(1974), plaintiff urges that the defendants' decision to fire him was an "adjudication". Plaintiff, therefore, reasons that the full panoply of rights associated with 2 Pa. Con. Stat. Ann. §§ 501-508, are triggered. The failure to accord plaintiff these rights assertedly amount to a due process violation.
The lynchpin of this contention is that the decision to fire plaintiff amounted to an "adjudication". Without an "adjudication", no due process rights attach. 2 Pa. Con. Stat. Ann. § 553.
The statute defines "adjudication" as a "final order . . . affecting personal or property rights. . . or obligations . . .". 2 Pa. Con. Stat. Ann. § 101. (emphasis added). Interpreting this statutory definition, the Pennsylvania courts have generally held that no "adjudication" occurs when an "at will" public employee, such as plaintiff, is fired. McCorkle v. Bellefonte Area Board of School Directors, 41 Pa. Commw. 581, 401 A. 2d 371, 374 (1979); Fair v. Delaney, 35 Pa. Commw. 103, 385 A. 2d 601, 603 (1978); Amesbury v. Luzerne County Institution District, 366 A. 2d at 633. Therefore, the Pennsylvania Local Agency Law does not aid plaintiff.
Defendants were entitled to fire plaintiff at will, they were not, however, entitled to damage his good name, reputation or future earning capacity. Board of Regents v. Roth, 408 U.S. at 573; Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971); McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-39 (3d Cir. 1978); Bartholomew v. Fischl, 534 F. Supp. 161, 164 (E.D. Pa. 1981). Cf., Goss v. Lopez, 419 U.S. 565, 575, 42 L. Ed. 2d 725, 95 S. Ct. 729, (1975) (Constitutionally protected "liberty" contemplates opportunities for future employment).
Defendants publicly stated that plaintiff was fired due to his inability to get along with his co-employees. See, Plaintiff's Opposition To Defendant's Motion For Summary Judgment (Document 39), Exhibits A, C and E. Plaintiff believes that the communication of this information is sufficiently stigmatizing to defeat the motion for summary judgment. We disagree.
Barr v. Matteo, 360 U.S. 564, 574-75, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), held that officials possess limited immunity for disparaging remarks made while acting in their official capacity. Doe v. McMillan, 412 U.S. 306, 36 L. Ed. 2d 912, 93 S. Ct. 2018 (1973), reviewed the Barr doctrine in the context of Board of Regents v. Roth, supra, and held that immunity for conduct akin to that at bar exists only when local legislatures act within the sphere of "legislative activity". Doe v. McMillan, 412 U.S. at 324, citing, Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951).
This immunity applies to legislative actions undertaken by legislative bodies. For example, the decision to abolish a particular municipal post is one deserving of absolute, legislative immunity. Aitchison v. Raffiani, 708 F.2d 96, 98-99 (3d Cir. 1983). On the other hand, the decision to hire or fire a municipal employee, even when made by a "legislative body", is administrative in nature and deserves only qualified immunity. Detz v. Hoover, 539 F. Supp. 532, 534 (E.D. Pa. 1982).
Hence, Barr, as interpreted by Doe v. McMillan, supra, offers no absolute shield to defendants; only those statements made purely within the legislative sphere are protected and immunized. Doe v. McMillan, 412 U.S. at 324. Here, plaintiff was fired and defendants' conduct was administrative in nature. Detz v. Hoover, 539 F. Supp. at 534. Accordingly, Barr immunity, as interpreted by Doe v. McMillan, supra, is inapplicable since defendants' remarks were not made within the sphere of legislative activity.
Defendants, however, need no cloak of immunity to prevail upon their motion for summary judgment. When plaintiff was deposed, he was unable to recall any instance when any prospective employer said anything regarding the charges which had been made against him. Likewise, no prospective employer ever told plaintiff that he was ineligible for employment as a result of the facts surrounding his departure from Lansdale's employment. In short, plaintiff has been unable to point to any record evidence to support his claim that defendants' conduct impaired the "liberty" interest which he has in his good name, reputation and earning capacity.
Specifically, plaintiff has been unable to adduce any evidence tending to prove that he has been
so stigmatized by [defendants'] accusations against him as to have been precluded from other employment opportunities . . . . Such evidence could relate, for instance, to the employee's applications for employment; the results of any applications; the reasons given, if any, for his lack of success in securing other employment; and the practices among other employers toward hiring
applicants who have been discharged due to a reported inability to harmoniously work with others. McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d at 1238. We shall accordingly grant defendants' motion for summary judgment on the "liberty" issue.
Finally, plaintiff's pendent claims shall be dismissed without prejudice to their being transferred, upon motion, to the appropriate state court. Weaver v. Marine Bank, 683 F.2d 744 (3d Cir. 1982).
An appropriate order shall issue.
AND NOW, this 9th day of August, 1983, IT IS ORDERED that the defendants' motions for summary judgment are GRANTED and that judgment shall be entered on behalf of defendants and against plaintiff on all federal claims.
IT IS FURTHER ORDERED that plaintiff's pendent claims are DISMISSED without prejudice.
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