that that was not a problem and he would make arrangements for such a meeting. Tr. pp. 182-83.
71. Major Titler called the Commissioner after talking with plaintiff on April 17 and told him that plaintiff was going to resign from the State Police and that he wanted to talk to the Commissioner. The Commissioner told Major Titler to have him contact his Administrative Secretary, Mrs. Wise, and she would set up an appointment for him. In his phone call concerning Trooper DeWalt's desire to meet with the Commissioner, the only message given to Major Titler for plaintiff from Commissioner Barger was the information as to whom to contact to set up an appointment. Tr. pp. 203, 183, 21.
72. On April 18, Major Titler called plaintiff to tell him that, in response to his request, Commissioner Barger had agreed to meet with him. Tr. pp. 183, 189, 21.
73. Major Titler made arrangements for plaintiff to be driven to Harrisburg to meet with Commissioner Barger on April 25, 1973. Tr. pp. 190, 21.
74. On April 25, 1973, Trooper DeWalt came to the Commissioner's office and the two met for approximately 30 minutes. During their discussion, Commissioner Barger stated that he did not think law enforcement officers should take the Fifth Amendment concerning their official duties; that a Disciplinary Action Board had recommended his suspension; that he would not go contrary to that recommendation; and that he was being treated the same as any other trooper would be treated. Tr. pp. 204-5.
75. The only direct contact Commissioner Barger had with plaintiff while he was a member of the State Police was on April 25, 1973. Tr. pp. 203, 214.
76. The only times Deputy Commissioner Wellendorf met with plaintiff while he was a member of the State Police were on January 31, May 8 and May 9, 1973. Tr. p. 274.
77. In their brief meeting on January 31, 1973, Deputy Commissioner Wellendorf tried to talk plaintiff out of resigning and made arrangements, in keeping with plaintiff's wishes, for him to be transferred to Hazleton. Tr. p. 264.
78. Shortly before May 8, 1973, Deputy Commissioner Wellendorf called plaintiff to inform him to come to the Deputy Commissioner's office on May 8, 1973, to discuss his return to duty. Tr. p. 268.
79. In their meeting on May 8, 1973, Deputy Commissioner Wellendorf informed him of the disciplinary action as stated above.
80. On May 9, 1973, plaintiff returned to Deputy Commissioner Wellendorf's office and informed him that he was resigning. The Deputy Commissioner again tried to talk him out of it but plaintiff had made up his mind. Colonel Wellendorf then arranged for plaintiff to see Major Hileman, their Personnel Officer, to give him whatever assistance he needed. Tr. p. 274.
81. On May 9, 1973, plaintiff resigned from the State Police. Tr. pp. 274, 35, 37, 57; P. Ex. 9.
82. In plaintiff's letter of resignation on May 9, 1973, he stated that his reasons for resigning were personal and that he realized that by resigning he could not be reinstated as a member of the State Police. This letter was personally signed by plaintiff. Tr. p. 57; P. Ex. 9.
83. Plaintiff had talked of resigning on numerous occasions prior to his meetings with the Commissioner and the Deputy Commissioner in late April and early May of 1973. Tr. pp. 104, 112, 128, 181-83, 295, 300.
84. At no time between the time plaintiff resigned on May 9, 1973, and the time the complaint was filed in May 1975 did he inform any of the defendants in this case that he thought that his resignation had been coerced. Tr. p. 58.
85. Plaintiff's resignation on May 9, 1973, was voluntary and not coerced.
In his complaint, plaintiff alleges that he was repeatedly requested by his superiors to give testimony that would implicate Urello, Luchansky, Guyette, and Kardash in the wiretap incident at the George Washington Motor Lodge in November 1972; that because he invoked his privilege under the Fifth Amendment and refused to testify before the court-martial of Luchansky, Guyette, and Kardash, he was indefinitely suspended and ultimately received a six week suspension without pay as well as an inter-troop transfer; that at the time he was temporarily suspended, no notice of the charges were given to him nor proper procedures followed; that he was never advised of the findings of the disciplinary board initiated to investigate his conduct; and that although he personally tendered his resignation in what appeared to be a voluntary manner, he was coerced to submit his resignation. Plaintiff further alleges that, as a result of defendant's actions, several of his constitutional and civil rights, which are listed in detail in Section I, have been violated. Plaintiff therefore requests that this court order the Pennsylvania State Police to reinstate him to his former position as Trooper with full back pay at 6% interest, to issue a declaratory judgment finding that defendants have violated his constitutional and civil rights, order defendants to pay punitive damages, and award him costs and reasonable attorney's fees.
1. Fifth Amendment Claim
Plaintiff claims that although he was permitted to invoke his Fifth Amendment privilege, on advice of counsel, at the court-martial proceedings of Luchansky, Guyette, and Kardash, his subsequent six week suspension and inter-troop transfer were punitive actions taken against him solely because he exercised his Fifth Amendment privilege. He claims such action has a chilling effect on the use of the Fifth Amendment and that a public employee may not be suspended or dismissed solely for exercising his Fifth Amendment privilege, citing Lefkowitz v. Cunningham, 431 U.S. 801, 97 S. Ct. 2132, 53 L. Ed. 2d 1 (1977); Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U.S. 280, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968), and Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968).
Plaintiff's interpretation of these cases is in error. It is clear that the Fifth Amendment privilege against self-incrimination should have been available to plaintiff in this case since its protection applies equally to civil and criminal proceedings, when testimony might later subject the witness to criminal prosecution. Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274 (1973); Malloy v. Hogan, 378 U.S. 1, 11, 84 S. Ct. 1489, 1495, 12 L. Ed. 2d 653 (1964). It is not as wide sweeping, however, as plaintiff would have this court believe. In Gardner, the question presented was "whether a policeman who refused to waive the protections which the privilege gave him could be dismissed from office because of that refusal." Id., 392 U.S. at 276, 88 S. Ct. at 1915. The Court found that the plaintiff may not be "dismissed solely for his refusal to waive immunity to which he is entitled if he is required to testify despite his constitutional privilege." Id. at 278, 88 S. Ct. at 1916. (emphasis added). The companion case, Uniformed Sanitation Men Assn., supra, also involved persons who were "dismissed for invoking and refusing to waive their constitutional right against self-incrimination." Id. 392 U.S. at 283, 88 S. Ct. at 1919. In Cunningham, supra, the court reaffirmed and clarified the rule in Gardner, stating
Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity. Lefkowitz, supra, 431 U.S. at 806, 97 S. Ct. at 2136. (emphasis added).
This case, however, is in sharp contrast to the factual situation in Gardner, Sanitation Men, Turley, and Cunningham.
Defendant in the instant case was not suspended because he refused to testify and waive his immunity from use of that testimony in subsequent criminal prosecutions, but solely because he refused to testify. Whereas in Gardner, Sanitation Men, Turley, and Cunningham the plaintiffs were required to give up the immunity afforded by the Fifth Amendment or risk losing their livelihood, plaintiff here was faced with either testifying, which testimony could not later be used in criminal prosecution against him under Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), or refuse to testify and face the consequences of suspension or dismissal. He was not compelled to waive his Fifth Amendment immunity.
Such an interpretation of the law was supported by Judge Sirica in Pinkney v. District of Columbia, 439 F. Supp. 519 (D.D.C.1977), wherein he accurately summarized the situation as follows:
To be sure, this choice placed plaintiff on the horns of a dilemma and burdened him in the exercise of his fifth amendment right to remain silent. But under Gardner and its progeny the choice that plaintiff was faced with simply does not rise to constitutional proportions. Id. at 534.