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ROSENBERG v. REDEVELOPMENT AUTH. OF PHILADELPHIA

March 4, 1977

STEVEN ROSENBERG
v.
THE REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, AUGUSTINE A. SALVITTI, et al.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiff, a former employee of the Redevelopment Authority of the City of Philadelphia who claims that he was forced to resign, brought this action to redress alleged deprivation of rights secured to him by the United States Constitution. His original complaint alleged deprivation of Fourteenth Amendment rights to procedural due process and equal protection together with violations of 42 U.S.C. § 1983. It also contained two pendent state claims, one for breach of his employment contract and one for libel. In his amended complaint, plaintiff has added an allegation that his First Amendment rights were violated.

 Plaintiff was hired by the RDA as Director of its Real Estate Department in September of 1972. He alleges that in February of 1974 he was forced to resign without a hearing and without cause. He claims that he was given no reason for being forced to resign and, alternatively, that he was forced to resign because of his political associations, affiliations and beliefs. Plaintiff further alleges that the personnel manual of the RDA in effect at the time of his resignation stated that RDA employees may be separated from their service only by lay off, reduction in force, resignation, retirement or discharge for cause.

 In order for the due process clause to apply to plaintiff's termination of employment, he must have a property interest in his employment. In Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976), the Supreme Court held that a property interest in public employment is determined in accordance with state law. Although there is no Pennsylvania case holding that an employee of the RDA has a property interest in his employment, the decision in Mahoney v. Philadelphia Housing Authority, 13 Pa. Commw. Ct. 243, 320 A.2d 459, cert. denied, 419 U.S. 1122, 42 L. Ed. 2d 822, 95 S. Ct. 806 (1974), is a strong indication that under Pennsylvania law such an employee has no property interest in his job. In Mahoney, the issue was whether an employee of the Philadelphia Housing Authority had a property right in his employment. The court held that public authorities have no power, unless conferred by statute, to enter contracts of employment preventing such authorities from dismissing employees at will and found that the enabling act creating the Philadelphia Housing Authority conferred no such power.

 In Banks v. RDA, 416 F. Supp. 72 (E.D. Pa. 1976), in a situation similar to the present case, my learned colleague Judge Cahn found that a dismissed RDA employee had not been deprived of either due process or equal protection. His well-reasoned opinion pointed out that "Pennsylvania courts would hold that RDA employees . . . are employees at will." Id. at 74. We agree that the Urban Redevelopment Law, 35 P.S. § 1701 et seq., creating the RDA, confers no power upon the RDA to create such a property right. Thus viewing plaintiff's factual allegations in their most favorable light, we hold that defendants are entitled to summary judgment in connection with plaintiff's due process allegation.

 Plaintiff also claims that he was forced to resign because of his political associations, affiliations and beliefs in violation of his First Amendment rights. The controlling question is whether plaintiff was a "policymaking" employee; if he was, First Amendment protection is not available to him in this situation. Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Illinois State Employees' Union Council 34 v. Lewis, 473 F.2d 561 (7th Cir. 1972). In determining whether plaintiff was a policymaking employee, we are guided by Elrod v. Burns in which the Supreme Court stated:

 
No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.

 Elrod v. Burns, supra at 2687.

 With his motion for summary judgment, defendant Salvitti filed an affidavit attesting to plaintiff's responsibilities as an employee of the RDA and accompanied by a job description. In response, plaintiff filed a counteraffidavit also attesting to his duties as Director of the Real Estate Department. *fn2" Review of these affidavits shows that there is no genuine issue as to any material fact. Rule 56(c) of the Federal Rules of Civil Procedure provides in part that:

 
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 In addition, rule 56(e) states:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he ...

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