Plaintiffs Roger Sames and Dennis Troccola ("plaintiffs") are currently patrolmen on the Allentown, Pennsylvania police department. They commenced this civil rights action on March 18, 1982 in the United States District Court for the Eastern District of Pennsylvania, alleging that they were unlawfully demoted from their prior rank of sergeant. According to plaintiffs, their demotions were politically motivated, in violation of plaintiffs' First Amendment rights of political association, and were accomplished without affording plaintiffs the process that they were constitutionally due.

Within a short period following the commencement of the action, plaintiffs and defendants served extensive written discovery requests upon each other. On May 10, 1982, defendants moved the district court for an order limiting the scope of plaintiffs' discovery.1

Defendants filed a Motion for Summary Judgment on May 21, 1982. That motion was supported by the depositions of defendants Joseph Daddona, the Mayor of Allentown, and Carson Gable, the Chief of Police. Daddona and Gable denied in their depositions that the decisions to demote Sames and Troccola from sergeants to patrolmen had been politically motivated; defendants asserted instead that plaintiffs and others had been reduced in rank because they had formed a "clique" of officers whose activities had lowered morale on the force.

Defendants' Motion for Summary Judgment also raised the argument that plaintiffs had no protected legal interest in the rank of sergeant, whether based on state or federal law, and further incorporated by reference the legal arguments contained in a Motion to Dismiss that plaintiffs had previously filed.

Plaintiffs filed a Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ["Memorandum"] on June 3, 1982. Plaintiffs argued that the deposition testimony of Daddona and Gable consisted merely of self-serving denials of wrongdoing by the very individuals whose conduct and motivation were at issue. [Memorandum at 2, 3]. Moreover, plaintiffs informed the court that the parties were engaged in extensive discovery, including interrogatories and requests for document production. [Memorandum at 2]. Plaintiffs urged at the conclusion of their opposing memorandum that

Defendants cannot cut Plaintiffs['] discovery off at the early stage of the proceedings on the basis of their simple denials of any alleged political involvement.

[Memorandum at 11]. Plaintiffs did not, however, offer any competent evidence to counter defendants' denials, see Fed.R.Civ.P. 56(c), (e), nor did plaintiffs point to specific outstanding discovery that could reasonably be calculated to lead to evidence supporting the averments of plaintiffs' complaint or calling into question defendants' sworn denials, see Fed.R.Civ.P. 56(f).

On June 7, 1982, after full briefing of defendants' summary judgment motion but before its resolution by the court, the district court denied defendants' motion to limit the scope of plaintiffs' discovery. See note 1 supra. On June 21, 1982, before defendants had responded to the interrogatories that were the subject of the unsuccessful motion to limit discovery, the court below issued an order "dismiss[ing] all claims predicated upon an unconstitutional taking of property" and granting summary judgment "on all claims predicated upon a political firing." [App. at 294]. See Sames v. Gable, 542 F. Supp. 51 (E.D.Pa.1982) (opinion below).

Plaintiffs assert on appeal that the district court incorrectly interpreted Pennsylvania law as it relates to their protected interest in the rank of sergeant, and that the district court abused its discretion in granting summary judgment, without a hearing, while discovery requests pertinent to the central issues of fact were outstanding. Because we agree that it was error to grant summary judgment in the posture of the case below, we will vacate the district court's entry of judgment and remand for further proceedings.2

In resolving a motion for summary judgment, the district court must determine "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). (emphasis added). Thus, this court has plenary power to review the legal conclusions of the district court, applying the same test as did the court below in the first instance. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). Where, however, a non-moving party urges the district court to forestall consideration of a summary judgment motion in order to facilitate discovery or to seek affidavits, Rule 56(f) of the Federal Rules of Civil Procedure affords the district court a measure of discretion in determining whether the summary judgment motion is ripe for resolution. Fed.R.Civ.P. 56(f) ("the court may refuse the application for judgment or may order a continuance ... or may make such other order as is just." (emphasis added)); see Kane Gas Light & Heating Co. v. Pennzoil Co., 95 F.R.D. 531, 532 (W.D.Pa.1982). Our review of such a determination is therefore more constrained.

This court has criticized the practice of granting summary judgment motions at a time when pertinent discovery requests remain unanswered by the moving party:

[W]e have said where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course. Ward v. United States, 471 F.2d 667, 670-71 (3d Cir.1973).... [B]y acting on the motion for summary judgment without argument, and without reference to what might be developed in discovery, which was being diligently pursued, the court erred.

Costlow v. United States, 552 F.2d 560, 564 (3d Cir.1977).

In this case the district court granted summary judgment in spite of the fact that plaintiffs' interrogatories remained unanswered by defendants. Indeed, the court had denied defendants' motion to limit the scope of those very discovery requests barely more than two weeks prior to the entry of judgment. Plaintiffs had alerted the court in their opposing memorandum that discovery was still underway. Further, the district court in this case, as in Costlow, granted defendants' motion without first scheduling a hearing. See Season-All Industries, Inc. v. Turkiye Sise Ve Cam Fabrikalari, A.S., 425 F.2d 34, 38-39 (3d Cir.1970) (undesirable in general to enter summary judgment without a hearing). We hold that it was error for the district court to grant defendants' motion for summary judgment while pertinent discovery requests were outstanding.3

Finally, we address the dismissal of plaintiffs' claims based on the absence of a hearing in connection with their demotions. Plaintiffs assert on appeal that due process requires a hearing whenever an expectancy of continued rank is spawned by the "common law" of the police force, or in situations where a demotion may seriously damage their reputations in the community. For these propositions they cite Perry v. Sindermann, 408 U.S. 593, 602, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972). In addition, plaintiffs continue to assert, based primarily on Pa.Stat.Ann. tit. 53, Secs. 53270, 53271 (Purdon 1957), that Pennsylvania law affords them a protected interest in their sergeant stripes, enforceable through state law or the due process clause of the federal Constitution. The district court dismissed that claim as a matter of law.

Defendants assert on appeal that plaintiffs' complaint does not adequately plead a claim based on Perry or Roth. Because we will remand this case to the district court for further proceedings in connection with plaintiffs' allegations of politically motivated demotions, we need not resolve these issues here.

We decline to resolve the legal issue raised by sections 53270 and 53271 of Title 53. We note that a federal court should not prematurely decide state law issues in a case, whether under principles of pendent jurisdiction or in connection with claims of deprivation of state-created interests in violation of the federal Constitution. See Pennhurst State School & Hospital v. Halderman, --- U.S. ----, ----, 104 S. Ct. 900, 920 n. 32, 79 L. Ed. 2d 67 (1984) ("the federal court's construction [of state law] often is uncertain and ephemeral."). The district court therefore remains free to reconsider its legal holding on this issue and to revise that holding "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed.R.Civ.P. 54(b). We express no view as to the merits of plaintiffs' contentions.

Accordingly, for the reasons set forth above, the order of the district court granting defendants' motion to dismiss and motion for summary judgment will be vacated, and the case will be remanded for proceedings consistent with this opinion. All parties shall bear their own costs, and the costs of the Appendix shall be charged to appellants.