Gagliardi v. Flint

OPINION OF THE COURT Before GIBBONS, FORMAN, and ROSENN, Circuit Judges. ROSENN, Circuit Judge. The City of Philadelphia and Robert Flint, a city police officer, appeal from the denial of their motion for a new trial. The judgment against them was the outcome of a wrongful death action resulting from the shooting death of Joseph Gagliardi, a 24 year old civilian, by Flint. It appears to be undisputed that in response to a police radio report concerning a man sleeping on a porch in the 4600 block of North 11th Street, Philadelphia, Officer Flint drove to that block and there observed Gagliardi running from the steps of a house. After using his car to pin Gagliardi against a wall but finding no weapon or burglary tools on his person, Flint attempted to take Gagliar — 114 — di into custody. During the tussle which ensued, Flint failed to use his baton as required by police regulations but instead utilized first his blackjack and then his gun. Two shots were fired, the second of which proved fatal. Police reports showed that Flint fatally shot Gagliardi in the back as Gagliardi was running away from him. Ga~ gliardi’s mother thereafter initiated this action in the United States District Court for the Eastern District of Pennsylvania. Both appellants rely on alleged trial errors. The City also claims that the district court erred in entertaining the pendent Pennsylvania law claim upon which its respondeat superior liability is predicated. It does not claim that the court misapplied Pennsylvania law. We affirm. I. THE CITY’S JURISDICTIONAL CHALLENGE The City, relying on Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 296 (1976), and Tully v. Mott Supermarkets, 540 F.2d 187 (3d Cir. 1976), contends that the district court erred in entertaining a pendent state law cause of action against it because there was no independent basis of federal jurisdiction over it. In addition to the state law wrongful death claims the complaint alleges causes of action under 42 U.S.C. § 1983 and directly under the fourteenth amendment. Though the complaint alleges violations based directly under the fourteenth amendment, and seeks damages far in excess of $10,0001 the jurisdictional allegations did not specifically refer to the general federal question jurisdiction statute. 28 U.S.C. § 1331. Rather, jurisdiction over the federal claims was premised on 28 U.S.C. § 1343. Relying, however, on 28 U.S.C. § 1653 the appellee moved before this court, at the argument of the appeal, to amend the jurisdictional statement by including a reference to section 1331. See Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976). We reserved decision on the motion in order to afford to the City the opportunity to file a brief setting forth any manner in which it would be prejudiced with respect to the issues tried in the district court if that motion were granted. The City’s response indicated no such prejudice, but opposed the motion on the ground that in any event section 1331 affords no independent basis of jurisdiction over it for a claim based upon a fourteenth amendment violation. Since the City has not called attention to any way in which the trial would have differed had the complaint’s jurisdictional statement referred to section 1331 we grant the motion to amend, and proceed to the merits of the City’s contention that section 1331 provides no basis for jurisdiction over it. The answer to the question of section 1331 jurisdiction depends on how substantial is the constitutional claim. In the case sub judice, the plaintiff’s complaint against the City asserts both a federal claim based directly on the fourteenth amendment and pendent state law claims based on Pennsylvania’s Wrongful Death Act. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), holds that a federal court may, and indeed usually should, decide pendent, nonconstitutional claims if by doing so the court can avoid the decision of difficult constitutional issues. This is true even if the pendent claims standing alone would be beyond the jurisdiction of the federal court. 415 U.S. at 546-47 & nn.1213, 94 S.Ct. 1372. The only requirement for this exercise of pendent jurisdiction over state law claims is that the federal constitutional claims herein asserted not be so insubstantial as to be incapable of supporting federal jurisdiction. Under Hagans, we may reverse the district court’s determination to decide the pendent state law claims against the city only if the fourteenth amendment claim is so insubstantial that it cannot serve as the basis for federal question jurisdiction under the general federal question statute, 28 U.S.C. § 1331 (1970). See Hagans, supra, 415 U.S. at 542-43, 94 — 115 — S.Ct. 1372, citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).2 To determine whether the fourteenth amendment claim is insubstantial,3 we need go no further than the recent pronouncement of the Supreme Court in Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Court there made clear that none of its prior opinions should be construed as deciding whether there can be a fourteenth amendment implied remedy of damages: The question of whether the [defendant’s] arguments should prevail, or whether as respondent urged in oral argument, we should, by analogy to our decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983, is one which has never been decided by this Court. Id. at 278, 97 S.Ct. at 571. See also Aldinger v. Howard, 427 U.S. 1, 4 n.3, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) (leaving the question open); City of Kenosha v. Bruno, 412 U.S. 507, 514-15, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1976) (leaving the question open). Since there is no Supreme Court decision holding that a fourteenth amendment — 116 — damage remedy may not be implied and numerous lower court decisions holding that such a remedy may be, see the cases cited in note 3 of Judge Gibbons’ concurring opinion, we cannot say that the fourteenth amendment claim against the City is “so insubstantial, implausible, foreclosed by pri- or decision of the [Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court,” Hagans, supra, 415 U.S. at 543, 94 S.Ct. at 1382, quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). It may be that a respectable case can be stated in support of the proposition that a cause of action for damages on the basis of vicarious liability cannot be implied against a municipal corporation under the fourteenth amendment. Nonetheless, it is evident under Mt. Healthy, supra, that the question remains perplexing and substantial. Thus, we conclude that the fourteenth amendment claim against the City was sufficiently substantial to vest the district court with federal question jurisdiction under 28 U.S.C. § 1331. Given the presence of federal jurisdiction, Hagans teaches that the district court did not abuse its discretion when it avoided the difficult constitutional question whether to imply a fourteenth amendment remedy in damages and proceeded instead to try the pendent state law claims. See also Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 636-37, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974) (White, J., dissenting); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909); Doe v. Beal, 523 F.2d 611, 614 (3d Cir. 1975) (en banc), rev’d on other grounds, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977). II. TRIAL ERRORS The claimed trial errors advanced in support of the appellants’ new trial motion need not detain us long. They consist of one exclusion and three admissions of evidence. The excluded evidence consisted of a welfare record of the decedent, offered, in the damage phase of a bifurcated trial, in an effort to denigrate the decedent’s potential employability. As the record was cumulative of oral testimony that was admitted, and was excluded on that ground, there was no abuse of discretion. The appellants also urge as error that in rebuttal testimony the appellee, decedent’s mother, was allowed to testify as to a hearsay statement by a police officer to a statement by an eyewitness, “they didn’t have to kill the kid.” The hearsay statement was arguably inconsistent with a written statement of the same eyewitness, admitted in evidence in appellants’ case. As there was no timely objection, we will not consider the allegedly hearsay testimony as error. See Fed.R.Evid. 103(a)(1). The defendant also contends that in the damage phase of the trial the court erred in admitting the testimony of a witness, Mrs. McGeehan, about negotiations between her son, who had been beaten by Flint in an unrelated incident, and Flint’s superior. The court ruled that the testimony was admissible to show the City’s knowledge of the incident. Such knowledge of Flint’s dangerous propensities was relevant to the issue of punitive damages. The hearsay objection is groundless. See Fed.R.Evid. 801(d)(2)(D). The relevancy of the testimony was a matter within the trial court’s discretion. Fed.R.Evid. 402, 403. Finally, appellants contend that the court erred in permitting Mrs. Gagliardi to testify that her son went to work as a painter. They contend that this testimony was hearsay. In those instances where a hearsay objection was made the court ruled correctly that the objection was groundless, since the witness was present at the incidents related. In the other instances there was no objection. If there were any errors in determining whether given questions sought hearsay evidence, the evidence was otherwise admissible under an exception since the declarant was unavailable. See Fed.R.Evid. 804. Moreover any such error was harmless. — 117 — CONCLUSION The order denying the appellants’ motion for a new trial will be affirmed. Appellants also filed notice of appeal from the order of the district court denying their motion for judgment notwithstanding the verdict but abandoned the same in this court. This order of the district court will also be affirmed. Footnotes [1] The final judgment awarded appellee was $116,570. [2] Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), does not require a different result. Aldinger holds 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 the claims against the city. In the instant case, however, we are concerned with the decision of pendent claims where substantial federal claims against the city provide an independent ground of federal jurisdiction. Aldinger does not speak to this situation at all. See generally, Comment, Aldinger v. Howard and Pendent Jurisdiction, 77 Colum.L.Rev. 127 (1977). [3] We cannot accept the proposition, urged by our brother Gibbons, that we have expressly held a fourteenth amendment cause of action can be asserted against municipal corporations which are not persons within the meaning of 42 U.S.C. § 1983 (1970). Judge Gibbons relies on Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976) (per curiam); McCullough v. Redev. Auth. of Wilkes-Barre, 522 F.2d 858, 864 (3d Cir. 1975); and Skehan v. Bd. of Trustees of Bloomsburg State College, 501 F.2d 31, 44 (3d Cir. 1974), vacated and remanded on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975), on remand, 538 F.2d 53 (3d Cir. 1976). In none of these cases, however, was the issue whether a cause of action may be implied presented to the court. On the contrary, each of the three cases directed the challenge only to the district court’s “jurisdiction.” Given the clear holding of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), that federal question jurisdiction, as opposed to a federally recognized right to relief, is created by the mere allegation of matters in controversy, arising under the Constitution or laws of the United States, it is not surprising that in Skehan, McCullough, and Rotolo, we spent few words on the jurisdictional challenges. The very brevity of our discussion in those cases belies any intention whatsoever on our part to decide the highly complex and controversial policy issues which Judge Gibbons now discerns in our past, pithy pronouncements. In our view, neither Skehan, McCullough, nor Rotolo decided or even purported to decide the question whether a damage remedy may be implied from the fourteenth amendment. We believe that the concurrence also misreads Alderman v. Philadelphia Housing Authority, 496 F.2d 164 (3d Cir.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974). Alderman was an equity suit by several discharged employees of the Housing Authority against the Authority as well as against Stein, its chairman, alleging that their discharge violated the first and fourteenth amendment. Since Stein was clearly a “person” within the meaning of 42 U.S.C. § 1983, we have no occasion to consider whether the Authority was also a proper section 1983 defendant. In fact, we expressly stated that the cause of action was brought under section 1983 and that jurisdiction was founded on 28 U.S.C. § 1343. Id. at 167 n.13. Thus, it was section 1983, not the fourteenth amendment itself, which provided plaintiffs in Alderman with their cause of action for deprivation of their first and fourteenth amendment rights. Notwithstanding Judge Gibbons’ bold assertion that Alderman was brought directly under the fourteenth amendment (presumably with jurisdiction based on 28 U.S.C. § 1331), the case is simply irrelevant to the position which he strives to reach in this case. Since we can find no decision of the fourteenth amendment cause of action question in Rotolo, McCullough, Skehan, or Alderman, we conclude that even if that question were now properly before us — and we think it is not — it would be a question of first impression in this circuit.