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January 31, 1980

NICHOLAS D. MARINO V. G. ROGER BOWERS, GEORGE M. METZGER, JOSEPH F. CATANIA and JOHN WELSH Individually and as Members of the Board of Commissioners of Bucks County

The opinion of the court was delivered by: LUONGO

Plaintiff in this civil rights action was fired from his position as maintenance manager of parks and recreation for Bucks County, Pennsylvania, on February 10, 1976, by defendants, all present or former members of the Bucks County Board of Commissioners. Marino alleges that he was fired solely because he is a member of the Democratic party, and does not support the Republican party, to which all of the defendants belong. On June 29, 1979, Marino filed this suit, contending that his dismissal violated his First Amendment rights to free speech and political association; denied him due process of law; and violated 42 U.S.C. ยงยง 1983, 1985, 1986, and 1988. Defendants move to dismiss the complaint under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief can be granted.

 Defendants first argue that Marino has failed to state a claim under the First Amendment, because Marino's dismissal was lawful under federal and Pennsylvania law when it occurred, and the landmark decision of Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), which held "patronage" dismissals unconstitutional, should not be given retroactive effect. Elrod was not decided until June 26, 1976, more than four months after Marino had been fired. The factors to be considered in determining whether a precedent-setting decision should be applied retroactively are set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971):

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation." Finally, we have weighed the inequity imposed by retroactive application, for "(w)here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship' by a holding of nonretroactivity.
404 U.S. at 106-07, 92 S. Ct. at 355 (citations omitted).

 With respect to the first criterion, I am satisfied that Elrod decided an "issue of first impression whose resolution was not clearly foreshadowed." Until Elrod, it was plain that dismissal of "at will" employees for patronage purposes was permissible under Pennsylvania law. AFSCME v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971). See Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960); Mahoney v. Philadelphia Housing Authority, 13 Pa.Comm. 243, 320 A.2d 459 (1974). Numerous federal courts had also rejected constitutional challenges to such dismissals. Nunnery v. Barber, 503 F.2d 1349 (4th Cir.), cert. denied, 420 U.S. 1005, 95 S. Ct. 1448, 43 L. Ed. 2d 763 (1974); Alomar v. Dwyer, 447 F.2d 482 (2d Cir. 1971), cert. denied, 404 U.S. 1020, 92 S. Ct. 683, 30 L. Ed. 2d 667 (1972); Young v. Coder, 346 F. Supp. 165 (M.D.Pa.1972); Mason v. Delaware County, 331 F. Supp. 1010 (E.D.Pa.1971); Norton v. Blaylock, 285 F. Supp. 659 (D.Ark.1968), affirmed, 409 F.2d 772 (8th Cir. 1969). The dissenters in Elrod emphasized the majority's radical break from precedent as an argument against declaring patronage firings unconstitutional. (Burger, C. J., Dissenting), 427 U.S. at 325, 96 S. Ct. 2673; (Powell, J., Dissenting), 427 U.S. at 376-77, 96 S. Ct. 2673.

 Marino argues that the defendants should have foreseen the holding of Elrod, because one circuit court of appeals had already ruled patronage firings unconstitutional before he was fired, Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 943, 93 S. Ct. 1370, 35 L. Ed. 2d 609 (1973), and because the Supreme Court had granted certiorari in Elrod. However, "(e)very decision of the Supreme Court is foreshadowed to some extent by the fact that an issue is sufficiently unsettled to be litigated to the point of review before the Court. Obviously, this is not sufficient to deem the decision retroactive, or there would be no retroactivity doctrine." Raggio v. Matunis, 489 F. Supp. 16 (E.D.Pa. 1979), (Cahn, J.), slip op. at 3-4.

 Regarding the second Huson criterion, Marino contends that Elrod must be applied retroactively in order to remedy past wrongful firings. However, the second element of the Huson test is not whether retroactivity is essential to cure past "injustice," a test which would require retroactive application in most instances. Rather, the test is whether retroactivity is necessary to accomplish the purpose of the Elrod decision, and I see no reason why retroactive application is necessary to insure future adherence to the Elrod rule. Ramey v. Harber, 589 F.2d 753, 758 (4th Cir. 1978); Litwhiler v. Hidlay, 429 F. Supp. 984, 986 (M.D.Pa.1977).

 With respect to the third criterion set forth in Huson, Marino argues that there is no evidence of record that retroactive application of Elrod would work substantial hardship on the defendants or on third parties. Notwithstanding that there may be no personal liability on the individual defendants, retroactive application would nevertheless produce inequitable results, particularly as to third parties. Patronage dismissals have long been recognized as lawful, and the defendants, as well as other government officials similarly situated, have relied upon this rule of law in hiring and firing. Retroactive application of Elrod would effectively penalize those who relied upon prior law. Moreover, it is clear that reinstatement of Marino would require either that his successor be dismissed, or that Bucks County taxpayers be saddled with more than one maintenance manager of parks and recreation.

 Marino alleges in his complaint that patronage hiring is a practice of long-standing in Bucks County, and it is plain from this and other allegations that he was himself a patronage employee. Marino stresses the "injustice" of his firing, but I am inclined to agree with the Pennsylvania Supreme Court that, as an equitable matter, "(t)hose who, figuratively speaking, live by the political sword must be prepared to die by the political sword." AFSCME v. Shapp, supra, 443 Pa. at 536, 280 A.2d at 378. See also Raggio v. Matunis, supra, slip op. at 4.

 Finally, I must consider the severe impact of retroactivity upon the workload of the courts. Ramey, supra, 589 F.2d at 760. Marino asserts that retroactive application of Elrod will not result in a flood of lawsuits because most claimants will be barred by the statute of limitations. However, Marino himself brought suit more than three years after his dismissal, and given the prevalence of patronage, there are countless other potential plaintiffs who could, if Elrod were retroactive, bring similar suits.

 Only one federal court to date has explicitly held Elrod to be retroactive. Retail Clerks Intern. Assoc. v. Leonard, 450 F. Supp. 663 (E.D.Pa.1978). As I noted in Boyce v. School District of Philadelphia, 447 F. Supp. 357, 360-61 (E.D.Pa.1978), I believe that in reaching this conclusion the Leonard court misinterpreted Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir. 1977). In my view, the circuit court never reached the issue of retroactivity in Rosenthal, so that it is not authoritative precedent on this issue. Accord, Ramey v. Harber, supra; Raggio v. Matunis, supra.

 The other federal courts which have considered the retroactivity issue have all held Elrod nonretroactive. Ramey v. Harber, supra; Raggio v. Matunis, supra; Litwhiler v. Hilday, supra. Having analyzed Elrod in accordance with the Supreme Court's criteria in Huson, I agree that it should not be given retroactive effect.

 Marino further argues that even if Elrod is not retroactive, earlier First Amendment decisions support his cause of action. Specifically, he relies upon Boyce v. School District of Philadelphia, supra, in which I held that a School District employee's allegations that she was fired in retaliation for making statements critical of the city administration stated a cause of action under Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. ...

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