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BERNARDI v. CITY OF SCRANTON

May 21, 1984

PAUL BERNARDI, Plaintiff,
v.
CITY OF SCRANTON, et al., Defendants



The opinion of the court was delivered by: NEALON

The plaintiff commenced the above-captioned § 1983 action on February 15, 1983, claiming that the defendants violated his first amendment and due process rights in discharging him from his position as a Foreman in the Department of Public Works [hereinafter "DPW"] of the City of Scranton. *fn1" Presently before the court are six motions, all of which are ripe for disposition. The court finds it unnecessary to discuss all of the points argued by counsel in connection with each motion. It is sufficient to say that, after carefully considering the parties' arguments, the court has decided to deny the defendants' motion for a non-jury trial because the plaintiff has raised viable legal claims for pecuniary and punitive damages. The plaintiff's motion to disqualify defense counsel will be denied because the movant has raised, at best, only a remote possibility of a conflict of interest. *fn2" Finally, the court will deny, on the ground that there is a genuine issue of material fact, the defendants' motion for summary judgment on the plaintiff's first amendment claim. *fn3" For the reasons set forth in the body of this Memorandum, however, the court will grant in major part the defendants' motion for summary judgment on the plaintiff's due process and related pendent claims and consequently will deny the plaintiff's motion for partial summary judgment on the same claims. The court will hold in abeyance the remainder of the cross motions for summary judgment pending an expansion of the record as discussed herein. Finally, for the reasons appearing below, the court will not reach the motion to dismiss filed by defendant Bevilacqua and the motion for summary judgment filed by defendant O'Hara.

 FACTUAL BACKGROUND

 According to the plaintiff, *fn4" in early 1978 he was asked by his father-in-law, a member of the Civil Service Commission, *fn5" if he would be interested in working for the City of Scranton. See Transcript of Deposition of Paul R. Bernardi at 4, Document 44 of the Record [hereinafter "Bernardi Deposition"]; Affidavit of Plaintiff Submitted in Support of Memorandum in Opposition to Defendants' Motion for Summary Judgment para. 2, Document 60 of the Record [hereinafter "First Bernardi Affidavit"]. The plaintiff indicated that he would like such a job, and his father-in-law agreed to see if he could aid the plaintiff in securing employment with the city. Bernardi's Deposition at 4-5. The plaintiff was referred to Gaynor Cawley, who was to become the Director of DPW when the new mayoral administration assumed office. See Affidavit of Paul Bernardi Submitted in Support of Memorandum of Law in Support of Motion for Partial Summary Judgment para. 2, Document 72 of the Record [hereinafter "Second Bernardi Affidavit"].

 On January 19, 1978, the plaintiff filled out an application for employment with the city and indicated that he desired the position of "supervisor." See Exhibit 1 appended to Bernardi Deposition. Subsequently, the plaintiff was asked to meet with Cawley to discuss the possibility of working for DPW. See Bernardi Deposition at 5. In affidavits submitted to the court, the plaintiff has stated:

 
Mr. Cawley gave me a verbal examination to test my fitness and ability for the position of Foreman in the Bureau of Highways, Department of Public Works. In doing so, he examined my construction background and knowledge, and ascertained that I was physically fit to perform the duties associated with that position.

 First Bernardi Affidavit para. 2; Second Bernardi Affidavit para. 3. On February 10, 1978, Cawley wrote to the city's business administrator advising him that the plaintiff would be appointed to the position of foreman in the Bureau of Highways on February 13, 1978. Exhibit 2, appended to Second Bernardi Affidavit. On February 15, 1978, an unsigned memorandum was sent to the Civil Service Commission from the city's Department of Administration. The memorandum stated:

 
Please be advised that Mr. Paul Bernardi, 1134 W. Gibson St., Scranton, Pa. 18504, Social Security #195-30-6674 has been appointed Foreman in the Bureau of Highways, Dept. of Public Works at a salary of $12,700.00 effective February 13, 1978.

 Exhibit 2, appended to First Bernardi Affidavit (emphasis in original).

 The plaintiff claims that, "in early 1981, [he] was made aware of the fact that [his] position was covered by the Civil Service Rules and Classifications for Scranton." First Bernardi Affidavit para. 4. On June 8, 1981, the plaintiff wrote to the new Director of DPW, Richard Novembrino, asking, "would you, as Director of Public Works, please send a letter to the Civil Service Commission of Scranton, verifying that I am entitled to . . . Civil Service Status?" Exhibit 2, appended to First Bernardi Affidavit. Novembrino, in turn, wrote to the Civil Service Commission asking the Commission to "please investigate this matter and advise me of the status of this request." Exhibit 1, amended to Second Bernardi Affidavit. Presumably as a result of Novembrino's inquiry, the plaintiff received a letter from the Commission which stated, "this is to legally certify your position this day March 19, 1981 as Foreman in the Bureau of Highways in the Department of Public Works." Exhibit 3, appended to First Bernardi Affidavit. *fn6" Subsequently, the Commission sent a second letter, stating, "this is to legally certify your position as of this day June 22, 1978 as a Permanent Employee in the Bureau of Highways in the Department of Public Works." Exhibit 4, appended to First Bernardi Affidavit.

 On March 24, 1982, the plaintiff was given a letter of termination which stated that his services were no longer required as of the end of that day. On August 16, 1982, the plaintiff's former attorney sent a letter to the Civil Service Commission in which it was asserted that the plaintiff's dismissal violated various provisions of the Commission's rules. The attorney asked the Commission to investigate, stating:

 
By way of this letter, my client is requesting the Civil Service Commission to make a complete investigation of the above-mentioned violations amounting to a total disregard of the Rules and Classifications of the Civil Service Commission by the present administration of the City of Scranton; and further, to order his reinstatement to the position of Foreman in the Bureau of Highways, along with his back wages from March 24, 1982.

 Exhibit 8, appended to First Bernardi Affidavit. The plaintiff has never received a response. First Bernardi Affidavit para. 12.

 DISCUSSION

 The plaintiff claims that the failure of the defendants to provide a hearing in connection with his dismissal constitutes a violation of his right to due process of law. To support the proposition that he was entitled to protection under the due process clause, the plaintiff asserts that he possessed a legitimate expectation of continued employment by the City of Scranton. Specifically, the plaintiff claims, various civil service statutes and city ordinances provide that Scranton's civil service employees cannot be discharged without just cause. In addition, the plaintiff alleges that the defendants refused to provide him with a hearing and the other procedural protections ...


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