Paul A. Elberti v. Elvin H. Kunsman

Third Circuit

Paul A. Elberti v. Elvin H. Kunsman

376 F.2d 567, 1967 U.S. App. LEXIS 6610

CourtCourt of Appeals for the Third Circuit

DecidedApril 26, 1967

Docket16039_1

StatusPublished

Cited by13 cases

This text of 376 F.2d 567 (Paul A. Elberti v. Elvin H. Kunsman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Paul A. Elberti v. Elvin H. Kunsman, 376 F.2d 567, 1967 U.S. App. LEXIS 6610 (3d Cir. 1967).

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Opinion

OPINION OF THE COURT

PER CURIAM.

This is a civil action in which the plaintiffs, seeking injunctive relief, challenged as contrary to law the selection of an interim operating committee chosen pursuant to statute to administer the affairs of a newly consolidated school district within Schuylkill County, Pennsylvania. Pennsylvania School Reorganization Act, 24 P.S. § 2-290, et seq., and particularly § 3-303.1. The challenge was predicated on the alleged grounds that the selection violated the said statute and the Fourteenth Amendment to the Constitution.

The jurisdiction of the district court was invoked under § 1343(3) of Title 28 U.S.C.A. The court below found that there was no “constitutional infirmity in the application of the” Act but held that the federal question was not “plainly wanting in substance.” It retained jurisdiction of the action and after a trial on the merits entered judgment in favor of the plaintiffs on the claim based on state law.

The retention of jurisdiction of the claim based on state law may be sustained as proper only if the federal question was substantial. Levering & G. Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933); Mosher v. City of Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148 (1932). The question must be determined “by the allegations of the [complaint], and not upon the facts as they may turn out or by a decision of the merits.” Ibid. We are convinced from our examination of the complaint that the federal question was unsubstantial and frivolous.

The action will be remanded to the district court with a direction that it be dismissed for the lack of jurisdiction.

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OPINION OF THE COURT

PER CURIAM.

This is a civil action in which the plaintiffs, seeking injunctive relief, challenged as contrary to law the selection of an interim operating committee chosen pursuant to statute to administer the affairs of a newly consolidated school district within Schuylkill County, Pennsylvania. Pennsylvania School Reorganization Act, 24 P.S. § 2-290, et seq., and particularly § 3-303.1. The challenge was predicated on the alleged grounds that the selection violated the said statute and the Fourteenth Amendment to the Constitution.

The jurisdiction of the district court was invoked under § 1343(3) of Title 28 U.S.C.A. The court below found that there was no “constitutional infirmity in the application of the” Act but held that the federal question was not “plainly wanting in substance.” It retained jurisdiction of the action and after a trial on the merits entered judgment in favor of the plaintiffs on the claim based on state law.

The retention of jurisdiction of the claim based on state law may be sustained as proper only if the federal question was substantial. Levering & G. Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933); Mosher v. City of Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148 (1932). The question must be determined “by the allegations of the [complaint], and not upon the facts as they may turn out or by a decision of the merits.” Ibid. We are convinced from our examination of the complaint that the federal question was unsubstantial and frivolous.

The action will be remanded to the district court with a direction that it be dismissed for the lack of jurisdiction.

Frank Lentino and Perry Flame, Trustees of the Teamsters Local 158 Severance Pay Plan v. Fringe Employee Plans, Inc., Fringe Programs, Inc., 377 Fifth Avenue, New York, New York 10016 and Howard Casper and Mark Muller, Individually and Trading as Casper & Muller, a Partnership, and Jack Miller, Ray A. Oates, Max Cohen, Harold Kapp and Robert G. Sloane, Individually and as Former Trustees of the Teamsters Union 158 Severance Pay Plan v. J. B. Jackson (Third-Party Defendants)

611 F.2d 474 (Third Circuit, 1979)

Lentino v. Fringe Employee Plans, Inc.

611 F.2d 474 (Third Circuit, 1979)

John Tully (Plaintiffs in d.c.) v. Mott Supermarkets, Inc., a Corporation of the State of Connecticut,(defendants in d.c.), Thomas Infusino (Counterclaim in d.c.) v. John Tully (Counterclaim in d.c.) (d.c. Civil Action No. 835-71)

540 F.2d 187 (Third Circuit, 1976)

Tully v. Mott Supermarkets, Inc.

540 F.2d 187 (Third Circuit, 1976)

McCurnin v. Kohlmeyer & Company

347 F. Supp. 573 (E.D. Louisiana, 1972)

Warrington Sewer Company v. Joseph Tracy

463 F.2d 771 (Third Circuit, 1972)

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376 F.2d 567, 1967 U.S. App. LEXIS 6610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-a-elberti-v-elvin-h-kunsman-ca3-1967.

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