The opinion of the court was delivered by: MUIR
This action was brought under Section 1 of the Civil Rights Act of 1871 (42 U.S.C. § 1983) alleging that the defendant, Mayor of the City of Williamsport, summarily dismissed plaintiff from his position as Assistant Superintendent of Flood Control for the City of Williamsport because plaintiff was a registered elector of the Democratic Party, thus violating plaintiff's First Amendment rights of freedom of association and expression, and his right to due process of law guaranteed by the Fourteenth Amendment of the United States Constitution. The plaintiff demands compensatory damages, punitive damages and reasonable attorney's fees. In his answer, the defendant denied that plaintiff was discharged because of his political party affiliations, and further, moved that the complaint be dismissed for failure to state a claim upon which relief can be granted. Because I felt that a decision on the important and sensitive constitutional questions presented by the motion could only be made after full consideration of the facts as disclosed at a trial, and because of the possibility that those facts would make unnecessary a ruling on the constitutional questions, I deferred a decision on the motion until trial in accordance with F.R. Civ. P. 12(d). See Commonwealth of Pennsylvania v. Brown, 260 F. Supp. 323, 357 (E.D. Pa. 1966). Cf. Gibbs v. Buck, 307 U.S. 66, 76-77, 59 S. Ct. 725, 83 L. Ed. 1111 (1939); Equitable Life Assur. Soc. of United States v. Kit, 26 F. Supp. 880 (E.D. Pa. 1939).
1. The plaintiff on June 10, 1971 was appointed Assistant Superintendent of Flood Control for Williamsport, Pennsylvania.
2. As Assistant Superintendent of Flood Control, Plaintiff was responsible for supervising work on the dikes, and the maintenance and testing of pump station machinery.
3. Plaintiff supervised the work of two full-time employees plus three additional summer employees. During times of flood conditions, plaintiff could have had responsibility of supervising from twenty to thirty men.
4. The Assistant Superintendent of Flood Control was responsible for assuming the duties of the Superintendent of Flood Control during the absence of the latter. The Superintendent was generally responsible for the flood control program for the City of Williamsport. Specifically, the Superintendent was in charge of maintenance and testing of the pumps and electrical circuits necessary for pump station operation, maintenance of the dikes, and supervision of up to 600 men during serious flooding conditions.
5. The plaintiff is a registered Democrat.
6. The defendant qualified as mayor of Williamsport, Pennsylvania on January 3, 1972.
7. The defendant is a registered Republican.
8. On January 14, 1972 the plaintiff was discharged from his position by the defendant, effective January 28, 1972.
9. Plaintiff's supervisor was of the opinion that while Assistant Superintendent of Flood Control, plaintiff displayed a general lack of mechanical ability and that friction developed between plaintiff and those over whom he had supervision.
10. Prior to the plaintiff's discharge, the defendant called the Superintendent of Flood Control to his office and inquired as to plaintiff's job performance. The Superintendent disclosed plaintiff's lack of mechanical and supervisory ability, and said he felt that ...