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MACK v. MUNICIPALITY OF PENN HILLS

September 30, 1982

ROBERT MACK, Plaintiff,
v.
MUNICIPALITY OF PENN HILLS, a township of the First Class, PHYLLIS KERNICK, Mayor of the Municipality of Penn Hills, HARRY R. McINDOE, Acting Mgr. of the Municipality of Penn Hills, THE PERSONNEL BOARD OF THE MUNICIPALITY OF PENN HILLS, RAYMOND COLLINS, JOHN KORINEK, WILLIAM McLAFFERTY, ROBERT FRANK, JAMES GRAY, EARL COPELAND, and HOWARD BURTON, individuals, and Police Officers in the Municipality of Penn Hills, Defendants



The opinion of the court was delivered by: MANSMANN

 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 *fn1" 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.

 * * *

 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. *fn2" 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, *fn3" 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 ...


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