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August 23, 1979


The opinion of the court was delivered by: HUYETT


Plaintiff John R. Harley has brought this civil rights action, raising a variety of theories in support of his request for relief. Defendants filed a motion to dismiss on several grounds. We ruled earlier on several portions of this motion, denying the motion to dismiss with respect to a number of plaintiff's claims. *fn1" However, other issues remained, and we believed further briefing by the parties would be helpful. There now remain before us essentially two issues for decision: first, whether the right to refuse to perform an unconstitutional act is a "right, privilege, or immunity secured by the Constitution and laws" within the meaning of 42 U.S.C. § 1983; and second, whether the plaintiff has the right to proceed against Schuylkill County for damages under either the Pennsylvania Constitution or the fourteenth amendment of the United States Constitution.


 Plaintiff determined that Hennessey intended to refuse to stand check again, and that at that time, under the circumstances, the only way that the "check could be effectuated would have been to use unwarranted force, which would aggravate Hennessey's injuries." (P 18 of Plaintiff's Complaint) Plaintiff then proceeded, at the time of the first check, to secure Hennessey's cell and file a conduct report instead of forcing Hennessey to stand check. (P P 19 and 20 of Plaintiff's Complaint)

 Later that evening, plaintiff informed Dooley of these events and stated that in plaintiff's opinion further physical abuse of Hennessey would be illegal and improper under the circumstances. (P 21 of Plaintiff's Complaint) Dooley stated that he wanted Hennessey to stand check no matter what the circumstances and insisted that Hennessey be dragged from his cell. (P 22 of Plaintiff's Complaint) Plaintiff continued to refuse to obey this order because he felt that it was immoral and illegal. The complaint further alleged that the orders given by Dooley were unconstitutional, and that "their effectuation deprived Hennessey of his Fourth, Eighth, and Fourteenth Amendment Rights under the Constitution of the United States, and such orders, if carried out by plaintiff, would have subjected plaintiff to liability for such unconstitutional acts." (P 27 of Plaintiff's Complaint)

 Subsequently, plaintiff and other guards met with the Schuylkill County Commissioners to discuss this incident. The meeting ended without resolution of the issues; however, the Commissioners stated that they would investigate the incident and notify plaintiff and the other guards of the results of the investigation. (PP 28 through 30 of Plaintiff's Complaint) Plaintiff alleges that at no time during this meeting was he given notice of any charge for which he might be dismissed, nor was he given the opportunity to address any such charge. (PP 31 and 32 of Plaintiff's Complaint) Later, plaintiff was informed that he was discharged, but given no reasons for his discharge.

 However, the Commissioners' reasons for discharging plaintiff were widely reported in area newspaper articles. According to those reports, plaintiff was discharged for causing dissension between Dooley and the guards in the second shift. (P 35 of Plaintiff's Complaint) One of the defendants also appeared on a radio talk show and stated that plaintiff was dismissed for insubordination. (P 36 of Plaintiff's Complaint) Plaintiff alleges that the reasons given for his discharge were false. Finally, plaintiff alleges that, as a result of his discharge and the resultant injury to his good name and reputation, he was unable to find employment for approximately one year. (P 40 of Plaintiff's Complaint) Additionally, plaintiff alleges that his political affiliation was a substantial factor in his discharge. (P 41 of Plaintiff's Complaint)

 Plaintiff alleges that his discharge was wrongful in that it was a deprivation of his liberty interest without according him due process of law; it constituted a violation of plaintiff's rights under the first amendment; it was based upon his refusal to perform an unconstitutional act; and it constituted a violation of rights secured under the Pennsylvania Constitution. Several of these issues have been dealt with previously, as noted above. We are here concerned only with the viability of plaintiff's claim that his dismissal was based upon the refusal to perform an unconstitutional act and the liability of the County for the constitutional torts of its employees.

 Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 on the grounds that he was discharged for refusing to perform an unconstitutional act. In connection with this claim, it is important to note that plaintiff is Not seeking to vindicate prisoner Hennessey's constitutional rights. Rather, plaintiff is asserting a right personal to him; the right to refuse an order which would result in the violation of another's constitutional rights. The question presented here is whether this "right" is a "right(s), privilege(s), or immunity secured by the Constitution and laws" as required by 42 U.S.C. § 1983.

 At first blush, this question would appear to be one for which there is a simple answer, buttressed by a plethora of authority. In fact, there are surprisingly few authorities on this issue, and we could locate no case which discusses the matter in any great depth. See, e.g., Parrish v. Civil Service Commission of County of Alameda, 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223 (1967) (holds that there is a right to refuse to obey an unconstitutional order; however, it is not clear from this case whether this right is secured by the United States Constitution); R. Vaughn, Public Employees and the Right to Disobey, 29 Hastings L.J. 261 (1977). Despite the absence of authority, however, we are confident that the right to refuse to violate another's federal constitutional rights is a right secured by the constitution.

 We start with the proposition that no rights are created by § 1983; that section was enacted only "to ensure that an individual ha(s) a cause of action for violations of the Constitution." Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979). Therefore, any rights sought to be vindicated under § 1983 must have their source in the constitution itself. *fn2"

 Under the facts as alleged in the complaint, plaintiff would have been liable for a deprivation of Hennessey's constitutional rights if he had proceeded to obey the order given to him. See, e. g, Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973). To put the matter another way, plaintiff had a clear duty under the constitution to refrain from acting in a manner that would deprive Hennessey of his constitutional rights. If plaintiff is under a Duty to refrain from performing an act, then we believe that he has the concurrent ...

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