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Dailey v. City of Philadelphia

United States District Court, E.D. Pennsylvania

October 27, 2017

DEBORAH DAILEY
v.
CITY OF PHILADELPHIA, et al.

          ORDER-MEMORANDUM

          KEARNEY, J.

         AND NOW, this 27th day of October 2017, upon considering Plaintiff's Motion to lift this case from the suspense docket (ECF Doc. No. 50), Defendants' Response (ECF Doc. No. 51), and finding a question of state law presently pursued by Plaintiff in the Pennsylvania appellate courts includes whether the municipal ordinance applies to the Plaintiff in the first instance and deferring to the right of the Pennsylvania appellate courts to specifically address Plaintiff's first argument concerning the applicability of the ordinances to her conduct as an employee of the First Judicial District, it is ORDERED Plaintiff's Motion (ECF Doc. No. 50) is DENIED as we must continue to abstain and defer ruling upon the constitutionality of an ordinance which, to date, remains challenged as to its applicability to the Plaintiff and we do not have guidance from the Pennsylvania courts as yet.

         We amend our June 14, 2016 Order (ECF Doc. No. 29) at paragraph 2 to require Plaintiff to file joint status reports every sixty (60) days beginning on December 1, 2017. All other aspects of our June 14, 2016 Order remain in effect.

         Analysis

         In February 2016, the City of Philadelphia Board of Pensions and Retirement (the “Board”) disqualified Deborah Dailey from receiving her pension after she pleaded guilty to theft of movable property by unlawful taking while employed by the First Judicial District of Pennsylvania. The Board applied sections 22-1302(1)(a)(.4) and (.5) of the City of Philadelphia Retirement Code (the “Retirement Code”) disqualifying pension eligibility for any employee who “pleads or is finally found guilty of” . . .: “(.4) Theft, embezzlement, willful misapplication, or other illegal taking of funds or property of the City, or those of any official agency of the City, or agency, engaged in performing a governmental function for the City or the Commonwealth;” or “(.5) “Malfeasance in office or employment.” Our still unresolved issue is whether taking funds from the First Judicial District is addressed by the Retirement Code.

         Ms. Dailey filed an action in the Philadelphia County Court of Common Pleas (“state action”) appealing the Board's decision. In the state action, Ms. Dailey challenged the Board's application of sections 22-1302(1)(a)(.4) and (.5) of the Retirement Code to disqualify her from pension benefits arguing, inter alia, subsection (.4) does not apply to her as an employee of the First Judicial District.

         A day before filing her state action, Ms. Dailey brought this case under 42 U.S.C. §1983 claiming the Retirement Code subsections (.4) and (.5) violate the Fifth, Eighth, and Fourteenth Amendments as applied to her. Ms. Dailey filed an amended complaint and simultaneously filed a motion for summary judgment on her constitutional claims. Defendants City of Philadelphia, the Board, and Board members (collectively the “City”) moved to dismiss.

         After oral argument on the parties' motions, we stayed this case based on Pullman abstention.[1] We applied the test in this Circuit to determine the application of Pullman abstention where we are presented with “both a federal constitutional issue and an unsettled issue of state law whose resolution might narrow or eliminate the federal constitutional question . . . .”[2] We found uncertain issues of state law underlie Ms. Dailey's constitutional challenges to subsections (.4) and (.5) of the Retirement Code; state law issues amenable to state court interpretation would obviate our need to decide the federal constitutional issues; and our possible erroneous construction of the Retirement Code would disrupt important state policies.[3] We stayed this action and placed it on our civil suspense docket.[4]

         Ms. Dailey's state action proceeded in the Philadelphia Court of Common Pleas. After oral argument, the Honorable Abbe F. Fletman entered an order denying Ms. Dailey's appeal and affirming the Board's decision. Ms. Dailey filed a timely Notice of Appeal with the Commonwealth Court from Judge Fletman's order. Ms. Dailey's appeal to the Commonwealth Court remains pending. Judge Fletman issued her opinion in support of her order on August 18, 2017.

         After a status call with counsel, we granted Ms. Dailey leave to file a motion to remove this case from the suspense docket.[5] Ms. Dailey argues Pullman abstention no longer applies because Judge Fletman's opinion interpreted the challenged Retirement Code sections and resolved the unsettled question of state law. Even if grounds for Pullman abstention continue to exist, Ms. Dailey argues equitable considerations (i.e. delay) weigh in favor of reinstating her case to the active docket and proceeding on the constitutional issues before we understand whether the ordinance applies to her. Ms. Dailey additionally argues she made an England reservation[6] in the state action reserving her federal constitutional claims in this Court and is entitled to prosecute her § 1983 claims here regardless of the outcome of her appeal to the Commonwealth Court. Ms. Dailey contends we need not be concerned about interference with state law issues central to our decision to abstain because if we dispose of her federal constitutional claims before the Commonwealth Court rules, she will simply withdraw her state appeal.

         The City disagrees, arguing Pullman abstention still applies as long as Ms. Dailey's appeal is pending in the state courts. The City argues the Commonwealth Court will consider on appeal Ms. Dailey's challenges to the Retirement Code which could result in reversal of the trial court; affirmance of the trial court; or clarification of state law issues Judge Fletman did not address and which would inform our decision in later proceedings. Any decision we make while the case is pending in Pennsylvania's appellate courts would create the kind of confusion abstention is meant to avoid. For these reasons, the City urges us to keep this matter in suspense until the state court appeal concludes.

         A. The trial court's opinion does not address the applicability of the Retirement Code to Ms. Dailey as an employee of the First Judicial District.

         Ms. Dailey made four arguments in the state action: (1) the Board erred as a matter of law when it applied the Retirement Code to disqualify her from pension eligibility; (2) the Board's action violates Pennsylvania's Public Employee Pension Forfeiture Act; (3) the Board's application of Retirement Code violated the Pennsylvania Constitution, including void for vagueness and deprivation of property without due process arguments; and (4) the Board's application of the Retirement Code to disqualify from her pension violated the excessive fines clause of the Pennsylvania Constitution.

         Ms. Dailey's lead argument in the state action is the Retirement Code subsections (.4) and (.5) do not apply to her and are unconstitutionally vague. Ms. Dailey asserts subsection (.4) does not apply to her because she is an employee of the First Judicial District and not an employee of “the City, or those of any official agency of the City, or agency, engaged in performing any governmental function for the City or the Commonwealth” to which subsection (.4) applies. She argues to the extent subsection (.4) applies to her, it is unconstitutionally vague because its language does not provide notice a guilty plea to theft from the First Judicial District fits within the subsection's provisions for disqualification. Ms. Dailey similarly ...


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