The opinion of the court was delivered by: MARSH
The plaintiff was dismissed from his position as a police officer following his conviction in the state court on charges of indecent assault and corrupting children. He brings this action against his former employer, the Borough of Homestead, seeking preliminary and permanent injunctive relief in the form of reinstatement and back pay. He also asks this court to declare that his termination from the police force was an unconstitutional denial of due process. The matter is now before the court on the defendant's motion to dismiss.
The plaintiff has framed his complaint as a civil rights action under 42 U.S.C. § 1983 and asserts that this court has jurisdiction under 28 U.S.C. § 1343(3) and 28 U.S.C. § 1331(a). Since the borough is not a "person" within the meaning of the statute, it is not a proper defendant in the civil rights action. Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (No. 74-1303, 1976); City of Kenosha v. Bruno, 412 U.S. 507, 511-513, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-192, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Thus, as to the claim under § 1983, the motion to dismiss must be granted. The borough could be a proper party in a suit brought under § 1331(a). Even if all of the allegations in the complaint are taken as true, however, the plaintiff has failed to state a claim under § 1331(a) for deprivation of constitutionally protected rights, and in this respect the motion to dismiss must be granted.
The facts as presented in the pleadings and the exhibits attached thereto are as follows:
Plaintiff Harold Olson was a Sergeant in the Police Department of the Borough of Homestead. In March, 1975, plaintiff was arrested and charged with indecent assault and corrupting children. Plaintiff was arraigned under §§ 3125 and 3126 of the Pennsylvania Crimes Code. Shortly thereafter, Homestead Mayor James E. Armstrong suspended the plaintiff from the police force without pay until the next regular meeting of the Borough Council (53 P.S. § 46124). In a letter dated March 21, 1975, Mayor Armstrong formally advised the plaintiff that he was being suspended for a violation of law which constituted a misdemeanor or a felony (53 P.S. § 46190(3)), and for conduct unbecoming an officer (53 P.S. § 46190(4)). The Mayor's action was effective March 21, 1975. At its regular meeting on April 11, 1975, the Council upheld the Mayor's action and suspended the plaintiff pending disposition of the criminal charges. Although the applicable statute (53 P.S. § 46191) provides a right of appeal to the Civil Service Commission following such a suspension, the plaintiff did not file an appeal.
On September 8, 1975, following a non-jury trial before Judge George Ross of the Court of Common Pleas of Allegheny County, the plaintiff was found guilty on one count of indecent assault upon a 13-year-old girl and on one count of corrupting the morals of a minor child. Plaintiff Olson was placed on one-year's probation by the court. Olson's appeal of this conviction is now pending. In a letter of September 12, 1975, Mayor Armstrong notified the plaintiff that the Council would meet September 16th to consider the plaintiff's status as an employee of the police department. Plaintiff was invited to be present with legal counsel. (See Complaint, Exhibit A).
On September 16, 1975, the Council met at the borough building. Plaintiff Olson was present and, although his attorney was unavailable due to illness, he did not object to proceeding without counsel. The Council received a certified copy of the court record of plaintiff's conviction in the state court and then offered plaintiff an opportunity to speak in his own behalf. The plaintiff requested that any action be delayed pending the outcome of his appeal of the conviction. The Council then advised plaintiff that his employment was terminated effective immediately. (See Complaint, Exhibit B). The following day, in a letter written by Borough Manager William Macosky, Jr., the plaintiff was formally advised of his dismissal and the reasons for the Council decision. (See Complaint, Exhibit C).
Plaintiff appealed the Council's decision of termination to the Borough Civil Service Commission. A hearing was held before the Commission on September 23, 1975, at which time plaintiff Olson was present and represented by legal counsel. On November 10, 1975, plaintiff was notified of the Commission's unanimous decision to uphold the plaintiff's termination by the Borough Council. Pursuant to statute (53 P.S. § 46191), a decision of the Commission may be appealed within 60 days to the Court of Common Pleas. Plaintiff did not file a timely appeal, but did later file a Petition for Leave to Appeal Nunc Pro Tunc. On April 12, 1976, the Court of Common Pleas of Allegheny County refused to grant the petition. Subsequently, plaintiff filed the instant action in this court.
Before examining these contentions, it is necessary to look at the nature of the property interest in question. If plaintiff had a property interest in his public employment, that interest was created not by the Constitution but rather by the state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The applicable state statute provides:
"No person employed in any police or fire force of any borough shall be suspended, removed or reduced in rank except for the following reasons:
(3) Violation of any law which provided that such violation constitutes a misdemeanor or felony.
(4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct ...