The opinion of the court was delivered by: COHILL
This action was filed by plaintiff, Fred Prochaska, as a result of his five-day suspension from the Lawrence County Child Welfare Services (CWS) payroll on February 25, 1977. While a caseworker at CWS plaintiff had been assigned to the case of Debra W., a juvenile, who was adjudged to be an habitual truant and who was committed to Gannondale School for Girls, Erie, Pennsylvania, by Judge John Henderson, sitting in the juvenile court of Lawrence County. Plaintiff had been critical of that decision, believing that both the actions of his superiors at CWS and the court order were illegal and not in conformity with the Department of Public Welfare Regulations and the Juvenile Act of Pennsylvania. Suing under 42 U.S.C. §§ 1983 and 1985, plaintiff sought a temporary restraining order to prevent his suspension, which we refused after a hearing. Plaintiff avers that he was unlawfully suspended by defendants John Fediaczko, the CWS Administrator, and the three Lawrence County Commissioners, John A. Meehan, Thomas A. Shumaker and Frank A. Vitril.
We now have a Motion for Summary Judgment, submitted by defendant Frank Vitril on the ground that he was not personally involved in the suspension of the plaintiff, and therefore cannot be held liable for depriving plaintiff of his constitutional rights.
On February 24, 1977, plaintiff received a letter from the Commissioners, informing him of their approval of administrator Fediaczko's request for plaintiff's suspension for five days for insubordination. Defendants Meehan and Shumaker had met with plaintiff and Fediaczko on February 24, 1977, to discuss the matter, and only they had signed the letter.
Plaintiff claims that the actual reason for his suspension is contrary to the reasons set forth in the letter of suspension. He alleges that his suspension was authorized in retribution for his exercise of his First Amendment free speech rights and for his expressing his opinion as to the proper disposition of the case of Debra W.
Defendant Vitril assets that there are no material facts in dispute concerning his personal involvement in plaintiff's suspension. Vitril's list of uncontroverted facts in support of his motion includes:
1. Vitril was hospitalized from February 20, 1977 to February 24, 1977, and did not return to his office until February 28, 1977, the first day of plaintiff's five-day suspension.
2. The decision to suspend plaintiff was made at the February 24, 1977 meeting, at which plaintiff was present along with Commissioners Meehan and Shumaker only; since Vitril was not present, he did not vote nor participate in this decision.
3. Vitril had no contact with the other defendants at the time that the decision to suspend plaintiff occurred and did not consult with the other defendants about the decision to suspend plaintiff.
In light of these facts he argues that it is therefore uncontroverted that he was not in any way personally involved in the decision to suspend the plaintiff and, thus, he is entitled to a summary judgment as a matter of law.
Plaintiff concedes that defendant Vitril was absent from the February 24, 1977 meeting and that Vitril's signature does not appear on the Commissioners' letter of suspension addressed to plaintiff. Nevertheless, plaintiff argues that the question of Vitril's personal involvement in the suspension remains a disputable fact, arguing that Vitril mistakenly assumes that the decision to suspend actually and unquestionably occurred at the meeting of February 24, 1977, during the time of Vitril's hospitalization. Plaintiff avers that the decision to suspend him might have occurred and in all probability did occur prior to the defendant's hospitalization. Assuming Arguendo that this is what happened, then the February 24 meeting may have been nothing more than a mere formality.
In his deposition, plaintiff recalled that Vitril had been emphatic that plaintiff should not question Judge Henderson's order concerning the Debra W. case. Plaintiff alleges that Vitril during this discussion "threatened me repeatedly with termination or suspension if I did not cease and desist from speaking out against the agency position." Plaintiff has claimed that at the January 24 meeting Vitril assumed the ...