concurring.
Although I agree with the result reached by Judge Cowen, I write separately because I believe the judgment can be reversed on a narrow ground.
Pullman abstention serves no purpose if the injured party may not be able to obtain an adjudication of the merits of the state issue that forms the basis for the district court’s decision to abstain. See C. Wright, A. Miller & E. Cooper, 17A Federal Practice and Procedure § 4242 at 57. Otherwise stated, if there is substantial doubt that the plaintiff could obtain a construction of the New Jersey statute in question in any appropriate state proceeding, the district court should not have abstained.
In my view, it is very doubtful that the plaintiff could maintain a claim against the defendants in their official capacities because of his failure to comply with the notice provisions in the New Jersey Tort Claims Act. See NJSA 59:8-8. This is so apart from any statute of limitations problem.
Any state action against these defendants personally might well be met with a qualified immunity defense that could result in a determination that would not resolve the critical state law issue here involved. See NJSA 59:3-1, et seq., and in particular NJSA 59:3-3 which provides that “[a] public employee is not liable if he acts in good faith in the execution and enforcement of any law.” See also Martin v. Township of Rochelle Park, 144 N.J.Super. 216, 365 A.2d 197, 200 (1976). I think this same doubt would extend to an attempt to secure a declaratory judgment.
Since there is a very serious doubt that plaintiff could initiate a state law action that would result in a construction of NJSA 2C:49-6, I vote to reverse the district court’s abstention order. Needless to say, this action should be a priority matter in the district court.