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In re City of Philadelphia Litigation

filed: March 6, 1995.

IN RE: CITY OF PHILADELPHIA LITIGATION; RAMONA AFRICA
v.
CITY OF PHILADELPHIA; WILLIE GOODE; LEO A. BROOKS; GREGORE SAMBOR; WILLIAM C. RICHMOND; FRANK POWELL, LT.; WILLIAM KLEIN, OFFICER; MICHAEL TURSI, OFFICER; ALBERT REVEL, SGT.; EDWARD CONNOR, SGT.; MORRIS DEMSKO, CORPORAL; RICHARD REED, STATE TROOPER, INDIVIDUALLY AND IN THEIR PRESENT AND/OR FORMER OFFICIAL CAPACITIES, LEO A. BROOKS, APPELLANT IN NO. 94-1277, RAMONA AFRICA, APPELLANT IN NO. 94-1322, CITY OF PHILADELPHIA, APPELLANT IN NOS. 94-1280 AND 94-1377, WILLIAM C. RICHMOND, APPELLANT IN NO. 94-1279, GREGORE SAMBOR, APPELLANT IN NO. 94-1278; IN RE: CITY OF PHILADELPHIA LITIGATION; ALFONSO LEAPHART, ADMINISTRATOR OF THE ESTATE OF VINCENT LOPEZ LEAPHART, A/K/A JOHN AFRICA V. CITY OF PHILADELPHIA; W. WILSON GOODE, MAYOR, CITY OF PHILADELPHIA; LEO A. BROOKS, FORMER MANAGING DIRECTOR, CITY OF PHILADELPHIA; GREGORE J. SAMBOR, FORMER POLICE COMMISSIONER, CITY OF PHILADELPHIA; WILLIAM C. RICHMOND, FIRE COMMISSIONER, CITY OF PHILADELPHIA; FRANK POWELL; WILLIAM KLEIN; MICHAEL TURSI; ALBERT REVEL; COMMONWEALTH OF PENNSYLVANIA; RICHARD THORNBURGH, FORMER GOVERNOR, COMMONWEALTH OF PENNSYLVANIA; JAY COCHRAN, COMMISSIONER OF STATE POLICE, COMMONWEALTH OF PENNSYLVANIA; RICHARD REED; MORRIS DEMSKO; E.I. DUPONT DE NEMOURS AND COMPANY, ALFONSO LEAPHART, ADMINISTRATOR OF THE ESTATE OF VINCENT LOPEZ LEAPHART, A/K/A JOHN AFRICA, APPELLANT IN NO. 94-1321, CITY OF PHILADELPHIA, APPELLANT IN NOS. 94-1378, 94-1233, AND 94-1272, WILLIAM C. RICHMOND, APPELLANT IN NO. 94-1276; IN RE: CITY OF PHILADELPHIA LITIGATION; LOUISE JAMES V. FRANK POWELL; GREGORE J. SAMBOR; LEO BROOKS; WILLIAM C. RICHMOND; W. WILSON GOODE; CITY OF PHILADELPHIA; STATE OF PENNSYLVANIA; DU PONT DE NEMOURS, E.I. & COMPANY V. RAMONA JOHNSON AFRICA; ALPHONSO ROBBINS AFRICA, THIRD-PARTY DEFENDANTS, LOUISE JAMES, ADMINISTRATRIX OF THE ESTATE OF FRANK JAMES, APPELLANT IN NO. 94-1320, CITY OF PHILADELPHIA, APPELLANT IN NOS. 94-1229 AND 94-1379, GREGORE SAMBOR, APPELLANT IN NO. 94-1230, LEO A. BROOKS, APPELLANT IN NO. 94-1231, WILLIAM C. RICHMOND, APPELLANT IN NO. 94-1232



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 85-2745). (D.C. Civil No. 87-2678). (D.C. Civil No. 85-2745). (D.C. Civil No. 87-2756). (D.C. Civil No. 85-2745). (D.C. Civil No. 85-3528). (D.C. Civil Nos. 85-02745, 85-03528, 87-02678, 87-02756).

Before: Greenberg, Scirica, and Lewis, Circuit Judges.

Author: Greenberg

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

GREENBERG, Circuit Judge.

These consolidated appeals have been taken from judgments and orders in three civil actions against the City of Philadelphia and certain of its former officials and employees. The plaintiffs' claims arose out of an attempt by the Philadelphia Police Department on May 13, 1985, to execute search warrants and arrest warrants at a premises in Philadelphia occupied by a group known as MOVE. After hours of gunfire and failed attempts to inject tear gas into the residence in which the MOVE members had barricaded themselves, police officers dropped an explosive device on the roof of the house. The ensuing fire killed 11 persons, including five children, in the residence and destroyed dozens of homes in the vicinity.

The plaintiffs appeal from the district court's grant of summary judgment on qualified immunity grounds in favor of certain of the defendants with respect to claims arising from the dropping of the explosive device. Philadelphia Managing Director Leo A. Brooks, Police Commissioner Gregore Sambor, and Fire Commissioner William C. Richmond appeal from the district court's denial of their motions for summary judgment on qualified immunity grounds with respect to claims under 42 U.S.C. § 1983 arising from their alleged decisions to let the fire burn.*fn1 They also appeal from the denial of their motions for summary judgment on state claims asserted against them. The city itself appeals from the denial of its motion for summary judgment.

The court is divided on the Disposition of various issues and on certain issues there are majorities consisting of each of the three possible combination of Judges. On other issues the court is unanimous. In this opinion I will set forth the ultimate Conclusions reached and also will set forth the majority view on some points and my own view on other points. Judges Scirica and Lewis are filing separate opinions. As a matter of convenience I largely will deliver this opinion in the first person.

Judge Scirica and I conclude that all the individual defendants are immune because their actions on May 13, 1985, did not violate any clearly established constitutional rights of plaintiff Ramona Africa and decedents Frank James and Vincent Lopez Leaphart. Accordingly, we will affirm the grant of summary judgment to defendants Wilson Goode, the mayor of the city, and police officers Frank Powell and William Klein, and will reverse the denial of summary judgment on the section 1983 claims to defendants Brooks, Sambor, and Richmond. Judges Scirica and Lewis conclude that the City of Philadelphia is not entitled to summary judgment on the section 1983 claims and accordingly we will affirm the district court's denial of summary judgment to the city on those claims. Judge Lewis and I conclude that we do not have jurisdiction over the appeals from the district court's denial of summary judgment for Brooks, Sambor and Richmond on the state law claims based on letting the fire burn. Accordingly, we dismiss those appeals.

There also is a related property claim before us filed by Louise James seeking compensation for the destruction of the MOVE house. For the reasons we discuss below we all conclude that we do not have jurisdiction over the appeal from the dismissal of that claim. Consequently, we will dismiss for lack of jurisdiction James' appeal insofar as it relates to her property claim.

I. FACTUAL BACKGROUND

Because the motions for summary judgment involved the individual defendants' claims of entitlement to qualified immunity, the district court indicated that its rulings were based on the "plaintiff's well-documented version of the facts," as called for by Good v. Dauphin County Social Serv., 891 F.2d 1087, 1094-95 (3d Cir. 1989). This court since has clarified that such a determination should be based on the undisputed facts as revealed by the record and on the plaintiff's version of the facts where there are disputes. Melo v. Hafer, 13 F.3d 736, 745 (3d Cir. 1994) ("If, after the summary judgment practice prescribed by that rule, the undisputed facts of record demonstrated entitlement to immunity, the Court would ignore the bare allegations of the complaint and grant summary judgment on grounds of immunity."); see also Brown v. Grabowski, 922 F.2d 1097, 1110-11 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827, 115 L. Ed. 2d 997 (1991). In this case, the extensive record includes the discovery and investigative reports from a state grand jury and a special commission which studied the incident. These materials are particularly significant because Ramona Africa, the only surviving witness from inside the premises who has testified for the plaintiffs as to the events that occurred on May 13, 1985, has limited knowledge of the facts because she was in the cellar with the children for most of that day and did not hear any of the announcements made by either police officers or MOVE members. See app. at 1362-65.

The material undisputed facts are as follows. In 1978, pursuant to a court order, the city attempted to evict MOVE members from a residence in Powelton Village. However, the MOVE members resisted and a gunfight broke out. As a result, one police officer was killed and several other police officers and fire fighters were wounded. Subsequently, nine MOVE members were convicted for the murder of this officer.

In the early 1980's MOVE members took up residence at 6221 Osage Avenue, Philadelphia. By any standard they were a disrupting neighborhood force. Some used loudspeakers to communicate threats and dissatisfaction to their neighbors. Furthermore, the Probable Cause Affidavit (the Affidavit) supporting the issuance of the warrants executed on May 13, 1985, states that a MOVE member had threatened Mayor Goode, calling him "a nigger motherfucker" and indicating that "we have a bullet for [Mayor Goode] . . . to blow his motherfucking head off. If we have to, we will go down to City Hall and put six in his head." App. at 2294. The Affidavit also states that the same MOVE member announced, "we will kill any motherfucking cop that comes to the front, back or our goddamned roof," and threatened two police officers that if they "come back around here again, we'll kill you; put a bullet in your head." Id.

The Affidavit states further that several neighbors said that "they heard MOVE members say over the loudspeakers that they have wired the entire block with explosives and that if any neighborhood resident speaks with the press, or if the police take action against MOVE, MOVE will blow up the entire block." App. at 2295. Neighborhood residents stated that they had seen a MOVE member on the roof with a weapon or a gun. App. at 2296. The Affidavit also notes that one of the MOVE members at 6221 Osage Avenue was on parole from a conviction for riot, terroristic threats, and possession of an instrument of crime. Id.

The Affidavit also states that in 1984, neighbors had observed MOVE members carrying sandbags into the Osage Avenue building. App. at 2301. The windows of the building had been blocked with wooden slats, and aerial photographs showed that a bunker had been constructed on its roof. App. at 1568, 2301.

The arrest and search warrants were issued on May 11, 1985, upon a judicial finding of probable cause. App. at 2291. After District Attorney Edward Rendell informed Mayor Goode that there was probable cause, the Mayor instructed Police Commissioner Sambor to develop a plan to execute the warrants. Goode testified that earlier that week, he attempted to negotiate with certain MOVE members but they rebuffed him with a message, "Now we are ready. Tell them to come on." App. at 897-901.

A few days prior to the confrontation, the Civil Affairs Unit of the Police Department received a hand-written letter signed with Ramona Africa's name.*fn2 App. at 1739-53. The letter warned that any police raids on MOVE would fail, and threatened that "if [police officers] succeed in coming thru the walls they are going to find smoke, gas, fire, and bullets. Before we let you mutha fuckas make an example of us we will burn this mutha fuckin house down and burn you up with us." App. at 1234, 1751.

Police Commissioner Sambor developed the initial plan to execute the warrants, which was to evacuate the neighborhood, request a peaceful surrender, and, if necessary, use tear gas to force the MOVE members from the house. App. at 1985-86. Because of the bunker on the roof, it was decided that the police would make holes in the sides of the house and insert tear gas through them rather than through the roof. App. at 1575-76, 1985. To provide cover for the "insertion teams," i.e., the officers who were to enter the adjoining houses and create the holes, the plan provided for the fire department to aim water hoses at the bunker while the police fired smoke canisters around the house. App. at 1456-58, 1771, 1986. Rather than having the officers drill holes into the walls of the house, thereby exposing them to assault while they were drilling, the plan called for "shape charges," or small explosives, to be used to create the holes. App. at 1416, 1570, 1986-87. Once they created the holes, it was expected that they would inject tear gas into the MOVE house and force out the occupants. App. at 1419, 1570, 1987.

On May 12, 1985, the city evacuated the neighborhood residents. App. at 2229. Beginning at approximately 3:00 a.m. the next morning, police officers and fire fighters took up their places around 6221 Osage Avenue. App. at 2230. At around 5:30 a.m., Police Commissioner Sambor announced over a bullhorn that the police had arrest warrants for four persons in the house and that they had 15 minutes to surrender. App. at 1609, 1764-69, 1856, 2036, 2230. MOVE members responded over the loudspeaker that they would not surrender, and one yelled:

You're going to be laying in the street, bleeding in the street. Come on in and get us. We're going to kill you where you stay, where you lay. We see you on the roof. We know you're in those houses.

App. at 1093, 1777, 1791-92, 2037, 2230. After the 15 minutes lapsed, the police began to fire tear gas and smoke projectiles at the house while the fire department began to squirt water onto the roof of the house to provide cover for the insertion teams. App. at 1043-44, 1778-79, 2230, 2037-38.

A few minutes later, someone in the MOVE house fired shots at the police. App. at 2038, 2230. Muzzle flashes were seen from the bunker atop the roof. App. at 1780-85, 1791, 1797-98, 1826-29, 2038. A massive gun battle followed for at least an hour and a half. App. at 2041, 2230. Meanwhile, the insertion teams had set off several explosions on both sides of the house. App. at 2043-45, 2048-49, 2230. By mid-morning, the fronts of the MOVE house and adjoining houses were damaged heavily. App. at 1616-17, 2230-31. Yet, because they were under heavy gunfire and because the walls of the MOVE house were fortified, the teams could not create usable pathways through which tear gas could be introduced successfully. App. at 959-61, 1878-91, 2043-50, 2230-31. Consequently, the original plan was abandoned and the officers on the insertion teams retreated. As they did so they heard children's voices coming from the basement of the MOVE house. App. at 2051. Still, MOVE members had not given any indication that they would surrender. App. at 2231.

Around 4:00 p.m. that afternoon, Sambor, Brooks, Richmond, and other city officials and police officers, discussed alternative ways to remove the bunker and to proceed against the MOVE members. App. at 971-75, 2060-61, 2231. They also discussed whether to let the situation stand overnight and continue their efforts to execute the warrants the next morning. App. at 977-80, 998, 1004-05. But they determined that they could not wait until morning because it would be too difficult to keep the neighborhood secure through the night due, among other factors, to the darkness and the exhaustion which likely would set in on the officers who had been on duty since the night before. Id. They also believed that MOVE members might escape through tunnels rumored to have been dug under the neighborhood. Id.; app. at 1410-11, 1504, 1666-67.

Accordingly, the officials considered other means to execute the warrants but they rejected all as too dangerous. These included plans to use a crane to remove the bunker, to attack from above the roof, to attack from the front or the back of the house, and to place an explosive in the bunker. App. at 963, 2060-61. The officials then focused on a plan to drop a "satchel charge" onto the bunker from a helicopter to destroy or dislodge the bunker and create a hole in the roof. App. at 1131, 2061-62. The officials discussed the possibility that the explosive could start a fire but they were satisfied that the risk would be negligible. App. at 981, 1011, 1149, 1191, 2061-62. Managing Director Brooks then informed Mayor Goode of the plan to use the explosive, and Mayor Goode approved it.*fn3 App. at 983-84, 1070, 2064-65, 2231. At about the same time, a group of neighbors used a bullhorn to plead with the MOVE members to surrender but received no response. App. at 966-68, 1852-54, 2231.

The plan to use the explosive went forward. App. at 2231. Klein constructed the device and Powell dropped it on the roof of the MOVE house from a helicopter operated by state troopers Richard Reed and Morris Demsko. App. at 2068, 2231. Rather than destroying the bunker, however, the satchel seems to have missed it entirely. App. at 1622-23, 2058.

Goode watched the explosion on television in his City Hall office, Brooks and Sambor observed it from the balcony of a nearby building, and Richmond saw it from Osage Avenue. Id. at 1156, 2097. Brooks described his observations as follows:

I observed an explosion that was from our [vantage point,] a dust ball, in other words a smoke ball. . . . It blew wood in all directions. Then it was very -- then the smoke rose. It was a very light gray smoke, as the smoke rose away from it, the helicopter was flying above it, and we could see nothing there but a hole in the roof.

App. at 987.

Shortly after the explosion, observers saw a fire on the roof. App. at 988. There is evidence that a detonation caused the fire by igniting combustible liquid vapor. App. at 2058, 2311. Commissioner Sambor, who now was on Osage Avenue with Commissioner Richmond, then asked Richmond, "if we let the roof burn to get the bunker could we then subsequent to that control the fire?" App. at 1072-73. Sambor testified:

I wanted to get the bunker. I wanted to be able to somehow have tactical superiority without sacrificing any lives if it were at all possible. And in that vein I asked him -- I'm a police officer. I am not a fire fighter. I asked him for his concurrence, that if we let the roof burn to get the bunker, could we then control the fire. And whatever the response was, it was in the affirmative.

App. at 1073. Richmond's testimony corroborates this:

I told him essentially that, that I thought we could contain the spread at that point. He said, 'Let's let the bunker burn to eliminate that high ground advantage and the tactical advantage of the bunker,' and I said, 'Okay' . . . . He made the recommendation, . . . and I concurred.

App. at 1163. Richmond also testified that he had prepared the fire fighters as soon as he knew of the fire. App. at 1157. But because he did not know the positions of the police officers, if any, around the area of the roof he first told an aide, "get a hold of the police and see what they want to do about this fire on the roof." Id. Thus, the fire was allowed to burn until Goode and Brooks ordered that it be extinguished.

The fire fighters, however, encountered many problems. For example, there was a live electrical wire in the vicinity, the water itself caused visibility problems, and the water caused the fire to "bank," or invert, downward into the house. Id. at 1158-59, 2117-20. The fire then went out of control killing 11 people and destroying 61 houses. Ramona Africa and a young boy were the only survivors from the house.

II. PROCEDURAL HISTORY

A. The Claims

Numerous suits were filed by property owners from the neighborhood and on behalf of the occupants of 6221 Osage Avenue. The court consolidated these cases for discovery under number 85-2745, to be managed by a magistrate Judge.

The defendants' answers raised affirmative defenses, including immunity from liability. The individual defendants, sued also in their official capacity as officers or employees of the city (collectively, the city defendants), joined Ramona Africa as an additional defendant. Africa then moved to dismiss this third-party complaint but the court denied her motion. She then joined in this action against the city defendants and the City of Philadelphia, and her case was added to number 85-2745. During the ensuing four and a half years most of the claims were resolved. The remaining claims are Ramona Africa v. The City of Philadelphia, et al., number 87-2678, Alfonso Leaphart v. The City of Philadelphia, et al., number 87-2756, and Louise James v. The City of Philadelphia, et al., number 85-3528.

Ramona Africa sued the City of Philadelphia and Mayor Wilson Goode, Managing Director Leo Brooks, Police Commissioner Gregore Sambor, Fire Commissioner William Richmond, District Attorney Edward Rendell, City Police Lieutenant Frank Powell, City Police Officers William Klein and Michael Tursi, City Police Sergeants Albert Revel and Edward Connor, State Police Corporal Morris Demsko, and State Trooper Richard Reed, in their official capacities and individually. Africa claimed that: (1) the defendants, in violation of 42 U.S.C. § 1983, deprived her of her constitutional rights of freedom of religion, expression, and association, of due process, of equal treatment under the law, and of "freedom from excessive force, assault and bodily injury," app. at 102; (2) the defendants, in violation of 42 U.S.C. § 1985(3), conspired to deprive her of these constitutional rights; and (3) the defendants violated state law in using unreasonable force in the arrest in violation of section 1983. Africa seeks compensatory and punitive damages. Her action against Rendell was, however, dismissed on qualified immunity grounds and she does not appeal from that dismissal.

Alfonso Leaphart sued on behalf of John Africa a/k/a Vincent Lopez Leaphart, who perished in the fire. Leaphart initially sued the same defendants as Ramona Africa as well as certain others, but his suit was dismissed as to some of the defendants prior to entry of the orders now on appeal. Currently, the defendants in his case are the City of Philadelphia, Mayor Goode, Commissioner Richmond, Lieutenant Powell, and Officers Klein, Tursi, and Revel. Leaphart alleges that they violated his decedent's rights under the First, Fourth, and Fourteenth Amendments, in violation of 42 U.S.C. §§ 1983 and 1985(3).*fn4 He seeks compensatory and punitive damages as well as declaratory relief.

Louise James sued on behalf of her son Frank Africa a/k/a Frank James, who perished in the fire, and on her own behalf as owner of 6221 Osage Avenue. James currently sues the City of Philadelphia, Mayor Goode, Commissioners Sambor and Richmond, Managing Director Brooks, and Lieutenant Powell, for compensatory and punitive damages. In her personal capacity, she asserts a claim under the Fifth Amendment for the uncompensated destruction of her property. On behalf of her son, she asserts a section 1983 claim and a section 1985(3) claim based on the alleged deprivation of her son's constitutional rights and state law claims. As is evident, some of the claims asserted by all three plaintiffs against certain defendants are identical. Accordingly, I will treat such similar claims together.

B. The District Court Rulings

In a March 26, 1992 report and recommendation, the magistrate Judge recommended that the court deny the motions for summary judgment sought on qualified immunity grounds by Mayor Goode, Managing Director Brooks, Commissioner Sambor, Commissioner Richmond, Lieutenant Powell, Officer Klein, and State Police Officers Demsko and Reed. See Africa v. City of Philadelphia, 809 F. Supp. 375, 376-77 (E.D. Pa. 1992) (hereinafter Africa I). He also recommended that the court grant summary judgment in all three cases on qualified immunity grounds to Officers Tursi, Revel, and Connor because they were involved only with the attempted penetration of the sides of the house. Id. at 377 n.5. The district court approved and adopted the latter recommendations, and these orders have not been appealed. Id.

But the district court remanded the remaining matters to the magistrate Judge for consideration under the guidelines the Supreme Court set forth in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), stating as follows:

The court must determine, on plaintiff's well-documented version of the facts, whether a reasonable officer in each defendant's position, to the extent that this defendant could be found to have some responsibility for the use of force in question, could have believed that the force employed was necessary to protect the safety of himself or others.

Africa I, 809 F. Supp. at 382 (citation omitted); In re City of Philadelphia Litig., 849 F. Supp. 331, 337 (E.D. Pa. 1994) (hereinafter Africa II).

On October 6, 1993, the magistrate Judge issued another report and recommendation. He analyzed the defendants' actions as involving two separate decisions: the plan to drop the explosive device onto the bunker and the decision to let the fire burn. He concluded as follows:

[A] reasonable person in each of the defendant's positions could have believed that the use of an explosive device to remove the bunker from the roof and to provide access to the interior of the house for tear gas was necessary to 'prevent death or serious bodily injury' to the police officers on the scene or other persons. In addition, based on the information available to them regarding MOVE's threat of violence and MOVE's use of force in resisting arrest, they could have believed that the use of the bomb would be conduct that was consistent with the principles embodied in Section 508*fn5 [of the Pennsylvania Crimes Code] and Garner.

Africa II, 849 F. Supp. at 337, 357. Section 508 defines the circumstances in which a police officer may use force in making an arrest. Thus, the magistrate Judge recommended that all defendants be granted summary judgment in all three cases to the extent that the plaintiffs sought to impose liability based on the dropping of the explosive device.

The magistrate Judge concluded, however, that under the standards of Tennessee v. Garner and section 508 of the Pennsylvania Crimes Code it was unreasonable to let the fire burn after the bunker had been neutralized. 849 F. Supp. at 337, 359-61. He also determined that Commissioners Sambor and Richmond made the decision to let the fire burn but that the other city defendants were not involved at this stage. Id. at 337, 360. Therefore, he recommended that the court deny summary judgment on qualified immunity grounds for the two commissioners with respect to claims based on letting the fire burn. Id. They objected to this recommendation on the ground that the evidence demonstrated that they had intended to let the fire consume only the bunker, which they believed to pose a lingering threat. Id. at 339.

The magistrate Judge further found that while the defendants may be entitled to statutory immunity from state law liability for acts performed in the scope of their duties, they would not be entitled to immunity if they engaged in "willful misconduct." Id. at 364. Accordingly, the magistrate Judge recommended that the court grant summary judgment on immunity grounds with respect to the state claims to those individual defendants involved only in the dropping of the explosive device. Id. In these instances, the grant of summary judgment on the federal claims demonstrated that the conduct of these defendants did not, as a matter of state law, constitute "willful misconduct." Id. Conversely, he recommended that those defendants denied summary judgment on the federal claims also should be denied summary judgment for the state claims. Id.

The district court adopted the magistrate Judge's recommendation as to the claims based on the dropping of the explosive device. Id. at 338-39. In reviewing the recommendation, however, the court "focused on the decision to let the fire burn at all." Id. The court stated:

I cannot conclude that there is a demonstration which leads to the judgment as a matter of law that it was reasonable as a matter of necessity, at the point after the bomb was dropped and when a flame was first visible, for the law enforcement officials to permit flame [sic] to continue until it totally consumed what remained of a bunker . . . . That it might be convenient to have let the balance of the bunker be consumed by fire is perhaps a tenable view. That it was necessary, in Tennessee v. Garner terms, I can find no basis for concluding.

Id. at 340. Thus, the court concurred with the magistrate Judge's view that summary judgment should be denied to Commissioners Sambor and Richmond with respect to claims based on letting the fire burn. Id. at 342, 347.

During oral argument the district court raised the question of "whether there was not some basis in the record for concluding that conceivably Managing Director Brooks concurred for a time in the decision to let the fire burn." Id. at 342. Although Africa had not objected earlier to the magistrate Judge's finding that he had not concurred in that decision, she decided to do so then. Id. In a further interview, Commissioner Sambor indicated that when he explained to Brooks that they were letting the fire burn the bunker, Brooks said, "only the bunker." Id. at 343. Sambor said further that Brooks subsequently told him to put the fire out. Attorneys for the city and for Brooks argued that the plaintiffs waived this issue and that no other evidence supports the allegation that Brooks was involved in the decision to let the fire burn. The district court rejected these arguments and denied the summary judgment which Brooks sought on qualified immunity grounds with respect to claims based on the decision to let the fire burn. Id. at 345, 347.

With regard to claims against the City of Philadelphia, the city first argued that only Mayor Goode and Managing Director Brooks had final decision-making authority and that it should not be held responsible for their subordinates' unapproved decisions. However, upon finding that Brooks could be denied qualified immunity, the city changed its position and argued that only Mayor Goode had final decision-making authority. Id. at 345. The court reviewed the city's charter and concluded that the suability of either Managing Director Brooks or the two commissioners would be sufficient to hold the city suable on the federal claim. Id. at 345-47.

The court also held, in accord with the magistrate Judge's recommendation, that all defendants were entitled to summary judgment based on lack of evidence with respect to the plaintiffs' claims under the First and Fourteenth Amendments and under section 1985(3). In addition, the court held that the city was entitled to summary judgment on the state law claims because a recent Pennsylvania Supreme Court opinion established that the city council did not have the authority to expand the scope of the Pennsylvania Political Subdivision Tort Claims Act. This Supreme Court ruling was critical as the viability of the plaintiffs' state law claims depended on this expansion.

Finally, the court dismissed James' Fifth Amendment claim because she did not allege that she had pursued relief unsuccessfully under state law procedures such as those set forth by the Pennsylvania eminent domain code. In re City of Philadelphia (James v. City of Philadelphia), *14, No. 85-3528 (E.D. Pa. Feb. 1, 1994). James pointed out that she had brought a federal suit, number 88-3881, for recovery of her property losses under federal and state law. In that action she alleged that she was the only person whose property had been destroyed by the fire whom the city did not compensate and she asserted that such treatment was discriminatory. Id. In December 1988, the court dismissed number 88-3881 with prejudice as to the federal claims on the grounds that they were barred by the statute of limitations and it dismissed the state law claims without prejudice. Id. James did not appeal from that ruling. On January 3, 1994, one day before the district court rendered its bench opinion in the case currently before us, James filed a Motion for Reconsideration Nunc Pro Tunc of the 88-3881 decision under both docket numbers, 88-3881 and 85-3528. The district court denied this motion, reasoning that it had been five years since the 88-3881 case had been decided and James had offered no new evidence or reasons for reexamining that decision. Id. at 13.

On motion by the City, the district court certified as appealable under Fed. R. Civ. P. 54(b) the dismissal of all claims against Goode, Powell, Klein,*fn6 Revel, Tursi, Connor, Demsko, and Reed. App. at 682, 803. In addition, the court certified for appeal under 28 U.S.C. § 1292(b) the issue "of the suability of the City of Philadelphia, pursuant to 42 U.S.C. § 1983, on claims arising from the decision to let the . . . fire burn." Id.

C. The Issues on Appeal

Ramona Africa appeals from the district court's final order granting summary judgment in favor of Mayor Goode and Officers Powell and Klein. Alfonso Leaphart appeals from the final judgment granting summary judgment in favor of Mayor Goode. Louise James appeals from the final judgment granting summary judgment in favor of Mayor Goode and Officer Powell*fn7 and in favor of the City of Philadelphia with respect to the Fifth Amendment property claim. James has appealed only from orders in the 85-3528 case.

The City of Philadelphia appeals from the order denying its motion for summary judgment with respect to the federal claims based on section 1983. Managing Director Brooks and Commissioners Sambor and Richmond appeal from the orders denying their motions for summary judgment on qualified immunity grounds with respect to the claims based on the decision to let the fire burn and from the orders denying them summary judgment on the state claims. We consolidated the appeals for briefing and argument.*fn8

III. JURISDICTION

The district court had jurisdiction over the federal civil rights claims pursuant to 28 U.S.C. § 1343 (civil rights action) and 28 U.S.C. § 1331 (federal question jurisdiction). The district court also had supplemental jurisdiction ...


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