Strickland v. City of Easton Pennsylvania Brief for Appellant

    H
i 

O

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

78-1308

SARAH BEATRICE STRICKLAND, etc., 
et al

Plaintiff-Appellant 
v s .

CITY OF EASTON, PENNSYLVANIA, 
et al

Defendants-Appellees

Appeal from the Memorandum and Order 
f January 17, 1978, United States District Court 
or the Eastern District of Pennsylvania No. 75-93

Brief for Appellant

Nolan N. Atkinson, Jr., Esquire 
Atkinson, Myers, Archie & Wallace 
Attorneys for Plaintiff-Appellant 
1500 Western Savings Bank Building 
1346 Chestnut Street 
Philadelphia, Pennsylvania 19107 
(215) 546-1630



TABLE OF CONTENTS

Page

Statement of Jurisdiction...............................  1
Statement of Issues Presented...........................  2
History of the Case.....................................  3
Arguments:

I. Sarah Beatrice Strickland has standing 
in this action because she is a poten­
tial beneficiary entitled under Penn­
sylvania lav; to recover damages for the 
death of her son, and if she is dismis­
sed no one remains to protect her inter­
ests............................................ 8
Standard of Review.............................  8

II. The trial court abused its discretion 
when, after ordering the joinder of 
MARIA STRICKLAND as party-plaintiff with 
original plaintiff, SARAH BEATRICE 
STRICKLAND, it granted summary judgment 
against SARAH BEATRICE STRICKLAND, since 
there are substantial differences between 
the two parties-plaintiff...................... 14
Standard of Review.............................  14

III. A. The District Court erred when it dis­
missed SARAH BEATRICE STRICKLAND's inde­
pendent constitutional claim on the au­
thority of DENMAN v. WERTZ, 372 F2d 135 
(3rd Cir. 1967), cert, denied, 389 U.S.
941 (1967)...................................... 22
Standard of Review.............................  22

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B. SARAH BEATRICE STRICKLAND has a right 
implicit in the Constitution to compensa­
tion for the wanton and wilful killing of 
her son by persons acting under color of 
state law...................................... 25

Conclusion..............................................
Certificate of Service.................................  30

Page

- 1 1 -



Page
Cases Cited:

Armstrong v. Berk, 96 F. Supp. 182
(E.D. Pa. 1951)....................................  11, 12
Armstrong v. Manzo, 380 U.S. 545
(1965)..............................................  25
Arndt's Administrators v. Davis,
34 D&C Rep. 2d (1965)..............................  10
Ashcroft v. Mattis, 45 USLW (U.S.
May 12, 1977)....................................... 27
Axelrod v. Lakeshore Motor Freight 
Co., 1 D&C Rep. 2d 605, 102 PLJ
341 (1952).......................................... 10
Denman v. Wertz, 372 F2d 135 (3rd Cir.
1967); cert, denied, 389 U.S. 941 (1967)........... 22, 23, 24
Eisenstadt v. Baird, 405 U.S. 438 (1972)........... 26
Griswald v. Connecticut, 381 U.S. 479
(1965)............................................... 26
Hilbranas v. Far East Trading Co.,
19 F.R. Serv. 2d 1105 F2d (9th
Cir. 1975)............................   16, 17
Jacobson v. Massachusetts, 197 U.S.
11 (1905)........................................... 26
Jones v. Hildebrant, 45 USLW 4703
(U.S. June 16, 1977)................................  27
Killebrew v. Moore, 41 F.R.D. 269
(N.D. Miss. 1966)...................................  17
McAlister v. Stevens, 41 D&C Rep.
612 (1941).......................................... 10, 12
McDonald v. Pennsylvania R. Co.,
103 F. Supp. 293 (E.D. Pa. 1953)................... 11

TABLE OF CITATIONS

-iii-



Page
Mattis v. Nebraska, 26 U.S. 390 (1923)............  25
Mattis v. Schnarr, 502 F2d 588 (8th
Cir. 1974).......................................... 27
Montecatini Societa' Generale v.
Humble Oil & Refining Co., 261 F.
Supp. 587 (D. Maryland 1966).......................  18
Pierce v. Society of Sisters, 268
U.S. 510 (1925)....................................  25
Prince v. Massachusetts, 321 U.S.
158 (1944).......................................... 26
Roe v. Wade, 410 U.S. 113 (1973)................... 26
Seymour v. Rossman, 449 Pa. 515,
297 A2d 804 (1972).................................  10
Siidekum v. Animal Rescue League 
of Pittsburgh, 353 Pa. 408, 45
A2d 59 (1946)....................................... 10
Stanley v. Illinois, 405 U.S. 645 (1972)..........  25
Television Reception Corp. v. Dunbar,
426 F2d 174 (6th Cir. 1970)........................ 18
Unison Realty Corp. v. RKO Theatres,
Inc., 35 F.R.D. 232 (S.D.N.Y. 1964)................ 16, 19
Wisconsin v. Yoder, 406 U.S. 205 (1972)...........  25

United States Constitution Cited:
First Amendment....................................  22, 26
Fourth Amendment...................................  22, 26
Fifth Amendment....................................  22, 2 6
Sixth Amendment....................................  22, 26
Eighth Amendment...................................  22, 26
Ninth Amendment....................................  22, 26
Fourteenth Amendment...............................  22, 26

-iv-



Page

Statutes Cited;
28 U.S.C. §1291...................................  1
42 U.S.C. §1983...................................  23, 24, 27
12 P.S. §1602.....................................  4, 8, 9, 12
20 P.S. §2102.....................................  9
20 P.S. §2103.....................................  9
20 P.S. §3371.....................................  4, 5

Rules Cited;
F.R.C.P. 17(a)....................................  15
F.R.C.P. 25(c)....................................  2, 14, 15, 16,

18, 19
P.R.C.P. 2203.....................................  20, 21

Treatises Cited:
3 Goodrich-Amram §2201 - 31 (L976 Supp.)..........  10
3 Goodrich Amram §2203 (a) - 1 (1962 ed.).........  20
16 Pa. Bar Assoc. Quarterly No. 2, p. 183
(Jan. 1945)........................................ 12
7 A Wright & Miller, Civil Procedure §1958
(West)............................................. 16

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STATEMENT OF JURISDICTION

This Appeal is filed by SARAH BEATRICE STRICKLAND 
pursuant to 28 U.S.C. 1291, from a final judgment entered on 
January 17, 1978, by the Honorable John P. Fullam of the United 
States District Court for the Eastern District of Pennsylvania.

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STATEMENT OF ISSUES PRESENTED

I. Whether the District Court erred when it dismissed 
the federal claim of SARAH BEATRICE STRICKLAND for the viola­
tion of the constitutional rights of her son on the basis that 
she lacked standing after her Letters of Administration were 
revoked and granted to the deceased's estranged spouse.

II. Whether Rule 25(c) of the Federal Rules of Civil 
Procedure allows SARAH BEATRICE STRICKLAND to litigate a contro­
versy when there is an unwillingness on the part of MARIA 
STRICKLAND, the party joined, to pursue the federal claim and 
to protect the interests of SARAH BEATRICE STRICKLAND.

III. Whether SARAH BEATRICE STRICKLAND, as the mother of 
ROBERT VICTOR STRICKLAND, has an independent federal constitu­
tional right to bring suit against the CITY OF EASTON, et al, 
for the wrongful death of her son.

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HISTORY OF THE CASE

This case is a direct appeal from the Order of the 
Honorable John P. Fullam, Judge of the United States District 
Court for the Eastern District of Pennsylvania, granting the 
CITY OF EASTON, et al's motion for summary judgment on the 
ground that SARAH BEATRICE STRICKLAND lacked standing to liti­
gate certain constitutional and pendent state claims.

SARAH BEATRICE STRICKLAND brought suit in her indi­
vidual and representative capacity as Administratrix against the 
CITY OF EASTON, et al, alleging that her son had been unlawfully 
killed by police officers of the City of Easton in violation of 
his federal constitutional rights. The claim against the CITY 
OF EASTON, and members of the Easton City Council was based on 
their negligent employment and training of police officers, while 
the claim against the police officers was based on the wrongful 
shooting of ROBERT VICTOR STRICKLAND, an unarmed black citizen.
(5 a.) After Letters of Administration granted to SARAH BEATRICE 
STRICKLAND were revoked ex parte and reissued to MARIA STRICKLAND, 
the estranged wife of the deceased, the CITY OF EASTON, et al 
filed motions for summary judgment. (R5-13C a.) The motion was 
granted after MARIA STRICKLAND was joined unwillingly with SARAH 
BEATRICE STRICKLAND as party-plaintiff in this lawsuit. (124 a.)

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1974, ROBERTBy way of background, on September 23,
VICTOR STRICKLAND, the son of SARAH BEATRICE STRICKLAND, was shot 
in the back and killed by Easton Police Officers during the course 
of a stake—out which was executed in an incompetent and reckless 
manner by the Easton Police Department. Ke was not armed with any 
weapons. (4-5 a.)

At the time of his death, ROBERT VICTOR STRICKLAND 
was not living with his wife, MARIA STRICKLAND, or his two chil­
dren. (110 a.) His mother, SARAH BEATRICE STRICKLAND, handled 
all the arrangements for his funeral. (15 a.) MARIA STRICKLAND 
indicated during this period that she had no interest in attend- 
ing, participating in or becoming involved in any way with the 
funeral of her estranged husband. (231-232 a.)

Having been advised by counsel that Pennsylvania lav; 
has a one year statute of limitations under the Wrongful Death 
A.ct, SARAH BEATRICE STRICKLAND, pursuant to her statutory right, 
appeared before the Northampton County Register of Wills and was 
granted Letters of Administration on December 20, 1975. (110 a.)
On January 10, 1975, suit was commenced in the United States Dis­
trict Court for the Eastern District of Pennsylvania by SARAH 
BEATRICE STRICKLAND on behalf of those heirs entitled to recover 
under the Wrongful Death Act and the Survival Act. (110 a.)

The CITY OF EASTON, et al, filed answers to the merits

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of the complaint after a notion to dismiss the complaint on the 
ground that it failed to state a claim upon which relief could be 
granted was denied by the court. (Memorandum Opinion by Judge 
Fullam, dated April 21, 1975).

In May, 1975, MARIA STRICKLAND, after consultation 
with the CITY OF EASTON, et al, appeared before the Northampton 
County Register of Wills and had the Letters of Administration 
granted to SARAH BEATRICE STRICKLAND revoked and had herself sub­
stituted as the Administratrix of the Estate of ROBERT VICTOR 
STRICKLAND. (110-111 a.) Although litigation had been commenced 
in Federal Court five months earlier, not one of the attorneys 
representing the CITY OF EASTON, et al, notified SARAH BEATRICE 
STRICKLAND of this proceeding. (110 a.)

After her appointment as Administratrix MARIA 
STRICKLAND appeared before one of the Northampton County judges 
and obtained approval of a settlement and release of any and all 
claims, including the federal action, which the estate might have 
had against the CITY OF EASTON, et al, for the sum of $9,001.00. 
One Dollar of that sum was allocated to the claim made under the 
Survival Act, under which recovery for constitutional violations 
would fall. (118 a.) The CITY OF EASTON, et al, once again 
failed to notify SARAH BEATRICE STRICKLAND of this proceeding. 
(110-111 a.)

Upon obtaining state court approval of a settlement

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of a cause of action filed in Federal Court, the CITY OF EASTON, 
et al, filed a motion for summary judgment claiming that since 
SARAH BEATRICE STRICKLAND was no longer the Administratrix of the 
Estate of ROBERT VICTOR STRICKLAND, and since MARIA STRICKLAND 
had executed a release of all claims against the CITY OF EASTON, 
et al, SARAH BEATRICE STRICKLAND no longer had standing or a 
claim for relief. (25, 45 a.) SARAH BEATRICE STRICKLAND answered 
the motion and also filed a motion requesting the amendment of 
her complaint in order to more accurately reflect her status fol­
lowing the actions taken by the Northampton County Court at the 
request of MARIA STRICKLAND and the CITY OF EASTON, et al. (83 a.)

The District Court denied both motions and instructed 
counsel to take reasonable steps to substitute MARIA STRICKLAND 
in place of SARAH BEATRICE STRICKLAND as the plaintiff in this 
lawsuit. (110 a.) To that end, SARAH BEATRICE STRICKLAND re­
quested that MARIA STRICKLAND voluntarily assume the obligations 
of plaintiff. She refused. (121 a.) Thereafter, SARAH BEATRICE 
STRICKLAND, rather than petition for substitution, sought joinder 
of MARIA STRICKLAND on the ground that substitution would consti­
tute a de facto dismissal of a federal claim without approval by 
a Federal Court. (120 a.) The motion for joinder was granted by 
Judge Fullam on March 2, 1977. (124 a.)

SARAH BEATRICE STRICKLAND subsequently undertook dis­

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covery to obtain information in the following areas:

(1) Did the settlement by MARIA STRICKLAND of a 
federal claim for the sum of One Dollar, reflect that the consti­
tutional claim of a violation of due process by the shooting of 
ROBERT VICTOR STRICKLAND was unsupported by the facts, and, there­
fore, suitable for settlement approval by a Federal Court?

(2) Assuming arguendo the settlement of the federal 
constitutional claim for One Dollar was unconscionable, were 
ROBERT VICTOR STRICKLAND'S constitutional rights violated?

(3) Which persons had suffered pecuniary loss as 
the result of ROBERT VICTOR STRICKLAND'S death?

While still in the initial stages of this discovery, 
a second motion for summary judgment was filed which set forth 
substantially the same argument as the first; that is, SARAH 
BEATRICE STRICKLAND lacked standing since MARIA STRICKLAND had 
become Administratrix of the decedent's estate and had been 
joined as party-plaintiff. (125, 130 a.) It is from the grant­
ing of this second motion for summary judgment against SARAH 
BEATRICE STRICKLAND that this appeal is taken.

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ARGUMENT I

SARAH BEATRICE STRICKLAND HAS STANDING IN 
THIS ACTION BECAUSE SHE IS A POTENTIAL 
BENEFICIARY ENTITLED UNDER PENNSYLVANIA LAW 
TO RECOVER DAMAGES FOR THE DEATH OF HER SON,
AND IF SHE IS DISMISSED MO ONE REMAINS TO 
PROTECT HER INTERESTS.

STANDARD OF REVIEW:

The standard of review is error in the District Court's 
interpretation and application of Pennsylvania lav/.

The District Court erred v/hen it dismissed SARAH 
BEATRICE STRICKLAND from this action before any evidence was pre­
sented as to which persons had sustained pecuniary loss. Pennsyl­
vania law permits a cause of action to be brought and recovery to 
be had by a parent for the wrongful death of a child under the Act 
of April 26, 1855, P.L. 309 §1, 12 P.S. §1602. The critical fact 
in this determination is whether the parent has suffered pecuniary 
loss. In SARAH BEATRICE STRICKLAND'S original complaint, (19 a.), 
and amended complaint, (105 a.), direct pecuniary loss resulting 
from funeral and hospital expenses was alleged.

The argument was presented to the District Court 
that the CITY OF EASTON, et al's motions for summary judgment 
were made at an inappropriate juncture in the proceedings, as

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no evidence was before the Court which would enable it to rule 
on the question of pecuniary loss, a prerequisite to any further 
determination of rights under the Wrongful Death Act. Che Dis­
trict Court held, however, that as a matter of law, Pennsylvania 
did not permit a person in the position of SARAH BEATRICE STRICK­
LAND to share in any recovery under the Wrongful Death Act. It is 
submitted by SARAH BEATRICE STRCIKLAND that the District Court 
erred in its interpretation of Pennsylvania law in this regard,
and in its application of the law to the facts in the case at bar.

*

The District Court recognised that the application 
of the statutory language was not without difficulty because of 
conflicting provisions which had to be accomodated in order to 
reach an equitable result.

Under the Wrongful Death Act, the husband, widow, 
children or parents are designated as those who are entitled to 
recover damages in the proportion they would take the decedent's 
personal estate in case of intestacy. Under the intestate laws 
of Pennsylvania, however, a parent is not entitled to share in 
the estate of a decedent survived by a widow and children. (20 
P.S. §2102, 2103)

The strict interpretation of the statutes has re­
sulted in "windfall" recoveries to persons who suffered no real

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pecuniary loss and denial of recovery to deserving relatives; 
hence, the attempts at accomodation. (3 GOODRICH-AMRAM, 52201- 
31 (1976 Supp.)

Faced with these situations in a variety of con­
figurations over the years, the Pennsylvania and Federal Courts 
have developed certain rules to facilitate their resolution in 
an equitable manner. The Pennsylvania Courts have determined 
that no person, even if named in the class of persons entitled 
to recover, may receive any portion of damages unless they have 
a pecuniary interest in the life of the decedent. SEYMOUR v . 
ROSSMAN, 449 Pa. 515, 297 A2d 804(1972); AXELROD v. LAKESHORE 
MOTOR FREIGHT CO., 1 D&C Rep.2d 605, 102 PLJ 341(1952); SIID- 
EKUM V. ANIMAL RESCUE LEAGUE OF PITTSBURGH, 353 Pa. 408, 45 
A2d 59(1946); and McALISTER v. STEVENS, 41 D&C Rep2d 612(1941).

The District Court itself referred in its Memoran­
dum Opinion of October 27, 1976, (114 a.), to a case in which
emancipated children who had suffered no pecuniary loss were 
excluded from distribution to the minor children and widow. 
ARNDT'S ADMINISTRATOR v. DAVIS, 34 D&C Rep.2d 444 (1965). Yet 
the lower Court held that SARAH BEATRICE STRICKLAND was not a 
potential beneficiary under the Wrongful Death Act based on a 
strict interpretation of the intestate statute. (115 a.)

The District Court for the Eastern District of Penn­
sylvania has also been faced with claims under the Wrongful

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Death Act and has inferred from the statutes and decisions of 
Pennsylvania Courts a slightly different rule. Where any one 
member of a class has suffered a pecuniary loss, the intestate 
act will be followed and all the members of the class will share 
equally. However, where there is a class, none of whose members 
are able to prove pecuniary loss, the entire class will be pre­
cluded from sharing in the proceeds, and for purposes of dis­
tribution will be treated as though it did not exist. ARMSTRONG 
V. BERK, 96 F.Supp. 182(E.D.Pa. 1951); MCDONALD v. PENNSYLVANIA 
R. CO., 103 F.Supp. 293 (E.D.Pa. 1952).

ARMSTRONG v. BERK, supra, was a case analogous to 
the case at bar. The District Court held that decedent's mother, 
who was receiving support from her son at the time of his death, 
was entitled to share in the proceeds of a settlement to the ex­
clusion of his minor children. The children were living apart 
from their father, were receiving no support and had no reason­
able expectation of support.

This case was cited by SARAH BEATRICE STRICKLAND in 
support of her Motion for Leave to File Amended Complaint, (89 
a.), but was not addressed by the Court in either of its Memo­
randa Opinions.

In summary, the Pennsylvania rule permits any member 
of a designated class to recover as long as he can prove a pec­
uniary loss. The Federal rule permits every member of a class to

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recover once one member of the class has shown pecuniary loss.
Both the Federal and State Court rules are intended to prevent 
"windfall" recoveries. In spite of ambiguous language, Pennsyl­
vania lav; has been developed in a manner which seeks to avoid 
inequitable results. ARMSTRONG v. BERK, supra; McALISTER v.STE­
VENS, supra; 16 PA. BAR ASSOC. QUARTERLY No. 2, p. 183, (Jan.
1945) .

As it is entirely possible that SARAH BEATRICE STRICK­
LAND is the only party eligible to recover under the Wrongful 
Death Act as it has been interpreted and applied in the Pennsylvan­
ia Courts, she should not have been dismissed from this action 
by the Court. The question of which persons have suffered a pec­
uniary loss as a result of the wrongful death of ROBERT VICTOR 
STRICKLAND is not a question which can be resolved at this junc­
ture in the proceedings. No interrogatories have been answered.
The deposition of SARAH BEATRICE STRICKLAND has not been taken.
No testimony has been heard by the District Court. The informa­
tion essential to a determination of this issue is simply not yet 
before the Court. SARAH BEATRICE STRICKLAND must be permitted to 
remain in this action as a plaintiff, because if she is entitled 
under Pennsylvania law to damages for the wrongful death of her 
son, she will be foreclosed from obtaining compensation because 
of the unwillingness of MARIA STRICKLAND to pursue this action.

Therefore, it is respectfully contended that the 
District Court misinterpreted the Wrongful Death Act when it held

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that SARAH BEATRICE STRICKLAND no longer had standing to remain 
in the action under the Wrongful Death Act. It is further conten­
ded that it was premature for the District Court to grant the 
CITY OF EASTON et al's Motions for Summary Judgment before the 
facts essential to any determination of standing had been devel­
oped on the record.

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ARGUMENT II

THE TRIAL COURT ABUSED ITS DISCRETION 
WHEN, AFTER ORDERING THE JOINDER OF MARIA 
STRICKLAND AS PARTY-PLAINTIFF WITH ORIGINAL 
PLAINTIFF, SARAH BEATRICE STRICKLAND, IT 
GRANTED SUMMARY JUDGMENT AGAINST SARAH 
BEATRICE STRICKLAND, SINCE THERE ARE SUB­
STANTIAL DIFFERENCES BETWEEN THE TWO PAR- 
TIES-PLAINTIFF.

STANDARD OF REVIEW;

The standard of review is whether the court below er­
red when it granted summary judgment in view of the fact that 
Rule 25(c) does not require the substitution of parties when 
there are inconsistent interests between then.

The trial court in its opinion granting the CITY OF 
EASTON, et al's motions for summary judgment stated that SARAH 
BEATRICE STRICKLAND lacked standing since MARIA STRICKLAND had 
been joined as party-plaintiff pursuant to Rule 25(c). The court 
concluded that since SARAH 3EATRICE STRICKLAND could not assert 
an independent claim under the United States Constitution and 
since she was no longer the Administratrix of her son's estate, 
she had no standing in this action. The only distinction between 
the denial of the CITY OF EASTON, et al's first motions for sum­
mary judgment and the granting of their latter motions, was the 
simple fact that the new Administratrix, MARIA STRICKLAND, was now

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a party to the lawsuit.

The assumption made by the court below that SARAH 
BEATRICE STRICKLAND could not continue as plaintiff in this mat­
ter is erroneous both as a matter of federal procedure and Penn­
sylvania law. It is undisputed that the Federal Courts require 
that suits be maintained by the real party in interest. (Federal 
Rule of Civil Procedure 17(a)). When there is a change in the 
status of parties during the pendency of an action, Rule 25 pro­
vides for that contingency. Specifically, Rule 25 (c) provides 
the following:

(c) Transfer of Interest. In case of any 
transfer of interest theaction may be con­
tinued by or against the original party un­
less the court, upon motion, directs the per­
son to whom the interest is transferred to be 
substituted in the action or joined with the 
original party. Service of the motion shall 
be made as provided in subdivision (a) of 
this Rule.

Rule 25 (c) has been broadly interpreted to give the 
judge, upon motion, the discretion to substitute or join a new 
party for or with the original party in a federal action. In the 
case at bar, SARAH BEATRICE STRICKLAND, moved for joinder on the

1/basis that MARIA STRICKLAND was an unwilling party to the action.

1/ It is to be noted that Rule 25(c) calls for service of the mo­
tion by the Marshall's office upon the proposed party to be 
joined. In the instant case, counsel for I5ARIA STRICKLAND ac­
cepted service. (3 a.)

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The textbook writers have stated that Rule 25(c) does not require 
the termination of a lawsuit insofar as the transferor is con­
cerned after joinder of an additional party. The eventual judg­
ment on the merits will be binding on both the transferor and 
transferee. See 7 A WRIGHT & MILLER, CIVIL PROCEDURE, §1958,
(West). In the case of UNISON REALTY CORPORATION v. RKO THEATRES, 
INC., 35 F.R.D. 232 (S.D.N.Y. 1964), the court held that since 
there was no motion for substitution under Rule 25(c), but rather 
only a request for joinder, the original party would be permitted 
to continue the action.

When a conflict of interest exists between the two 
parties sought to be joined, federal procedure permits the con­
tinued presence of the original party even after there has been 
a transfer of interest. In HILBRANDS v. FAR EAST TRADING CO.,
19 F.R. Serv. 2d 1105, ___ F2d ___ (9th Cir. 1975), the court held
that an employee could continue as plaintiff even though she had 
elected to accept workman's compensation benefits. The employer's 
insurer, which had paid the v/orkman's compensation award was sub­
rogated to the employer's rights and the insurer covered both the 
employer and the alleged tort feasor. It was decided that the 
insurer should not be substituted for the employee, but joined.
The rationale of the court in adopting the original plaintiff's 
position was that:

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"...leaving her employer's insurer as the 
only potential plaintiff meant that the 
claim would not be pursued because the 
same insured both..." id at 1106.

In the instant case, MARIA STRICKLAND has made clear 
on several instances that she did not intend to prosecute this 
lawsuit. Her entire course during the pendency of this litigation 
has been calculated to deprive the federal courts of their au­
thority to adjudicate the merits of this dispute. Whether her 
course of conduct has merit, based upon the operative facts sur­
rounding the death of ROBERT VICTOR STRICKLAND, cannot be known 
if the opinion of the court below is sustained.

Other cases also hold that when an abuse of discretion 
is alleged in ordering substitution as opposed to joinder, the 
criteria to follow is whether there is a conflict of interest be­
tween the original party and the party to be brought into the law­
suit. The holding of the court in KILLEBREW v. MOORE, 41 F.R.D.
269 (N.D. Miss. 1966), suggests that when there is an inconsis­
tency in the positions of the transferor and the transferee joinder 
is proper as opposed to substitution. Similarly, in HILBRANDS v . 
FAR EAST TRADING CO., supra, the patent reason for the granting 
of joinder was the inconsistency of positions between the trans­
feror and the transferee.

The positions of MARIA STRICKLAND and SARAH BEATRICE

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STRICKLAND in this matter differ substantially. SARAH BEATRICE 
STRICKLAND is committed to the litigation of this matter in the 
Federal Court. MARIA STRICKLAND, on the other hand, testified in 
her deposition that she had no interest whatsoever in pursuing the 
claim (243 a.), and had hoped that her settlement for $9,001.00 
would be her final involvement in this matter. (244 a)

It is submitted that the authors of the Federal Rules 
of Civil Procedure adopted Section (c) of Rule 25 in order to 
provide an equitable manner for the continuation of lawsuits 
validly pending before the Federal Courts, and to insure that jus­
tice is administered even though there has been a change of status 
among the parties. MONTECATINI SOCIETA' GENERALE v. HUMBLE OIL & 
REFINING CO., 261 F. Supp. 587 (D. Maryland 1966); TELEVISION RE­
CEPTION CORP. V. DUNBAR, 426 F2d 174 (6th Cir. 1970). It is to be 
noted that in no case found by counsel for SARAH BEATRICE STRICK­
LAND did the court apply Rule 25(c) in a manner which would lead 
either directly or indirectly to the termination of a lawsuit 
validly pending before the Court.

The position of SARAH BEATRICE STRICKLAND is that al­
though she is no longer the Administratrix of her son's estate the 
affect of her change of status after the commencement of this law­
suit should not be construed as permitting only MARIA STRICKLAND 
to continue as plaintiff. It is to be noted that MARIA STRICKLAND

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never prayed for substitution and she should not be permitted to 
have the benefits of such an action when she never saw fit to re­
quest such benefits from the court. See UNISON REALTY CORPORATION 
v. RKO THEATRES, INC., supra. Considering all of the facts in 
the instant case there ought not be a federal policy of procedure 
which construes the only real party in interest as being MARIA 
STRICKLAND. Rather, the court should choose a course of action 
which determines that both MARIA STRICKLAND, as the mother of poten­
tial minor beneficiaries, and SARAH BEATRICE STRICKLAND, as a po­
tential beneficiary entitled to pecuniary reimbursement may main­
tain this action for the purpose of determining whether the con­
stitutional rights of ROBERT VICTOR STRICKLAND were violated.

The Court below, however, granted the Motions for 
Summary Judgment because it could find no legal basis for SARAH 
BEATRICE STRICKLAND to remain in the lawsuit once she had been 
stripped of her representative cloak as Administratrix and after 
the Court determined that she had no independent Constitutional 
right. It would appear that although the inconsistencies between 
the two parties-plaintiff were apparent to the Court below, (197,
199 a.), the Court assumed that Rule 25(c) had no validity in the 
absence of legal standing on the part of SARAH BEATRICE STRICK­
LAND .

In addition to SARAH BEATRICE STRICKLAND'S right to 
remain in this action under Rule 25(c), it is submitted that, un­
der Pennsylvania law, she also has the right to remain in this

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action based on the facts involved in this matter. The scheme of 
the Pennsylvania Wrongful Death Act provides for the substitution 
of any party in the lawsuit who is entitled to bring the action or 
who may participate in the recovery. As was fully briefed in Ar­
gument I, the determination as to who may receive the benefits of 
a recovery can only be made after the ascertainment of which 
party(s) sustained a loss, based upon proof made at the time of 
trial. Allegations of loss suffered by SARAH BEATRICE STRICKLAND 
were made both in her complaint (19 a.), and amended complaint 
(105 a.) .

The Wrongful Death Act speaks very specifically with 
reference to who may bring the action. When for some reason the 
original plaintiff is not fulfilling his statutory function, the 
Act permits substitution of another party, pursuant to Rule 2203 
of the Pennsylvania Rules of Civil Procedure, which provides:

" (a) Any person entitled by lav/ to recover 
damages in an action for wrongful death may 
petition the court in which an action for 
such wrongful death is pending to remove 
the plaintiff and to substitute as a new 
plaintiff any person entitled by lav/ to re­
cover damages in the action, or a personal 
representative of the decedent." (emphasis 
supplied)

The textwriters have interpreted this rule to permit 
the removal of a plaintiff for improper conduct upon the petition 
of anyone entitled to recover damages. 3 Goodrich Amram, 52203(a)- 
1 (1962 ed.). It is clear that the words "entitled by law" mean 
any potential beneficiary, namely widow, children or parents o^ 
the deceased has the potential right to be substituted as plain­

-2-C-



tiff in a case within the state statutory scheme.

It is alleged that, given an opportunity, SARAH 
BEATRICE STRICKLAND could successfully prove wrongful conduct 
on the part of MARIA STRICKLAND which would entitle SARAH BEAT­
RICE STRICKLAND to be substituted as party-plaintiff. Therefore, 
the potential right of SARAH BEATRICE STRICKLAND to be substitu­
ted as plaintiff by a procedural rule in the Commonwealth of Penn­
sylvania may be interpreted inferentially as meaning that the 
Pennsylvania Wrongful Death Act does not per se limit the role 
of plaintiff to a widow, namely MARIA STRICKLAND. The right of 
members of a class designated under the Wrongful Death Act to 
become plaintiffs upon a showing of wrongful conduct on the part 
of the original plaintiff cannot be extinguished until after a 
trial. Therefore, SARAH BEATRICE STRICKLAND has standing in this 
matter so long as this case is pending.

Hence, the action of the Court below in granting the 
Motions for Summary Judgment was contrary to both federal policy 
and state court procedure and substantive law and should be re­
versed for the aforementioned reasons.

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ARGUMENT
H I  (A)

THE DISTRICT COURT ERRED WHEN IT DISMISSED 
SARAH BEATRICE STRICKLAND'S INDEPENDENT 
CONSTITUTIONAL CLAIM ON THE AUTHORITY OF 
DENMAN v. WERTZ, 372 F2d 135, (3rd Cir. 1967) 
cert, denied, 339 U.S. 941 (1967).

STANDARD OF REVIEW:

The standard of review is error in the interpretation 
and application of federal case lav; and the United States Consti­
tution.

SARAH BEATRICE STRICKLAND argued in her motion to 
amend the complaint that she had a right implicit in the provis­
ions of the First, Fourth, Fifth, Sixth, Eighth, Ninth and Four­
teenth Amendments to the United States Constitution to compensa­
tion for the wanton and wilful killing of her son by police act­
ing under color of state law.

Although the District Court recognised that two re­
cent Supreme Court decisions considered the right of a parent 
to sue for the interference by the state in the parent-child 
relationship an open question, it considered itself bound by a 
Third Circuit decision, DENMAN v. WERTZ, 372 F2d 135 (3rd Cir. 
1967), cert, denied, 339 U.S. 941 (1967), which the court con­
strued as holding that interference with parental relationships

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does not give rise to a constitutional claim. (196 a.)

The facts relied on in the holding in DENMAN v.
WERTZ, supra, however, are distinguishable from the facts in the 
STRICKLAND case. The plaintiff in DENMAN was a father who 
brought suit pro se after his children were apprehended in Penn­
sylvania by two police officers and a probation officer. The 
children were en route from Ohio, where they lived with their 
mother, to Massachusetts in the custody of a friend of the father. 
The father had taken the children from their mother during what 
appeared to be a custody dispute. The Pennsylvania authorities 
returned the children to their mother. Plaintiff's children 
were not harmed.

In a brief opinion which cited no cases and had no 
analysis of the problem, the court ruled, that the actions by the 
police and probation officers did not give rise to a cause of 
action under the Civil Rights Act. The court concluded that the 
facts alleged were insufficient to establish that the father had 
been deprived of any rights and affirmed the lower court's denial 
of relief. The court did not hold that a parent may never allege 
a violation of a constitutional right for interference in a 
parent-child relationship by the state.

The father in DENMAN suffered no recognizable harm. 
SARAH BEATRICE STRICKLAND, on the other hand, has been permanently

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deprived of her relationship with her son.

It is respectfully contended by SARAH BEATRICE 
STRICKLAND that the case of DENMAN v. WERTZ, supra, is factually 
distinguishable from her claim and, therefore, not binding prece­
dent on the District Court. In the alternative, it is respect­
fully contended that the holding of DENMAN v. WERTZ, supra, 
should be reconsidered and overruled only insofar as it is au­
thority for the proposition that a parent whose child is wrong­
fully and wilfully killed by police officers has no cause of ac­
tion under the Civil Rights Act.

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ARGUMENT
III (B)

SARAH BEATRICE STRICKLAND HAS A RIGHT IM­
PLICIT IN THE CONSTITUTION TO COMPENSATION 
FOR THE WANTON AND WILFUL KILLING OF HER 
SON BY PERSONS ACTING UNDER COLOR OF STATE 
LAW.

The concept of a parent's right to a relationship with 
her child free of any illegal or unwarranted interference by the 
state is not a novel one. In PIERCE v. SOCIETY OF SISTERS, 268 
U.S. 510 (1925), the United States Supreme Court upheld the rights 
of parents to determine whether their children would be educated 
in parochial or private schools free of state interference. MEYER 
v. NEBRASKA, 26 U. S. 390 (1923), upheld the right of parents to 
make similar decisions with respect to whether their children 
would be allowed to learn a foreign language. In WISCONSIN v. 
YODER, 406 U. S. 205 (1972), the right of Amish parents to keep 
their children out of public schools on religious grounds was held 
to be protected by the United States Constitution. In STANLEY v . 
ILLINOIS, 405 U. S. 645 (1972), the Supreme Court rejected an as­
sertion that illegitimate fathers were presumptively incapable of 
caring for their children upon the death of the natural mothers.

In ARMSTRONG v. MANZO, 380 U. S. 545 (1965), the 
Supreme Court affirmed the importance our society gives to the 
parent-child relationship. It is one which predates our Constitu­

-25-



tion and is clearly fundamental to the concepts of ordered liberty 
and civilized society. In those instances where the Supreme Court 
has upheld state interference with the parent-child relationship 
it has done so only in order to protect the health and welfare of 
the child against parental threats. See PRINCE v. MASSACHUSETTS, 
321 U. S. 158 (1944), and JACOBSON v. MASSACHUSETTS, 197 U. S. 11 
(1905) .

Similarly, the Supreme Court has found that there are 
"penumbras and emanations" implicit in certain provisions of the 
Constitution which protect rights not specifically delineated, the 
right of privacy perhaps being the most notable. See GRISWALD v. 
CONNECTICUT, 381 U. S. 479 (1965); ROE v. WADE, 410 U. S. 113 
(1973); and EISENSTADT v. BAIRD, 405 U. S. 438 (1972).

The claims of SARAH BEATRICE STRICKLAND are equally 
deserving of federal protection, although not explicit in the Con­
stitution. Implicit in the First, Fourth, Fifth, Sixth, Eighth, 
Ninth and Fourteenth Amendments is the right of a parent to expect 
that her child will not be subjected to unreasonable seizures of 
his body, summary punishment and racial discrimination by persons 
acting under color of state law which will result in grievous, 
bodily harm or death to that child and, consequently, the impair­
ment or destruction of the parent-child relationship valued so 
highly in our country. SARAH BEATRICE STRICKLAND has been injured

-26-



not: only in terms of the destruction of an emotionally important 
relationship, but also in terms of significant economic support 
for herself and her family.

One Federal Court recently recognized the sanctity of 
this relationship in the context of a Section 1983 action. In 
MATTIS v. SCHNARR, 502 F2d 588 (8th Cir. 1974), the Eighth Circuit 
held that the father of a minor killed by police officers who re­
sorted to lethal force had standing to seek a declaratory judgment 
as to the constitutionality of the Missouri lethal force statute. 
Although this decision was eventually reversed by the Supreme Court 
in ASHCROFT v. MATTIS, 45 U.S.L.W. 3751 (May 12, 1977), because of 
a valid defense raised in an earlier action, the initial premise 
that parents do have such a right was not discussed by the court.

In JONES v. HILDEBRANT, 45 U.S.L.W. 4703 (U.S. June 16, 
19 77) , a case decided by the court one month after ASHCROFT v. 
MATTIS, supra, the petitioner was a mother who had brought suit 
for the killing of her son in a Colorado state court under the 
Wrongful Death Act and 42 U.S.C. §1983 alleging a violation of 
her own due process rights. The court recognized the nature of 
her argument, but specifically refused to reach any decision on 
the merits of the argument because the argument had not been 
properly presented to the court.

As Judge John P. Fullam notes, the question of a

-27-



parent's constitutional rights in this context is an open one as 
neither the Supreme Court nor the Court of Appeals for the Third 
Circuit has spoken authoritatively.

It is respectfully contended by SARAH BEATRICE 
STRICKLAND that she does have standing under the Federal Constitu­
tion to bring an action for her son's death.

-20-



CONCLUSION

WHEREFORE, for the foregoing reasons, it is respect­
fully prayed that this Honorable Court reverse the Order of the 
District Court and remand this case for further discovery and a 
trial on the merits.

OF COUNSEL:

ATKINSON, MYERS, ARCHIE & WALLACE

-29-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

73-1308
SARAH BEATRICE STRICKLAND, etc., 
et al

Appellant
v s .

CITY OF EASTON, PENNSYLVANIA, 
et al

Appellees

CERTIFICATE OF SERVICE

The undersigned certifies that on this date he served 
the attached Brief and Appendix on the Appellees by mailing true 
and correct copies thereof to Appellees at the following addresses

William II. Eastburn, III, Esquire 
Eastburn & Gray 
60 North Main Street 
Doylestown, Pennsylvania 18901

Hugh J. Hutchison, Esquire 
Obermayer, Rebman, Maxwell & Hippel 
1418 Packard Building 
Philadelphia, Pennsylvania 19102

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Dated:

John R. Bonner, Esquire 
Casale & Bonner 
329 Market Street 
Williamsport, Pennsylvania 17701

ATKINS OIJ,

J 'fBy: y j.y /fNolan N. Atkrhson, Jr. 
Counsel for Appellant, 
SARAH BEATRICE STRICKLAND

HIE & WALLACE

April 24, 1978

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