2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2012

Joseph Russo v. City of Philadelphia

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2388

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-2388

_______________

JOSEPH RUSSO,

Appellant

v.

THE CITY OF PHILADELPHIA;

PAMELA PRYOR DEMBE, Honorable, President Judge of the Board of Judges;

AMY L. KURLAND, The Office of Inspector General

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-11-cv-00293)

District Judge: Honorable Joel H. Slomsky

_______________

Submitted Under Third Circuit LAR 34.1(a)

January 23, 2012

_______________

Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges

(Opinion filed: January 30, 2012)

_______________

OPINION

_______________

AMBRO, Circuit Judge

Plaintiff Joseph Russo appeals from the District Court’s order dismissing his 

complaint with prejudice. We will affirm that order.
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I.

Because we write solely for the parties, we recite only those facts necessary for 

our decision. In 2004, Russo was appointed by the Board of Judges of Philadelphia 

County to serve a six-year term on the Board of Revision of Taxes (the “BRT”), a 

Department of Defendant City of Philadelphia (the “City”). Under Pennsylvania law, 

appointments to the BRT are “subject to the power of the court of common pleas to 

remove members of the board without cause.” 42 Pa. Cons. Stat. § 2142(b) (emphasis 

added); see Supp. App. 31-32. 

In 2008, the City’s Office of Inspector General (the “OIG”), where Defendant 

Amy. L. Kurland is employed as Inspector General, began investigating Russo and his 

relationship with former state Senator Vincent Fumo, who had been charged with and 

convicted of public corruption. Specifically, the OIG investigated Russo for failing to 

disclose his involvement in Fumo’s political campaigns and for receiving significant 

remuneration for work he performed on those campaigns. The OIG recommended that 

Russo be terminated. 

On May 22, 2009, Defendant Pamela Pryor Dembe, President Judge of the Court 

of Common Pleas of Philadelphia County, issued an order removing Russo from his 

appointed position on the BRT. No hearing was held prior to Russo’s termination.

On June 25, 2009, Russo filed an emergency petition for a special injunction in the 

Commonwealth Court of Pennsylvania seeking reinstatement. In the petition, Russo 

asserted that Defendants acted under color of state law and deprived him of his 
3

Fourteenth Amendment right to due process by removing him from his position. The 

Commonwealth Court denied the petition. 

On July 23, 2009, Russo filed another action in the Commonwealth Court, again 

asserting that Defendants violated his Fourteenth Amendment rights by removing him 

from his position with the BRT without due process. On August 25, 2009, the 

Commonwealth Court dismissed the case, finding that Russo did not have a property 

interest in his position on the BRT and therefore was not entitled to the due process 

protections he sought prior to his termination. The Supreme Court of Pennsylvania 

affirmed the dismissal on November 17, 2010.

On January 31, 2011, Russo filed a complaint in federal court pursuant to 

42 U.S.C. § 1983 against Defendants the City, Dembe and Kurland. Russo once again 

asserted that his removal violated his Fourteenth Amendment right to procedural due 

process. All Defendants moved to dismiss the complaint, and these motions were granted 

by the District Court on May 11, 2011. It dismissed Russo’s complaint with prejudice, 

reasoning that his claims were barred by the doctrine of res judicata because these same 

claims were asserted and rejected in the state court proceedings. Russo now appeals.

II.

Russo devotes a mere half-page of his brief to challenging the District Court’s 

conclusion that his federal claims are barred by the doctrine of res judicata. See Russo 

Br. at 13. He argues that the doctrine does not apply because the procedural due process 

claim raised in and decided by the Commonwealth Court is different from the procedural 

due process claim in this case because the claim here is brought pursuant to 42 U.S.C. 
4

§ 1983. See id. Along that same line, Russo contends that, because his procedural due 

process claim here is different from the claim he brought in state court, he did not have a 

full and fair opportunity to litigate the claim in the prior state court proceedings. See id. 

III.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have 

appellate jurisdiction under 28 U.S.C. § 1291. We conduct de novo review of an order 

granting a motion to dismiss. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 

2008). Likewise, we exercise plenary review over a decision to apply the doctrine of 

res judicata. See Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 

248 (3d Cir. 2006); Rider v. Pennsylvania, 850 F.2d 982, 988-95 (3d Cir. 1988). 

IV.

A.

Res judicata requires that federal courts give state court judgments the same 

preclusive effect that the issuing state courts would give them. See Rycoline Prods., Inc. 

v. C & W Unlimited, 109 F.3d 883, 887 (3d Cir. 1997). While this doctrine sometimes is 

used narrowly to refer to claim preclusion, whereas collateral estoppel customarily refers 

to issue preclusion, we have previously noted that “the preferred usage” of the term res 

judicata “encompasses both claim and issue preclusion.” Venuto v. Witco Corp., 117 

F.3d 754, 758 n.5 (3d Cir. 1997). See United States v. 5 Unlabeled Boxes, 572 F.3d 169, 

174 (3d Cir. 2009) (citing Venuto, 117 F.3d at 758 n.5). 

Res Judicata

When deciding the preclusive effect of a state court judgment, we apply the 

rendering state’s law on preclusion. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 
5

470 U.S. 373, 380-81 (1985). Thus, whether Russo’s federal suit is precluded turns on 

the law of Pennsylvania. 

1.

Pennsylvania law provides that the following four conditions must be satisfied in 

order for issue preclusion to be invoked:

Issue Preclusion

(1) the issue decided in the prior adjudication was identical 

with the one presented in the later action;

(2) there was a final judgment on the merits;

(3) the party against whom the plea is asserted was a party or 

in privity with a party to the prior adjudication; and

(4) the party against whom it is asserted has had a full and fair 

opportunity to litigate the issue in question in a prior action.

Shuder v. McDonald’s Corp., 859 F.2d 266, 273 (3d Cir. 1988). “The party seeking to 

effect[ ] an estoppel has the burden of demonstrating the propriety of its application.” 

Suppan v. Dadonna, 203 F.3d 228, 233 (3d Cir. 2000).

It is undisputed that the state court proceeding resulted in a final judgment on the 

merits and that the parties to the current litigation are identical to the parties in the state 

court proceeding. See Russo Br. at 13. Therefore, the second and third prongs of the 

above test have been established.

Turning to the first prong, an identity of issues will be found when “the same 

general legal rules govern both cases and the facts of both cases are indistinguishable as 

measured by those rules.” Suppan, 203 F.3d at 233. Here, the success of Russo’s § 1983 

claim necessarily depends on whether he had a protected property interest in his position 
6

on the BRT. Without a protected property interest, no recovery under § 1983 can be had. 

See Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009). 

This issue has already been litigated in Commonwealth Court, and it was resolved in 

favor of Defendants and against Russo. See Supp. App. 32 (“Because Russo did not have 

a continued right to employment, he had no property interest and could be removed as a 

Board member by the Board of Judges without any hearing whatsoever.”). Because the 

issue decided in state court is identical to the one presented here, the first prong of the 

issue preclusion test is satisfied. 

The fourth prong also is satisfied here. Russo had a full and fair opportunity to 

litigate the issue in the prior state court proceedings. He asserted his state court claims in 

pleadings and briefs filed with the Commonwealth Court, and at oral argument before 

that Court. It resolved the issue against him and in favor of Defendants. Russo even 

appealed the matter to the Supreme Court of Pennsylvania, which affirmed the dismissal 

of his case.

Accordingly, all four prongs are satisfied and Russo’s federal court claims are 

barred by issue preclusion. The mere fact that Russo did not assert a § 1983 claim in the 

state court proceedings is irrelevant because the underlying threshold issue whether he 

had a property interest in his BRT position—which was resolved in favor of Defendants 

and against Russo—is a necessary element to the procedural due process claims advanced 

in both the state and federal litigation. Issue preclusion thus applies here.
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2.

Claim preclusion turns on whether the underlying events giving rise to the legal 

claims asserted are essentially similar. See Turner v. Crawford Square Apts. III, L.P., 

449 F.3d 542, 549 (3d Cir. 2006). For the doctrine to be applied, Pennsylvania courts 

require that the two actions share the following four conditions: “(1) the thing sued upon 

or for; (2) the cause of action; (3) the persons and parties to the action; and (4) the 

capacity of the parties to sue or be sued.” Id. (citing Bearoff v. Bearoff Bros., Inc., 327 

A.2d 72, 74 (Pa. 1974)). All four conditions are met.

Claim Preclusion

The first, third, and fourth conditions are not in dispute and are all satisfied here. 

See Russo Br. at 13. The thing sued upon is the same—the termination of Russo’s 

employment. The persons and parties to the actions are identical, and their capacities to 

sue or be sued are all the same as well. 

Russo argues, however, that the cause of action in this case is different from the 

cause of action asserted in the state court action because he did not base his state court 

claim on § 1983. But the § 1983 nature of Russo’s federal claims does not distinguish 

this case from his state court action because § 1983 does not create a substantive right 

and it is not the substantive claim being asserted here. Gruenke v. Seip, 225 F.3d 290, 

298 (3d Cir. 2000). Rather, like the state court action, the claim here is a procedural due 

process claim. Thus, the claims here are identical to the state court claims. Further, the 

underlying events giving rise to the state court and federal court claims are identical. See 

McArdle v. Tronetti, 627 A.2d 1219, 1222 (Pa. Super. Ct. 1993) (“As to the identity of 

cause[s] of action, rather than resting upon the specific legal theory invoked, res judicata
8

generally is thought to turn on the essential similarity of the underlying events giving rise 

to the various legal claims.”). As such, there is an identity of the causes of action here.

Accordingly, all four conditions for claim preclusion are satisfied. Claim 

preclusion therefore bars Russo’s claims.

 B.

Even if we were to consider the merits of his claims, Russo has failed to state a 

claim for a violation of procedural due process under § 1983. For such a claim, a 

plaintiff must allege that “(1) he was deprived of an individual interest that is 

encompassed within the Fourteenth Amendment’s protection of life, liberty, or property, 

and (2) the procedures available to him did not provide due process of law.” Hill v. 

Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (citation and internal quotation 

marks omitted). “The question of whether an employee has a property right in continued 

employment is a question of state law.” McDaniels v. Flick, 59 F.3d 446, 458 (3d Cir. 

1995). As the Commonwealth Court held, Pennsylvania statutory law provides that a 

member of the BRT is subject to removal “without cause.” See Supp. App. 31-32

(analyzing 42 Pa. Cons. Stat. § 2142(b)). Because he could be so removed, Russo did not 

have a right to continued employment, and, therefore, he had no property interest in his 

position with the BRT. See id at 31-32. Without a property interest in his position with 

the BRT, Russo cannot, as a matter of law, state a claim for a procedural due process 

violation under § 1983. 

Russo’s Claims Fail On The Merits

Accordingly, even if we were to consider their merits, Russo’s claims fail. 
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* * * * *

For these reasons, we affirm the District Court’s dismissal of Russo’s complaint

with prejudice.