DAILEY v. CITY OF PHILADELPHIA et al
ORDER - MEMORAUNDUM. ORDER THAT PLAINTIFF'S MOTION 50 IS DENIED AS WE MUST CONTINUE TO ABSTAIN AND DEFER RULING UPON THE CONSTITUTIONALITY OF AN ORDINANCE WHICH, TO DATE, REMAINS CHALLENGED AS TO ITS APPLICABILITY TO THE PLAINTIFF AND WE DO NOT HAVE GUIDANCE FROM THE PENNSYLVANIA COURTS AS YET. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/27/17. 10/27/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA, et al.
: CIVIL ACTION
: NO. 16-1331
AND NOW, this 27th day of October 2017, upon considering Plaintiff’s Motion to lift
this case from the suspense docket (ECF Doc. No. 50), Defendants’ Response (ECF Doc. No.
51), and finding a question of state law presently pursued by Plaintiff in the Pennsylvania
appellate courts includes whether the municipal ordinance applies to the Plaintiff in the first
instance and deferring to the right of the Pennsylvania appellate courts to specifically address
Plaintiff’s first argument concerning the applicability of the ordinances to her conduct as an
employee of the First Judicial District, it is ORDERED Plaintiff’s Motion (ECF Doc. No. 50) is
DENIED as we must continue to abstain and defer ruling upon the constitutionality of an
ordinance which, to date, remains challenged as to its applicability to the Plaintiff and we do not
have guidance from the Pennsylvania courts as yet.
We amend our June 14, 2016 Order (ECF Doc. No. 29) at paragraph 2 to require
Plaintiff to file joint status reports every sixty (60) days beginning on December 1, 2017. All
other aspects of our June 14, 2016 Order remain in effect.
In February 2016, the City of Philadelphia Board of Pensions and Retirement (the
“Board”) disqualified Deborah Dailey from receiving her pension after she pleaded guilty to
theft of movable property by unlawful taking while employed by the First Judicial District of
Pennsylvania. The Board applied sections 22-1302(1)(a)(.4) and (.5) of the City of Philadelphia
Retirement Code (the “Retirement Code”) disqualifying pension eligibility for any employee
who “pleads or is finally found guilty of” . . . :
“(.4) Theft, embezzlement, willful
misapplication, or other illegal taking of funds or property of the City, or those of any official
agency of the City, or agency, engaged in performing a governmental function for the City or the
Commonwealth;” or “(.5) “Malfeasance in office or employment.” Our still unresolved issue is
whether taking funds from the First Judicial District is addressed by the Retirement Code.
Ms. Dailey filed an action in the Philadelphia County Court of Common Pleas (“state
action”) appealing the Board’s decision. In the state action, Ms. Dailey challenged the Board’s
application of sections 22-1302(1)(a)(.4) and (.5) of the Retirement Code to disqualify her from
pension benefits arguing, inter alia, subsection (.4) does not apply to her as an employee of the
First Judicial District.
A day before filing her state action, Ms. Dailey brought this case under 42 U.S.C. §1983
claiming the Retirement Code subsections (.4) and (.5) violate the Fifth, Eighth, and Fourteenth
Amendments as applied to her. Ms. Dailey filed an amended complaint and simultaneously filed
a motion for summary judgment on her constitutional claims. Defendants City of Philadelphia,
the Board, and Board members (collectively the “City”) moved to dismiss.
After oral argument on the parties’ motions, we stayed this case based on Pullman
abstention.1 We applied the test in this Circuit to determine the application of Pullman abstention
where we are presented with “both a federal constitutional issue and an unsettled issue of state
law whose resolution might narrow or eliminate the federal constitutional question . . . .” 2 We
found uncertain issues of state law underlie Ms. Dailey’s constitutional challenges to subsections
(.4) and (.5) of the Retirement Code; state law issues amenable to state court interpretation would
R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941).
ECF Doc. No. 29 at 3.
obviate our need to decide the federal constitutional issues; and our possible erroneous
construction of the Retirement Code would disrupt important state policies.3 We stayed this
action and placed it on our civil suspense docket.4
Ms. Dailey’s state action proceeded in the Philadelphia Court of Common Pleas. After
oral argument, the Honorable Abbe F. Fletman entered an order denying Ms. Dailey’s appeal and
affirming the Board’s decision. Ms. Dailey filed a timely Notice of Appeal with the
Commonwealth Court from Judge Fletman’s order. Ms. Dailey’s appeal to the Commonwealth
Court remains pending. Judge Fletman issued her opinion in support of her order on August 18,
After a status call with counsel, we granted Ms. Dailey leave to file a motion to remove
this case from the suspense docket.5 Ms. Dailey argues Pullman abstention no longer applies
because Judge Fletman’s opinion interpreted the challenged Retirement Code sections and
resolved the unsettled question of state law. Even if grounds for Pullman abstention continue to
exist, Ms. Dailey argues equitable considerations (i.e. delay) weigh in favor of reinstating her
case to the active docket and proceeding on the constitutional issues before we understand
whether the ordinance applies to her. Ms. Dailey additionally argues she made an England
reservation6 in the state action reserving her federal constitutional claims in this Court and is
entitled to prosecute her § 1983 claims here regardless of the outcome of her appeal to the
Commonwealth Court. Ms. Dailey contends we need not be concerned about interference with
Id. at 4-6.
ECF Doc. No. 46. Ms. Dailey filed her motion (ECF Doc. No. 51) and the City filed its
response (ECF Doc. No. 52).
So named after the Supreme Court’s decision in England v. Louisiana State Bd. of Med.
Exam’r, 375 U.S. 411 (1964).
state law issues central to our decision to abstain because if we dispose of her federal
constitutional claims before the Commonwealth Court rules, she will simply withdraw her state
The City disagrees, arguing Pullman abstention still applies as long as Ms. Dailey’s
appeal is pending in the state courts. The City argues the Commonwealth Court will consider on
appeal Ms. Dailey’s challenges to the Retirement Code which could result in reversal of the trial
court; affirmance of the trial court; or clarification of state law issues Judge Fletman did not
address and which would inform our decision in later proceedings. Any decision we make while
the case is pending in Pennsylvania’s appellate courts would create the kind of confusion
abstention is meant to avoid. For these reasons, the City urges us to keep this matter in suspense
until the state court appeal concludes.
A. The trial court’s opinion does not address the applicability of the
Retirement Code to Ms. Dailey as an employee of the First Judicial
Ms. Dailey made four arguments in the state action: (1) the Board erred as a matter of law
when it applied the Retirement Code to disqualify her from pension eligibility; (2) the Board’s
action violates Pennsylvania’s Public Employee Pension Forfeiture Act; (3) the Board’s
application of Retirement Code violated the Pennsylvania Constitution, including void for
vagueness and deprivation of property without due process arguments; and (4) the Board’s
application of the Retirement Code to disqualify from her pension violated the excessive fines
clause of the Pennsylvania Constitution.
Ms. Dailey’s lead argument in the state action is the Retirement Code subsections (.4)
and (.5) do not apply to her and are unconstitutionally vague. Ms. Dailey asserts subsection (.4)
does not apply to her because she is an employee of the First Judicial District and not an
employee of “the City, or those of any official agency of the City, or agency, engaged in
performing any governmental function for the City or the Commonwealth” to which subsection
(.4) applies. She argues to the extent subsection (.4) applies to her, it is unconstitutionally vague
because its language does not provide notice a guilty plea to theft from the First Judicial District
fits within the subsection’s provisions for disqualification. Ms. Dailey similarly argues the word
“malfeasance” in subsection (.5) is unconstitutionally vague and she had no fair warning
pleading guilty to theft would constitute “malfeasance” disqualifying her pension.
Judge Fletman’s opinion does not address the applicability of the Retirement Code to Ms.
Dailey or the Pennsylvania constitutional arguments. Instead, Judge Fletman found the
Retirement Code imposes a series of requirements and obligations upon employees to meet
pension eligibility, including subsection (.4). Judge Fletman concluded Ms. Dailey’s
constitutional rights “were not violated as the Board acted pursuant to a mandatory provision of
the Code . . ..” Judge Fletman did not address disqualification under subsection (.5).
Ms. Dailey asserts after Judge Fletman’s decision there is no longer an unsettled question
of state law for Pullman abstention and her opinion is a “state court interpretation of (.4) and (.5)
of the Retirement Code as specifically applied” to Ms. Dailey. We disagree. Judge Fletman’s
opinion does not address whether subsections (.4) and (.5) of the Retirement Code apply to Ms.
Dailey as an employee of the First Judicial District, a question apparently unresolved by a
Pennsylvania state court. Ms. Dailey’s constitutional challenges to subsections (.4) and (.5) of
the Retirement Code remain unsettled, the first circumstance required for Pullman abstention. 7
In this Circuit, Pullman abstention “requires the following special circumstances: (1) uncertain
issues of state law underlying the federal constitutional claim; (2) state law issues subject to state
court interpretation that could obviate the need to adjudicate or substantially narrow the scope of
the federal constitutional claim; and (3) an erroneous construction of state law by the federal
court would disrupt important state policies.” Presbytery of New Jersey of the Orthodox
Presbyterian Church v. Whitman, 99 F.3d 101, 106 (3d Cir. 1996) (citing Chez Sez III Corp. v.
Twp. of Union, 945 F.2d 628, 631 (3d Cir. 1991)).
B. Ms. Dailey is specifically appealing the presumed finding of the
applicability of the Retirement Code to her as an employee of the First
Judicial District which remains a threshold issue for our constitutional
The Retirement Code is ambiguous as to its applicability to Ms. Dailey. Ms. Dailey
intends to raise the same arguments on appeal to the Commonwealth Court as she did in the trial
court. It is for the Commonwealth Court to resolve questions of the Retirement Code’s
applicability to Ms. Dailey and constitutional validity.
The United States Court of Appeals for the Fourth Circuit addressed a similar
circumstance where plaintiffs challenged a county ordinance under the First, Fourth, Fifth, Ninth,
and Fourteenth Amendments of the Constitution.8 The district court invoked Pullman and
abstained from resolving the federal constitutional claims pending state court resolution of the
state statutory and constitutional issues.9 Plaintiffs then brought suit in a state trial court seeking
a state interpretation of the ordinance alleging the County Board, in enacting the challenged
ordinance, exceeded its authority under Virginia law but did not make state constitutional
challenges to the ordinance.10 The state trial court held the challenged ordinance applied to
plaintiffs. Plaintiffs failed to timely appeal in the state courts, and then returned to the district
court moving to lift the stay. The district court denied the motion, finding plaintiffs failed to
pursue state constitutional claims in the state appellate court, leaving the state law questions
Plaintiffs appealed the district court’s decision. The court of appeals found “state law
challenges to the ordinance, both facially and as applied, might have resolved or at least have
Nat’l Capital Naturists, Inc. v. Bd. of Supervisors of Accomack Cnty., Va., 878 F.2d 128, 130131 (4th Cir. 1989).
narrowed the federal constitutional questions” and, under the circumstances of the case, “the
Virginia Supreme Court should have been provided an opportunity to pass on the issues. Simply
put, ‘these enactments should [have been] . . . exposed to state construction or limiting
interpretation before the federal courts are asked to decide upon their constitutionality, so that
federal judgment will be based on something that is a complete product of the State, the
enactment as phrased by its legislature and as construed by its highest court.’”11
We similarly find the Commonwealth Court should consider and resolve the state
constitutional issue raised by Ms. Dailey, including whether the challenged sections of the
Retirement Code apply to her as an employee of the First Judicial District. The Commonwealth
Court’s interpretation of the Retirement Code as applied to Ms. Dailey could obviate the need to
adjudicate or substantially narrow the scope of her federal constitutional claims, the second
factor required for Pullman abstention.
C. We continue to abstain in the hope the Pennsylvania courts will address
whether the Retirement Code eligibility applies to Ms. Dailey.
In her state action before Judge Fletman, Ms. Dailey argued subsection (.4) only applies
to her if she pleaded guilty to theft of funds from (1) “the City”; (2) “any official agency of the
City”; or (3) “agency, engaged in performing any governmental function for the City or
Commonwealth.” Ms. Dailey argues the First Judicial District is part of the Commonwealth’s
unified judicial system, not the City, and the Code’s definition section expressly excludes the
courts from the term “agency.” Ms. Dailey makes the same argument in her federal action before
us. The City disputes this reading, contending the term “agency” is used twice in subsection (.4)
and the second use is modified by the phrase “performing any governmental function for the City
or Commonwealth” like the First Judicial District.
Id. at 132 (quoting Harrison v. NAACP, 360 U.S. 167, 178 (1959)). For these reasons, we are
not persuaded by Ms. Dailey’s argument we should lift the stay because she will discontinue her
appeal to the Commonwealth Court if we arrive at a decision before it does.
Leaving interpretation of the Retirement Code to the Commonwealth Court, we continue
to abstain under Pullman. Any error in our construction of the Retirement Code would disrupt
important state policies - namely the administration of the City’s retirement system – and meets
the third factor for Pullman abstention.
Equitable considerations do not change our decision. Our discretion to invoke Pullman
abstention is informed by equitable considerations including “the availability of an adequate state
remedy, the length of time the litigation has been pending, and the potential impact on the parties
caused by delay in obtaining a state ruling.”12 While we understand Ms. Dailey’s action here has
been in suspense for over a year pending resolution by Pennsylvania’s courts, the delay alone
does not outweigh the problems in our interpretation of ambiguous sections of the Retirement
Code as applied to Ms. Dailey absent ruling of the Commonwealth Court.13
Ms. Dailey’s England reservation does not, as she suggests, dictate a different result. In
England, the Supreme Court held “when a federal court abstains from deciding a federal
constitutional issue to enable the state courts to address an antecedent state-law issue, the
plaintiff may reserve his right to return to federal court for the disposition of his federal
claims.”14 There is no question Ms. Dailey may return to this Court for adjudication of her
federal claims. But this does not vitiate the bases for abstention pending a determination from
Stretton v. Disciplinary Bd. of Supreme Court of Pa., 944 F.2d 137, 140 (3d Cir. 1991).
The cases cited by Ms. Dailey do not support her argument. In Lindenbaum v. Phila., 584
F.Supp. 1190 (E.D. Pa. 1984), the court found delay caused by its abstention “will not greatly
prejudice the parties,” finding “[t]his is not a situation in which the plaintiffs are in immediate
jeopardy, . . . or in which plaintiffs are being denied those governmental benefits necessary to
basic subsistence.” Id. at 1200 n. 12 (citations omitted). Stretton is distinguishable because it
involved an impending election. Stretton, 944 F.2d at 141. Similarly, United Servs. Auto. Ass’n v.
Muir, 792 F.2d 356 (3d Cir. 1986) is distinguishable because it involved an insurer’s challenge to
the state insurance department’s revocation of its license. Id. at 362-63.
R & J Holding Co. v. Redevelopment Auth. of Cnty. of Montgomery, 670 F.3d 420, 428 (3d
Cir. 2011) (quoting San Remo Hotel v. City & Cnty. of S.F., 545 U.S. 323, 339 (2005)).
Pennsylvania’s appellate courts on whether the Retirement Code applies to Ms. Dailey as an
employee of the First Judicial District.
In deference to Pennsylvania courts, we continue to abstain in the hope the Pennsylvania
courts will address the ambiguity in the application of the Retirement Code to Ms. Dailey. In
light of the ongoing ambiguity in the state law underlying Ms. Dailey’s federal constitutional
claims, we find the continued application of Pullman abstention appropriate. We deny Ms.
Dailey’s motion to remove this matter from the Court’s suspense docket, and this matter will
remain on the suspense docket until a state appellate court resolves whether Code sections (.4)
and (.5) may be applied to Ms. Dailey as an employee of the First Judicial District.
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