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Rotolo v. Borough of Charleroi

filed: March 22, 1976.

SALVADORE ROTOLO, APPELLANT,
v.
THE BOROUGH OF CHARLEROI, AND PETER CELASCHI, THEODORE BREUER, FRED P. MCLUCKIE, ARMAND BALSANO, ALL COUNCILMEN (D.C. CIVIL ACTION NO. 72-775) SALVADORE ROTOLO, APPELLANT V. THE BOROUGH OF CHARLEROI, AND EDWARD FEAR, FRED BRIGGS, PETER CELASCHI, THEODORE BREUER, FRANK PUCCI, FRED P. MCLUCKIE, ARMAND BALSANO, ALL COUNCILMEN (D.C. CIVIL ACTION NO. 72-776)



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Seitz, Chief Judge and Gibbons and Rosenn, Circuit Judges. Gibbons, concurring and dissenting.

Author: Per Curiam

Opinion OF THE COURT

This is an appeal from an order granting defendant's motion under Fed. R. Civ. P. 12(b)(6) to dismiss plaintiff's two civil rights complaints for failure to state a claim upon which relief can be granted. We believe the district court erred in dismissing the complaints without allowing plaintiff opportunity to amend. We therefore vacate the judgment and remand with directions to allow amendment to the pleadings within a reasonable period.

The plaintiff, Salvadore Rotolo, was terminated from his employment as a building inspector for the defendant municipal corporation, the Borough of Charleroi, Pennsylvania. He avers that four Borough councilmen voted to terminate his employment "because the Plaintiff had exercised his First Amendment privileges." Thereupon, Rotolo filed in the United States District 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 amendment rights.*fn1 One complaint, seeking in excess of $25,000 money damages, named as defendants the Borough of Charleroi and the four councilmen*fn2 who allegedly voted for termination of Rotolo's employment. The other complaint, seeking an injunction against filling the vacancy caused by his termination, named as defendants the Borough and seven Borough councilmen.*fn3

Rotolo's substantive allegations were identical in both complaints:

3. Prior to August 23, 1972, the Plaintiff was employed in the capacity of Building Inspector for the Defendant, Borough of Charleroi.

4. On or about August 23, 1972, the Defendants, Peter Celaschi, Theodore Breuer, Fred P. McLuckie and Armand Balsano, voted to terminate the Plaintiff's employment with the Defendant, Borough of Charleroi, because the Plaintiff had exercised his First Amendment privileges under the Constitution of the United States.

5. That the aforesaid action on the part of the Defendants was a denial of the Plaintiff's First Amendment rights to freedom of speech and freedom of expression.

The district court first correctly determined that Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), precluded suit against the Borough of Charleroi under section 1983 as the municipality is not a "person" for purposes of that statute. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 24 L. Ed. 2d 691, 90 S. Ct. 696 (1970). Although federal jurisdiction may nonetheless exist under 28 U.S.C. § 1331 (1971), City of Kenosha v. Bruno, 412 U.S. 507, 514, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973), Rotolo's complaint is inadequate to establish jurisdiction under section 1331. Federal jurisdiction must be pleaded according to the nature of the case, and Rotolo made no mention of section 1331 in his complaint. McNutt v. GMAC, 298 U.S. 178, 182, 189, 56 S. Ct. 780, 80 L. Ed. 1135 (1936); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973).

We believe this is an appropriate case for the application of 28 U.S.C. § 1653 (1971), which expressly allows amendment of defective jurisdictional allegations. Therefore, upon remand, Rotolo will be given an opportunity to amend the jurisdictional allegations in those parts of his complaints which refer to the Borough of Charleroi.

As to the action against the individual defendants, the district court found both complaints lacking:

[The] allegations are purely conclusory and fail to adumbrate any specific facts sufficient to state a cause of action or claim upon which relief can be granted . . . .

In this circuit, plaintiffs in civil rights cases are required to plead facts with specificity.*fn4 Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 ...


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