                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2000

Callahan v Philadelphia
Precedential or Non-Precedential:

Docket 99-1816




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Recommended Citation
"Callahan v Philadelphia" (2000). 2000 Decisions. Paper 67.
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Filed March 28, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1816

THOMAS A. CALLAHAN, IV,
       Appellant

v.

CITY OF PHILADELPHIA, RISK MANAGEMENT;
COMMONWEALTH OF PENNSYLVANIA,
WARRANT DIVISION OF THE FIRST JUDICIAL DISTRICT;
COMMONWEALTH OF PENNSYLVANIA, MUNICIPAL
COURT EVICTION UNIT; RICHARD ZIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 99-00918)
District Judge: Honorable Charles R. Weiner

Submitted under Third Circuit LAR 34.1(a)
March 21, 2000

BEFORE: MANSMANN, GREENBERG, and ALARCON,*
Circuit Judges

(Filed: March 28, 2000)



_________________________________________________________________
* Hon. Arthur L. Alarcon, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.


       James J. McEldrew, III
       Thomas A. Lynam, III
       One Liberty Place, Ste. 5050
       1650 Market Street
       Philadelphia, PA 19103

        Attorneys for Appellant

       Howard M. Holmes
       David M. Donaldson
       Zygmont Pines
       Administrative Office of PA Courts
       1515 Market Street, Suite 1414
       Philadelphia, PA 19102

        Attorneys for Appellees
       Commonwealth of Pennsylvania
       Warrant Division of the Division of
       the First Judicial District and
       Commonwealth of Pennsylvania
       Municipal Court Eviction Unit

       William F. Martin
       Acting City Solicitor
       Sarah E. Ricks
       Deputy City Solicitor, Appeals
       1515 Arch Street, 17th Floor
       Philadelphia, PA 19102-1595

        Attorneys for Appellee City of
       Philadelphia

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Thomas A. Callahan, IV, appeals   by leave granted on
October 1, 1999, pursuant to 28   U.S.C. S 1292(b)(2), from
an amended order entered August   25, 1999, in the district
court and from an earlier order   entered April 23, 1999. The
August 25, 1999 order certified   that the district court's

                                  2


April 23, 1999 order dismissing the action against two
defendants involved a controlling issue of law as to which
there is substantial ground for a difference of opinion and
that an immediate appeal from that order may materially
advance the ultimate termination of the litigation.

Callahan commenced this action by filing a complaint in
the district court on February 22, 1999, against four
defendants which he named as (1) City of Philadelphia Risk
Management; (2) Commonwealth of Pennsylvania, Warrant
Division of the First Judicial District; (3) Commonwealth of
Pennsylvania, Municipal Court Eviction Unit; and (4)
Richard Zia. We refer to the Warrant Division and Eviction
Unit as the judicial defendants. In his complaint, Callahan
asserted that Zia is a law enforcement officer employed by
the judicial defendants which were responsible for his
training and supervision and which issued him firearms.
Callahan alleged that Zia, while acting as a law
enforcement officer, beat and arrested him leading to Zia's
prosecution and conviction of serious state crimes.
Callahan further alleged that the judicial defendants and
the City were liable to him under 42 U.S.C. S 1983 for their
deliberate indifference and failure to train Zia adequately
and that Zia was liable to him under section 1983 and the
common law.

The judicial defendants moved to dismiss the complaint
on the jurisdictional theory that the Eleventh Amendment
barred the action against them and on the statutory
construction theory that they are not "persons" under
section 1983 and thus cannot be found liable. The district
court granted the motion on the latter ground in a
memorandum opinion and the order entered April 23,
1999. In its opinion, the district court pointed out that
under 42 Pa. Cons. Stat. Ann. SS 901, 911, and 1121 (West
Supp. 1999), the First Judicial District "is one of sixty
judicial districts in the Commonwealth and that the
Municipal Court is a trial court within the First Judicial
District." Thus, the court found "as a matter of law that
both are part of the Unified Judicial System of the
Commonwealth of Pennsylvania under the supervision of
the Supreme Court of Pennsylvania," citing Pa. Const. art.
V. It then held that "it is well established that state judicial

                               3


entities are not persons within the meaning of S 1983,"
citing Pokrandt v. Shields, 773 F. Supp. 758, 764 (E.D. Pa.
1991), as well as the cases Pokrandt cited. The court did
not consider the Eleventh Amendment issue. Callahan
moved for reconsideration but the district court denied that
motion on July 14, 1999. The court subsequently entered
the August 25, 1999 order, following which we granted
leave to appeal.

The district court is exercising jurisdiction in this matter
under 28 U.S.C. SS 1331, 1343(a)(1), (3) and (4), and 1367.
We have jurisdiction under 28 U.S.C. S 1292(b) and
exercise plenary review. See McClintock v. Eichelberger, 169
F.3d 812, 816 (3d Cir.), cert. denied , 120 S.Ct. 182 (1999).

II. DISCUSSION

Initially, we emphasize that the distinction between the
Eleventh Amendment and 42 U.S.C. S 1983 defenses the
judicial defendants have raised should be kept clear. While
the judicial defendants urge that we affirm on both bases
there is a difference between them, although in some cases
they will overlap. Thus, we do not doubt that an action for
damages under section 1983 brought unambiguously
against the Commonwealth of Pennsylvania in a district
court would face insurmountable hurdles, both because the
Commonwealth is not a person within section 1983 and
because the Eleventh Amendment would bar the court from
exercising jurisdiction over the action. Yet the overlapping
is not complete because the Commonwealth would not be a
person within section 1983 even if sued in a state court,
though it could not raise an Eleventh Amendment objection
in such a forum. See Will v. Michigan Dep't of State Police,
491 U.S. 58, 109 S.Ct. 2304 (1989). Similarly, the Eleventh
Amendment may bar an action against a state in a federal
court even though it is not brought under section 1983. See
College Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 119 S.Ct. 2219 (1999).

That said, we still think it appropriate to make our
section 1983 analysis by considering the three factors we
set forth in Fitchik v. New Jersey Transit Rail Operations,
Inc., 873 F.2d 655 (3d Cir. 1989) (en banc), in determining

                               4


whether the defendant there had an Eleventh Amendment
defense, even though Fitchik was not a section 1983 action.
In Fitchik, building upon our earlier decision in Urbano v.
Board of Managers, 415 F.2d 247 (3d Cir. 1969), we
indicated that the following factors are appropriate to
consider:

       (1) Whether the money that would pay the judgment
       would come from the state (this includes three of the
       Urbano factors -- whether payment will come from the
       state's treasury, whether the agency has the money to
       satisfy the judgment, and whether the sovereign has
       immunized itself from responsibility for the agency's
       debts);

       (2) The status of the agency under state law (this
       includes four factors -- how state law treats the agency
       generally, whether the entity is separately incorporated,
       whether the agency can sue or be sued in its own
       right, and whether it is immune from state taxation);
       and

       (3) What degree of autonomy the agency has.

Id. at 659. We then indicated that "[a]lthough no single
Urbano factor is dispositive, the most important is whether
any judgment would be paid from the state treasury." Id.
We believe, however, that this factor is less significant in a
section 1983 "person" analysis than in an Eleventh
Amendment jurisdictional analysis. In this regard, we
observe that the Eleventh Amendment's central goal is to
prevent entry of federal court judgments that must be paid
from the state treasury. See Edelman v. Jordan , 415 U.S.
651, 664-70, 94 S.Ct. 1347, 1356-59 (1974). On the other
hand, the Supreme Court in Will v. Michigan Department of
State Police, 491 U.S. 58, 109 S.Ct. 2304, approached the
question of whether a state is a person within section 1983
simply as a statutory construction matter.

While we are not certain as to what would be the source
of funds to pay a judgment against the judicial defendants,
Callahan argues that it would be the City and not the
Commonwealth and we will assume that he is correct in
this assertion. Of what we are certain, however, is that the
judicial defendants receive funding from both the

                               5


Commonwealth and the City.1 The Supreme Court of
Pennsylvania has described the local funding of the
Pennsylvania courts as follows:

       The Judicial Code requires that County officials
       provide adequate staff for the courts:

       Whenever necessary, it shall be the duty of county
       officers to appoint or detail such county staff as shall
       enable the judges of the courts embracing the county
       to properly transact the business before their
       respective courts.

       42 Pa.C.S.A. S 2302. Further, the County is required to
       establish and maintain a judicial and related account.
       42 Pa.C.S.A. S 3541. Out of this account the County
       must pay:

       (1) Salaries, fees and expenses of:

       (i) Appointive judicial officers.

       (ii) Other system and related personnel which by
       statute are required to be paid by the political
       subdivision.

       (2) Salaries, fees and expenses of jurors, witnesses
       and all other persons paid under authority of law by
       the political subdivision for the maintenance of
       judicial and related functions.

       42 Pa.C.S.A. S 3544. The Code also provides:

       Except as otherwise provided by statute, each county
       shall continue to furnish to the court of common
       pleas and community court embracing the county, to
       the minor judiciary established for the county and to
       all personnel of the system, including central staff
       entitled thereto, located within the county, all
       necessary accommodations, goods and services
       which by law have heretofore been furnished by the
       county.
_________________________________________________________________

1. Philadelphia as a governmental entity for purposes of this opinion is
in the position of a county but we nevertheless refer to it as "City" as
is

customary.

                               6


       42 Pa.C.S.A. S 3722. Finally, we note that the Second
       Class County Code mandates that a salary board shall
       fix the compensation of certain court employees:

       The board, subject to limitations imposed by law,
       shall fix the compensation of all appointed county
       officers, and the number and compensation of all
       deputies, assistants, clerks and other persons whose
       compensation is paid out of the county treasury, and
       of all court criers, tipstaves and other court
       employes, and of all officers, clerks, stenographers
       and employes appointed by the judges of any court
       and who are paid from the county treasury.

       16 P.S. S 4823. See also The County Code, 16 P.S.
       S 1623, where similar obligations are imposed upon
       counties of the third through eighth classes. In sum, it
       is apparent that the General Assembly intended to
       create a legislative scheme in which funding of the
       various judicial districts was primarily a responsibility
       of the counties, and that these responsibilities include
       the funding of salaries, services and accommodations
       for the judicial system.

County of Allegheny v. Commonwealth, 534 A.2d 760, 762-
63 (Pa. 1987).2

The judicial defendants in their brief supplement the
Supreme Court's explanation of judicial funding by pointing
out the following with respect to state funding:

       The Commonwealth's FY 1999-2000 annual budget,
       Act No. 1A of 1999, provides over $55,000,000 for the
       salaries and expenses of common pleas judges
       statewide; over $44,555,000 for the salaries of district
       justices; about $4,400,000 for Philadelphia Municipal
       Court judges (as well as nearly $40,000 for Municipal
       Court law clerks); $650,000 for Philadelphia Traffic
_________________________________________________________________

2. In County of Allegheny the Supreme Court of Pennsylvania was
concerned with court funding on a state-wide basis. Nevertheless, its
particular reference to second class counties is understandable as the
County of Allegheny is a Second Class County. See Pa. Stat. Ann. tit. 16,
S 210(2) (West Supp. 1999). Philadelphia is, however, a First Class
County. Id. S 210(1).

                                7


       Court judges and $1,200,000 for Pittsburgh Magistrate
       Court judges. The state budget also provides:
       $3,500,000 for senior common pleas judges; nearly
       $750,000 for common pleas judicial education;
       $500,000 for district justice education; and, $200,000
       for domestic violence services provided through
       Philadelphia Municipal Court.

       The state budget also provides $30,400,000 directly
       to the counties as reimbursement for the costs incurred
       by the counties in providing for the courts of common
       pleas, at the rate of $70,000 for each authorized
       common pleas judge position, of which there are 90 in
       the Court of Common Pleas of Philadelphia County. 42
       Pa. C.S. S 911 (1999 Supplement). The state budget
       further provides over $18,000,000 for the Statewide
       Judicial Computer System, which benefits all courts in
       the Commonwealth.

       Pursuant to the mandate of County of Allegheny ,
       . . . the Legislature has now provided $13,136,000 for
       the transfer of lower court administrators and their
       deputies to the state payroll and enacted the enabling
       legislation, Act. No. 12 of 1999, to effect this transfer.

Br. at 22-23 (footnote omitted).

Callahan does not dispute the foregoing, for he indicates
in his reply brief that:

       The Commonwealth has provided a lengthy recitation
       of its 1999-2000 annual budget in which it states that
       it pays for Common Pleas Judges, District Justices,
       Municipal Court Judges, Municipal Court Law Clerks,
       Philadelphia Traffic Court Judges, Pittsburgh
       Magistrate Judges, Senior Court Common Pleas
       Judges, Common Pleas Judicial Education, and District
       Justice Education, none of which was ever contested by
       appellant.

Reply Br. at 6. Thus, as we have indicated, both the
Commonwealth and the City fund the judicial defendants.
In the circumstances, we believe that consideration of the
source of funding of the courts is of limited utility in
determining whether the judicial defendants are persons
under section 1983.
                                8


The second Fitchik factor requires an inquiry into the
status of the judicial defendants under state law, i.e.,
"whether state law treats an agency as independent, or as
a surrogate for the state." Fitchik, 873 F.2d at 662. The
third Fitchik factor is the judicial defendants' "degree of
autonomy" from the state, the greater the autonomy the
more likely that the defendants would be regarded as
distinct from the state and thus be treated as persons
under section 1983. Plainly, these factors overlap and thus
we treat them together.

Application of the second and third Fitchik factors
conclusively demonstrates that the judicial defendants are
not persons within section 1983. The Pennsylvania
constitution provides for the vesting of the Commonwealth's
judicial power in a "unified judicial system" which includes
all of the courts in Pennsylvania. Pa. Const. art. V, S 1.
Moreover, the constitution provides that the Pennsylvania
Supreme Court will exercise "general supervisory and
administrative authority" over the unified judicial system.
Pa. Const. art. V, SS 1, 2, and 10. All courts and agencies
of the unified judicial system, including the Philadelphia
Municipal Court, are part of "Commonwealth government"
and thus are state rather than local agencies. See Pa.
Const. art. V, S 6(c); 42 Pa. Cons. Stat. Ann.S 102 (West
Supp. 1999); 42 Pa. Cons. Stat. S 301 (West 1981).

The Pennsylvania court system is divided into 60 judicial
districts within each of which the judges of the courts of
common pleas are elected. See 42 Pa. Cons. Stat. Ann.
S 901(a) (West Supp. 1999). The legislature may alter the
number and boundaries of the districts only with the advice
and consent of the Supreme Court. See Id.S 901(b). The
position of the Philadelphia courts within this unified
judicial system is quite clear for as the court said in
Robinson v. Court of Common Pleas of Philadelphia County,
827 F. Supp. 1210, 1211 n.4 (E.D. Pa. 1993), "[t]he Court
of Common Pleas . . . and Philadelphia Municipal Court are
trial courts within the First Judicial District, the territorial
jurisdiction of which is Philadelphia." Remarkably,
Callahan seems to recognize that the judicial defendants
are state entities. Indeed, he has sued them as
"Commonwealth of Pennsylvania" in each instance before

                                9


describing them in more detail. Moreover, as the quotation
above from his reply brief demonstrates, he even refers to
the judicial defendants on this appeal as "the
Commonwealth." Quite naturally the judicial defendants
have seized on this characterization to contend that they
are not persons within section 1983.

The judicial defendants point out that "[t]he Supreme
Court of Pennsylvania has no doubt about its supervisory
and administrative authority over the lower courts," and, as
particularly germane here, the Philadelphia courts. Br. at
16. Thus, in December 1990 the Supreme Court, concerned
with "serious and ongoing fiscal and administrative
problems in the Philadelphia Courts," see Petition of Blake,
593 A.2d 1267, 1268 (Pa. 1991), by administrative order
designated two justices to oversee directly the First Judicial
District. When the justices implemented this administrative
order by directing the president judge of the Philadelphia
Court of Common Pleas to make far-reaching personnel
changes, he challenged this order. The Supreme Court in
Petition of Blake, 593 A.2d at 1268-69, rejected this
challenge, holding:

        Article V of the Pennsylvania Constitution, which
        defines the judiciary, begins with the words:`The
        judicial power of the Commonwealth shall be vested in
        a unified judicial system. . . .' Within this unified
        system, it is required that `[t]he Supreme Court shall
        exercise general supervisory and administrative
        authority over all the courts. . . .' Art. V, S 10(a). In
        furtherance of that responsibility, this court has for
        some time monitored the administration of the courts
        of Philadelphia with increasing unease.

. . .

        [P]ursuant to the Constitution and the Judicial Code, it
        is fully within this Court's authority to prescribe the
        powers and duties of the president judges and any
        limitations thereon. The Constitution does no more
        than establish the office of president judge and the
        manner in which it shall be filled.

                                10


. . .

        [T]he Supreme Court as the governing authority, 42
        Pa.C.S. S 102, has the power to alter the duties of
        president judges described elsewhere in the statute. To
        the extent that they affected the powers of President
        Judge Blake, the Order of December 19, 1990 and the
        April 17, 1991 directive of Mr. Justice Papadakos are
        consistent with this authority as well as the Court's
        general supervisory and administrative authority over
        the unified judicial system, Pa. Const. Art. V, Section
        10(a).
The Supreme Court recently reaffirmed its supervisory
authority over the lower courts in First Judicial District v.
Pennsylvania Human Relations Commission, 727 A.2d 1110
(Pa. 1999). In that case, the Supreme Court held that the
Pennsylvania Human Relations Commission, even though a
state agency, could not review employment decisions of the
First Judicial District or any lower court. In this regard the
court held that:

       Such interference in the operation of courts is
       prohibited by the separation of powers doctrine. The
       supreme court has the sole power and the
       responsibility to supervise the `practice, procedure, and
       the conduct of all courts.' Neither the legislative branch
       nor the executive branch of government acting through
       an administrative agency may constitutionally infringe
       on this judicial prerogative.

727 A.2d at 1112 (footnote omitted).

The authorities we have reviewed make it perfectly clear
that the judicial defendants are not independent of the
Commonwealth and hardly can be regarded as having
significant autonomy from the Pennsylvania Supreme
Court. They are part of the unified judicial system subject
to the control of the Supreme Court. Thus, while it is true
that the judicial defendants largely are funded locally, we
hold that they are not persons within section 1983. See
Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812
F.2d 1103, 1110 (9th Cir. 1987) (A Los Angeles trial court
though largely funded by the county is state agency for
Eleventh Amendment purposes because "state case law and

                               11


constitutional provisions make clear that the Court is a
state agency.").

In reaching our result, we make two further observations.
First, we have not overlooked Carter v. City of Philadelphia,
181 F.3d 339 (3d Cir.), cert. denied, 120 S.Ct. 499 (1999),
on which Callahan strongly relies. In Carter, we held that
the Philadelphia District Attorney's Office was not entitled
to Eleventh Amendment immunity, at least with respect to
administrative functions. Carter plainly is distinguishable
as the following quotations from the opinion demonstrate:
"Pennsylvania's Constitution expressly defines District
Attorneys as county rather than state officers." id. at 349;
"Pennsylvania statutes also reflect the local status of the
DA's Office." id.; "Consistent with its constitutional and
statutory law, Pennsylvania case law defines district
attorneys -- Philadelphia District Attorneys in particular --
as local, and expressly not state, officials." id. at 350. The
judicial defendants simply are not in the same position as
district attorneys with respect to their relationship with the
Commonwealth.

Our second observation is that while, as the judicial
defendants recognize, br. at 11, we seem not to have
decided the issue in any published precedential opinion,
the district courts repeatedly have held that all components
of the judicial branch of the Pennsylvania government are
state entities and thus are not persons for section 1983
purposes. See Pokrandt v. State, 773 F. Supp. 758; Mathias
v. Supreme Court of Pennsylvania, 576 F. Supp. 1178 (W.D.
Pa. 1983); Delgado v. McTighe, 442 F. Supp. 725 (E.D. Pa.
1977); County of Lancaster v. Philadelphia Elec. Co., 386 F.
Supp. 934 (E.D. Pa. 1975). Thus, our opinion is consistent
with the reported decisions in similar situations.

III. CONCLUSION

For the foregoing reasons, we will affirm the orders of
August 25, 1999, and April 23, 1999.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
