Salvadore Rotolo v. The Borough of Charleroi (Two Cases)

practice unfair labor is an employees among in the rule is 8(a)(1). Since section enforced, and its face cannot on

valid violating the rule5 discharge for

McNeely’s thus have no oc We be sustained.

cannot Company’s contention to discuss casion rule, apart from the McNee

that, entirely employees with fellow wage discussions

ly’s activity within concerted constitute not

did 7 of the Act. of section protection will be enforced. Board’s ROTOLO, Appellant,

Salvadore et CHARLEROI OF

The BOROUGH cases). (two

al. and 73-1369.

Nos. 73-1368 Appeals, Court

United States Circuit.

Third Under Third Circuit Rule

Submitted 10, 1975.

12(6) Dec. 22, 1976.

Decided March McNeely the record reveals substantial Company examination has contended 5. The misrepresenta- discharged support for certain this conclusion. was also evidence discharge partly supra. event, Administrative p. even motivated See tions. . found, testimony before Judge on based N.L.R.B.v. Law him and Cf. cannot stand. reason unlawful credibility, that Inn, of witness evaluations Princeton Inn Co. d/b/a Princeton misrepresentations were made no willful 1970); N.L.R.B.v. Rub- F.2d discharge her principal basis Rolls, Inc., F.2d ber Our wage violation rule. discussions

the district court erred in dismissing the complaints without allowing plaintiff op- portunity to amend. We therefore vacate judgment and remand with directions to allow amendment to the pleadings within period. reasonable The plaintiff, Rotolo, Salvadore was ter from minated employment his as a building inspector for the defendant municipal cor poration, the Borough of Charleroi, Penn sylvania. He avers that four Borough councilmen voted to terminate his employ ment “because the Plaintiff had exercised his First Amendment privileges.” Thereup on, Rotolo filed in the United States Dis trict Court for the Western District of Pennsylvania two civil rights complaints under 42 U.S.C. 1983 (1971), alleging that defendants had denied him his first amend ment rights.1 One complaint, seeking in $25,000 excess of money damages, named as defendants the Borough of Charleroi and the four councilmen2 who allegedly voted for termination of Rotolo’s employment. other seeking injunction on against filling the vacancy caused termination, named as defendants the Bor ough and seven Borough councilmen.3 Rotolo’s substantive allegations were identical both complaints: 3. Prior August 23, 1972,the Plain- Gaudio, Albert C. Henry Martin, A. Mon- tiff was employed in the capacity of essen, Pa., appellant. Building Inspector for the Defendant, France, Jack H. Murphy France, & Char- Borough of Charleroi. leroi, Pa., appellees. 4. On or August 23, about 1972, the Defendants, Celaschi, Peter Theodore SEITZ, Before Chief Judge, and GIB- Breuer, Fred P. McLuckie and Armand Balsano, voted to terminate the Plain- ROSENN, BONS and Judges. Circuit employment tiff’s with the Defendant, OPINION OF THE COURT Borough Charleroi, because the Plain- PER CURIAM: tiff had exercised his First Amendment is an privileges This appeal from ah under the order granting Constitution of the defendant’s motion under United States. Fed.R.Civ.P. 12(b)(6) plaintiff’s to dismiss two 5. That the aforesaid action on the complaints for failure to state a claim upon part of the Defendants was a denial of granted. relief can be We believe the Plaintiff’s First Amendment rights to premised

1. Jurisdiction was on 28 U.S.C. Fear, 3.Edward Briggs, Fred and Frank Pucci in (1971) § 1343 and Section 1983. addition to the councilmen listed in note 2. Celaschi, Breuer, Peter Theodore Fred McLuckie, and Armand Balsano. Hohn, ex- 379 F.2d 213 speech and freedom freedom pression. correctly court first rationale of the requirement

The district Pape, specifically Monroe averred was out facts determined (1961), Maule, Valley 5 L.Ed.2d 492 F.Supp. lined in Borough Char- the of against (D.Conn.1968), quoted approvingly suit and was precluded municipality 1983 as the Moss, supra, under section v. leroi 1276 n. 15: in Kauffman of that stat “person” purposes not a is years there has been an increas- In recent rel. v. ex Gittlemacker United ute. States large volume of cases un- ingly brought 84, (3d 413 F.2d 86 Philadelphia, of County Rights Civil Act. A der the substantial 1046, denied, 90 1969), 396 cert. U.S. Cir. are of these cases or number frivolous 696, (1970). Although 691 24 L.Ed.2d S.Ct. litigated courts; in the State should may nonetheless exist jurisdiction federal defendants—public cause they all offi- (1971), City of Keno 1331 28 under U.S.C. cials, policemen alike, and citizens con- 507, 514, Bruno, 93 S.Ct. 412 U.S. v. sha expense, vexation perhaps siderable 109, 2227, (1973), Roto- 2222, L.Ed.2d 116 37 notoriety. important It is an unfounded jur inadequate establish complaint is to lo’s policy weed out the public to frivolous juris section under isdiction at an early stage insubstantial cases according to the pleaded must be diction litigation, keep and still in the the doors made no of and Rotolo the nature open to legitimate the federal courts of of 1331 section mention claims. 178, 182, 189, GMAC, 56 v. 298 U.S. McNutt to Subsequent Negrich, the United States 1135, (1936); 780, 785, L.Ed. 1140 80 S.Ct. Kerner, v. Court in Haines 404 Supreme 1140, (3d F.2d 1143 Cir. Spina, v. 477 Smith 519, 594, (1972) 30 L.Ed.2d 92 S.Ct. 652 U.S. 1973). curiam) adopted a strict standard (per appropriate We this believe prisoners’ pro to dismiss motions se of 1653 application the 28 U.S.C. § case complaints: allows amendment expressly which (1971), say cannot with assurance that under We allegations. jurisdictional defective the se allegations the remand, Therefore, giv will be Rotolo upon stringent we hold to less which standards jurisdic opportunity to amend en an pleadings than formal drafted law- parts those his com allegations in tional appears “beyond it doubt that yers, Borough of Char- refer to which plaints prove can no set of facts in leroi. of his claim which entitle support would against individual to the action Conley Gibson, As v. relief.” 355 to U.S. him defendants, both the district court found 41, 45-46, 80, 2 78 L.Ed.2d S.Ct. lacking: complaints (1957). conclusory purely allegations [T]he 520, 596, 92 S.Ct. Id. at 30 L.Ed.2d at 654. any specific facts adumbrate and fail to Negrich was harmonized with Haines action or cause of to state sufficient Creamer, 179, in Gray v. 465 F.2d this court granted relief can be upon which

claim 1972). suggested It n.2 Cir. applied standard would be to com-

Haines allegations un- circuit, “specific in which plaintiffs In this made, were whereas conduct” plead facts with constitutional required Moss, would continue to serve as a barri- 420 F.2d Kauffman specificity.4 denied, “contain (3d Cir.), only vague 1270, cert. er to 1275-76 846, 93, (1970); conclusory allegations.” 27 L.Ed.2d 84 S.Ct. Court, Supreme Colorado, persmith Rights Organization Albany State of also Welfare 4. See Schreck, 1972); Finley Center, (10th Day Inc. 463 F.2d Cir. Care 465 F.2d denied, Rittenhouse, (9th 1972), cert. 622-23 (1973); Coo- 35 L.Ed.2d 611 We par find standard The order appealed from, in its ticularly allegations here. appropriate entirety, states: vague strike us in the as NOW, AND this 1st day March, indicate, when, They fail conclusory. 1973, upon consideration of defendants’ where, and Rotolo had how “exercised his dismiss, motion to and of briefs sup- privileges,”5 Amendment rendering First port opposition thereof and in thereto and impossible to determine if indeed his activi being opinion the Court that it is clear ty protection sort afforded the action does not against lie amendment and whether the first it had municipality (Monroe Charleroi the termination of his em relevance Pape, 365 U.S. 167 S.Ct. [81 ployment. allegations state no facts (1961)), and that 492] with re- upon weigh which to substantiality spect individual defendants claim; they the do not aver the content of allegations purely are conclusory and fail alleged the first amendment exercise. any specific to adumbrate facts sufficient state a cause of action or upon claim prop We believe the district court granted. relief can be (Negrich v. However, Negrich. erly applied again it Hohn, (C.A. 3, 379 F.2nd 1967)), opportunity did not allow an amend IT IS ORDERED that said motions accomplish objectives ment. To the dual of hereby granted and and that the com- weeding keeping out frivolous and the above-styled in causes be and legitimate open to civil rights federal courts they hereby are (App. 27a). dismissed. claims, should allow courts liberal amend There two separate complaints in this rights complaints of civil ment under Fed.R. case, apparently because plaintiff’s counsel 15(a). Nothing Negrich precludes Civ.P. is unfamiliar with federal pleading practice. this; fact, the Negrich expressly court complaint The in D.C. Civil Action 72- No. noted that the district court in that case should a have been second count of the permit plaintiff could the an file amend complaint in D.C. Civil Action No. 72-775. Kauffman, ed at 1276. 18(a). In Fed.R.Civ.P. the first complaint, judgment of The the district court will be 72-775, Action No. Civil the seeks the vacated and case remanded di- with damages money $25,000.00. excess plead- rections to allow amendment to the the second Civil Action 72- No. period. within ings a reasonable injunction against he seeks an filling vacancy the created the termination of GIBBONS, Judge (concurring Circuit and employment, his reinstatement with back dissenting). pay, unspecified and an amount of dam- ages. complaints In both the Borough of is an appeal granting This from a Charleroi is named as defendant. In No. plaintiff’s motion to dismiss defendants’ Borough councilmen, 72-755 four Peter Ce- complaints for failure to state a lasehi, Breuer, Theodore Fred McLuckie upon granted. claim which relief can be Balsano, and Armand are also as 12(b)(6). plaintiff, The named Fed.R.Civ.P. Salva- individual defendants. In No. Rotolo, 72-776 three building dore a former inspector councilmen, Fear, additional Edward Charleroi, Fred Borough the employed Pucci, Briggs and Frank are named. The Washington County, Pennsylvania, filed allegations, however, substantive are the against Borough two the complaints. same in both alleging pub- individual councilmen that his employment had lic been terminated be- August 3. Prior to the Plain- he his cause had exercised first amendment employed tiff was in the capacity of concurring dissenting opinion 5. The as- speech to the expres- denial of freedom alleged sion, sumes that Rotolo’s exercise of his first the does not reveal the form privileges took the “ut- amendment form an and manner Rotolo’s behavior at issue here. conclusory Apart terance.” from the reference Defendant, which substitutes the notice pleading the Inspector Building of the Rules of requirement Civil Borough of Charleroi. unique to requirement, Procedure the August or about 4. On cases, pleaded that facts be with Celaschi, Theodore Defendants, Peter deficiency plain- specificity. alleged and Armand McLuckie P. Breuer, Fred by majority complaint described tiff’s the Plain- terminate Balsano, voted Defendant, as follows: with employment tiff’s Charleroi, because Borough of when, allegations] fail to indicate [The Amend- his First had exercised Plaintiff his where, how Rotolo had “exercised under Constitution privileges ment privileges,” rendering Amendment First States. United his to determine if indeed impossible on the action aforesaid protection 5. That was afforded activity sort of the a denial was defendant of"the and whether part the first amendment First Amendment Plaintiff’s to the termination of any relevance it had of ex- and freedom speech freedom employment. pression. measuring standard for 5a-6a; 9a-10a). (App. sufficiency in this employee public that a allegation An however, puzzling. Starting is at best with of his first exercise for the discharged “relevance”, I note requirement claim for a federal rights states amendment alleges complaint termination of em- the e, Sindermann, 408 See, Perry v. g., relief. had “because Plaintiff exercised ployment 2694, 2696, 33 596-98, 593, 92 S.Ct. U.S. privileges.” It may First Amendment his Pickering v. Board (1972); 570, 576 L.Ed.2d at trial will the evidence convince be that 1731, 563, 20 Education, 391 U.S. fact Rotolo’s termination trier of that the com- the instant (1968). While 811 reason. But apparently another was for artistically drafted as not as are requires plaintiff plead that majority the seen, they give adequate we have some Must set complaint the forth evidence. ac- specific of the to the defendants notice 23, August the 1972 transcript of meet- and of complains plaintiff the tion Turning next to the re- ing? De- seeks. the relief he for legal basis the complaint that set the forth quirement Breuer, Celaschi, McLuckie and fendants where, “when, and how Rotolo had exer- termi- voting to charged with are Balsano privileges,” I First am cised his Amendment the Bor- with employment plaintiff’s nate First, problems. with two how confronted his first amend- exercised he ough because time, manner of place, and the will the Fear, and Briggs Defendants ment aid in determination of the utterance the defendants, since al- appropriate are Pucci or not the utterance was whether question charged specific with not though they are by the first amendment? Will it protected to council- alleged be they wrongdoing, disclose, example, whether the utter- to act if required men, would be and so, why if must And was obscene? ance or reinstatement court should district plead case in a first amendment con- required is to be more No backpay. his utterance not that did fall negatively 8(a) of by Rule pleadings in the tained exception to the first amend- an within See, e. Procedure. Rules of Civil Federal Second, requirement the “how” does ment? 47-48, Gibson, 41, 78 Conley v. g., pleader must set forth full that the mean 80, (1957). 85 2 L.Ed.2d S.Ct. caused alleges which he the utterance intended, what does If that is discharge? is court, however, concluded The district mean the content majority that notice adequate something more than that the cause is an element utterance by plain- provided had defendants hardly be the law. can At That on action? majority, relying tiff’s of the utterance would be content (3d most the Hohn, F.2d 213 Cir. of the motivation evidentiary on issue approach approves this 1967), explicitly sition discharge. If the utterance was the standards of the affairs, a trier of fact Rules of Civil Procedure township applicable unrelated rights cases, the termination might well conclude that fact pleading is required. to the utterance. Certain- not Thomas v. not related Brier (3d then, ley, 1973) utterance is Cir. (per curiam); the content of Rotolo’s ly, ex rel. Tyrrell Speaker, But it is no United States evidentiary. discoverable 1973); F.2d Gray cause of action. plaintiff’s part Creamer, 465 F.2d 179 I majority to me that has It seems*' authority know of no in this holding court beyond any prior holding of this court gone complaint that a which identifies the de rights cases a in civil fact imposing time, who acted place fendants and the ask, I where requirement. is the pleading actions, nature of their is insufficient when doing warrant statutory so? The moti- right legal asserted is a civil right pro vation, enough, clearly hostility to the by tected the federal Constitution. against authority assertion of Court, moreover, The Supreme has ex- motivation, But that which I figures. do adopted the pressly notice pleading stan- share, principled is no substitute for a not supra, dard of in civil authority of our analysis substitute in In McKeithen, cases. Jenkins v. category of civil cases a fact S.Ct. L.Ed.2d 404 requirement approved at variance with that (1969), plaintiff filed a suit challenging the Congress in Rule Fed.R.Civ.P. constitutionality of a Louisiana statute and Hohn, this court of certain actions taken state officials of a upheld the dismissal se civil the administration of that statute. In the alia, ground, on the inter complaint discussing important standing course of conclusory” was “broad and Marshall issue Justice stated that: “to state facts in support failed of its con purposes For the of a motion to dis- 379 F.2d at 215. But the defect clusions.” miss, allegations the material of the com- that case was that defendants were plaint are taken as admitted. time, place of the not informed and manner Equipment, Walker Process Inc. v. Food they individually alleged were Machinery Corp., & Chemical 382 U.S. deprived Negrich have of his constitutional 172, 15 174-75 S.Ct. L.Ed.2d [86 Thus, complaint give failed to And, (1965). 247, complaint is to 249] adequate notice the claims defendants of construed in favor liberally plain- of be by Negrich. complaint The at asserted is 8(f); Fed.Rules Civ.Proc. Con- tiff. See case, above, in this as sue noted does not Gibson, 99, 355 U.S. 41 ley v. S.Ct. 2 [78 from these same defects. But Neg suffer (1957). complaint should L.Ed.2d 80] Hohn, supra, rich v. has been cited for the appears dismissed unless it not be considerably proposi broader different “prove could no set of facts in appellant rights that in civil cases the complaint tion of his claim which would support entitle specifically pleaded must be in order to Gibson, to relief.” v. supra, him avoid a motion to dismiss. Kauffman v. 102, at 2 at 45-46 S.Ct. L.Ed.2d at [78 84] Moss, 1270, Cir.), cert. 1275-76 421-22, 1849, at 89 S.Ct. at 395 U.S. 23 846, denied, 93, 400 91 U.S. S.Ct. 27 L.Ed.2d 416. L.Ed.2d at (1970). The dictum in Kauffman v. Moss 84 Kerner, Subsequently, Haines v. effect, however, plausibly to that cannot be (1972) 30 (per L.Ed.2d 652 go beyond Negrich construed v. Hohn curiam), the Court in the context of pris- a complaint that the in a civil holding pro rights complaint se civil adopted oner’s other, case, give as in must fair notice standard: the same conduct with which the defendant is of the ample There is Third Circuit au charged. may Whatever be the limits on the Negrich v. thority propo- since Hohn for the scope inquiry courts into the inter- pro se prisons, allegations indigent case, apparent nal administration require- by petitioner, asserted how- ment of pleading, such as those factual which majori- inartfully pleaded, established, sufficient this case ty ever contends could well opportunity support- to offer call for the attributable to the application be court’s say cannot with ing evidence. We assur- interpretation requirements this of the allegations pro 1915(d). ance that under of the But even if this interpretation § which we hold Negrich se to less strin- v. accurate, Hohn holding is pleadings standards than formal gent support it would not the majority’s holding by lawyers, appears “beyond case, 1915(d) drafted in this provides § no' basis plaintiff prove can no set distinguishing doubt between indigent support and, facts in claim which rights plaintiffs for example, indigent would entitle him to relief.” Conley negligence plaintiffs. v. 41, 45-46, U.S. S.Ct. In order to demonstrate the continuing (1957). L.Ed.2d vitality of the holding Hohn 520-21, at 654. S.Ct. contrary despite authority of Haines v. Supreme view of these and Third Court Kerner, supra, majority engages in a cannot, precedents Negrich Hohn Circuit peculiar use of most stare decisis. In Neg- intended, it was so even if relied on as Hohn, supra, pro rich v. a se prisoner filed a authority proposition for the that com granted The court him leave to require in civil actions fact proceed pauperis in forma appointed than pleading rather notice in or complaint counsel. The came before this der to avoid a motion to dismiss.1 form, original court in its and we affirmed dismissal, a with however, but leave to majority, file an amend- attempts to dis complaint. 379 Thereafter, ed F.2d at Kerner, as

tinguish such Haines v. case, which, a statement in that supra, Tyrrell and United States ex rel. as noted above, may have been an interpretation Speaker, supra, they because se authority the court’s to deal more indigent strictly while in this case the indigent’s with an represented by attorney. 1915(d),appeared in dictum in approach certainly But that does not Kauffman serve Moss, supra, another pro se distinguish McKeithen, Jenkins v. stated applicable as to civil represented plaintiff. a cases without which involved But Now, by limitation. pointing approach even if the thor to the fact consistent, appointed that counsel was oughly I would still have to ask Hohn, supra, majority authority where the source of our to make converts it into a pro se “counsel” case to avoid the represented authority distinction between and Kerner, rights complainants Haines civil can be found. Ar v. attaching without guably, pro indigents any significance since se to apply must the fact that the com- for relief under 28 plaint by prisoner U.S.C. courts was filed pursuant § to greater 1915(d) have latitude under was not prepared by § 1915and § counsel. If impose pleading a stricter standard in such the court intended in 1967 lay down any Negrich Hohn, supra, cases.2 Since v. was a principle broad that fact pleading is re- Supreme I do not read the Ault, 1. Court’s recent Watson v. Civil Nos. 75- Housing statement in United Foundation v. Cir., (5th 1976), 1683 to 75-1685 in which Forman, 837, 860, 421 Judge argues Bell that the “frivolous and mali- (1975), vague that “a 1915(d) stringent cious” standard of § is less conclusory allegation under 42 U.S.C. § ordinary pleading concepts gov- than the notice against petitioner . . . must also be dis- erning complaints by lawyers. formal drafted missed,” departure to be a from the v. explains pro This view the distinction between Jackson or Haines v. McKeithen Supreme se and other which the interpretation 8(a). Kerner of Rule Kerner, supra, in Court referred to Haines v. at Judge approach I 420. think Bell’s is the See, Scranton, g., 2. e. Daves v. 66 F.R.D. interpretation 1915(d). sounder of § (E.D.Pa.1975), and cases cited therein. But see cases, the rights opinion all civil the imposition quired of a fact pleading require- Hohn, supra, certainly neither Negrich v. cases, ment in such must be found in the principled fact nor sets forth a that reveals attitude of the court toward rights be- by such a rule. But selective analysis for ing asserted. Even if I shared that attitude the circumstances of the emphasis not find statutory I could authority for a Hohn, supra, now serves the departure from the Rule 8 pleading stan- “authority” disregard for our majority as dard. Rules of Civil Procedure and agree I with the majority that the district jurispruden- caselaw. The Supreme Court permit court should amendment of the de- by such posed methodology issues tial allegation jurisdiction fective against the intriguing. Borough of Charleroi. 28 U.S.C. 1653. amazing disturbing feature The most with the agree majority While I adoption special of a fact affirmed, appealed from cannot be I cases, rights however, rule for pleading agree not the complaint do fails to all, justified, apparently is that it is if at against state a claim the other defendants cases, especially that civil the fact requires an amendment to survive a complaints, se civil have prisoner 12(b)(6) Rule motion. I simply would re- judges thought by some to be burden been verse. some, largely vexatious and unfounded.3 I viewpoint. Assuming, do not share that argument, viewpoint

the sake of validity, nothing

has some has to do with brought retained coun for the vindication first amendment

sel not overwhelming These are to the

federal courts exclusion of other business, been, and have not

worthwhile least, experience any likely at more

my litigation. than other classes of

be frivolous such special

Nor are the issues as demand explanation, then, rules.4

pleading See, Maule, g., Valley F.Supp. treble-damage antitrust actions from other (D.Conn.1968), quoted approvingly require only type proceeding of civil notice Moss, supra Kauffman v. at 1276 n. 15. See, pleadings. g., Distributing e. Walker Co. Co., Lucky Lager Brewing (9th 323 F.2d 1 Rights only type actions are not the 4. Civil 1963) authorities); (collecting Nagler prompted suits which have some courts to de Corp., 1957). Admiral 248 F.2d 319 exceptions to the clare federal rules. question treated in This considerable detail preclude allegedly In order frivolous and Moore, ¶|8.17[3], Federal Practice suits, in 2A J. private example, vexatious antitrust Moreover, fact-pleading require 1738-53 ed. there are a some courts erected a Blank, range procedural techniques ment. e. Baim & Inc. v. Warren- of other ex- whole Co., Connelly (S.D.N.Y. 19 F.R.D. pressly provided for in the Federal Rules to 1956). Despite apparent utility of such a litigation dispose and vexatious of frivolous complex litigation, in the area of rule antitrust proceedings. early point fact-pleading requirement subsequent supra, 355 U.S. at 48 n. ly rejected ground on the the Federal 103, 2 L.Ed.2d at 85. S.Ct. at Rules of Procedure do not differentiate Civil

Case Details

Case Name: Salvadore Rotolo v. The Borough of Charleroi (Two Cases)

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 22, 1976

Citation: 532 F.2d 920

Docket Number: 73-1368 and 73-1369

Court Abbreviation: 3rd Cir.