author: POLOZOLA, District Judge.

text:
    Charles M. REID, et al. v. Douglas WALSH. Charles M. REID, et al. v. EQUITIVEST, INC., et al. Charles M. REID, et al. v. EQUITIVEST, INC., et al. Charles M. REID, et al. v. David WALSH.
    Civ. A. Nos. 85-355-B, 85-356-B, 85-502-B and 85-503-B.
    United States District Court, M.D. Louisiana.
    Sept. 20, 1985.
    Wendell G. Lindsay, Jr., Lindsay, Marcel & Wells, Phillip W. Preis, Scott H. Crawford, Preis, Crawford, Scheffy, Mauldin & Ryan, Baton Rouge, La., for plaintiffs.
    Claude F. Reynaud, Jr., and Rodolfo J. Aguilar, Jr., Breazeale, Sachse & Wilson, Baton Rouge, La., for defendants.
   POLOZOLA, District Judge.

This matter is before the Court on the motions of the plaintiffs, Charles M. Reid, Cindy S. Hood, A.E. Hood Enterprises, Samuel Crockard Terry, Jr., Dr. Derris W. Ray, Dr. Steve Chatlain, Dr. R. Vincent Kidd, Dr. J. Nelson Perret, William K. Hood, Clifton N. Ourso, Dr. Kyle L. Caul-fied, Dr. David E. Gaudin, Glen A. Peck, Charles K. Thibodeaux and David H. Wilcox, to remand Civil Action Numbers 85-502-B and 85-503-B to the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana. Also pending before the Court is the motion of the defendants, Douglas Walsh, David McCollis-ter and Equitivest, Inc., to consolidate Charles M. Reid, et al. v. Douglas Walsh, Civil Action Number 85-355, Charles M. Reid, et. al. v. Equitivest, Inc. and David McCollister, Civil Action Number 85-356, Charles M. Reid, et. al. v. Equitivest, Inc. and David McCollister, Civil Action Number 85-502, and Charles M. Reid, et. al. v. David Walsh, Civil Action Number 85-503. No oral argument is required on these motions.

The plaintiffs filed the present suits which are designated on the Court’s docket as 85-502-B and 85-503-B, in state court on April 11, 1985. Service was made upon the defendants on April 24, 1985. On May 23, 1985, the defendants timely filed petitions for removal which alleged that the action was premised, at least in part, upon 15 U.S.C. §§ 77v and 78aa. Therefore, defendants contend the two cases were properly removed to federal court because each is a civil action founded upon a claim or right arising under the laws of the United States over which this Court would have original jurisdiction. Thereafter, plaintiff filed motions to remand the suits to state court. Both motions to remand are based upon the contention that the suit filed in state court is not founded upon a claim or a right arising under the laws of the United States and, therefore, would not be an action over which this Court would have original jurisdiction.

In each of the present motions to remand the plaintiffs contend that the suit was removed “improvidently and without jurisdiction” because it is not an action over which the district courts have original jurisdiction. Plaintiffs also contend that since the claims presented in the state court petitions are based totally upon state law, and since there is no diversity of citizenship, the federal court does not have jurisdiction herein. The defendants contend, however, that the allegations of the removed petition, in addition to forming the basis of the state law claims, also form the basis for claims based upon federal law. This contention is supported by the fact that on April 11, 1985, the same day that the state court actions at issue were filed, the plaintiffs also filed two suits in the United States District Court for the Middle District of Louisiana. The suits filed in federal court differ from the state court suits in two aspects: (1) it asserts violations of the Securities Act of 1933 § 12(1) and § 12(2); and (2) it omits the state law contract claim. In all other respects the two suits are identical. The general allegations of the federal suit track verbatim those of the state court petition as do the factual descriptions of the alleged violations. The state law claims urged in the state court petitions are also alleged, verbatim, with the exception of the state law contract claim, in the federal suit. The defendants contend the state court suits were properly removed since the same factual allegations used in the state court suits were used in the federal suit to allege violations of the Securities Act of 1933 §§ 12(1) and 12(2). Thus, defendants contend that the state court petitions do allege a claim or right arising under the laws of the United States and are, therefore, removable, although such claims are not specifically referred to in the state court petition.

The rules for determining whether a controversy “arises under” the laws of the United States, thereby creating federal jurisdiction and making the action removable, are well settled. First, one must determine if federal law is an essential element of the plaintiffs cause of action. Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). See also Keith v. La. Dept. of Education, 553 F.Supp. 295 (M.D.La.1982). Secondly, the federal question which is the basis for removal “must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.” Id. 299 U.S. at 113, 57 S.Ct. at 98. Therefore, as a general rule, the plaintiff’s state court pleading would control removability. Paxton v. Weaver, 553 F.2d 936 (5th Cir.1977). Furthermore, it is clearly established that “the party who brings the suit is master to decide what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). Since the plaintiff is the master of his claim, his decision not to assert a federal claim, although one is available to him, would generally prevent a defendant from removing a suit to federal court on the basis of federal question jurisdiction. In Pan American Petroleum Corp. v. Superior Court of Delaware, 366 U.S. 656, 81 S.Ct. 1308, 6 L.Ed.2d 584 (1961), the United States Supreme Court stated it was “equally” immaterial ... that the plaintiff could have elected to proceed on a federal ground. (Citation omitted.) If the plaintiff decides not to invoke a federal right, his claim belongs in state court.” Pan American Petroleum Corp. v. Superior Court of Delaware, 81 S.Ct. at 1307. According to one commentator, however, doubt has been cast upon this rule by Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), a case in which the United States Supreme Court endorsed the principle that the plaintiff could not use “artful pleading” to avoid removal jurisdiction. Justice Brennan, who dissented in the Federated Department Stores case, criticized this approach and specifically referred to the Fifth Circuit case of In re Carter, 618 F.2d 1093 (5th Cir.1980), cert. denied 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981), as an example of how “some courts have not strictly observed the restrictions on removal jurisdiction. In the case In re Carter, the defendant removed a state court action to federal court. The plaintiff did not move to have the case remanded. Thereafter, the jury returned a verdict for the plaintiff. After the entry of final judgment, the defendant (who had originally had the case removed) moved to have the judgment vacated and the case remanded to state court for lack of subject matter jurisdiction because no federal question was presented in the complaint. The district court remanded. On appeal the Fifth Circuit found that it was able to review the remand because the order to remand was issued outside of the time frame designated in 28 U.S.C. § 1447(c). The Fifth Circuit further found that there was a federal question presented by the allegations of the state court petition and, therefore, reinstated the judgment. In so doing, the Court stated:

... the accepted rule in this circuit is that upon removal the removal court should inspect the complaint carefully to determine whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law. See Romick v. Bekins Van & Storage Co., 197 F.2d 369 (5th Cir.1952).
The reviewing court looks to the substance of the complaint, not to the labels used in it. See Smith v. Local 25, Sheet Metal Workers Int’l Ass’n, 500 F.2d 741, 748-49 n. 6 (5th Cir.1984).

In re Carter, 618 F.2d at 1101. While it may appear that In re Carter could be distinguished on the basis of its unique facts, the Fifth Circuit has subsequently reiterated its support of the concept articulated in In re Carter concerning the duty of the removal court to scrutinize the complaint to see if a federal claim has been presented. See, e.g., Powers v. So. Central United Ford & Commercial Workers Union and Employers Health & Welfare Trust, 719 F.2d 760, 766 n. 6 (5th Cir.1983). Furthermore, the United States Supreme Court has, subsequent to its opinion in American Federated Stores, stated that

Although we have often repeated that ‘the party who brings the suit is master to decide what law he will rely upon,’ The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913), it is an independent corollary of the well-pleaded complaint rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint, see Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Machinists, 376 F.2d 337, 339-340 (CA6 1967), aff’d., 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).

Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). Recent jurisprudence indicates a predisposition of the United States Supreme Court to further endorse the Fifth Circuit’s position that “upon removal the removal court should inspect the complaint carefully to determine whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law.” In re Carter, 618 F.2d at 1101. The Court finds that In re Carter applies under the facts of this case since the same general allegations and factual descriptions of the violations contained in the state court petition are used to support the federal causes of action in the federal complaints. After a careful inspection of the two removed petitions, the Court now finds that a “federal claim is necessarily presented”, although the plaintiffs have stated their causes of action exclusively in terms of state law. Since a federal claim was stated based upon the allegations of the removed petitions, the Court must deny both motions to remand.

The Court further finds that the defendants’ motion to consolidate should be granted.

Therefore:

IT IS ORDERED that the motion of the plaintiffs in Civil Action Number 85-502 to remand this action to the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, be, and it is hereby DENIED.

IT IS FURTHER ORDERED that the motion of the plaintiffs in Civil Action Number 85-503 to remand this action to the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, be, and it is hereby DENIED.

IT IS FURTHER ORDERED that the motion of the defendants, Douglas Walsh, David McCollister and Equitivest, Inc., to consolidate Charles M. Reid, et. al. v. Douglas Walsh, Civil Action Number 85-355, Charles M. Reid, et. al. v. Equitivest, Inc. and David McCollister, Civil Action Number 85-356, Charles M. Reid, et. al. v. Equi-tivest, Inc. and David McCollister, Civil Action 85-502, and Charles M. Reid, et. al. v. David Walsh, Civil Action Number 85-503, be, and it is hereby GRANTED.

      . 28 U.S.C. § 1446(b).

      . 15 U.S.C. § 77v provides in part:
      (a) The district courts of the United States, and the United States courts of any Territory, shall have jurisdiction of offenses and violations under this subchapter and under the rules and regulations promulgated by the Commission in respect thereto, and concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter. Any such suit may be brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the offer or sale took place, if the defendant participated therein, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291, and 1292 of Title 28. No case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. No costs shall be assessed for or against the Commission in any proceeding under this subchapter brought by or against it in the Supreme Court or such other courts.

      . 15 U.S.C. § 78aa provides:
      The district courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291, and 1292 of Title 28. No costs shall be assessed for or against the Commission in any proceeding under this chapter brought by or against it in the Supreme Court or such other courts.

      . See 28 U.S.C. § 1441(a), designating removable actions, which provides:
      Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

      . The defendants have not contended that diversity of citizenship of the parties could be a basis for subject matter jurisdiction. 28 U.S.C. § 1332.

      . See 28 U.S.C. § 1447(c) which provides in pertinent part that “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs."

      . See 28 U.S.C. § 1331 which provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

      . See Civil Action Numbers 85-355-B and 85-356-B.

      . See Count One of the complaint in Civil Action Numbers 85-355-B and 85-356-B (paragraphs 21-24).

      . See Count Two of the complaint in Civil Action Numbers 85-355-B and 85-356-B (paragraphs 26 and 26).

      . Compare part IV of the Civil Action Numbers 85-355-B and 85-356-B (paragraph 6) with Part III of the removed petitions (paragraph 5).

      . Compare paragraphs 7-20 of Civil Action Numbers 85-355-B and 85-356-B with paragraphs 6-19 of the removed petitions.

      . See Count Three (paragraphs 27-29) alleging Blue Sky Nonregistration, Count Four (paragraphs 30 and 31) alleging Blue Sky Misstatements/Omissions, Count Five (paragraphs 32 and 33) alleging state law negligence, and Count Six (paragraphs 34-35) alleging Breach of Fiduciary Duty and other duties of the federal complaints.

      . See also Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239, 62 L.Ed. 713 and Henry v. A.B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645 (1911).

      . C.A. Wright, Law of Federal Courts, West Publishing Co. (1983), § 38 p. 215.

      . Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981). In this case, a suit, alleging federal antitrust violations, was dismissed for failure to state a claim upon which relief could be granted. Following this dismissal, the plaintiff filed suit in state court based upon the same transactions which were the basis of the original suit. However, the pleadings asserted a claim based solely on state law. The Court upheld the district court’s refusal to remand the case to state court after its removal to federal court on the basis that the plaintiffs "artful pleading” was a method used to avoid raising "essentially federal law claims." Federated Department Stores, 452 U.S. at 397 n. 2, 101 S.Ct. at 2427 n. 2.

      . Federated Department Stores, 452 U.S. at 410 n. 6, 101 S.Ct. at 2433 n. 6.

      . See note 4, supra, for the text of 28 U.S.C. § 1447(c).

      . In Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), the United States Supreme Court stated that the basis of the decision in Avco Corp. v. Aero Lodge No. 735, Int’l Assn of Machinists, 376 F.2d 337 (6th Cir.1967), aff’d, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), holding that a federal question was presented, although not specifically elucidated, was that "the preemptive force of § 301 [of the Labor Management Relations Act of 1947, 29 U.S. § 185] is so powerful as to displace entirely any state cause of action ‘for a violation of contracts between an employer and a labor organization.’ ” Franchise Tax Board, 103 S.Ct. at 2853. In the Franchise case itself, the Court held that a suit by the State of California, against a welfare benefit trust fund, in which the state sought to collect taxes, was not removable on the basis of the question of whether the Employee Retirement Income Security Act preempted the state’s power to levy taxes on funds held in trust. See also Powers v. So. Central United Ford & Commercial Workers Union & Employers Health & Welfare Trust, 719 F.2d 760 (5th Cir.1983), where the Fifth Circuit held that preemption, like any other defense, could not be used as a basis for removal.

      . By letter dated June 10, 1985, the plaintiffs’ counsel informed the Court that the plaintiffs were willing to consent to consolidation of these cases if the Court denied the motions to remand the removed actions.


source: Caselaw Access Project

author: ZIEGLER, District Judge.

license: Public Domain

text:
    Dennis SULLIVAN, Michael Diskin, James Roseweir, Hershel Heilig, Wayne Jackson, John Clark and John King, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. The CITY OF PITTSBURGH, PENNSYLVANIA, Paul J. Imhoff, Superintendent of the Pittsburgh Bureau of Building Inspections, and Robert H. Lurcott, Director of the Pittsburgh Department of City Planning, Defendants.
    Civ. A. No. 85-1228.
    United States District Court, W.D. Pennsylvania.
    Sept. 23, 1985.

      Donald Driscoll, Lee Markovitz, Pittsburgh, Pa., for plaintiffs.
    D.R. Pellegrini, Pittsburgh, Pa., for defendants.
   ZIEGLER, District Judge.

This is a civil action for declaratory and injunctive relief filed by members of a class of former and recovering alcoholics against the City of Pittsburgh for alleged deprivation of their Fourteenth Amendment rights to equal protection and due process. Plaintiffs are residents of a well-known alcoholic treatment program in the City of Pittsburgh, Pennsylvania, known as The Alcohol Recovery Center (ARC). ARC has provided treatment and shelter to over 20,000 homeless alcoholics for over 19 years at various locations in the Northside section of the City of Pittsburgh. The City has never required a conditional use or occupancy permit.

On July 18, 1983, City Council voted to declare a moratorium on the establishment of group homes within the City following a dispute with the County of Allegheny over the location of such homes. Thereafter, Council voted to deny conditional use approval for continued operation of the ARC program at 1216 Middle Street and 800-820 East Ohio Street. On May 20, 1985, Council rejected the application of ARC to continue operation at a single facility due to community opposition. Plaintiffs filed the instant action contending that the amendment to the City of Pittsburgh Code (Zoning Code) is, in part, unconstitutional on its face, and violative of the Equal Protection Clause and Rehabilitation Act of 1973, as applied. We hold that the Zoning Code as drafted passes constitutional muster but that the decision of the Council of the City of Pittsburgh to deny the application of ARC for a conditional use violated the constitutional rights of plaintiffs to equal protection of the laws because the decision was not rationally related to any legitimate governmental interest. Plaintiffs have sustained their burden of proof with respect to preliminary injunctive relief and the findings that follow are based on the weight of the credible evidence.

I. Findings of Fact

(1) The Alcohol Recovery Center (ARC) is a non-profit corporation which has provided residential treatment to over 20,000 recovering alcoholics in the Northside section of Pittsburgh since 1966.

(2) The Northside facilities have been located at 422-424 Tripoli Street, 1216 Middle Street and 800, 814, 816, 818 and 820 E. Ohio Street in Pittsburgh. ARC also operates facilities at 1831 Hulton Road, Verona, Pennsylvania and R.D. I, Avella, Pennsylvania.

(3) At present, ARC operates at 800 E. Ohio Street in the City, and the Verona and Avella facilities in the County, with 27, 60 and 19 residents respectively.

(4) The Zoning Code of the City provides that group homes are “conditional uses” which require: (1) an application which is processed by the Planning Department; (2) a public hearing before the Planning Commission which issues a recommendation and (3) approval by the Pittsburgh City Council.

(6)ARC submitted applications to the City of Pittsburgh for conditional use and/or occupancy permits for the North-side facilities on four occasions between 1966 and 1977.

(6) The Council of the City of Pittsburgh never acted upon these applications. The applications submitted in 1977 were processed by the Pittsburgh Planning Commission and recommended for approval.

(7) On March 23, 1977, the City of Pittsburgh through the Mayor, Richard S. Cali-guiri, sent a letter to ARC commending it for the work that it was performing.

(8) On September 15, 1980, Title Nine of the Zoning Code was amended by ordinance to provide regulations for conditional use exceptions and to create three categories of group homes based on the number of residents.

(9) The ordinance provides that group homes shall include “group residence” facilities where a maximum of seven clients or nine persons overall, including staff, may reside; “group care” facilities, where a maximum of 17 clients or 19 persons overall may reside; and “institutional” facilities where the number of clients and staff exceeds 19.

(10) “Group homes” are defined as facilities which provide specialized health, social or rehabilitative services to the clients and 24 hour supervision.

(11) The group home ordinance of September 15, 1980 prohibited occupancy in a group residence facility by persons 19 years or older who are serving a sentence for a criminal offense.

(12) The group home ordinance was amended on November 7, 1983 to prohibit occupancy in a group care facility by persons 19 years or older who are serving a sentence for a criminal offense, or under arrest and charged with a felony or any violent crime.

(13) There is no prohibition in the ordinance for occupancy in an institutional facility by persons serving a sentence for a criminal offense or under arrest and charged with a felony or any violent crime.

(14) A building permit, issued by the Bureau of Building Inspections of the City, is required before new construction or substantial repairs or improvements (including electrical work) can be performed on any building in Pittsburgh, including group homes.

(15) If repairs are undertaken without a building permit, the owner and workmen may be subject to criminal prosecution and the workmen may have their registrations revoked.

(16) On several occasions since 1980, ARC sought building permits to undertake repairs and improvements. The permits were denied.

(17) Before a building permit can be issued, zoning approval must be obtained. A group home must secure a conditional use approved by the Council of defendant.

(18) In 1982, ARC applied for conditional use approval for a “group care” facility at 1216 Middle Street, an “institutional” facility at 800, 814, 816 and 818 East Ohio Street and a “group care” facility at 422 and 424 Tripoli Street. At the time, 142 individuals were residents at the Northside facilities of ARC; the applications sought approval for 99 residents.

(19) Frederick Just, the senior planner of the Planning Department and the person responsible for processing City group home applications, recommended approval for three of seven facilities, including 1216 Middle Street and 800 East Ohio Street, for a total occupancy of 65 residents. The Planning Department also recommended that the City of Pittsburgh allocate $75-100,000 in federally financed money from the Community Development Block Grant for necessary renovations.

(20) The senior planner concluded that such a recommendation would appease neighborhood residents, in which event, the Planning Commission would recommend the three facilities for approval.

(21) Greg Schlinkmann, the person responsible for liaison with the community and employed by the Planning Department, recommended approval for the Tripoli Street buildings (at a reduced capacity) as well as the 1216 Middle Street and 800 E. Ohio Street facilities.

(22) On September 14, 1982, at a public hearing conducted by the Planning Commission with respect to the applications, the East North Side Area Council, a community organization, expressed hostility towards ARC and the presence of recovering alcoholics but agreed to accept as many as two facilities of ARC in the neighborhood.

(23) On May 6, 1983, Charles Cain, the Director of ARC, in response to the order of the Hon. Maurice B. Cohill of this court limiting the population at the Allegheny County Jail and in response to the newly enacted mandatory state sentencing law for persons convicted of driving under the influence of alcohol, publicly stated that ARC would accept DUIs at its Northside facilities.

(24) The East North Side Area Council held a meeting on July 12, 1983, and demanded through Councilman William Robinson that the Council of the City of Pittsburgh close all facilities of ARC.

(25) On July 18, 1983, Council members Woods, Robinson, and Madoff introduced a resolution stating that Council intended to place a moratorium on the establishment of group homes in the City of Pittsburgh, whether funded by the County of Allegheny or State of Pennsylvania, until the County established a mutually acceptable procedure regarding the location of such homes. The resolution was adopted on that date.

(26) The Planning Department has the responsibility of processing money received by the City of Pittsburgh from the federal government for the Community Development Block Grant Program.

(27) On October 25, 1983, Ray Reaves, deputy director of the Planning Department, in an internal memo, recommended that only one ARC facility be approved, (1216 Middle Street), and that $200,000 in Community Development funds be provided to relocate the other residents to an Ohio Township site.

(28) Richard Bruce, Inspection Supervisor of the Bureau of Building Inspections, advised the Planning Commission that 1216 Middle Street satisfied all building codes and was safe.

(29) On October 25, 1983, the Planning Commission recommended approval of the facility at 1216 Middle Street but denied the Tripoli Street and East Ohio Street locations.

(30) On November 21, 1983, Council rejected all three applications. No hearing was held before that body, and no findings of fact or reasons were given for the rejection.

(31) Like ARC, “institutional facilities” operated by the Salvation Army, Goodwill Industries and the Abraxas Foundation also accepted DUIs. Each was requested by the City to seek new occupancy permits. Each facility, except ARC, chose to return DUIs to the Allegheny County Jail, thereby avoiding a confrontation with the City.

(32) Shortly thereafter, Paul Imhoff, the Director of the Bureau of Building Inspections, ordered ARC to stop accepting persons serving sentences for crimes under the Alternative Housing Program conducted by Allegheny County. ARC continued to accept DUIs.

(33) Frederick Just continued to work with Charles Cain to locate an alternate site for ARC.

(34) The Planning Department considered community opposition to be a determinative factor in site selection for ARC. Mr. Just suggested to Charles Cain that ARC locate in an area removed from residential property to reduce community opposition.

(35) The Planning Department concluded that community opposition had to be considered in selecting alternate sites due to Council’s stated opposition to group homes.

(36) ARC considered St. Margaret’s Hospital in the Lawrenceville section of Pittsburgh as an alternate site, and the Director sought Community Development funds for renovation of the site. The proposal was rejected by the Planning Department due to anticipated community opposition.

(37) All attempts to relocate the ARC facilities or its residents were met with community hostility. No acceptable alternate site was located by Frederick Just or Elizabeth Pugh, the Director of the Pittsburgh Relocation Agency, a division of the Urban Redevelopment Authority of Pittsburgh (URA), or Operation Lifeboat, A City-County Task Force, or Charles Cain.

(38) No other facilities in the City of Pittsburgh or County of Allegheny provide the type of services rendered by ARC.

(39) The U.R.A. could not place ARC residents in group care facilities because of prejudice against alcoholics.

(40) The U.R.A. conducted a preliminary study of the feasibility and cost of renovating 800 E. Ohio Street and 1216 Middle Street because no alternate site was available for ARC residents.

(41) The Relocation Director of the U.R.A. determined that it would be more economical to renovate the existing facilities than to relocate the residents, even if an alternate site was available.

(42) Between the adoption of the group home amendment on September 15, 1980, and the enactment of the moratorium on July 18, 1983, City Council approved 16 of the 17 applications for group homes.

(43) Since the moratorium of July 18, 1983, one group home application was approved while nine were denied including Council’s rejection on May 20, 1985 of ARC’s application for 800 E. Ohio Street.

(44) Of the group home applications submitted since the moratorium, five were recommended by the Planning Commission. Each application which was subject to community opposition was rejected by Council. The only application approved by Council reduced the number of occupants from more than one hundred to twenty, and for that reason was not opposed by the community.

(45) In the fall of 1984, City and County officials and representatives of ARC met to attempt a resolution which would keep ARC at a Northside facility. An agreement was reached which was dependent, at the insistence of the City of Pittsburgh, on the agreement of local community organizations..

(46) The agreement provided for:

(a) a reduction in the number of North-side facilities operated by ARC to one at 800 E. Ohio Street;
(b) a maximum of 50 residents at that facility;
(c) renovations and site improvements to be funded by $100,000 of City and $100,000 of County C.D.B.G. funds, subject to formal approval of the Commissioners and Council;
(d) one-third of the board members of ARC were to be appointed by Council and the Commissioners of Allegheny County with the expectation that community residents would serve, and all ARC staff members would be removed from the Board;
(e) monitoring by the City and County of performance and regular meetings of the ARC Board with the neighborhood groups;
(f) the County would seek funding to hire a new administrative officer;
(g) no DUIs would be placed at the Northside facility, and
(h) the County would invest an additional $100,000 in C.D.B.G. funds to acquire or improve ARC facilities located in the County of Allegheny.

(47) The $100,000 in Community Development funds were available for at least a two-year period.

(48) The City and County representatives had been given informal authority by the City and County administrations to reach a resolution.

(49) ARC officials were unable to obtain the agreement of the East North Side Area Council. The senior planner determined, based .in part on past experience with this group, that additional efforts would be futile.

(50) A second community organization, the East Allegheny Community Council, eventually agreed to the proposal; however, the group sought additional concessions including that other ARC properties be sold only with their concurrence.

(51) ARC’S Board was reconstituted in September, 1984 and by-laws were adopted which place all decision-making authority with the Board.

(52) The East Allegheny Community Council is funded by the City of Pittsburgh with Community Development Block Grant funds.

(53) If the request for funding of necessary renovations at 800 E. Ohio Street had been processed in the usual manner and without political opposition, approval would have been forthcoming.

(54) The time devoted to the ARC matter by the URA staff, as well as the time that would have been expended assuming the project had proceeded, was paid for by Community Development Block Grant funds.

(55) The City of Pittsburgh has identified the housing needs of handicapped persons to be a special need in its C.D.B.G. Housing Assistance Plan. This Plan is required as part of the application for Community Development Block Grant funds. The Housing Assistance Plan identifies 9,434 non-elderly handicapped persons in need of housing assistance in the City of Pittsburgh.

(56) Following a review of the testimony presented at a public hearing of the Planning Commission on February 5, 1985, the Planning Department recommended that ARC’S application be approved for 55 residents. The following conditions were also recommended: that an outside full-time director be hired by the ARC Board within 60 days of approval by Council; three neighborhood residents (one from each of the community organizations and one from the local business association) be appointed to the ARC Board within 30 days of Council’s approval; funds for bringing the facility to Code be secured within 90 days of Council’s approval; and that a site plan to include a privacy fence, landscaping and recreation area be submitted to the Department of Planning within 30 days of approval.

(57) The Zoning Code group home amendments require that:

(1) an advisory board in part made up of community residents to deal with community concerns and submit reports which are to be forwarded to the Bureau of Building Inspections;
(2) a semi-annual certification procedure conducted by the B.B.I.; and
(3) failure to comply with conditions set by Council or the procedures required by the Code would be grounds for revocation of an occupancy permit by the Bureau of Building Inspections.

(58) All of the conditions and requirements for zoning approval were met in the 800 East Ohio Street application.

(59) The property at 800 E. Ohio Street is located in a C-3 commercial district. Under the open space requirements normally applicable in C-3 districts, (Ordinance at § 955.05(7)), a building may not cover more than 60 percent of the total lot. However, the site plan process is applicable to institutional facilities such as ARC in C-3 districts. (Ordinance at §§ 955.06 and 955.04). The 800 E. Ohio Street building covered only 33 percent of the lot (5,352 square feet of building on 16,217 square feet of total ground). Under either procedure, ample open space was available.

(60) The Zoning Ordinance also addresses “impaction” or spacing concerns. For example, group care facilities cannot be located within one-quarter mile and group residence facilities cannot be located within one-half mile of other such facilities or an institutional facility or an outpatient drug and alcohol clinic. ARC’s application met such spacing requirements.

(61) No evidence was submitted at the public hearings of February 5 or September 14, 1982 conducted by the Planning Commission that nearby property values would be diminished if ARC occupied 1216 Middle Street or 800 E. Ohio Street.

(62) Based on the lack of proof and experience with other established group homes, Frederick Just concluded that property values would not depreciate.

(63) The Planning Department concluded that, in light of the reduction in buildings and clients, the performance conditions recommended, and the semi-annual recertifica-tions, the surrounding area would not be negatively affected by the proposal.

(64) One factor considered in recommending approval of 800 E. Ohio Street was the negative impact on the surrounding area if ARC were to close and the residents returned to the streets.

(65) But for the provision of supervision and treatment, the ARC facility at 800 E. Ohio would be eligible for zoning approval as a lodging house without approval by Council.

(66) The Neighborhood Commercial Improvement Program is a C.D.B.G. funded program for building improvements within targeted areas. The East Ohio Street commercial district is an eligible target area up to but not including 800 E. Ohio Street.

(67) Certain administrative activities of the Department of Planning, including those activities of the senior and community planner which involve non-profit organizations serving low income persons such as ARC, are paid by C.D.B.G. funds.

(68) ARC provided a valuable service to the Court of Common Pleas of Allegheny County, Pennsylvania by offering treatment without total confinement to those with a drinking problem who are convicted of driving while under the influence of alcohol.

(69) Alcoholism is defined by the medical and psychiatric professions as a disease which is both disabling and a handicap.

(70) Alcoholics who are drinking alcoholic beverages are subject to severe physical and psychological deterioration. An alcoholic is never fully cured. Even after years of sobriety, a return to drinking results in a resumption of the destruction previously experienced.

(71) The medical profession has concluded that in many instances there may be a propensity towards alcoholism which is inherited or otherwise inately acquired.

(72) Societal prejudice has existed historically with respect to alcoholics, including a resistance among many people to accept recovering alcoholics within the community.

(73) The evidence preponderates that a recovering alcoholic is as likely to be a responsible citizen and good neighbor as a non-alcoholic person.

(74) Group residential treatment plays an essential role in the recovery of a substantial number of alcoholics.

(75) The structured setting of a residential treatment program, and the mutual support provided by the residents is an important aspect of treatment.

(76) The residents of ARC are forbidden to use alcohol. Unless inconsistent with other prescribed medication, residents must take Antabuse, which causes discomfort if alcohol is consumed within seven days. Residents must participate in group and individual therapy sessions. They must earn gradual and decreasing restrictions on their outside activities. There is 24-hour supervision including hourly inspections of the building.

(77) The location of a group residence in a community is important to the re-entry of an alcoholic into the community, to the availability of jobs and community services, and to a sense of self-worth.

(78) ARC has been an important resource to alcoholics who have been discharged from alcohol treatment programs administered by various hospitals in this community.

(79) Except for St. Johns and St. Francis Hospitals, hospitals in the Pittsburgh area are not reimbursed for providing extended treatment to alcoholics; alcoholics are often discharged without extended treatment for their alcoholism.

(80) In January, 1985, ARC was compelled to agree to decline new residents until conditional use approval and an occupancy permit was approved. Since then, ARC has been forced to decline to admit approximately seven alcoholics per month without treatment and others who were referred by various hospitals.

(81) If ARC is required to close, it is likely that the present residents will return to drinking with the danger of physical and psychological deterioration and perhaps death.

(82) If ARC closes, the population of homeless street people in the City of Pittsburgh will likely increase by 10 to 20 percent. A substantial number of these people are alcoholics.

(83) Street people place heavy demands on municipal services such as fire protection, police and emergency medical care.

(84) A substantial number of vacant buildings are occupied by street people from time to time, thereby increasing the risk of fire and danger to firemen, neighboring community residents and the street people themselves.

(85) There is a need for additional group residential treatment facilities for recovering alcoholics in the neighborhoods of the City of Pittsburgh and on the Northside in particular.

(86) The building at 800 East Ohio Street does not meet the Pittsburgh Building and Fire Codes. However, this is not relevant to conditional use approval. It is relevant to the issuance of an occupancy permit after approval of a conditional use.

(87) Approximately $60,000 in renovations are required to bring the building to the standards of the Building and Fire Codes.

(88) Allegheny County has committed $100,000 for building and site improvements at 800 East Ohio Street upon condition that the City of Pittsburgh grant conditional use approval.

(89) City Council has denied the ARC applications and other group home applications since July, 1983, because Council perceives an inbalance between group homes in the City and the County and that more group homes should be established without the City.

(90) The evidence established that there is no inbalance between the number of group homes in the City of Pittsburgh and the number of group homes in the County of Allegheny, particularly when the number of persons in need of such homes from the City is considered.

(91) Council has stated that group homes will no longer be established in the City until the County of Allegheny enters into a mutually acceptable agreement to locate more .group homes in the County.

(92) Council has determined and communicated to the Planning Department, group home providers, and residents that neighborhood opposition to group homes will be cause for denial.

(93) The Board of the Catholic Institute of Pittsburgh, which owns the property located at 800 East Ohio Street, has agreed to donate the property to ARC so long as the premises continue to be used for charitable purposes.

(94) The treatment received at ARC permits a number of present residents to receive public assistance. If forced to move from ARC, public assistance may be terminated.

(95) The evidence established that the decision of the Commonwealth of Pennsylvania to revoke the license of ARC at 800 East Ohio Street was based on the conditions which existed subsequent to the unconstitutional decision of the City of Pittsburgh to deny building permits and conditional use approval to ARC.

(96) If the City of Pittsburgh had granted building permits to enable ARC to undertake repairs and renovations at 800 East Ohio Street, and granted the conditional use application at the facility, necessary repairs would have been undertaken to meet all requirements of the Department of Health of the Commonwealth of Pennsylvania.

(97) The decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval at 1216 Middle Street and 800 East Ohio Street violated the constitutional rights of plaintiffs to equal protection of the laws guaranteed by the Fourteenth Amendment.

(98) The equitable ejectment action filed by the City of Pittsburgh against Charles Cain and ARC House, Inc., at 6D-84-6120 in the Court of Common Pleas of Allegheny County, Pennsylvania constitutes neither a bar to the assertion of plaintiffs’ federal rights nor a bar to the motion of ARC to intervene.

(99) Plaintiffs federal claims are not barred by the state court action because (a) they were not parties to the action; (b) they had no duty to intervene; (c) there was no final state court judgment on the merits; (d) the instant cause of action arose subsequent to the state court litigation; (e) the doctrine of claim and issue preclusion is not applicable; and (f) 28 U.S.C. § 1738 is inapposite.

(100) The federal claims of ARC are not barred by the state court action because (a) the consent decree of January 14, 1985 was not a final state court order; (b) the federal claims of ARC were not, and could not have been raised within the scope of the state court proceeding instituted by the City of Pittsburgh; (c) ARC’s federal claims arose subsequent to the state court litigation; (d) the doctrine of claim and issue preclusion is not applicable; (e) 28 U.S.C. § 1738 is inapposite; and (f) abstention is not warranted.

(101) The motion of ARC to intervene must be granted and, for the reasons rehearsed, we conclude that the decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval at 1216 Middle Street and 800 East Ohio Street violated the constitutional rights of ARC to equal protection of the laws guaranteed by the Fourteenth Amendment.

II. Conclusions of Law

(1) This court has jurisdiction by reason of 28 U.S.C. § 1343(3) and (3) and 28 U.S.C. § 1331.

(2) Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-2202.

(3) Abstention is not warranted, under the circumstances, because plaintiffs have a right to assert federal claims in a federal forum. Moreover, plaintiffs are not parties to any ongoing state proceeding in which their constitutional claims can be raised or complete relief obtained. New Jersey-Philadelphia Presbytery v. New Jersey State Board, 654 F.2d 868 (3d Cir.1981).

(4) Plaintiffs’ claims are not barred by res judicata under federal or state law because: (1) they are not parties to any previous state court actions involving the matters here asserted, Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); (2) there is no final judgment on the merits with respect to any claim now asserted which is entitled to full faith and credit under 28 U.S.C. § 1738, Wade v. City of Pittsburgh, 765 F.2d 405 (3d Cir.1985), New Jersey-Philadelphia Presbytery v. New Jersey State Board, supra; (3) the January 1985 consent order in the Court of Common Pleas of Allegheny County, Pennsylvania at No. 6D 84-6120 is not binding on plaintiffs here because they were non-parties, Sabatine v. Commonwealth of Pennsylvania, 497 Pa. 453, 442 A.2d 210 (1982); (4) the state court order did not encompass plaintiffs’ causes of action, In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1984); and (5) previous state court orders and litigation between ARC and the City cannot bar plaintiffs’ claims based on Council’s action of May, 1985, because the instant cause of action arose thereafter. Harris v. Pernsley, 755 F.2d 338 (3d Cir.1985).

(5) Plaintiffs were not required to intervene in any civil actions filed by or against ARC House in state court. New Jersey-Philadelphia Presbytery v. New Jersey State Board, supra; Bannard v. New York State National Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961).

(6) The City of Pittsburgh, by the July 1983 declaration of Council that further group homes funded by the County of Allegheny or Commonwealth of Pennsylvania would not be permitted in the City of Pittsburgh, violated the right to equal protection of the instant class of handicapped persons who need to reside and receive rehabilitative services in a group facility. City of Cleburne, Texas v. Cleburne Living Center, — U.S. -, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

(7) The declared moratorium of July 18, 1983 chilled the exercise of constitutional rights of the instant class of handicapped persons in need of residential and rehabilitative services in a group facility and those organizations, such as ARC, which are organized for the purpose of meeting the needs of such handicapped persons.

(8) The action of the City of Pittsburgh in rejecting the applications of ARC for conditional use of the facilities at 1216 Middle Street and 800 E. Ohio Street was not rationally related to a legitimate governmental purpose. City of Cleburne, supra at -, 105 S.Ct. at 3257; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

(9) The City of Pittsburgh had no legitimate interest in excluding the instant class of handicapped persons in need of residential and rehabilitative services at the facilities in dispute due to opposition based on unfounded fear, speculation and prejudice. City of Cleburne, Texas v. Cleburne Living Center, supra; J. W. v. City of Tacoma, Washington, 720 F.2d 1126 (9th Cir.1983).

(10) The City of Pittsburgh had no legitimate interest in excluding the instant class of handicapped persons in need of residential and rehabilitative services at the facilities in dispute due to the perceived failure of a separate legal entity, i.e., the County of Allegheny, to locate additional group homes without the City.

(11) To the extent that the number of group homes in the City of Pittsburgh is a legitimate concern, defendant legislated this concern by prohibiting the location of a group residence facility within one half mile of another group residence, a group care facility, an institutional facility or an outpatient drug and alcohol clinic, and by prohibiting the location of a group care facility within one quarter mile of such facilities or clinics. ARC’s applications are not inconsistent with this legitimate requirement.

(12) The City of Pittsburgh had no legitimate interest in denying the application for 800 E. Ohio Street because it might impede the normal and orderly development of surrounding properties and impair neighboring property values absent some demonstration that such an occurrence would be caused by something more than unfounded fears, speculation or prejudice. J. W. v. City of Tacoma, supra.

(13) No evidence was presented at the hearing before Council on February 5,1985 or before this court that the presence of ARC would impede the orderly development of neighboring properties or reduce property values, although the resolution of Council was grounded on such reasoning. Indeed, the staff of the Planning Department opined that presence of ARC would not impede development or reduce property values, and the evidence before this court is to the same effect.

(14) There was no evidence presented at the hearing before the Planning Commission or before this court to substantiate any limitation on lot area or side yard dimension causing a deficiency in recreation area and open space for adequate light, air and noise dispersion. On the contrary, the testimony at both hearings established that all zoning requirements were met and that ample open space was available.

(15) The reasons cited for the resolution of Council to deny the application of ARC are pretextual.

(16) None of the reasons offered by defendant for denying ARC's application-building code violations and license review-are relevant to approval of a conditional use; these concerns are relevant only to an occupancy permit.

(17) Council’s discretion to deny a conditional use is sharply limited under state law. A conditional use is a permitted use, unless the objectors prove that approval is likely to substantially affect the health and safety of the community in an adverse manner. Robinson Township v. Westinghouse Broadcasting Co., 63 Pa.Cmwlth. 510, 440 A.2d 642 (1981). No such evidence was presented to council.

(18) Statutory classifications which affect the mentally retarded must be rationally related to a legitimate governmental purpose. City of Cleburne, Texas v. Cleburne Living Center, - U.S. at -, 105 S.Ct. at 3257 (1985). Recovering alcoholics are entitled at least to the same standard of judicial review.

(19) Recovering alcoholics have been: (1) victims of historic prejudice; (2) saddled with a disability; (3) members of an immutable class; and (4) relatively politically powerless. Medora v. Colautti, 602 F.2d 1149 (3d Cir.1979).

(20) Access to treatment in a group residential facility is essential to effective treatment of recovering alcoholics and their reintegration into society.

(21) Although the Pittsburgh Zoning Ordinance does not refer specifically to alcoholics or recovering alcoholics, the decision of Council to single out the individuals living at the group residential facilities of ARC, at these particular locations, and receiving health, social or rehabilitative services, is an unconstitutional application of the Ordinance because it effectively discriminates against plaintiffs; burdens their access to appropriate treatment; and under the circumstances, is unrelated to any rational governmental purpose.

(22) It is not a valid justification for a discriminatory application of an ordinance that other groups of handicapped persons in need of residential and rehabilitative services in a group facility also are subject to discriminatory treatment.

(23) The application of the Zoning Ordinance with regard to ARC’s applications violated plaintiff’s right to equal protection of the laws. City of Cleburne, Texas, supra; J.W. v. City of Tacoma, supra.

(24) In failing to demonstrate or even articulate any rational relationship to an important governmental purpose or interest in denying the applications at 1216 Middle Street and 800 E. Ohio Street, the City acted in an arbitrary manner in violation of plaintiffs rights to substantive due process, J. W. v. City of Tacoma, supra, in addition to the right to be treated equally by the law.

(25) The City of Pittsburgh is a recipient of federal financial assistance in the form of Community Development Block Grant funds.

(26) These funds assist various forms of community development, nearly all of which require zoning approval before they can proceed.

(27) In withholding zoning approval to plaintiffs, a class of handicapped persons who need to reside and receive rehabilitative services in a group facility, the City of Pittsburgh discriminated against the class of otherwise qualified persons in violation of the Rehabilitation Act of 1973, 29 U.S.S. § 794. Plaintiffs have established that they are (a) handicapped individuals; (b) otherwise qualified for benefits from which they have been excluded; (c) solely because of their handicap; and (d) the program is subject to § 504. Strathie v. Department Trans., 716 F.2d 227 (3d Cir.1983). Defendant failed to establish that its actions were either substantially justified or reasonable. Id. at 230.

(28) But for community opposition, the City of Pittsburgh directly or through the Urban Redevelopment Authority would have spent $100,000 of Community Development Block Grant funds to renovate the ARC facility at 800 E. Ohio Street.

(29) The City of Pittsburgh failed to reasonably accommodate the handicap of those who require group residence and rehabilitative services by denying the application for zoning approval of the ARC facilities at 800 E. Ohio Street and 1216 Middle Street when all enumerated and enforceable conditions suggested, in part, by defendant’s officials were satisfied. Nelson v. Thornburgh, 567 F.Supp. 369 (E.D.Pa.1983), affd. 732 F.2d 146 (3d Cir.1984).

(30) Plaintiffs’ contention that the Zoning Ordinance is violative of the Fourteenth Amendment on its face is without merit.

(31) The motion of ARC to intervene must be granted because the claim of ARC meets the test Fed.R.Civ.P. 24(b) and the federal claims of intervenor are not barred under federal or state law for the following reasons: (a) the consent decree of January 14, 1985 in the Court of Common Pleas of Allegheny County, Pennsylvania was not a final state court order adjudicating the constitutional claims of ARC; (b) the federal claims of ARC were not, and could not have been raised within the scope of a state court eviction proceeding, as the able state court judge noted; (c) ARC’s federal claims arose from the acts of Council, i.e., administrative rulings, and an unappealed administrative ruling is not entitled to full faith and credit under 28 U.S.C. § 1738, Kremer v. Chemical Const. Corp., 456 U.S. 461, 470, 102 S.Ct. 1883, 1891, 72 L.Ed.2d 262 (1982); (d) the doctrine of claim or issue preclusion is inapplicable under state or federal law; and (e) abstention is not warranted. Wade v. City of Pittsburgh, 765 F.2d 405 (3d Cir.1985).

(32) The decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval at 1216 Middle Street and 800 E. Ohio Street violated the constitutional right of ARC to equal protection of the laws and due process guaranteed by the Fourteenth Amendment for the reasons rehearsed.

(33) The request of plaintiffs for a judgment declaring that the zoning ordinance of September 15, 1980 is unconstitutional on its face must be denied.

(34) Plaintiff and intervenor are entitled to preliminary injunctive relief because plaintiffs have established by a preponderence of the evidence that: (1) they are likely to succeed on the merits; (2) they are subject to irreparable harm pendente lite; (3) defendants will suffer no harm from the grant of an injunction; and (4) the public interest requires that plaintiffs be accorded relief. Constructors Association of West ern Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir.1978).

III. Injunctive Relief

(35) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant to ARC a conditional use approval for a group care facility at 1216 Middle Street, and a conditional use approval for an institutional facility at 800 E. Ohio Street.

(36) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant building permits to ARC to undertake repairs and renovations at 1216 Middle Street and 800 E. Ohio Street to bring those facilities into compliance with Electrical, Fire and other relevant Codes, if any.

(37) Plaintiffs and intervenors are entitled to a preliminary injunction requiring the City of Pittsburgh to grant occupancy permits to ARC at the two facilities without undue delay, following compliance by ARC with all Electrical, Fire and other Codes, if any, which permits shall not be unreasonably denied by the City.

(38) Plaintiffs and intervenors are entitled to a preliminary injunction requiring the County of Allegheny and the City of Pittsburgh to appropriate and deposit in an appropriate account, within 90 days, the sum of $50,000 each, or a total sum of $100,000 of Community Development Block Grant funds to enable ARC to undertake the necessary repairs and renovations at the two facilities to bring those structures into compliance with all applicable codes, without undue delay.

(39) The sum of $100,000 shall be placed in an appropriate account at Mellon Bank, N.A., in the name of Donald Driscoll, Esquire, counsel for Neighborhood Legal Services Association, as trustee for ARC, to finance the necessary repairs, or renovations. Counsel and the NLS shall at all times be jointly and severally responsible and accountable for the aforesaid funds, and shall indemnify the payors in the event of any loss.

(40) No payment shall be made for necessary repairs unless approved by Donald Driscoll, Esquire, and counsel shall advise the court of all expenditures in a monthly written progress report.

(41) After initial code repairs have been completed, the County of Allegheny and the City of Pittsburgh shall appropriate additional Community Development Block Grant funds to finance renovations and site improvements at 800 E. Ohio Street to permit ARC to provide services to no more than 50 residents at the facility.

(42) The aforesaid site plan shall include, with respect to 800 E. Ohio Street, a privacy fence, landscaping, exterior renovations on E. Ohio Street, and a recreation area.

(43) The City and County may require ARC to execute documents as are typically required of CDBG recipients, provided that nothing contained therein shall be inconsistent with these findings and conclusions of law.

(44) Counsel for plaintiffs shall submit to the court within 10 days an appropriate preliminary injunctive decree which incorporates the aforesaid relief, as well as additional relief which may be appropriate.


author: MORAN, District Judge.

text:
    William M. BASTIAN, Jr. and Debra K. Bastian, Plaintiffs, v. WAUSAU HOMES INCORPORATED and TPI Corporation, Defendants.
    No. 84 C 10971.
    United States District Court, N.D. Illinois, E.D.
    Sept. 24, 1985.

      Kevin Caraher, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, Ill., for plaintiffs.
    Manuel Sanchez, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiffs William M. Bastían, Jr. and Debra K. Bastían have filed a six-count diversity action against defendants Wau-sau Homes Incorporated (Wausau) and TPI Corporation (TPI) seeking damages for the loss of plaintiffs’ residence and its contents by fire on December 30, 1982. Counts I through IV of the complaint are directed against Wausau, while counts V and VI are directed against TPI. Wausau’s motion to dismiss count I, a strict liability in tort claim, and count II, a breach of an express contract warranty, pursuant to Rule 12 of the Federal Rules of Civil Procedure for failure to state a cause of action, is now before this court.

I.

The purpose of a motion under Fed.R. Civ.P. 12(b)(6) is to determine whether the claim has been adequately stated in the complaint. The complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim entitling him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Plaintiffs’ complaint alleges that they entered into a contract to purchase a home from Wausau on June 14, 1979 and that the home was constructed by Wausau in 1979 at Route 1, Creek Road, Sandwich, Illinois. In count I of the complaint plaintiffs further allege that the home, which was designed, packaged, constructed and sold to them by Wausau, was in an unreasonably dangerous condition at the time it left Wau-sau’s control in that it contained an electric baseboard heater which (a) was defectively designed, manufactured, assembled or installed, causing it to short, and/or (b) failed to contain a double high limit thermostat switch. The Bastians further allege that as a direct and proximate cause of the above unreasonably dangerous condition(s) a fire occurred suddenly and without warning within the home on December 30, 1982 and destroyed the home and its contents.

In Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965), the Illinois Supreme Court adopted the doctrine of strict liability in tort as set out in the Restatement (Second) of Torts.

The Suvada court stated that liability for a defective product extended to a manufacturer, one who holds himself out to be a manufacturer, a seller, a contractor, a supplier, the assembler of parts and the manufacturer of a component part. Suvada at 617, 210 N.E.2d 182.

Wausau, in seeking dismissal of count I of the complaint contends that a home is not a “product” for purposes of strict liability. Although the Illinois Supreme Court has not defined specifically a “product” for purposes of strict liability in tort, the Illinois Appellate Court for the First District has repeatedly stated that the public policies underlying strict liability, rather than a dictionary definition, should determine what is a product. Lowrie v. City of Evanston, 50 Ill.App.3d 376, 384, 8 Ill.Dec. 537, 542, 365 N.E.2d 923, 928 (1st Dist.1977); Trent v. Brasch Mfg. Co., Inc., 132 Ill.App.3d 586, 87 Ill.Dec. 784, 787, 477 N.E.2d 1312, 1315 (1st Dist.1985); Heller v. Cadral Corp., 84 Ill.App.3d 677, 40 Ill.Dec. 387, 388, 406 N.E.2d 88, 89 (1st Dist.1980); Immergluck v. Ridgeview House, Inc., 53 Ill.App.3d 472, 11 Ill.Dec. 252, 253, 368 N.E.2d 803, 804 (1st Dist.1977).

The policy issues to be considered in imposing strict liability include (1) the public interest in human life and health, Suvada v. White Motor Co., 32 Ill.2d 612, 619, 210 N.E.2d 182, 186 (1965), (2) the invitations and solicitations of the manufacturer to purchase the product, id., 210 N.E.2d at 186, (3) the justice of imposing the loss on the manufacturer who created the risk and reaped the profit by placing the product in the stream of commerce, id., 210 N.E.2d at 186, and (4) the superior ability of the commercial enterprise to distribute the risk of injury proximately caused by the defective condition of its product by passing the loss on to the public as a cost of doing business, Trent, 87 Ill.Dec. at 787, 477 N.E.2d at 1315. In Immergluck, the court recognized an additional policy consideration: the disparity in position and bargaining power which forces the consumer to depend entirely on the manufacturer, and the difficulty of requiring the injured party in consumer products cases to trace back along the channel of trade to the source of production in the search for the origin of the defect in order to prove negligence. Immergluck, 11 Ill.Dec. at 253, 368 N.E.2d at 804, citing LaRossa v. Scientific Design Co., Inc., 402 F.2d 937, 942 (3d Cir.1968). Whether the “product” is in the stream of commerce is also relevant. Immergluck, 11 Ill.Dec. at 253, 368 N.E.2d at 804.

Based on section 402A of the Restatement, and the above policy issues, the Illinois Appellate Court for the First District has held that certain “buildings” are not “products” for purposes of strict liability in tort. In Lowrie, the court held that an open-air parking garage and its parking spaces were not. “products” for strict liability purposes. In Heller, a condominium was held not to be a “product.” In Immergluck, it was held that neither a sheltered care facility nor the defendant’s services constituted “products” for strict liability purposes. However, in each of these three cases, and in Trent, the court noted that jurisdictions which have applied strict liability to a building have done so in the context of mass-produced homes and/or have focused on a defective product within the home rather than the home itself. See e.g., Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224, 74 Cal.Rptr. 749 (1969); State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.), cert. denied, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784 (1966); Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971); Schipper v. Levitt & Sons, 44 N.J. 70, 207 A.2d 314 (1965).

The instant case is distinguishable from the Illinois cases in which the court found no “product” for strict liability purposes. Here the plaintiffs’ home is a mass-produced prefabricated factory-built home, as opposed to the single open-air parking garage in Lowrie and the single sheltered care facility in Immergluck. In Heller, there was no mass production over which to distribute the risk of injury as there is in the instant case. Further, the plaintiff in Heller alleged no personal harm but rather alleged and sought damages for a defect in workmanship or materials. In the instant case the plaintiffs have alleged the loss of real and personal property.

Wausau allegedly designed, packaged, constructed and sold the home to the plaintiffs. Assumably, Wausau advertised or otherwise invited and solicited the purchase of the home. There is a disparity in position and bargaining power between Wau-sau and the home buyer that forces the buyer to depend on Wausau to provide a safe and suitable house for use as a home. The plaintiffs have alleged that the unreasonably dangerous condition(s) associated with electric baseboard heater installed in the home directly and proximately caused the fire that destroyed their property. Wausau, as a builder-vender of mass-produced homes, is in the better economic position to bear the loss by passing the loss on as a cost of doing business than the injured plaintiff homeowners. Consequently, based on section 402A of the Restatement and the policy issues that have been identified by the Illinois Appellate Court, this court must view the plaintiffs’ allegations as having stated a claim for strict liability in tort.

II.

In count II of the complaint the plaintiffs allege that Wausau breached an express warranty contained in the sales contract, as evidenced by an assignment contract for loan proceeds attached to the complaint. An examination of the assignment contract reveals no express warranty that the home is free from defects caused by faulty materials or workmanship supplied by the seller. Plaintiffs failed to attach the sales contract to the complaint.

Even if the sales contract had been properly alleged and incorporated into count II of the complaint, the complaint would still have been fatally defective. Paragraph 7A of the sales contract provides:

Seller warrants to Buyer that from the date of final invoice supplied by Seller and for one (1) year thereafter Seller will repair or replace (or pay the reasoable cost of such repair or replacement, at its option) any defects in such home caused by faulty materials or workmanship supplied by Seller under this contract.... NO PERFORMANCE OF THIS WARRANTY WILL BE MADE BY SELLER UNTIL SELLER HAS RECEIVED PAYMENT IN FULL FROM BUYER.

(Emphasis in original.) Pursuant to the assignment contract Wausau was to be paid three days after the July 13, 1979 signing of the assignment contract. The sales contract warranty would then have lapsed on July 16, 1980, approximately one and one-half years prior to the date of the fire.

Conclusion

For the foregoing reasons, defendant’s motion to dismiss count I is denied and defendant’s motion to dismiss count II is granted.

      . Restatement (Second) of Torts, sec. 402A (1965), provides:
      (1) One who sells by any product in a defective condition unreasonably dangerous to the user or consumer or his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . The sales contract was attached to plaintiffs’ answer to the motion to dismiss.


author: GIERBOLINI, District Judge.

text:
    In re Franco T. SANCHEZ-FERRERI.
    Misc. No. 84-105 GG.
    United States District Court, D. Puerto Rico.
    Sept. 25, 1985.

      Franco T. Sanchez-Ferreri, Aguadilla, P.R., pro se.
   OPINION AND ORDER

GIERBOLINI, District Judge.

This case is currently before us to determine whether or not Mr. Franco T. Sán-chez-Ferreri should be disbarred and prohibited from practicing in this court. On January 3, 1984, the Supreme Court of Puerto Rico disbarred petitioner after finding that he had conducted himself unethically in violation of Canon 23 of the Code of Professional Ethics of Puerto Rico. See 84 JTS 1 (January 3, 1984). As a consequence, Mr. Sánchez was ordered on December 20, 1984 to show cause why this court should not adopt the decision of the Supreme Court. A hearing was held where Mr. Sánchez was allowed to argue and present evidence.

In response to our order to show cause, petitioner alleges that his disbarment from the Supreme Court of Puerto Rico does not automatically provide grounds for disbarment from this court. Petitioner argues that he cannot be disbarred since he has not violated any rule of this court or engaged in any unethical conduct in this court. Finally, petitioner claims that the punishment of disbarment is too harsh and cruel under the circumstances.

It is the general rule that discipline in the federal courts does not automatically follow from discipline in the state courts since the state and federal judicial systems are autonomous. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). By the same token, a federal court has no power to review a disciplinary decision rendered by a state court. Martinez Rivera v. Trias Monge, 587 F.2d 539 (1st Cir.1978).

Indeed, it is recognized that, an attorney must strictly comport himself in a professional and ethical manner in order to maintain good standing in any federal bar; he must exhibit fair, private and professional conduct. Anything less is adequate reason to revoke his right to continue as a member in good standing of the bar. Selling v. Radford, 243 U.S. 46, 49, 37 S.Ct. 377, 378, 61 L.Ed. 585 (1917).

In Selling v. Radford, supra, the United States Supreme Court held that a federal court may accord full faith and credit to the disciplinary decision of the state court, unless, from an intrinsic consideration of the state record, one or all of the following conditions appear:

1. That the state procedure from want of notice or opportunity to be heard, was wanting in due process;
2. that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or
3. that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do. Id. at p. 51, 37 S.Ct. at 379.

See also: Matter of Gordon, 640 F.2d 1143, 1146 (10th Cir.1981); Matter of Randall, 640 F.2d 898, 901 (8th Cir.) cert. denied, 454 U.S. 880, 102 S.Ct. 361, 70 L.Ed.2d 189 (1981); Disciplinary proceedings of Phelps, 637 F.2d 171, 176 (10th Cir.1981); Wrighten v. U.S., 550 F.2d 990, 991 (4th Cir.1977); Matter of Klein, 407 F.Supp. 570, 573 (S.D.N.Y.1976).

Although petitioner has not challenged the disbarment procedure before the Supreme Court of Puerto Rico, we have reviewed the opinion of the Supreme Court and find that petitioner had adequate notice of the charge against him and ample opportunity to be heard. The findings of the Special Commissioner adopted by the Supreme Court support the ultimate conclusion of violation of Canon 23 of the Code of Professional Ethics. Moreover none of these findings were contested by petitioner before the Supreme Court of Puerto Rico or this court.

Therefore, the only question now is whether there exists some other grave reason which would preclude us from adopting the conclusion of the Supreme Court of Puerto Rico.

According to the facts as found by the Supreme Court of Puerto Rico, petitioner attached an automobile to satisfy a judgment obtained for his client and paid for some repairs to the automobile with the consent of his client in order to sell it. But without the explicit or tacit consent of his client, petitioner also paid several installments due on a debt secured by the automobile and traded the automobile for another car which he obtained for his private use. No account of the proceeds from the sale of the automobile was given by petitioner to his client.

Canon 23 of the Code of Professional Ethics of Puerto Rico provides that:

The lawyer should not purchase any interest in the subject matter of the litigation which he is conducting.
A lawyer should not advance or promise financial aid to his client for medical expenses or sustenance, except that he may advance the payment of the cost in the litigation, and the expenses of the necessary investigation and medical examinations to represent properly the case of his client.
The fiduciary nature of the relations between client and lawyer demands that they be grounded in absolute honesty. Particularly, the money of the client or other trust property coming to the possession of the lawyer should be reported promptly and should not be commingled or permitted to be commingled with his private property. 4 L.P.R.A.App. IX.

This is one of the most important principles governing the practice of law and is also a fundamental rule of the attorney-client relationship. See 4 L.P.R.A. § 773; also see Rule 1.15 of the Model Rules of Professional Conduct adopted by the American Bar Association.

Petitioner cites the case of Sperry v. State of Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), to support his argument that the disbarment proceedings before the Commonwealth court cannot serve as grounds for his disbarment from this court. This case is totally inapplicable, however. In Sperry the petitioner was a non-lawyer authorized to practice by the Federal Government before the United States Patent Office. The Supreme Court of the State of Florida entered an order prohibiting him, among other things, to perform the duties for which he has been licensed by the United States Patent Office because it constituted an unauthorized practice of the law within the state. The United States Supreme Court held that the states cannot abridge the right of a non-lawyer to perform all the necessary duties inherent to his practice before the United States Patent Office within the state.

In the case at bar, we are not adopting the Commonwealth proceedings blindly. We have made our own independent review of the case and found that petitioner’s unethical conduct is sufficiently grave as to deserve a revision of his status as a member of this bar.

The unethical conduct proven in this case has consistently resulted in disbarment. See: In Re Avila, Jr., 109 D.P.R. 440 (1980); In Re Báez Torres, 108 D.P.R. 358 (1979); In Re Cepeda-Parrilla, 108 D.P.R. 353 (1979); In Re Cardona-Vazquez, 108 D.P.R. 6 (1978); In Re Arana-Arana, 106 D.P.R. 210 (1977); In Re Roldán-Figueroa, 106 D.P.R. 4 (1977); In Re Vélez, 103 D.P.R. 590 (1975). Neither the sum involved, petitioner’s age, nor his years in the bar should be grounds to mitigate the penalty. In this case, petitioner admitted that he had been disciplined twice in the past. In fact, our records show that petitioner was disbarred from this court on June 9, 1950, and readmitted on November 17, 1953.

There being no other good reason why we should not adopt the decision of the Supreme Court of Puerto Rico, we find that petitioner has conducted himself unethically, rendering him unfit to continue as a member of the bar of this court.

It is therefore ordered that petitioner be and he is hereby suspended indefinitely from practicing before this court. Chief Judge PÉREZ-GIMÉNEZ and Judges CEREZO, PIERAS, ACOSTA and LAF-FITTE concur in this Opinion and Order.

SO ORDERED.


author: KEENAN, District Judge:

text:
    John COOL, Plaintiff, v. POLICE DEPARTMENT OF the CITY OF YONKERS, the City of Yonkers, Anthony Cenelli, Edward R. Carozza, William Drain, William Hayden, Jack Raffa, James Trotta, Lawrence W. Conley, Edward Riley, Thomas Brink, Philip Medwick, and John Does One, Two, and Three, Defendants.
    No. 76 Civ. 1303 (JFK).
    United States District Court, S.D. New York.
    Sept. 26, 1985.
    Paul, Weiss, Rifkind, Wharton & Garrison, by Jill Levi, Steven R. Popofsky, Jay Topkis, New York City, for plaintiff.
    Arthur J. Doran, Jr., Corp. Counsel, City of Yonkers, by Edmund G. Fitzgerald, Asst. Corp. Counsel, Yonkers, N.Y., for defendants.
   AMENDED OPINION and ORDER

KEENAN, District Judge:

Plaintiff, the prevailing party in a civil rights action brought pursuant to 42 U.S.C. § 1983 (“§ 1983”), moves the Court for an award of attorneys’ fees and costs under 42 U.S.C. § 1988 (“§ 1988”). The defendants oppose this motion. For the reasons set forth below, the Court grants plaintiff’s motion.

BACKGROUND

On January 14, 1985, following a trial before this Court, a jury found that plaintiff had established, by a fair preponderance of the evidence, that the defendants, “acting under color of law, [had] deprived him of a right protected by the Constitution thereby causing injury to plaintiff for which the defendants [were] responsible.” (Jury Special Interrogatories—Court Exhibit 16). The jury returned a verdict in favor of Cool in the amount of $7,500.00. The issue before the Court is whether Cool’s pro bono attorneys are entitled to fees and costs pursuant to § 1988.

DISCUSSION

A. Attorneys’ Fees

The Court may, in its discretion, award “a reasonable attorney’s fee as part of the costs” to the prevailing party in an action to enforce § 1983. 42 U.S.C. § 1988. “The purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (citation omitted). Additionally, § 1988 is designed to encourage litigants to serve as private attorneys general in order to assist in the enforcement of the nation’s civil rights laws. McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir.1983). Thus, unless such an award would be unjust, a prevailing § 1983 plaintiff should ordinarily recover under § 1988. Hensley, 103 S.Ct. at 1937.

There can be no doubt that Cool prevailed in his § 1983 action against the City of Yonkers. Therefore, Cool meets the “threshold” requirement to bring a § 1988 action. Hensley, 103 S.Ct. at 1939. The Court, however, still must analyze the reasonableness of the fee requested by Cool’s attorneys. Hensley, 103 S.Ct. at 1939.

Cool’s attorneys seek fee remuneration in the amount of $170,816.81, attributable to time spent prosecuting Cool’s § 1983 claim by attorneys Jay Topkis, Robert Bartkus, Max Friedman, Jill Levi, Steven Popofsky, and Eric Freedman of the law firm Paul, Weiss, Rifkind, Wharton & Garrison (“Paul, Weiss”). Nonprofessional staff members of Paul, Weiss also spent time working on the preparation of Cool’s § 1983 action. {See Affidavit of Jay Top-kis; Levi Letter of April 22, 1985).

In examining the reasonableness of Cool’s fee request, the Court necessarily must examine the results obtained on Cool’s behalf, because “where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Hensley, 103 S.Ct. at 1940. Having presided over the trial, the Court recognizes that Cool’s attorneys, although unable to recover the full $250,000 in damages sought for Cool, worked diligently on Cool’s behalf and achieved a result which vindicated Cool’s constitutional rights, defendant’s representations notwithstanding. {See Defendant’s Memorandum of Law at 1-2, 10; Fitzgerald Affidavit at 113, 119, II13, 1116, ¶ 19, 1120).

The Court notes, at the outset, that Cool does not seek a “bonus” payment for his attorneys. In fact, the hours logged by his attorneys, on Cool’s behalf, were reduced. Nonetheless, the Court is mindful that “the civil rights statutes should not be construed to provide windfall recoveries for successful attorneys.” Wheatley v. Ford, 679 F.2d 1037, 1041 (2d Cir.1982). Indeed, the Court must view an award “with an ‘eye to moderation’ so as to avoid even the appearance of windfall fees.” Wheatley, 679 F.2d at 1040, citing Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir.1977), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979).

The Court has carefully reviewed Cool’s application for attorneys’ fees. Given the discretionary nature of a § 1988 fee award and the fact “there is no precise rule or formula for making” a fee determination, Hensley, 103 S.Ct. at 1941, the Court finds $50,000.00 to be reasonable remuneration for services rendered by Paul, Weiss on Cool’s behalf, despite the fact that Cool recovered only $7,500.00 in damages. See Spano v. Simendinger, 613 F.Supp. 124 (S.D.N.Y.1985) (Motley, C.J.).

B. Costs and Other Expenses

In addition to seeking remuneration for his attorneys’ time, Cool seeks reimbursement in the amount of $23,446.04 for disbursements expended in the litigation of his § 1983 action, pursuant to § 1988. The defendants’ response to Cool’s cost reimbursement request is that the request “is totally out of line in this type of case.” (Fitzgerald Affidavit at II17).

Courts have sanctioned the reimbursement of costs properly expended in the litigation of civil rights claims pursuant to § 1988. See Palmigiano v. Garrahy, 707 F.2d 636 (1st Cir.1983) (per curiam); Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983); Dowdell v. Apopka, 698 F.2d 1181 (11th Cir.1983). In awarding such cost reimbursement, courts have held that the costs should not be part of the routine office overhead normally absorbed by the attorney. Ramos v. Lamm, 713 F.2d at 559. Dowdell v. Apopka, 698 F.2d at 1192.

Cool’s attorneys document $23,446.04 in expenses attributed to litigating Cool’s § 1983 claim. The Court’s responsibility is to discern which of these expenses were clearly supportable. See Vulcan Society of Westchester County, Inc. v. Fire Department of the City of White Plains, 533 F.Supp. 1054, 1067 (S.D.N.Y.1982) (Sofaer, J.). One of Cool’s attorneys, a partner at Paul, Weiss, has stated that the disbursements for which reimbursement is requested are billed separately and not included in the overhead of Paul, Weiss. (Topkis Affidavit at ¶ 41).

Having carefully reviewed Cool’s request for cost reimbursement, and given the Court’s discretion in approving fee and cost requests, the Court finds that $14,-458.45 in disbursements were necessary and reasonable in litigating Cool’s claim.

The specific disbursement allowances are as. follows:

DISBURSEMENT CATEGORY AMOUNT REQUESTED AMOUNT ALLOWED

a) Court Reporters $2,403.40 $ 137.05

b) Word Processing $4,557.05 $ 4,557.05

c) Para OT & OT Meals $ 250.43 $ 62.61

d) OT & OT Meals $2,078.17 $ 519.54

e) Legal Meals $1,931.31 $ 482.83

f) Local Transport. $3,343.88 $ 835.97

g) Plane, RR, Auto $ 535.48 $ 535.48

h) Other L. Dis. Trav. $ 281.66 $ 281.66

i) Tel., Tolls, Telg. $ 166.64 $ 166.64

j) Postage $ 76.51 $ 76.51

k) Internal Reprod. $1,574.03 $ 1,180.50

l) Messenger Trips $1,719.35 $ 1,719.35

m) Ct., Other Lit. Fees $ 553.00 $ 553.00

n) Outside Reprod. $ 25.92 $ 19.44

o) Prof. Services $1,403.25 $ 1,403.25

p) Dupl. — Infortext $ 479.63 $ 359.70

q) Miscellaneous $ 72.49 $ 72.49

r) Lib. Computer Res. $1,981.84 $ 1,486.88'

s) Lexis $ 12.00 $ 9.00

TOTAL ALLOWED: $14,458.45

CONCLUSION

For the foregoing reasons, the Court approves Cool’s request for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. Accordingly, the Court awards Cool’s attorneys $50,000.00 in attorneys’ fees and $14,-458.45 in costs.

SO ORDERED.

      . Counsel for defendant, City of Yonkers, characterizes Cool’s § 1983 action as “a simple assault case." (Fitzgerald Affidavit at ¶ 13). Counsel also suggests that the jury did not believe an assault had been proven, yet proceeded to reach a "compromise verdict" in favor of Cool. (Defendant’s Memorandum of Law at 1-2, 10; Fitzgerald Affidavit at ¶ 19, ¶ 20, and ¶ 21). Apparently, the importance of § 1983 in vindicating constitutional rights, as evidenced by the legislative history of § 1983 and the clear weight of judicial authority since the statute’s enactment, has been lost on defense counsel. Additionally, it is not the province of defense counsel to second-guess the sincerity of a clear and unequivocal jury verdict. (See Court Exhibit 16).

      . Robert Bartkus was an associate with Paul, Weiss, Rifkind, Wharton & Garrison who worked on Cool’s case from 1979-1983 before leaving the firm.

      . Max Friedman also was an associate with Paul, Weiss, Rifkind, Wharton & Garrison who worked on Cool’s case from 1979-1983 before leaving the firm.

      .The Court acknowledges the comprehensive documentation of hours by Cool’s attorneys. According to the standard billing procedure of Paul, Weiss, Rifkind, Wharton & Garrison, counsel document time worth a total of $278,-037.40. Nonetheless, counsel reduced the fee request to $170,816.81. (See Topkis Affidavit, 1131 to ¶ 37; Popofsky Letter of April 1, 1985; Levi Letter of April 22, 1985.). Counsel properly does not seek remuneration for duplicative efforts by professional or non-professional staff members or for an unsuccessful attempt to prevail on a statute of limitations issue.
      Paul, Weiss did not request a specific dollar amount but rather, after setting forth its standard billing rate and describing the basis upon which it had calculated hours expended on this matter, "respectfully requested[ed] that the Court award what it deemfed] an appropriate sum in compensation.” The Court notes that the amount awarded Cool’s attorneys is in no way intended to reflect on the capabilities of counsel. The young counsel performed well and in the best tradition of the bar.

      .The Court, in rendering this opinion, does not consider defendants' makeweight claims of a purported inability to pay an award of attorneys’ fees or costs. (See Defendant’s Memorandum of Law at 8-10).

      .Considering the facts of and relative stature of the parties involved in this case, Cool’s claim was not "a very simple case." (See Defendant’s Memorandum of Law at 10).

        .See supra, note 4.

      . The Court reduced the reimbursement request for "Outside Reprod." by $11.43 in order to balance the disbursement entries with the total request for the period ending October 31, 1979. (See Topkis Affidavit, Exhibit C). This was done at the suggestion of one of Cool’s attorneys, Steven Popofsky.