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April 21, 1982

Abraham K. ABRAHAM
James W. PEKARSKI, et al.

The opinion of the court was delivered by: BECKER



 This civil rights action was brought by the former Director of Roads and Public Property of Bristol Township, Bucks County, Pennsylvania, against the Township and the members of its Board of Commissioners, seeking to redress his discharge which had been prompted by plaintiff's refusal to deny the services of his department to wards served by Commissioners unallied with the Board's dominant political faction. This opinion addresses defendants' motion for summary judgment which has raised two important questions. The first question is whether the doctrines of Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), protect the First Amendment associational rights of a nonpartisan and politically unaffiliated employee whose employment is terminated for disobeying orders that he deems "political" and contrary to the public interest. As will be seen, we answer that question in the negative. The second question is whether a governing Township ordinance providing that "no person shall be discharged without just cause," when read in conjunction with sections of the Pennsylvania Local Agency Law, providing that no action "affecting ... property rights" shall be valid unless the affected party has notice and a hearing, gives plaintiff a property right in his public employment protected by the Fourteenth Amendment's due process clause. As will be seen, at this stage of the litigation, we answer that question affirmatively.

 Rule 56 of the Federal Rules of Civil Procedure permits a grant of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden of demonstrating the absence of any genuine issue of material fact rests on the moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). The inferences to be drawn from the underlying facts advanced by the movant must be viewed in the light most favorable to the nonmovant, United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). Defendants, however, have not accompanied their motion with any affidavits or other materials which may be considered in adjudging a summary judgment motion. *fn1" Therefore, for purposes of ruling on the motion, we will treat all of plaintiff's well-pleaded allegations as true. See Sheridan v. Garrison, 415 F.2d 699, 709 (5th Cir. 1969), cert. den., 396 U.S. 1040, 90 S. Ct. 685, 24 L. Ed. 2d 685 (1970); 6 Moore's Federal Practice P 56.11(2), at 56-210 (1981). *fn2" After reciting the facts upon which we base our decision, we will outline the issues raised by defendants' motion. We will then explain our conclusion that defendants' motion must be granted insofar as it relates to plaintiff's Elrod/Branti claim and denied insofar as it relates to plaintiff's due process claim.

 Plaintiff, who is of Southern Asian extraction, was employed by Bristol Township, Bucks County, Pennsylvania, as Superintendent of Roads and Public Property from March 19, 1976, until January, 1977, and thereafter as Director of Roads and Public Property until July 25, 1979, when his employment was terminated. Although he was vested with some discretion in the execution of his duties, such as determining which potholes should be filled, plaintiff's position did not empower him to make policy decisions. Rather, he was required to execute directives and implement Township policies as determined by the Bristol Township Board of Commissioners. During his tenure, plaintiff performed his responsibilities with efficiency and diligence. *fn3"

 On July 25, 1979, plaintiff's position as Director of Roads and Public Property was eliminated by the Board and his duties were assumed by a department assistant at an increased salary. *fn4" Plaintiff alleges that his position was terminated because he refused to cooperate with Commissioners Pekarski and Gesualdi and their political faction and accommodate their wishes by denying services to those wards in Bristol Township represented by Commissioners with whom they were not allied. *fn5" Defendants, in their answer to the complaint, admitted that plaintiff was dismissed, but deny plaintiff's averment as to the cause for his dismissal. Plaintiff's duties as Director continue to be executed by his assistant, who serves as "Acting Superintendent" of the department.

 Shortly thereafter, plaintiff filed this suit in which he asserts a number of claims and seeks damages and reinstatement. First, as we have previously suggested, plaintiff contends that the termination of his employment violated his First Amendment freedom of association by punishing him for his refusal to join the political faction of Commissioners Pekarski and Gesualdi. Second, he asserts that his dismissal was in violation of the procedures of Bristol Township and the Commonwealth of Pennsylvania, thereby constituting a violation of his procedural due process rights. Third, he claims that defendants acted in concert to deprive him of his constitutional rights in violation of 42 U.S.C. §§ 1985 and 1986. Fourth, he claims that defendants intentionally inflicted emotional distress upon him.

 In their summary judgment motion defendants argue that plaintiff was not "dismissed," but rather that his position was "eliminated" by the Board of Commissioners; that these facts do not present a cognizable Elrod/Branti claim; that plaintiff possessed no property interest in his employment sufficient to invoke the due process clause (or that there was no "adjudication" to which due process hearing requirements could attach); and that plaintiff's §§ 1985 and 1986 claims are factually and legally untenable. We have held an extensive hearing and received several briefs in connection with the motion. We need not engage in any extensive discussion of the §§ 1985 and 1986 claims as plaintiff has simply adduced no evidence of the presence of any of the elements of § 1985(2) or (3), the only conceivable sections of the statute on which plaintiff's claim could rest, and summary judgment for defendants will be granted thereon. *fn6" We must however consider Elrod/Branti and the due process claims in some detail and we will do so in that order. As a predicate to that discussion, we will assume that there is a genuine issue of fact on the question whether plaintiff lost his position as the result of a neutral budgetary decision or as the result of retaliation for his refusal to accede to the wishes of the dominant faction on the Board. *fn7"


 Few Supreme Court decisions in recent years have generated as much litigation and controversy as have Elrod and Branti. *fn8" Moreover, because of the lack of a majority opinion in Elrod, a problem not cured by Branti, the sweep of Elrod and Branti has been subject to a good deal of critical analysis seeking to assess their reach. *fn9" We need not, however, continue the dialogue. For the purpose of analyzing plaintiff's claim we may with confidence posit that Elrod and Branti at least stand for the principle that the denial of a public benefit, such as public employment, "may not be used by the government for the purpose of creating an incentive enabling it to achieve what it may not command directly," Elrod, 427 U.S. at 361, 96 S. Ct. at 2683, *fn10" and that the Elrod/Branti doctrine does not proscribe all patronage firings but only those that threaten to penalize a public employee's exercise of his First Amendment rights. If the government could have commanded a particular result directly, then making that result a condition of receipt of a public benefit will not violate the Constitution. *fn11"

 The Elrod/Branti doctrine is further limited to firings "solely" for political purposes. *fn12" Thus, Justice Brennan, writing for the plurality in Elrod, emphasized that "employees may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist." 427 U.S. at 367, 96 S. Ct. at 2686. *fn13" Against this background we shall now proceed to evaluate plaintiff's claim.

 Plaintiff's case differs significantly from Elrod and Branti in that he does not claim to have been discharged from employment because he was not affiliated with the political party in power. Certainly protection from unconstitutional conditions to the receipt of government benefits is not reserved for political party members. But the absence of any allegation that plaintiff has been penalized because of his party affiliation or nonaffiliation makes identification of the afflicted First Amendment interest more difficult and remote.

 Plaintiff contends that the termination of his employment by the Board of Commissioners amounted to a political firing prohibited by the Elrod/Branti doctrine because it was motivated by his refusal to execute the partisan instructions of individual Commissioners to deprive wards represented by unallied Commissioners of public services. Plaintiff maintains that in refusing to execute these politically motivated directives he was refusing to ally himself with the majority faction on the Board and maintains that the Board's actions ...

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