The opinion of the court was delivered by: LUONGO
William J. Hoopes filed the complaint in this civil rights action on April 4, 1979. Hoopes, who formerly served as Chief of Police of the City of Chester, Pennsylvania, alleges that he was demoted to the rank of Inspector solely because he cooperated with federal law-enforcement authorities in the investigation and prosecution of John H. Nacrelli, the former Mayor of Chester. The complaint seeks damages under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(c) (1976). Hoopes also asserts a pendent claim under Pennsylvania libel law. Defendants are the City of Chester (a city of the third class under Pennsylvania law), John H. Nacrelli (sued individually and as Mayor and President of the City Council of Chester), Clinton L. Johnson, Michael D. Macneilly, Alexander V. Osowski, and James L. Sharp (sued individually and as councilmen of the City of Chester), and the City Council of the City of Chester. Presently before me is defendants' motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). For the reasons hereafter stated, I conclude that the motion should be granted in part and denied in part.
The complaint alleges the following facts, which are taken as true for the purposes of this motion. See, e.g., Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977); 2A Moore's Federal Practice P 12.08 at 2266-67 (2d ed. 1948). "Prior to November 9, 1978, plaintiff was the Chief of Police of the City of Chester." Complaint (Document No. 1) P 11. At some point in 1977, defendant Nacrelli, who was then Mayor of the City of Chester, "became the subject of a criminal investigation by the federal government." Id. P 12. Plaintiff cooperated with the federal authorities who conducted this investigation. Id. As a result of the investigation, a federal grand jury in the Eastern District of Pennsylvania indicted Nacrelli in 1978 on charges of "bribery, conspiracy, racketeering, income tax evasion and other crimes." Id. P 13. The case, docketed as Criminal No. 78-165, was assigned to the Honorable Raymond J. Broderick.
"15. During the course of this investigation, and both prior to and subsequent to the indictment of the Defendant Nacrelli, the defendants conspired with each other to deprive the plaintiff of his Constitutional rights by engaging in a campaign through a series of letters exchanged, and otherwise, giving the plaintiff directives under force of law to investigate certain allegations that had reference to the investigation, and further, the said defendants interrogated plaintiff under the guise of conducting their own investigation and demanded that plaintiff provide defendants with information that had been uncovered during the investigations into the activity of the Defendant Nacrelli in an effort to compromise and jeopardize (plaintiff's) role in the aforesaid (federal) investigation, and further, with the intention to interfere in that investigation and deprive the plaintiff of and chill the exercise of his First Amendment rights . . . specifically, plaintiff's right to testify.
16. As a result of the aforesaid investigation conducted by the defendants, at a time when the above-mentioned federal investigation was occurring, plaintiff was torn between his obligations as Chief of Police of the City of Chester and his obligations as a component part of the aforesaid Federal investigation into the activity of Defendant Nacrelli.
17. The defendants' efforts towards eliciting information concerning the federal investigation from plaintiff was (Sic ) designed to make it difficult for plaintiff to continue his part in the federal investigation, and further, was (Sic ) designed to discover the federal case against Defendant Nacrelli, all of which activity on the part of defendants resulted in plaintiff being placed in a position where his Constitutional rights, as aforesaid, were violated.
18. During the course of defendants' investigation of plaintiff's activities, special independent counsel was engaged by the defendants to assist in the defendants' investigation of plaintiff, and to make a final report to defendants. In that final report, special counsel filed his report that no action be taken against plaintiff inasmuch as plaintiff acted in good faith in cooperating with other law enforcement agencies and officials. The said report was dated May 31, 1978.
19. Notwithstanding the written report filed by special independent counsel, the defendants continued to persist in extracting from plaintiff further evidence of the government's case against the defendant Nacrelli and directed plaintiff to again commence an extensive investigation designed to frustrate the plaintiff's position in reference to the ongoing federal investigation, and to further obtain discovery of the federal criminal case against Defendant Nacrelli."
In September of 1978, the Government presented its case against Nacrelli to the jury in a lengthy trial. Hoopes "was called upon to testify and did testify on behalf of the government on September 21, 1978, and September 22, 1978" at this trial. Id. P 20. The jury failed to agree on a verdict, however, and Judge Broderick then declared a mistrial. Id. Nacrelli later discharged plaintiff as Chief of Police, and demoted him to the rank of inspector, by letter dated November 9, 1978. Exhibit A to Complaint. Nacrelli took this action solely because plaintiff had cooperated with the federal investigators and had testified as a prosecution witness during the trial. Complaint P 21. At this point, William Hamilton became the Acting Chief of Police. Id. P 23.
In January of 1979, the Government presented its case against Nacrelli during a second trial, during which "plaintiff again testified for the government." Id. P 22. See generally United States v. Nacrelli, 468 F. Supp. 241, 244-47 (E.D.Pa.1979). At the close of this trial, the jury returned a verdict of guilty on all counts. Complaint P 22. On March 21, 1979, defendant City Council of the City of Chester "made William Hamilton the permanent Chief of Police and failed to restore plaintiff to that position." Id. P 23. Hoopes then filed this complaint on April 4, 1979.
The complaint asserts two distinct claims for damages. First, Hoopes contends that defendants demoted him solely because he cooperated with the federal investigators and testified as a prosecution witness at Nacrelli's trial. As this activity fell within the first amendment guarantee of freedom of expression, Hoopes argues, defendants acted unlawfully when they demoted him in retaliation for that activity, and they are therefore liable under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(c) (1976). Hoopes also asserts a pendent state-law tort claim. In this connection, he urges that Nacrelli's letter of November 9, 1978, which allegedly gave false and defamatory reasons for Nacrelli's decision to demote Hoopes, was libelous under Pennsylvania law. Complaint P 32-40.
Defendants seek dismissal of the entire complaint. They advance a number of separate arguments, some of which apply only to certain defendants. I shall consider each of defendants' contentions in turn.
Initially, all defendants move to dismiss Hoopes' claim under 42 U.S.C. § 1985(c) (1976). As they quite properly point out, section 1985(c) imposes liability only where there is "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971) (footnote omitted); See, e.g., Carchman v. Korman Corp., 594 F.2d 354 (3d Cir. 1979) (per curiam), Petition for cert. filed, 48 U.S.L.W. 3001 (U.S. June 25, 1979) (No. 78-1909); Novotny v. Great Am. Fed. Sav. & Loan Ass'n, 584 F.2d 1235, 1240-41 (3d Cir. 1978) (en banc), Rev'd on other grounds, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). Defendants also note, again quite properly, that Hoopes' complaint alleges no such animus. Plaintiff concedes as much, and asserts that he is "willing to enter into a voluntary dismissal" of the section 1985(c) claim under Rule 41(a)(1). Plaintiff's Brief in Opposition (Document No. 6) at 18. Such a dismissal, by the terms of Rule 41(a)(1), would ordinarily be without prejudice. At oral argument, however, plaintiff's counsel conceded that the complaint clearly fails to state a claim under section 1985(c), and that it could properly be dismissed under Rule 12(b)(6). Accordingly, rather than waiting for plaintiff to effect a voluntary dismissal under Rule 41(a)(1), I shall simply enter an order dismissing this claim under Rule 12(b)(6).
Defendants' remaining arguments, with one exception,
are directed at Hoopes' section 1983 claim. Defendants contend, first of all, that Hoopes was deprived of neither "property" nor "liberty," within the meaning of the fourteenth amendment, so that his section 1983 claim cannot rest on an alleged deprivation of any rights secured to him by the fourteenth amendment. This argument is largely beside the point. Hoopes fully concedes that, under state law, Nacrelli was free to demote him at any time, with or without cause, and that he had no "property" interest in his position as Chief of Police. See Pa.Stat.Ann., tit. 53, § 37002 (Purdon Supp.1979) (Third Class City Code). Nor does Hoopes argue that defendants deprived him of a "liberty" interest in reputation without affording him procedural due process. See generally Paul v. Davis, 424 U.S. 693, 701-10, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). Rather, Hoopes relies on the due process clause of the fourteenth amendment only because it incorporates the first amendment guarantee of freedom of expression, thereby limiting the power of state and local officials to impinge upon protected speech or expression. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 749 n. 1, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). Thus, although Hoopes could have been demoted for no reason at all, and although he was not entitled to a hearing in connection with his demotion, his rights may nevertheless have been violated if, as he alleges, the decision to demote him was made because he engaged in constitutionally protected expression. See Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 596-98, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
The question, then, is whether Hoopes was demoted because he engaged in protected speech or expression. I have little difficulty with the notion that a member of the General public who assists in a federal criminal investigation, and then testifies as a prosecution witness at the trial, is engaging in activity that is protected by the first amendment. Indeed, defendants do not dispute this point. It is clear, however, that public employees enjoy a somewhat narrower range of protected expression than do members of the general public. See, e.g., Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973); Gasparinetti v. Kerr, 568 F.2d 311, 315 (3d Cir. 1977), Cert. denied, 436 U.S. 903, 98 S. Ct. 2232, 56 L. Ed. 2d 401 (1978); Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976), Cert. denied, 431 U.S. 937, 97 S. Ct. 2649, 53 L. Ed. 2d 255 (1977); Kannisto v. City and County of San Francisco, 541 F.2d 841 (9th Cir. 1976), Cert. denied, 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775 (1977). Defendants urge that Hoopes, as a public employee, may not claim the protection of the first amendment in the particular factual context of this case. I shall now proceed to address that contention.
The Supreme Court has adopted "a broad balancing test as the controlling constitutional doctrine" in this area. T. Emerson, The System of Freedom of Expression 581 (1970). In order to determine whether a public employee's speech or expression is protected by the first amendment, a court must weigh "the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35, 20 L. Ed. 2d 811 (1968); See Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979); Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). See also Z. Chafee, Free Speech in the United ...