John David Pitrone v. Police Officer Louis J. Mercadante, Police Officer Thomas McMann Police Captain Rowen Kelley, Warminster Township, Pennsylvania

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John David PITRONE, Appellant, v. Police Officer Louis J. MERCADANTE, Police Officer Thomas McMann, Police Captain Rowen Kelley, Warminster Township, Pennsylvania, Appellees.

No. 76-2593

United States Court of Appeals, Third Circuit.

Argued Sept. 9, 1977. Decided Feb. 21, 1978.

572 F.2d 98

Moreover, the government‘s reliance on

Brown v. General Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), is misplaced. In that case the Supreme Court did not address the question whether thе petitioner should be relieved from the technical requirements of exhaustion of conciliation remedies. Rather, the question was whether ”§ 717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972 [is] . . . the exclusive individual remedy available to a federal employee complaining of job-related racial discrimination.”

Id. at 824-25, 96 S.Ct. at 1964. The Court held that § 717 was the exclusive remedy and that the petitioner could not proceed under 42 U.S.C. § 1981. Our decision here is entirely consistent with that result. All that we have done here is to construe the scope of the remedy that Congress intended to provide in Section 717.

Because we have accepted the appellant‘s first two arguments, we find it unnecessary to decide whether we should recognize a general exception to the exhаustion requirement. Nevertheless, we feel obliged to comment briefly on such a proposal. In

McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), the Supreme Court held that there are exceptions to a statutory exhaustion requirement. However, we would be reluctant to recognize a general exception in the instant case. Although the district court below had not invested a great deal of resources in the action prior to the agency‘s decision, we can imagine cases in which far greater resources might be expended. In addition, although there has been no showing here that the agency‘s review was less than complete, a broad exception to the exhaustion requirement could impair the psychological impetus underlying the administrative process. Thus, by holding here that the district court erred in dismissing the appellant‘s claim for failing to exhaust administrative conciliation remedies, we do not intend to create a general exception tо the exhaustion requirement. Rather, we only hold that under these circumstances, where the employee did not bypass the administrative process, where the process of conciliation was given an opportunity to function, and where the agency in effect misled the employee, the appellant should not be compelled to delay bringing his action in federal court for more than the 180 days during which the conciliation opportunity was available tо the agency.

Accordingly, the judgment of the district court will be reversed and the case remanded for proceedings consistent with this opinion.

VAN DUSEN, Circuit Judge, concurring.

I concur in the judgment of the court and in the opinion in all respects except that pоrtion in section III which addresses the appellant‘s “second argument” that he had fully exhausted his administrative remedies by the time that the district court ruled on the appellee‘s motion for summary judgment (pages 12-15 of the majority opinion). I beliеve the unnecessary construction of the exhaustion requirement of § 717(c) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(c), contained in this dictum should be deferred until such construction is necessary for the decision in a case.

David Rudovsky, Kairys, Rudovsky & Maguigan, Philadelphiа, Pa., National Emergency Civil ‍​‌​​‌​​​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​​‌‌‌​​​​​​​​​‌​​‍Liberties Committee, Philadelphia, Pa., for appellant.

Peter P. Liebert, III, Mark D. Turetsky, Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., Elliot M. Drexler, Warminster, Pa., for appellees.

Ralph J. Teti, Asst. City Sol., James M. Penny, Asst. City Sol., James M. Moran, Deputy City Sol., Sheldon L. Albert, City Sol., Philadelphia, Pa., for amicus curiae, City of Philadelphia.

Before SEITZ, Chief Judge and GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

This is an appeal from a district court determination that a federal cause of action against а municipality may not be implied from the Fourteenth Amendment. The court also refused to hear the plaintiff‘s pendent state law claims against the municipality, believing that the decision of the Supreme Court in

Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), prevented the court from exercising its discretiоn to hear those pendent claims. After the district court had entered its order, we decided in

Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3392 (U.S. Nov. 7, 1977) (No. 77-657), that pendent jurisdiction may properly be exercised in circumstances similar to this case. Accordingly, we remand to afford the district court an opportunity to reconsider its decision.

Plaintiff Pitrone alleged that he was unconstitutionally arrested, detained, and beaten by police officers employed by the Township of Warminster. He brоught an action in the district court against the township alleging jurisdiction under 28 U.S.C. § 1343(3). Pendent state claims against the municipality and the officers were also asserted. The district judge held there was no cause of action against the township directly under the Fourteenth Amendment, then dismissed the pendent state claim, saying, “[s]ince there is no basis for the federal claims against the township, that case [

Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976)] makes it clear that I may not adjudicate any state law claims ‍​‌​​‌​​​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​​‌‌‌​​​​​​​​​‌​​‍against it by treating the township as a ‘pendent party.‘”

420 F.Supp. 1384, 1391 (E.D.Pa.1976). The district court then granted certification under Fed.R.Civ.P. 54(b) on the question of the township‘s liability.

Aldinger v. Howard, supra, held “only that a city may not be joined as a pendent party to an action when there is no independent source of federal jurisdiction over” that party.

Gagliardi v. Flint, 564 F.2d at 115 n.2. In

Aldinger, supra, the plaintiff asserted a federal cause of action based on 42 U.S.C. § 1983 against a county and certain individual defendants. She assertеd jurisdiction under 28 U.S.C. § 1343(3). The courts below rejected the § 1983 claim against the municipality as foreclosed by the decisions of the Supreme Court in

City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), and

Moor v. Alameda County, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Plaintiff argued alternatively that the county could be joined as a pendent party on state law claims which arose from the same facts as those underlying the federal cause of action against the individual defendants. Because those federal claims against the individuals also rested on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), the Supreme Court held that the congressional policy implicit in thosе statutes against municipal liability prevented the exercise of pendent jurisdiction over the county where no independent basis of federal jurisdiction over the municipality existed.

Aldinger v. Howard, 427 U.S. at 16-19, 96 S.Ct. 2413.

By way of contrast in both

Gagliardi and this case, an independent basis for federаl jurisdiction does exist. In

Gagliardi, as here, plaintiff asserted a cause of action directly under the Fourteenth Amendment, alleging jurisdiction under 28 U.S.C. § 1331. We held that the Fourteenth Amendment issue was a sufficiently substantial federal question to vest the court with jurisdiction under 28 U.S.C. § 1331.¹ Accordingly,

Gagliardi approved the district court‘s exercise of its discretion to hеar the pendent state claims before deciding the federal constitutional question of the existence of a cause of action. See

Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974);

Siler v. Louisville & Nashville Railroad, 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909).

Similarly, in this case the plaintiff‘s assertion of a Fourteenth Amendment cause of action was enough to vest the district court with jurisdiction over the municiрality.

Since an independent basis for federal jurisdiction existed,

Aldinger is no barrier to hearing the pendent state claims. The district court therefore should be given an opportunity to exercise its discretion to hear the pendent state claims before deciding the federal constitutional issue. We note ‍​‌​​‌​​​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​​‌‌‌​​​​​​​​​‌​​‍that the district judge did decide to exercise pendent jurisdiction over the state claims against the individual officers, and presumably the same evidence would be relevant to the pendent claims against the township as well.

The judgment of the district court will be vacated, and the case remanded to the district court for further consideration consistent with this opinion.

GIBBONS, Circuit Judge, concurring.

While I join the opinion of the cоurt, I continue to subscribe fully to the views expressed in my concurring opinion in

Gagliardi v. Flint, 564 F.2d 112, 117 (3d Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3392 (U.S. Nov. 7, 1977). In

Gagliardi I made three basic points. First, the case law of this circuit already establishes that, for suits against municipal corporations basеd on alleged fourteenth amendment violations by their agents, 28 U.S.C. § 1331 affords jurisdiction and the Federal Rules of Civil Procedure provide a law of remedies. Second, those prior decisions are both sound and entirely consistent with the existing pronouncements of the Supreme Court. Third, when a pendent state law claim provides an available ground of decision, the preferred course, dictated by the policy announced in

Siler v. Louisville & Nashville R. R., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), is to decide the case on that ground.¹

The course adopted both here and in

Gagliardi will probably make it unnecessary for this court ever again to impose liability on municipalities directly under the fourteenth amendment. In two states in this circuit municipal corporations are already liable on a respondeat superior basis for the torts of their agents.

Jackson v. Hankinson, 51 N.J. 230, 238 A.2d 685 (1968);

Ayala v. Philadelphia Bd. of Educ., 453 Pa. 584, 305 A.2d 877 (1973). The current state of the law in Delaware is not entirely clear. But in

Pajewski v. Perry, 363 A.2d 429 (Del.1976), the Supreme Court of Delaware held that state sovereign immunity is waived if а state insurance program covers the particular risk which gave rise to the lawsuit. That decision, coupled with the court‘s discussion of municipal immunity as an aspect of sovereign immunity, may well point in Delaware toward the abolitiоn of municipal immunity for torts committed by agents engaging in governmental activities, if, as is usually the case, there is insurance coverage. These sensible state law developments demonstrate that governmental entities employing agеnts whose activities may cause harm have no less obligation to assume the risk of such harm than do private persons or non-governmental business entities. It is equally sensible for federal courts, in the exercise of their pendent jurisdiction, to rely first on a state tort cause of action and state law respondeat superior liability of municipalities, rather than on a federal constitutional cause of action and a respondeat superior liability implied from the fourteenth amendment. Moreover, even if a particular plaintiff has failed to plead the state cause of action, he should be permitted to amend his ‍​‌​​‌​​​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​​‌‌‌​​​​​​​​​‌​​‍complaint in order to incorporate such a theory. Only by such a liberal amendment practice will the policy enunciated in

Siler v. Louisville & Nashville R. R., be served. At the same time, the availability of jurisdiction over municipal corporations under 28 U.S.C. § 1331 ensures that a litigant‘s choice of a federal forum for complaints against state governmental agents will be preserved without the necessity of a separate state-court action against the deep-pocket defendant.

Although the preferred course is to decide cases such as this on the basis of state tort law, cases may arise in the future where the governmental agent is not liable under state tort principles but is liable directly under the federal Constitution. See

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Whether such suits take place in state or federal forums, the fourteenth amendment and the federal cases interpreting it will measure the legality of the governmental agent‘s conduct. Even when 42 U.S.C. § 1983 or some other federal statute provides a remedy for a constitutional violation, it is the Constitution, not the statute, which measures the legality of the conduct. By virtue of the supremacy clause, that federal law is state law. But once the agent has been found liable for a constitutional violation, the state law imposing respondeat superior liability on the municipality must apply. When a state makes the decision to provide in its courts of general jurisdiction for a respondeat superior remedy against municipalities, it cannot discriminate in the application of that remedy simply because the conduct complained of is made illegal by federal law. Cf.

Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947);

Mondou v. New York, New Haven & Hartford R. R., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912). Thus, in this circuit at least, the establishment of the agent‘s liability under the Constitution will necessarily establish the respondeat superior liability of his municipal employer.

The pendent jurisdiction rule permits the plaintiff to make the choice of a federal forum afforded by federal statutory jurisdictional grants and, аt the same time, avoids the ‍​‌​​‌​​​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​​‌‌‌​​​​​​​​​‌​​‍necessity for separate lawsuits growing out of the same set of operative facts. See

United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966);

Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). In this case and in

Gagliardi we have worked out an accommodation between state and federal law which accomplishes those purposes nicely. That accommodation can be seriously objected to only by those who believe the states erred in eliminating municipal immunity, by those who think litigants should be deprived of a choice of a federal forum in every possible instance, or by those who are hostile to the federally protected rights being asserted.

Notes

1

The fact that courts of appeal have differed in resolving the question demonstrates that the claim cannot be dismissed as insubstantial. Compare, e. g.,

Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977), with

Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977), and

Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977). At least one of my brothers obviously disagrees with each of these views. See

Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977) (Garth, J., concurring in part and dissenting in part).

Case Details

Case Name: John David Pitrone v. Police Officer Louis J. Mercadante, Police Officer Thomas McMann Police Captain Rowen Kelley, Warminster Township, Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 21, 1978

Citation: 572 F.2d 98

Docket Number: 76-2593

Court Abbreviation: 3rd Cir.