Airlines, admiralty cases were cited as support for the authority to create a right of contribution for a section 1982 claim. 646 F.2d at 108. Pursuant to 42 U.S.C. § 1988(a), the Third Circuit recognized this common-law right to contribution as a law of the United States that may be used to vindicate the rights conferred under section 1982. Id. at 105-06.*fn7
Miller's approach to federal common-law differs even more markedly
from Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
101 S.Ct. 2061, 68
L.Ed.2d 500 (1981), a case decided about a month after Miller. In
Texas Industries, the Supreme Court decided that there was no federal
common-law right to contribution under the antitrust laws.*fn8
The Court began by noting there is "'no general federal
common law.'" Id. at 640, 101 S.Ct. at 2067. The Court then
stated: absent some congressional authorization to formulate substantive rules
of decision, federal common law exists only in such narrow areas as
those concerned with the rights and ...