MANSMANN, District Judge
This matter comes before the Court on a Motion to Dismiss brought by the Defendants, alleging lack of subject matter jurisdiction of this Court under Fed. R. Civ. P. 12(b) (1) and failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b) (6).
Police Officer Robert Mack originally filed this action
against the Municipality of Penn Hills under 42 U.S.C. § 1983, alleging that a violation of his constitutional right to due process of law occurred when he was reduced in rank without a hearing. Plaintiff has moved to amend his Complaint to predicate jurisdiction on 28 U.S.C. § 1343. This Motion is granted and Defendants' challenges to subject matter jurisdiction are, therefore, dismissed.
However, since this Court finds that the Plaintiff has failed to state a claim upon which relief can be granted, the Motions of Defendants in this regard are granted and the Amended Complaint is hereby dismissed.
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FACTS OF THE CASE
In June of 1979, Plaintiff, a Penn Hills police officer, was promoted to the rank of lieutenant from the current Eligibility List. Other police officers immediately challenged the testing procedures upon which the Eligibility List was based. A hearing was held on August 4, 1979, before the Penn Hills Personnel Board, which subsequently upheld the promotion of Officer Mack and others.
The objecting officers then filed an appeal in the Court of Common Pleas of Allegheny County, Pennsylvania.
A hearing was held before the Honorable Leonard A. Staisey at which counsel for the appellants submitted the record of the August 4th Personnel Board hearing, the Rules and Regulations which govern the Personnel Board, and Resolution No. 59 of 1977 which authorizes the Personnel Board to serve as a Civil Service Commission for the Municipality of Penn Hills.
By Opinion and Order dated June 11, 1980, Judge Staisey reversed the decision of the Personnel Board, ordering the Board to administer new testing procedures and to constitute a new eligibility list for the promotion of police officers. As a result of this Order, the Personnel Board was required to nullify Officer Mack's promotion and he was returned to the rank of Police Specialist on May 9, 1982.
Plaintiff and other recently "reduced-in-rank" officers then filed a Petition for Rule to Show Cause, challenging Judge Staisey's Order of June 11, 1980. They additionally requested permission to intervene in the lawsuit, alleging lack of notice and knowledge of the statutory appeal.
An evidentiary hearing was held on July 2, 1980 before Judge Staisey, who denied all relief by Opinion and Order dated October 8, 1980. As well, Judge Staisey affirmed his Order of June 11, 1980, wherein Plaintiff's promotion was rendered void.
Officer Mack then appealed to the Commonwealth Court of Pennsylvania,
alleging error in the denial of his request to intervene. Plaintiff also challenged, for the first time, the question of jurisdiction of the Court of Common Pleas of Allegheny County, Pennsylvania, to hear the matter, alleging that he was an indispensable party to the action below.
In the Opinion by the Honorable David W. Craig, dated December 10, 1981, the Commonwealth Court found that (1) appellants had actual notice of the proceedings with ample opportunity to intervene at an earlier time and (2) the appellants were not indispensable parties.
Plaintiff then filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania, docketed at No. 4 W.D.A.D. 82, which was denied by Order of Court dated March 31, 1982.
Plaintiff then filed the above-captioned matter in the Western District of Pennsylvania, alleging a violation of his constitutional rights under 42 U.S.C.A. § 1983 and requesting this Court to issue a Temporary Restraining Order. After extensive oral argument, this Court denied the request by Order dated May 6, 1982. Defendants then filed the instant Motions to Dismiss.
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CLAIM UNDER § 1983
Plaintiff claims a deprivation of his constitutional rights under 42 U.S.C.A. § 1983,
namely, due process of law because (1) he was not notified of hearings affecting his rights after he had been "promoted" to lieutenant and (2) he was not given a hearing prior to his reduction in rank pursuant to the First Class Township Code, the Act of June 24, 1931, P.L. 1206 Art. VI, Section 644, added 1949, May 27, P. L. 1955, Section 20, 53 P.S. Section 55644, et seq.5
A review of the extensive proceedings in the state courts of Pennsylvania demonstrates that all issues presently before this Court have been fully and fairly examined by the Courts of the Commonwealth of Pennsylvania which found, both as a matter of fact and as a matter of law, that Plaintiff was not entitled to notice, to intervene, or to a hearing before a reduction in rank occurred.
Judge Staisey expressly found that Plaintiff had notice of the May 19, 1980 hearing and in his Opinion dated October 8, 1980 states:
The record of the July 2, 1980, evidentiary hearing unequivocally demonstrates that Petitioners in fact had actual notice of the May 19, 1980 hearing. The record amply demonstrates that Officers Alexander, Mack and DeRiggi not only had actual notice of the proceeding, but that in fact the aforesaid Petitioners personally appeared and were physically present in the courtroom at the day and time the matter was heard. Moreover, the testimony of Officer Mack positively indicates that he had personal knowledge of the pending appeal as early as May 16, 1980, at which time he informed Officers Alexander, DeRiggi and Myers of the fact. (Emphasis in original.)
Slip op. at 4.
As well, Judge Staisey found that "Having conducted a painstaking review of the entire record before us, we find the Petitioner's purported ignorance of the nature of the proceedings wholly unworthy of belief." (Slip Op. at 5.)
To demonstrate even more fully that Plaintiff had notice of the hearing, Judge Staisey's Opinion cites further evidence of this fact:
Moreover, the record further indicates that Officer Mack, prior to commencement of the May 19, 1980, hearing, requested of this Court's administrative personnel the opportunity to view and read the actual Petition before the Court for disposition. Although Officer Mack candidly admits reading the Petition not once, but twice prior to the hearing, he nevertheless pleads ignorance of the nature of the proceedings.