Paul A. Elberti v. Elvin H. Kunsman, 376 F.2d 567, 3rd Cir. (1967)
Paul A. Elberti v. Elvin H. Kunsman, 376 F.2d 567, 3rd Cir. (1967)
2d 567
The jurisdiction of the district court was invoked under 1343(3) of Title 28
U.S.C.A. The court below found that there was no "constitutional infirmity in
the application of the" Act but held that the federal question was not "plainly
wanting in substance." It retained jurisdiction of the action and after a trial on
the merits entered judgment in favor of the plaintiffs on the claim based on
state law.
3
The retention of jurisdiction of the claim based on state law may be sustained
as proper only if the federal question was substantial. Levering & G. Co. v.
Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933); Mosher v. City
of Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148 (1932). The question
must be determined "by the allegations of the [complaint], and not upon the
facts as they may turn out or by a decision of the merits." Ibid. We are
convinced from our examination of the complaint that the federal question was
unsubstantial and frivolous.
The action will be remanded to the district court with a direction that it be
dismissed for the lack of jurisdiction.