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

572 F.2d 98, 24 Fed. R. Serv. 2d 1246, 1978 U.S. App. LEXIS 12505

• Court: Court of Appeals for the Third Circuit
• Decided: February 21, 1978
• Docket: 76-2593
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

This is an appeal from a district court determination that a federal cause of action against a 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 discretion 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 brought 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, “[sjince 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. (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 asserted 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 those 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 federal 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 hear 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 municipality-

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.

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).