The opinion of the court was delivered by: MUIR
Skehan filed his complaint in the United States District Court for the Eastern District of Pennsylvania on October 10, 1972. On December 22, 1972, the case was transferred to this Court. On January 11 and 12, 1973, a hearing on his request for a preliminary injunction was held. On January 31, 1973, the Court declined to issue a preliminary injunction. In March, 1973, the parties agreed that no further testimony would be necessary in order for the Court to reach its final decision on the matter. On May 11, 1973, judgment in favor of Skehan in the amount of $1.00 together with costs was entered. On June 9, 1973, Skehan filed a notice of appeal. On May 3, 1974, the Court of Appeals remanded the case to this Court for further findings with respect to three enumerated issues of fact. Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974). On July 30, 1974, the case was placed on the November, 1974 trial list. On October 11, 1974, after Skehan had received an extension from Justice Brennan to November 8, 1974 within which to file a petition for certiorari, the case was continued to the January, 1974 trial list to avoid the possibility of simultaneous proceedings in this Court and the United States Supreme Court. On October 31, 1974, Skehan's application for a stay of all proceedings pending the United States Supreme Court's decision upon his petition for writ of certiorari was denied because no petition for a writ of certiorari had been filed by Skehan. On November 8, 1974, Skehan filed a petition for the issuance of a writ of certiorari and the case was deleted from the January, 1975 list. On May 27, 1975, the Supreme Court granted the writ, vacated the judgment of the Court of Appeals, and remanded the case to the Circuit Court. Skehan v. Board of Trustees, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975). On June 30, 1975, the Court of Appeals notified this Court of that decision and requested the record. On June 21, 1976, the Court of Appeals filed a decision again remanding this case to the Court for further findings with respect to two of the three factual issues which it had enumerated in its first opinion. Skehan v. Board of Trustees, 538 F.2d 53 (3d Cir. 1976). In addition, the Court of Appeals directed this Court to make findings of fact concerning the good faith of Defendant Nossen in failing to give Skehan a hearing prior to his termination as a professor at Bloomsburg State College. On July 15, 1976, and promptly after the mandate was issued, the case was placed on this Court's September, 1976 trial list. On August 27, 1976, it was continued at the request of counsel for both sides to the December, 1976 trial list. At the pre-trial conference on December 1, 1976, it became apparent that certain issues could be resolved without trial and that the remaining issues could most effectively be handled by continuing the case until January, 1977. On January 3, 1977, this case was further continued on Skehan's motion to the March, 1977 list because of the sudden death of the wife of Skehan's counsel. On February 28, 1977, this Court granted Skehan's motion to continue the case to the April, 1977 list because another of his counsel was undergoing surgery. On January 10, 1977, the Court denied Skehan's motion for leave to submit additional testimony concerning whether the decision not to renew Skehan's contract after the 1970-71 year was based on a stance on campus issues with which the administration disagreed. On February 11, 1977, the Defendants filed a motion and a brief for judgment in their favor on this claim. On March 15, 1977, Skehan filed a motion and a brief for judgment in his favor on this issue. On March 24, 1977, the Court issued an Opinion which found that the non-renewal of Skehan's contract did not stem from his stance on campus issues.
On April 14 and 15, 1977, the Court as required by the Court of Appeals heard testimony without a jury concerning whether the nature of Article 5e
of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College was contractual under Pennsylvania law. The Court further heard testimony and argument as to whether Skehan had a right to the procedures set forth in 5e and, if so, whether the Defendant Nossen acted in good faith in failing to provide Skehan with these procedures. The Court also heard evidence concerning Nossen's good faith in not affording Skehan a hearing prior to his termination in October, 1970. This Court has previously held that the failure to provide a hearing was a violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Skehan v. Board of Trustees of Bloomsburg State College, et al., 358 F. Supp. 430 (M.D.Pa.1973).
The 5e issue was never set forth in Skehan's complaint. In addition, it was never raised at the hearing in January, 1973. Counsel for both sides stated in open court on April 15, 1977 that the 5e issue was not raised, briefed, argued or alluded to before the Court of Appeals. The 5e issue first surfaced in the Opinion of the Court of Appeals. Failure to set forth the claim in any recognizable form in the complaint runs afoul of the specificity requirement imposed by the Court of Appeals in § 1983 cases. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976); Fialkowski v. Shapp, 405 F. Supp. 946 (E.D.Pa. 1975). Because the issue was never raised by the Plaintiff at any stage of the proceedings in this Court, the Court of Appeals or the United States Supreme Court, it was, in my view, clearly waived by him. Creation of the issue by the Court of Appeals is, in my view, not consistent with our jurisprudential system. G. H. McShane Company, Inc. v. McFadden, 554 F.2d 111 (3d Cir. 1977); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131 (3d Cir. 1977). Harbor Towing v. SS Calmar, 507 F.2d 720 (4th Cir. 1974); Hoblik et al. v. U.S., 151 F.2d 971, 972 (8th Cir. 1945). However, I have been directed by the Court of Appeals to consider the 5e issue and since I have taken an oath faithfully to perform all the duties incumbent upon me agreeably to the laws of the United States, I will treat the 5e issue as fully as if it had been alleged in the complaint, had been considered and decided adversely to the Plaintiff at the first trial, and had been briefed, argued, and decided in Plaintiff's favor on appeal.
1. Plaintiff Joseph T. Skehan was Associate Professor of Economics at Bloomsburg State College appointed in January, 1969.
2. Defendant Nossen was at all times pertinent to this case President of the College.
3. At the April 26, 1968 meeting of the Board of Trustees of Bloomsburg State College, the Trustees voted unanimously to adopt the "Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College," effective September 1, 1968. (Undisputed)
"Bloomsburg State College, wishing to insure the more effective services of faculty members, is willing to take steps to protect their economic security.
"The adoption of any policy regarding employment involves a voluntary limitation of authority of the President and the Board of Trustees * * *." (Undisputed)
5. The document "A Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College" provides that:
"As a citizen and a member of the teaching profession, the faculty member is entitled to speak and act with freedom from institutional censorship and discipline." (Undisputed)
6. The "Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg College" provides that "[it] is understood that this is a statement of policy which will be honored in all practical situations." (Undisputed)
7. A section of the Statement of Policy entitled "Legal Limitations and/or Revisions" provides, "All provisions herein stated will be held to be in effect unless found to contravene present or future statutes of the Commonwealth. If a revision of the policy is necessary, the revision shall be a matter of negotiation involving the President of the College, the Board of Trustees, and the Faculty." (Undisputed)
8. By memorandum dated February 3, 1969, to "New Faculty Members," the President of Bloomsburg State College requested that the recipients read the "Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College" and "date and sign the lower portion of this memorandum" and return it to the President's office. (Undisputed)
9. On March 4, 1969, Plaintiff signed and returned to the President's office the form attached to the "Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College" which recited that he had read the Statement. (Undisputed)
10. On July 27, 1970, Defendant Nossen wrote to Deputy Attorney General Williams concerning institution of a suit against the college by another college professor and enclosed a summary of Roth v. Board of Regents of State Colleges, 310 F. Supp. 972 (W.D.Wis.1970) which related to the constitutional rights of a non-tenured faculty member who was terminated without a prior hearing.
11. By letter dated August 6, 1970, Defendant Nossen wrote to the Associate Secretary of the American Association of University Professors and assured him that ". . . this college followed all appropriate procedures in the case of Dr. Maxwell Primack. When he asked for a hearing before the college Committee on Professional Affairs, he was granted that hearing, before the Professional Affairs Committee, which rejected his plea."
12. The Committee on Professional Affairs is described in the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College as a committee of the faculty. (Undisputed)
13. At its February 27, 1970, meeting, the Board of Trustees voted unanimously to accept the recommendation of Defendant Nossen, based upon "a unanimous evaluation by the Department Chairman, Division Director and Dean of Instruction," that Plaintiff be notified that he was reappointed for the 1970-71 academic year, with that year being the terminal year of his appointment. (Undisputed)
14. In February, 1970, Dr. Hoch, Dean of Instruction, orally informed Skehan that he was recommending that he not be renewed beyond June, 1971.
15. Defendant Nossen did not consult legal counsel regarding the decision not to renew Plaintiff's appointment for the 1971-72 academic year. (Undisputed)
17. Defendant Nossen did not consult legal counsel at any time prior to his dismissal of Plaintiff concerning the meaning of Article 5e of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College.
18. The Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College in para. 4 provides that "[during] the second academic year of the probationary period, the President of the College shall inform the faculty member on or before December 15, whether or not his services will be desired for the following academic year. The faculty member shall indicate in writing his acceptance of the appointment within ten (10) days." (Undisputed)
19. Defendant Nossen's letter of May 19, 1970, in which he notified Plaintiff of the Board of Trustees' action confirming Plaintiff's non-renewal, included at the bottom the following statement which Plaintiff was requested to fill out, sign, and return to Defendant Nossen's office:
"I accept decline the offer of reappointment for the 1970-71 academic year and understand that this is the terminal year of employment at Bloomsburg State College.
Date Signed " (Undisputed)
20. By letter dated May 29, 1970, Plaintiff informed Defendant Nossen that "[according] to the provisions on page three of Bloomsburg State's 'Statement of Policy for Continuous Employment and Academic Freedom,' I have a reappointment for the Academic year 1970-71. * * * I intend to fulfill the 1970-71 appointment." (Undisputed)
21. By letter dated June 1, 1970, Defendant Nossen informed Plaintiff that he could not accept his letter of May 29, 1970, as an acceptance of reappointment for the coming year, and that if Plaintiff did not sign the offer of appointment sent to him, he could ...