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D'IORIO v. COUNTY OF DELAWARE

February 22, 1978

LOU J. D'IORIO
v.
COUNTY OF DELAWARE and FAITH RYAN WHITTLESEY, CHARLES C. KEELER and WILLIAM A. SPINGLER, Members of the County Council of the County of Delaware, and FRANK T. HAZEL, District Attorney for the County of Delaware



The opinion of the court was delivered by: LORD, III

 JOSEPH S. LORD, III, CH. J.

 Plaintiff has brought this civil rights action pursuant to 42 U.S.C. § 1983 asserting that he has been wrongfully dismissed from his employment as a county detective by the defendants and requesting equitable relief and damages. Plaintiff avers that the procedures by which his employment was terminated were arbitrary and capricious, lacked procedural due process, and thus were violative of his rights guaranteed by the Fourteenth Amendment to the United States Constitution. Defendants have filed motions to dismiss and a final hearing was held on April 22, 1977. Based upon the evidence elicited at the hearing I make the following findings and conclusions.

 1. Plaintiff was employed by the District Attorney's office of Delaware County ("County") on March 1, 1970, pursuant to an oral contract. Plaintiff was assigned to the Criminal Investigation Division ("C.I.D.") as a county detective. D'Iorio was hired by Rocco Urella, then head of the C.I.D., and was placed on probationary status for three months. After this probationary period, plaintiff was informed by Urella that he was a permanent employee of the County.

 2. Plaintiff remained in this position as a county detective until February 27, 1976, when he was dismissed by defendant Frank T. Hazel, District Attorney for the County. The reason given by defendant Hazel for plaintiff's dismissal was that a photograph of plaintiff was discovered in the possession of two individuals, who were known to have extensive criminal records, during the course of a drug raid conducted by other county, state and federal agents. Defendant Hazel stated that he believed discovery of this photograph placed the District Attorney's office in a compromising position and adversely affected the relationship between his office and other law enforcement agencies.

 3. On February 26, 1976, Hazel called D'Iorio to a meeting in order to afford plaintiff an opportunity to explain the circumstances surrounding the photograph. Before defendant Hazel terminated plaintiff's employment on February 27, 1976, plaintiff requested and was denied a hearing.

 4. On February 27, 1976, defendants Whittlesey, Keeler and Spingler were members of the County Council of the County of Delaware ("Council"). These members of Council took no action before plaintiff was terminated and have not officially approved the action taken by defendant Hazel.

 5. Since his termination, D'Iorio has worked sporadically and has had substantial difficulty in securing new employment.

 6. By referendum in May, 1975, the voters of the County adopted a Home Rule Charter ("Charter") to become effective January 5, 1976. Section 1211(b) of the Charter provides:

 
"All employees of the county on December 31, 1975, except those holding offices abolished by this charter, shall continue in employment, at rates of compensation during the year 1976 not lower than their salary levels existing on December 31, 1975, until succeeded or removed by action of Council."

 The Charter also requires that Council approve and enact a County Administrative Code ("Administrative Code") no later than December 31, 1976. This Administrative Code should include procedures for implementing a merit employment system. Charter, § 1002. At the time plaintiff was fired from his position, the Administrative Code was not in existence.

 7. Section 503 of the Charter provides that the District Attorney shall appoint and supervise the employees of the C.I.D., including county detectives. This section does not specify that the District Attorney has the power to discharge county detectives. Section 1014 enumerates positions which are exempted from the merit procedures; county detectives are not included in that exemption.

 8. The reason for plaintiff's dismissal has been widely circulated in the community, including articles appearing in the Philadelphia Inquirer of March 7, 1976, and the Philadelphia Magazine of July, 1976. On March 29, 1976, defendant Hazel detailed the reason for Mr. D'Iorio's removal in a letter to the Unemployment Compensation Supervisor of the Bureau of Employment Security.

 9. Before instituting this federal action, plaintiff filed suit in state court in which he claimed wrongful discharge and demanded money damages. Plaintiff has voluntarily discontinued that action.

 II. DISCUSSION:

 Plaintiff claims that defendants' actions have resulted in a deprivation of both a property interest and a liberty interest. He asserts his property interest arises from the Charter, which provides for a merit system of employment, citing Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). He asserts his liberty interest has been affected in that his discharge raises a question of his professional competency, thereby placing a moral stigma upon him and adversely affecting his ability to seek new employment in the future, citing Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).

 Defendants deny that any property or liberty interest of plaintiff has been infringed by their action. They assert that plaintiff had no property interest in his job because he was an employee at will and therefore could be dismissed without the procedural protection required by the Fourteenth Amendment. They argue that the merit procedures referred to in the Charter were not applicable to plaintiff because the Administrative Code was not in existence at the time of plaintiff's dismissal. Defendant Hazel further asserts that even if the merit procedures should be retroactively applied, they would not pertain to a dismissal of plaintiff. Instead, Hazel argues that D'Iorio was not "personnel" in a position covered by the Administrative Code because pursuant to § 503(b) of the Charter the District Attorney had sole authority to appoint and supervise county detectives. Defendants deny that any liberty interest of D'Iorio has been affected by their actions, analogizing his situation to that of the plaintiff in Roth.1 In their motions to dismiss defendants also assert: (1) the County is not a "person" and therefore cannot be sued under 42 U.S.C. § 1983; (2) this court lacks jurisdiction over the claim; (3) the individual defendants are immune from suit under the Supreme Court holding in Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); (4) the members of Council are immune from suit because this is a suit against the County; and (5) this court should abstain from reaching the constitutional questions under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) and Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941).

 I need not decide whether plaintiff had a property or liberty interest which would require defendants to afford him a hearing before discharge, because I conclude that the failure of Council to authorize plaintiff's dismissal is itself a denial of due process. As to defendants' other contentions in their motions to dismiss, I find they are ...


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